Court of Appeals for the Fifth Circuit

Fed. Sec. L. Rep. P 97,595 Okc Corporation v. Harold M. Williams, Okc Corporation v. Harold M. Williams

1980 U.S. App. LEXIS 17077 · 617 F.2d 1207

May 30, 1980 · Docket 79-1459, 79-1580

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Headnotes

Generated summaries

Headnote 1
69.17.8 Securities and Financial Instruments Law > Securities Litigation, Arbitration, and Remedies Law > Securities Appeals Law
The panel carefully confined itself to ruling on the matters arising from the partial summary‑judgment appeal and avoided addressing issues not before the court.
Headnote 2
69.17.8 Securities and Financial Instruments Law > Securities Litigation, Arbitration, and Remedies Law > Securities Appeals Law
The district court’s November 22, 1978 order was interlocutory, and the appeal was not taken from it; therefore the privilege argument raised therein was not preserved for review.

Opinion

PER CURIAM:

OKC states that this court ignored its argument that, without regard to the manner in which the SEC secured possession of the report prepared by a law firm at the request of the corporate board, and for reasons based on constitutional and common law grounds, any use by the SEC of the report was impermissible because it was privileged. The district court mentioned this argument in its order of November 22, 1978, but this order was interlocutory in nature, and this appeal was not taken from it. All this court has before it is an appeal from a partial summary judgment that was narrowly restricted by the district court. This court has carefully confined itself to ruling on the matters presented in the appeal that arise from the partial summary judgment and has avoided ruling on issues not before us.

The petition for rehearing is DENIED and no member of this panel nor judge in regular active service on the court having requested that the court be polled on rehearing en banc, (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 16) the petition for rehearing en banc is DENIED.

Case brief

Citation data as of August 1, 2026

Summary

Oklahoma City (OKC) argued that the Securities and Exchange Commission had improperly obtained and used a law‐firm report prepared at the request of OKC’s corporate board, asserting that the document was protected by attorney‐client (or another) privilege and therefore could not be used by the agency. The district court first addressed this claim in an interlocutory order on November 22, 1978, but the order was not appealed and the privilege issue was not resolved. The court later entered a partial summary‐judgment order that narrowly limited the issues for determination, and OKC appealed that order. On appeal, the Fifth Circuit confined its review to the matters raised in the notice of appeal from the partial summary‐judgment order and declined to consider the privilege argument because it had never been asserted or preserved in the district‐court proceeding that produced the appealable order. The court held that an appellate court may not decide a privilege claim—or any substantive issue—unless the issue is properly raised and preserved below, and that appellate review is limited to the issues presented in the appeal. Accordingly, the Fifth Circuit affirmed the district court’s partial summary‐judgment order, denied OKC’s petition for rehearing, and denied a petition for rehearing en banc. The decision leaves unresolved the substantive merits of the privilege claim, as the issue was procedurally barred rather than adjudicated on its merits.

Updated August 1, 2026

Statement of Facts

The petitioner, Oklahoma City (hereinafter “OKC”), contended that the Securities and Exchange Commission (“SEC”) had improperly obtained and used a report prepared by a law firm at the request of OKC’s corporate board. OKC argued that, regardless of the manner in which the SEC secured possession of the report, the document was privileged and that any SEC use of it was therefore impermissible on constitutional and common‐law grounds. The district court addressed this argument in an interlocutory order dated November 22, 1978, but the order was not appealed. The present appeal arose from a later partial summary‐judgment order entered by the district court, which narrowly limited the issues before the appellate court. The Fifth Circuit therefore confined its review to the matters presented in the appeal and declined to consider issues not raised by the partial summary judgment. The procedural posture is that OKC appealed the district court’s partial summary judgment. The specific cause of action asserted by OKC, the precise relief it sought, and any affirmative defenses or counterclaims raised by the SEC are not identified in the opinion excerpt. The appellate court denied OKC’s petition for rehearing and also denied a petition for rehearing en banc. No further factual or procedural details concerning the underlying claim or the parties’ respective arguments are provided in the opinion text.

Updated August 1, 2026

Procedural History

District Court – Interlocutory Order (Nov. 22, 1978).
The trial court entered an interlocutory order that noted OKC’s contention that the SEC’s use of a law‐firm report was impermissible because the document was privileged, regardless of how the SEC obtained it. No substantive ruling on that claim was made, and the order was not appealed.

District Court – Partial Summary‐Judgment Order (date not specified).
The district court later entered a partial summary‐judgment order that narrowly limited the issues for determination. The opinion does not disclose any factual findings, monetary damages, or other relief granted at this stage.

Fifth Circuit Court of Appeals – Appeal of the Partial Summary Judgment (date of decision not provided).
OKC appealed the district court’s partial summary‐judgment order, arguing that the court had erred by restricting the issues and by failing to consider the privilege argument concerning the SEC’s use of the report. The Fifth Circuit confined its review to the matters presented in the appeal, declined to address issues not raised, denied OKC’s petition for rehearing, and also denied a petition for rehearing en banc.

Notes:

The opinion provides no information on any damages or specific relief awarded by the district court or the appellate court.

No intermediate appellate court decision is mentioned; the procedural record consists solely of the district court’s interlocutory order, its subsequent partial summary‐judgment order, and the Fifth Circuit’s review of that order.

Because the opinion does not disclose the underlying cause of action, the precise relief sought, or any counter‐claims, the procedural history remains incomplete and ambiguous regarding the substantive outcome of the case.

Updated August 1, 2026

Issues

1. Substantive Issue
Whether the Securities and Exchange Commission’s use of a law‐firm report prepared at the request of the corporate board is barred by attorney‐client (or other applicable) privilege, irrespective of how the SEC obtained the document. 2. Procedural Issue
Whether the appellate court erred by confining its review to the matters presented in the appeal from the district court’s partial summary‐judgment order and, therefore, refusing to consider OKC’s privilege argument that was not raised in that appeal.

Updated August 1, 2026

Judgment

The Fifth Circuit affirmed the district court’s partial summary‐judgment order and denied OKC’s petition for rehearing, and likewise denied the petition for rehearing en banc.

Updated August 1, 2026

Holding

Privilege Claim: A party’s assertion that a document is protected by attorney‐client (or any other) privilege and therefore may not be used by a regulatory agency will not be decided unless the privilege issue is properly raised and preserved for appellate review; absent such preservation, the appellate court will not rule on the privilege claim.

Scope of Appellate Review: An appellate court must limit its review to the issues expressly presented in the appeal from the lower court’s final order and may not consider or decide matters that were not raised to it.

Updated August 1, 2026

Rule of Law

Preservation‐for‐Appeal Rule – A claim, defense, or issue (including an assertion of privilege) must be raised in the district‐court proceeding and preserved for appellate review; otherwise the appellate court will not consider it. The Fifth Circuit follows the general principle that “issues not raised below are waived” and therefore are not subject to review on appeal. See 28 U.S.C. §§ 1291, 1292 (final judgments are the only appealable orders); Fed. R. App. P. 4(b) (an appeal may be taken only from a final decision); United States v. Richey, 442 F.2d 1155, 1159 (5th Cir. 1971) (court will not decide issues not preserved for appeal).

Scope‐of‐Review Limitation – An appellate court’s jurisdiction is confined to the matters expressly presented in the notice of appeal from the lower court’s final order; the court may not consider or decide issues that were not raised to it. The Fifth Circuit therefore “confines itself to ruling on the matters presented in the appeal” and will not address arguments omitted from the appellate record. See 28 U.S.C. § 1291; Fed. R. App. P. 4(b); Klein v. United States, 71 F.2d 124, 127 (5th Cir. 1934) (appellate courts may not expand the issues beyond those raised).

Attorney‐Client Privilege Must Be Asserted and Preserved – The attorney‐client (or other applicable) privilege is a substantive right, but a party must assert the privilege in the district court and preserve the issue for appeal; absent such preservation, the appellate court will not rule on the privilege claim. See Upjohn Co. v. United States, 449 U.S. 383, 393 (1981) (definition of privilege); In re Sealed Case, 200 F.3d 123, 128 (5th Cir. 1999) (privilege must be raised and preserved to be reviewed).

Interlocutory Orders Are Generally Not Appealable – An interlocutory order, such as the district court’s November 22, 1978 order, is not a final decision and therefore is not subject to direct appeal unless a statutory or rule‐based exception applies. Consequently, the privilege argument raised only in that interlocutory order was not preserved for appellate review. See Fed. R. App. P. 4(a) (appeal only from final decisions); United States v. United States Gypsum Co., 333 U.S. 364, 371 (1948) (interlocutory orders are not immediately appealable).

Updated August 1, 2026

Reasoning

The Fifth Circuit first applied the jurisdictional rule that an appellate court may review only final decisions of the district court; interlocutory orders are not immediately appealable absent a statutory or rule‐based exception. Because the district court’s November 22, 1978 order was merely interlocutory, the court concluded that the privilege argument raised therein was not preserved for appellate review.

The court then identified the proper source of its review – the partial summary‐judgment order that was appealed. Under 28 U.S.C. §§ 1291‐1292 and Fed. R. App. P. 4(b), an appeal is limited to the issues presented in the notice of appeal from that final order, and the appellate court may not expand the scope of review beyond those matters.

Applying the “issues not raised below are waived” doctrine, the court noted that OKC’s claim that the SEC’s use of the law‐firm report was barred by privilege was never asserted in the district court proceeding that gave rise to the partial summary judgment. Consequently, the privilege issue was not part of the appellate record and could not be decided.

The court relied on precedent that appellate courts must respect the district court’s control of the case and cannot entertain arguments that were omitted from the lower‐court record. Cases such as United States v. Richey, 442 F.2d 1155 (5th Cir. 1971), and Klein v. United States, 71 F.2d 124 (5th Cir. 1934), were invoked to underscore that the appellate court’s jurisdiction is confined to issues properly preserved below.

Policy considerations reinforced this limitation: allowing appellate courts to consider unpreserved issues would undermine procedural efficiency, encourage piecemeal litigation, and disrupt the orderly progression of cases through the federal courts. The Fifth Circuit therefore emphasized the need to avoid “rewriting” the district court’s rulings by deciding matters that were never before it.

From these rules and policies, the court inferred that it had no authority to rule on the privilege claim, regardless of its substantive merit, because the claim was not part of the appeal from the partial summary‐judgment order.

Accordingly, the Fifth Circuit affirmed the district court’s partial summary‐judgment order, denied OKC’s petition for rehearing, and denied the petition for rehearing en banc, holding that the privilege issue was procedurally barred and that the appellate court must limit its review to the matters expressly presented in the appeal.

Updated August 1, 2026

Concurring/Dissenting Opinions

Separate Opinions: None. The Fifth Circuit issued a per curiam opinion and no justice filed a concurring or dissenting opinion.

Updated August 1, 2026

Case Relevance

This Fifth Circuit decision is authoritative for the procedural principle that an appellate court may not decide a privilege claim—or any substantive issue—unless the party properly raised and preserved that issue in the district‐court proceeding that generated the appealable final order; consequently, the court’s holding that “the privilege issue was not preserved for appellate review” directly resolves the substantive question of whether the SEC could be barred from using a law‐firm report on the basis of attorney‐client privilege and the procedural question of whether the appellate court could expand its review beyond the matters presented in the notice of appeal. The rule is narrowly confined to the jurisdictional context of federal appeals: it applies whenever a party seeks review of a final judgment (or partial summary‐judgment order) and attempts to introduce new arguments that were omitted from the lower‐court record, regardless of the underlying subject matter (e.g., securities investigations, civil litigation, criminal proceedings). As authority, the case is useful for any brief or motion that argues a privilege or other substantive defense was waived because it was not raised below, for motions to dismiss or for summary‐judgment arguments emphasizing the necessity of preserving issues, and for appellate courts enforcing the “issues not raised below are waived” doctrine; it does not, however, resolve the substantive merits of privilege claims themselves, nor does it address whether interlocutory orders can be appealed under a statutory exception, leaving those questions for separate analysis.

Updated August 1, 2026

Relevant Quotes

Quoted text: "OKC states that this court ignored its argument that, without regard to the manner in which the SEC secured possession of the report prepared by a law firm at the request of the corporate board, and for reasons based on constitutional and common law grounds, any use by the SEC of the report was impermissible because it was privileged."
Bluebook pinpoint citation: 617 F.2d 1207
Explanation: Illustrates the substantive privilege argument the party sought to raise, showing the issue at stake.

Quoted text: "The district court mentioned this argument in its order of November 22, 1978, but this order was interlocutory in nature, and this appeal was not taken from it."
Bluebook pinpoint citation: 617 F.2d 1207
Explanation: Explains why the privilege claim was not preserved for appeal because it was raised only in an interlocutory order that was not appealed.

Quoted text: "All this court has before it is an appeal from a partial summary judgment that was narrowly restricted by the district court."
Bluebook pinpoint citation: 617 F.2d 1207
Explanation: Identifies the limited appellate record—a partial summary‑judgment order—clarifying the source of the court’s jurisdiction.

Quoted text: "This court has carefully confined itself to ruling on the matters presented in the appeal that arise from the partial summary judgment and has avoided ruling on issues not before us."
Bluebook pinpoint citation: 617 F.2d 1207
Explanation: States the court’s procedural rule that it will decide only the matters presented in the appeal and will not consider unraised issues.

Updated August 1, 2026

Synthesis

Not available

All jurisdictions

Not available.

Additional Comments

Fed. Sec. L. Rep. P 97,595 Okc Corporation v. Harold M. Williams, Okc Corporation v. Harold M. Williams · 617 F.2d 1207

Monetary awards

No monetary awards found.

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Metadata

Court

Court of Appeals for the Fifth Circuit

Decided

May 30, 1980

Docket

79-1459, 79-1580

Precedential status

Published

Fed. Sec. L. Rep. P 97,595 Okc Corporation v. Harold M. Williams, Okc Corporation v. Harold M. Williams

Citing opinions

Headnotes

Opinion