United States Court of Appeals,

Fifth Circuit.

No. 94-20689.

Lance C. WINCHESTER, Plaintiff-Appellee,

v.

The UNITED STATES ATTORNEY FOR the SOUTHERN DISTRICT OF TEXAS, Defendant-Appellant.

Nov. 14, 1995.

Appeal from the United States District Court for the Southern District of Texas.

Before SMITH, BARKSDALE and BENAVIDES, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

The United States Attorney for the Southern District of Texas

appeals the quashal of an administrative subpoena duces tecum

served upon the plaintiff, Lance C. Winchester. Carried with this

appeal is Winchester's motion to dismiss the appeal for want of

jurisdiction, which we now grant.

I.

The underlying facts of this appeal arise from the failure of

the First Savings Association of East Texas ("First Savings").

Winchester, an attorney, had helped secure two multi-million-dollar

loans from First Savings. The Federal Savings and Loan Insurance

Corporation ("FSLIC") pursued Winchester and others over those

loans, winning a four-million-dollar judgment against Winchester.

On account of FSLIC's neglect, Winchester's debts to FSLIC were

discharged in bankruptcy.

FSLIC's successor, the Resolution Trust Corporation, is now

1 considering a civil money penalty action against Winchester under

12 U.S.C. § 1833a (West 1989 & Supp. 1995).1 As part of its

investigation, the government served an administrative subpoena

duces tecum upon Winchester, seeking production of documents and

testimony concerning the loans. Winchester responded by filing a

petition seeking to set aside the subpoena. An order entered on

March 2, 1994, quashed the subpoena on procedural grounds,

apparently because the government had failed to respond to the

petition in a timely fashion.2

The government responded by filing a rule 60(b) motion on

March 30, requesting that the district court reconsider the quashal

in the interest of justice. See FED.R.CIV.P. 60(b)(6). On April

26, it also filed a notice of appeal with this court.

On May 5, the district court granted the motion to reconsider.

On June 17, the government dismissed its appeal. On July 19, the

district court again quashed the subpoena, this time on the merits.

The government filed a second notice of appeal, and it is this

appeal from the July 19 order that is now before us. Carried along

with this appeal is Winchester's motion to dismiss the appeal for

want of jurisdiction, which we review de novo.

1 This section also explicitly grants the Attorney General subpoena power: "For purposes of conducting a civil investigation in contemplation of a civil proceeding under this section, the Attorney General may— ... (C) by subpoena, summon witnesses and require production of books, papers, correspondence, memoranda, or other records which the Attorney General deems relevant or material." 12 U.S.C. § 1833a(f)(1). 2 The government argues that the district court erroneously treated Winchester's objection to the subpoena as a motion rather than as initiation of an independent action.

2 II.

The government concedes that, under the usual rule, the

district court loses all jurisdiction over matters brought to us

upon the filing of the notice of appeal. See Henry v. Independent

Am. Sav. Ass'n,

, 997-98 & n. 10 (5th Cir. 1988); Brown

v. United Ins. Co. of Am.,

, 1241 n. 1 (5th Cir. 1987).

Therefore, the district court was divested of jurisdiction upon the

filing of the first notice of appeal, and consequently its May 5

order granting the rule 60(b) motion and vacating its March 2

judgment was void. That judgment thus was final and was rendered

non-appealable by the government's dismissal of its first appeal.

Any actions by the district court subsequent to the first notice of

appeal were also void, including its July 19 quashal order, the

predicate for this appeal.

As recently as last year, we had occasion to consider a

situation strikingly similar to the one before us. In Travelers

Ins. Co. v. Liljeberg Enters.,

(5th Cir. 1994)

(Barksdale, J.), we were faced with three appeals from denials of

rule 60(b)(6) motions.

. As it turns out, these rule

60(b)(6) motions had been filed while the appeals from the

underlying judgments were pending.

at 1407 n. 3.

In Travelers, we reaffirmed our general rule that a notice of

appeal divests the district court of jurisdiction "except to take

action in aid of the appeal until the case is remanded to it by the

appellate court, or to correct clerical errors under Rule 60(a)."

(citation to federal practice treatise omitted). We

3 recognized, however, "the power of the district court to consider

on the merits and deny a 60(b) motion filed after a notice of

appeal, because the district court's action is in furtherance of

the appeal."

(emphasis added, internal quotation marks

omitted). We then noted the critical distinction between a

district court's denying such a motion on the one hand, and

granting it on the other: "When the district court is inclined to

grant the 60(b) motion, ... then it is necessary to obtain the

leave of the court of appeals. Without obtaining leave, the

district court is without jurisdiction, and cannot grant the

motion."

(emphasis added, citation and internal quotation

marks omitted). Such leave was neither requested nor granted in

this case, and therefore the district court did not have

jurisdiction to grant the rule 60(b) motion.

The government gamely cites authorities that are, at best,

narrowly applied in civil cases and that certainly do not apply

here. The government first puts forward Oliver v. Home Indem. Co.,

, 331 (5th Cir. 1972) (holding that possible

conservation of judicial energies might justify discretionary

reconsideration by district court after appeal had been perfected).

The government then cites United States v. Dunbar,

(5th Cir. 1980) (en banc), cert. denied,

,

,

(1980), for the so-called "dual jurisdiction"

doctrine, but states that it is not urging us to apply that

doctrine in this case.

Our decision in Oliver is best described as an anomaly, as the

4 government concedes. It is a decision that we have consistently

declined to follow in subsequent cases. See, e.g., Henry, 857 F.2d

at 997-98; Brown,

n. 1. We recently reiterated

our preference that either we or the district court have exclusive

jurisdiction over a given case at any given time: "For obvious

reasons, it makes little sense for two different courts to have the

power to act on the same judgment at the same time, with the

attendant risk that they will reach inconsistent conclusions and

thus result in confusion and in a waste of judicial resources." In

re Butler,

(5th Cir. 1993).

Furthermore, Oliver contravenes our decision in Ferrell v.

Trailmobile, Inc.,

(5th Cir. 1955), and therefore

cannot be binding in this circuit, as one panel of this court

cannot overrule another. See Texas Refrigeration Supply v. FDIC,

(5th Cir. 1992). In Ferrell, we set out a

procedure by which a party in a position similar to (or identical

to) the government's in this case could preserve both direct appeal

and post-judgment motion as avenues for relief. See id. at 698-99.

In such cases, a perfected appeal deprives the district court of

all jurisdiction except for the following: "[T]he district court

retains jurisdiction to consider and deny such [post-judgment]

motions, ... [and] if it indicates that it will grant the motion,

the appellant should then make a motion in the Court of Appeals for

a remand of the case in order that the district court may grant

such motion." Id. at 699 (citation omitted).

Following this procedure will relieve a party from being

5 forced to elect between two available remedies. See id.

Furthermore, our decision in Travelers, unlike that in Oliver, is

completely consistent with the Ferrell procedure and reaffirms its

continuing vitality. See

& n. 3.

Dunbar is inapposite as well, because it was a criminal case

in which unusual concerns were implicated. Dunbar involved an

interlocutory appeal from the denial of a frivolous double jeopardy

motion. See

. The panel opinion, vacated by the

decision to rehear the case en banc, had vacated Dunbar's criminal

conviction on the ground that the double jeopardy motion had

divested the district court of jurisdiction.

. Thus,

Dunbar had successfully evaded his conviction by filing a frivolous

jurisdictional motion. See

. Permitting this type of

maneuvering would have enabled any criminal defendant to obtain a

continuance at any time simply by filing a frivolous double

jeopardy motion and then appealing the denial of that motion.

We decided Dunbar against the backdrop of the then-recent

decision in Abney v. United States,

,

,

(1977), in which the Court held that denials of motions

to dismiss brought on double jeopardy grounds were immediately

appealable under the "collateral orders" doctrine of Cohen v.

Beneficial Indus. Loan Corp.,

,

,

(1949). See Abney,

,

. Faced

with the special concern of safeguarding the constitutional

protections afforded by the Double Jeopardy Clause, we attempted in

Dunbar to fashion an exception to the general

6 divestiture-of-jurisdiction rule that would strike a balance

between Abney concerns on the one hand and the desire to avoid

disruption of the criminal justice system on the other. We thus

held that an appeal from the denial of a double jeopardy claim

would not divest the district court of jurisdiction if that court

expressly found, in writing, that the claim was frivolous.

. As is now readily apparent, the situation in

Dunbar bears little resemblance, if any, to the case before us.

We therefore decline to follow either Oliver or Dunbar,

relying once again on the familiar and usual rule that a perfected

appeal divests the district court of jurisdiction. See Henry, 857

F.2d at 997 (citing Taylor v. Sterrett,

(5th Cir.

Unit A Mar. 1981)) (second citation omitted).

III.

The government also argues that the district court

"effectively" reopened the case when it granted the government's

rule 60(b) motion. Thus, the argument proceeds, the dismissal of

the first notice of appeal prior to entry of final judgment

"effectively" cured any jurisdictional defect. Under this

scenario, the district court's "order" of July 19 constitutes a

final order that may serve as a legitimate predicate for this

appeal. This argument, however, contravenes a fundamental rule of

law concerning jurisdiction: A court either has jurisdiction or it

does not.

The government's first appeal, once perfected, deprived the

district court of jurisdiction, rendering void that court's

7 subsequent actions in this case. The government's dismissal of

that perfected appeal rendered the district court's final order of

March 2 non-appealable. The second appeal—the one before us now—is

without jurisdiction because it is predicated on the July 19 order,

which the district court did not have jurisdiction to issue.

Were we to accept the government's argument, we would be

guilty of creating a new doctrine, one that counsel for the

petitioner appropriately dubbed "virtual jurisdiction" during oral

argument. Such a concept is particularly unwarranted in this case,

as the government could have resorted to the Ferrell procedure to

avoid electing between direct appeal and post-judgment motion as

potential avenues of relief.

Because the government did not avail itself of the Ferrell

procedure, we have no choice but to grant Winchester's motion to

dismiss this appeal for want of jurisdiction. The appeal,

accordingly, is DISMISSED.

8