JURISDICTION
IN THE NINTH CIRCUIT
Updated 2020
Office of Staff Attorneys
United States Court of Appeals
for the Ninth Circuit
This outline is intended
for use as a starting point for research.
It is not intended to express the views or opinions of the Ninth
Circuit, and it may not be cited to or by the courts of this circuit.
ACKNOWLEDGMENTS
Originally
written in March 1999 by Lisa Fitzgerald.
Updated by the Office of Staff Attorneys.
******
Corrections
and comments should be e-mailed to Jennifer Hendershot at
jennifer_hendershot@ca9.uscourts.gov.
******
II. STATUTORY BASES FOR CIVIL APPEALS
A. APPEALS FROM FINAL DECISIONS (28 U.S.C.
§ 1291)
ii. Policy Behind Final Judgment Rule
ii. Adjudication of all Claims
(a) Precise Damages Undetermined
(b) Implicit Rejection of Claim or Motion
(c) Apparent Attempt to Dispose of All Claims
(d) Discrepancy between Order and Judgment
(e) Scope of Underlying Action
(2) Actions to Enforce or Compel
d. “Pragmatic”
or “Practical” Finality Doctrine
b. Requirements
of Collateral Order Doctrine
c. Appealability
of Specific Orders under Collateral Order Doctrine
iii. Disqualification of Counsel
iv. Fed. R. Civ. P. 11 Sanctions
(a) Appealable Collateral Orders
(b) Orders Not Appealable as Collateral Orders
3. ORDERS
CERTIFIED UNDER FED. R. CIV. P. 54(b)
i. District Court Determinations
b. Contents
of Certification Order
ii. Reference to Fed. R. Civ. P. 54(b)
iii. “Specific Findings” Supporting Certification
iii. Scrutiny under Morrison-Knudsen
iv. Trend Toward Greater Deference to District Court
(a) Orders Properly Certified under Fed. R. Civ. P. 54(b)
(b) Orders Not Properly Certified under Fed. R. Civ. P. 54(b)
d. Immediate
Appeal from Fed. R. Civ. P. 54(b) Order Required
e. Denial
of Rule 54(b) Certification
B. APPEALS FROM INTERLOCUTORY DECISIONS (28 U.S.C.
§ 1292)
1. INTERLOCUTORY
INJUNCTIVE ORDERS (28 U.S.C. § 1292(a)(1))
b. Order
Granting or Denying an Injunction
i. Explicit Grant or Denial or Injunction
ii. Implicit Grant or Denial of Injunction
(b) Potential for Serious or Irreparable Harm
(c) Effective Challenge Not Possible after Final Judgment
c. Orders
Modifying, Continuing, or Dissolving Injunction
ii. Order Continuing Injunction
iii. Order Dissolving Injunction
iv. Order Denying Modification or Dissolution of
Injunction
d. Examples
of Orders Appealable under 28 U.S.C. § 1292(a)(1)
i. Order Granting Permanent Injunction
ii. Order Denying Entry of Consent Decree
iii. Order Granting Injunction Despite Lack of Motion for
Interim Relief
iv. Order Requiring Submission of Remedial Plan
v. Certain Orders Affecting Assets
vi. Order Denying Relief in Mandamus Action
vii. Order Staying Extradition
viii. Order Denying Stay of Immigration Removal Order
ix. Order Disapproving Class Settlement
e. Examples
of Orders Not Appealable under 28 U.S.C. § 1292(a)(1)
i. Order Denying Motion to Abstain
ii. Order Denying Motion for Stay
iii. Order Granting England Reservation of
Jurisdiction
iv. Order Denying Motion to Quash
v. Order Granting Conditional Permissive Intervention
vi. Certain Orders Affecting Assets
vii. Order Remanding to Federal Agency
viii. Order Denying Summary Judgment Due to Factual Disputes
ix. Order Denying Entry of Consent Decree Not Appealable
by Party Against Whom Injunction Sought
xi. Order to Clarify Scope of Injunction
xii. Orders Relating to Discovery
f. Temporary
Restraining Order
i. Order Tantamount to Denial of Preliminary Injunction
ii. Orders Effectively Deciding Merits of Case
2. INTERLOCUTORY
RECEIVERSHIP ORDERS (28 U.S.C. § 1292(a)(2))
3. INTERLOCUTORY
ADMIRALTY ORDERS (§ 1292(a)(3))
b. Appealable
Admiralty Orders
c. Nonappealable
Admiralty Orders
4. INTERLOCUTORY
PERMISSIVE APPEALS (28 U.S.C. § 1292(b))
a. Procedure
for Appeal under 28 U.S.C. § 1292(b)
i. District Court Certification under § 1292(b)
ii. Timely Petition from Order Certified under
§ 1292(b)
iii. Appellate Court Permission to Appeal under
§ 1292(b)
iv. Stay Pending Appeal from Certified Order
b. Standards
for Evaluating § 1292(b) Certification Order
i. Order Raises Controlling Question of Law
ii. Difference of Opinion Exists as to Controlling
Question
iii. Immediate Appeal Would Materially Advance Litigation
c. Examples
of Orders Reviewed under 28 U.S.C. § 1292(b)
d. Examples
of Orders Not Reviewed under 28 U.S.C § 1292(b)
5. PENDENT
APPELLATE JURISDICTION
C. APPEALABILITY OF SPECIFIC ORDERS
b. Appointment
of Counsel in Title VII Action
4. ARBITRATION
(9 U.S.C. § 16)
a. Cases
Governed by the Federal Arbitration Act
b. Arbitration
Orders Appealable under 9 U.S.C. § 16
c. Arbitration
Orders Not Appealable under 9 U.S.C. § 16
d. Interlocutory
v. Final Decision
e. Other
Avenues for Appeal from Arbitration Orders
5. ASSETS
(Liens, Attachments, etc.)
a. Interim
Attorney’s Fees Order
b. Post-Judgment
Attorney’s Fees Order
a. Interlocutory
Appeal from Class Certification Order
ii. Decisions Predating Fed. R. Civ. P. 23(f)
b. Review
of Class Certification Order After Final Judgment
i. Final Order Adjudicating Individual Claim
ii. Dismissal Following Settlement of Individual Claim
iii. Dismissal for Failure to Prosecute Individual Claim
iv. Underlying Judgment Reversed on Appeal
c. Appeal
from Orders Allocating Cost of Notifying Class Members
i. Contempt or Sanctions Order Against Party
(a) Appealability of Civil v. Criminal Contempt Orders
(d) Sanctions Order against Party
ii. Contempt or Sanctions Order against Nonparty
(b) Contempt or Sanctions Order against Nonparty Witness
(c) Contempt or Sanctions Order against Nonparty Attorney
(d) Contempt or Sanctions Order against Nonparty
Journalist
iii. Contempt or Sanctions Order against Party and Nonparty
Jointly
iv. Denial of Motion for Contempt or Sanctions
i. Post-Judgment Contempt or Sanctions Order Generally
ii. Post-Judgment Continuing Contempt Order
iii. Order Denying Motion to Vacate Contempt Order
i. Contempt Order as Final Judgment in Enforcement
ii. Contempt Order as Final Judgment in Contempt
Proceeding
a. Motion
for Default Judgment Granted
b. Motion
for Default Judgment Denied
c. Motion
to Set Aside Default Judgment Granted
d. Motion
to Set Aside Default Judgment Denied
12. DISCOVERY
ORDERS AND SUBPOENAS
a. Appeal
by a Person Who is a Party to an Underlying District Court Proceeding
(a) Discovery Order Issued against Party
(b) Discovery Order Issued against Nonparty
(a) Order Protecting Party from Discovery
(b) Order Protecting Nonparty from Discovery
iii. Pretrial Order to Contribute to Discovery Fund
iv. Post-Judgment Discovery Orders
b. Appeal
by Person Not a Party to An Underlying District Court Proceeding
i. General Rule: Target of Order Compelling Discovery
Cannot Appeal Until Contempt Citation Issues
ii. Exceptions Permitting Appeal Absent Contempt Citation
(a) Discovery Order or Subpoena Directed against Third
Party (Perlman Exception)
(1) Examples of Orders Denying Motions to Quash Subpoenas
That Are Appealable
(2) Examples of Orders Denying Motions to Quash Subpoenas
That Are Not Appealable
(b) Order Directed against Head of State
iii. Appeal from Order Denying Motion to Compel
c. Appeal
by Person Who is a Party to a Proceeding Limited to Enforcement or Discovery
i. Discovery Order Issued as Final Judgment in
Enforcement Proceeding
ii. Discovery Order Issued as Final Judgment in Discovery
Proceeding
ii. Dismissal of Complaint v. Dismissal of Action
(a) Leave to Amend Expressly Granted
(b) Leave to Amend Expressly Denied
(c) Leave to Amend Not Expressly Granted or Denied
(1) Deficiencies Appear Incurable
(2) Deficiencies Appear Curable
(b) Dismissal without Prejudice
(c) Dismissal for Failure to Prosecute
v. Voluntary Dismissal without Prejudice
(a) Appealability of Voluntary Dismissal Order
(1) Voluntary Dismissal by Losing Party
(2) Voluntary Dismissal by Prevailing Party
vi. Voluntary Dismissal with Prejudice
vii. Dismissal Subject to Condition or Modification
viii. Dismissal of Fewer Than All Claims
a. Disqualification
of Counsel
b. Disqualification
of District Judge
b. Absolute
Presidential or Legislative Immunity
f. Military
Service Immunity (Feres doctrine)
g. Qualified
Immunity of Government Employees
i. Order Denying Dismissal or Summary Judgment
ii. Only Legal Determinations Subject to Review
(a) Legal Determinations Defined
(b) Factual Determination Defined
iii. Successive Appeals from Orders Denying Immunity
i. Immunity
from Service (“Specialty Doctrine”)
j. Settlement
Agreement (Contractual Immunity)
l. Absolute
Political Immunity
i. Order Denying Intervention Altogether
ii. Order Denying Intervention in Part
c. Must
Appeal Denial of Intervention Immediately
20. MAGISTRATE
JUDGE DECISIONS (28 U.S.C. § 636(c))
a. Final
Judgment by Magistrate Appealed Directly to Court of Appeals
b. No
Appellate Jurisdiction if Magistrate Lacked Authority
c. Parties’
Consent to Entry of Final Judgment by Magistrate
a. Post-Judgment
Orders Generally Final
b. Separate
Notice of Appeal Generally Required
c. Appealability
of Specific Post-Judgment Orders
i. Post-Judgment Order Granting or Denying Attorney’s
Fees
ii. Post-Judgment Order Granting or Denying Costs
iii. Post-Judgment Order Granting or Denying New Trial
iv. Post-Judgment Orders Related to Discovery
v. Post-Judgment Contempt Orders
vi. Orders Granting or Denying Fed. R. Civ. P. 60(b) Relief
vii. Other Post-Judgment Orders
a. Order
Remanding to State Court
i. Remand Due to Defect in Removal Procedure
ii. Remand Due to Lack of Subject Matter Jurisdiction
b. Order
Remanding to Federal Agency
i. Remand to Federal Agency on Factual Grounds
ii. Remand to Federal Agency on Legal Grounds
c. Order
Denying Petition for Removal from State Court
d. Order
Denying Motion to Remand to State Court
a. Order
Denying Summary Judgment
b. Order
Granting Partial Summary Judgment
a. Transfer
from District Court to District Court
b. Transfer
from District Court to Court of Appeals
D. PETITION FOR WRIT OF MANDAMUS
a. Alternative
Relief Unavailable
b. Possibility
of Irreparable Damage or Prejudice
c. Clear
Error by District Court
d. Potential
for Error to Recur
e. Important
Question of First Impression
3. NOTICE
OF APPEAL CONSTRUED AS PETITION FOR WRIT OF MANDAMUS
a. Appeal
Construed as Petition for Writ of Mandamus
b. Appeal
Not Construed as Petition for Writ of Mandamus
4. AVAILABILITY
OF MANDAMUS RELIEF FROM SPECIFIC ORDERS
ii. Decisions Predating Fed. R. Civ. P. 23(f)
ii. Mandamus Relief Not Available
ii. Disqualification of Counsel
ii. Mandamus Relief Not Available
ii. Mandamus Relief Not Available
1. TIMELINESS
OF NOTICE OF APPEAL
2. DEADLINE
FOR FILING NOTICE OF APPEAL
3. WHETHER
UNITED STATES IS A PARTY
a. Liberal
Construction of Fed. R. App. P. 4(a)
i. Federal Official as Defendant
ii. United States as Nominal Plaintiff
iii. United States Dismissed Prior to Appeal
iv. United States as Party in Bifurcated Proceedings
v. United States as Party to Consolidated Action
vi. Foreign Government Not Treated Like United States
vii. United States Not a Party to Attorney Discipline
Proceeding
4. COMPUTATION
OF TIME TO FILE NOTICE OF APPEAL
a. Days
Counted in Determining Deadline for Filing Notice of Appeal
b. Date
Notice of Appeal Deemed “Filed”
5. APPLICABILITY
OF FED. R. APP. P. 4(a) TIME LIMITS
a. Fed.
R. App. P. 4(a) Time Limits Applicable
b. Fed.
R. App. P. 4(a) Time Limits Not Applicable
a. Application
of the 150-Day Rule
3. SEPARATE
DOCUMENT REQUIREMENT
a. Document
Distinct from Memorandum
i. Fed. R. Civ. P. 58 Requirements Not Satisfied
ii. Fed. R. Civ. P. 58 Requirements Satisfied
b. Lack
of Opinion or Memorandum
d. Lack
of Separate Judgment Does Not Render Appeal Premature
i. Waiver of Separate Document Requirement
ii. Objection by Appellee to Lack of Separate Judgment
4. MANNER
OF ENTERING JUDGMENT
6. NOTICE
OF ENTRY OF JUDGMENT
2. NOTICE
FILED BEFORE ENTRY OF JUDGMENT
b. Premature
Notice Not Effective
3. REMAINING
CLAIMS FINALIZED AFTER NOTICE OF APPEAL
a. Compare
Rule 54(b) Certification
b. Premature
Notice of Appeal Cured
c. Premature
Notice of Appeal Not Cured
D. EXTENSION OF TIME TO APPEAL
a. Extension
of Time to Appeal by Court of Appeals
b. Extension
of Time to Appeal by District Court
2. EXTENSION
OF TIME TO APPEAL UNDER FED. R. APP. P. 4(a)(5)
a. Timeliness
of Motion for Extension
b. Form
of Motion for Extension
c. Standard
for Granting Motion for Extension
e. Appealability
of Extension Order
3. EXTENSION
OF TIME TO APPEAL UNDER FED. R. APP. P. 4(a)(6)
a. Timeliness
of Motion for Extension
b. Form
of Motion for Extension
c. Standard
for Granting Motion for Extension
i. Entitlement to Notice of Entry of Judgment
ii. Failure to Receive Notice of Entry of Judgment
iii. Absence of Prejudice to Any Party
e. Appealability
of Extension Order
4. EXTENSION
OF TIME TO APPEAL UNDER FED. R. CIV. P. 60(b)
a. Timeliness
of Motion for Extension
b. Factors
Considered in Evaluating Motion for Extension
E. UNTIMELY FILING NOT EXCUSED BY UNIQUE CIRCUMSTANCES
DOCTRINE
3. UNIQUE
CIRCUMSTANCE DOCTRINE ILLEGITIMATE
F. EFFECT OF POST-JUDGMENT MOTIONS
2. POST-JUDGMENT
TOLLING MOTIONS
b. Tolling
Motion Must Be Specifically Enumerated
c. Tolling
Motion Must Be Timely Filed
i. Time Period for Filing Tolling Motion
ii. Days Counted in Calculating Deadline for Filing
Tolling Motion
iii. Classification of Motion Filed Prior to Entry of
Judgment as “Post-Judgment”
iv. Effect of Premature Tolling Motion
v. Effect of Untimely Tolling Motion
d. Tolling
Motion Must Be Written or Recorded
e. Tolling
Motion Need Not Be Properly Labeled
i. Motion to Amend or Amend Judgment
iii. Motion for Attorney’s Fees
v. Motion for Prejudgment Interest
f. Effect
of Motion That Lacks Merit or is Procedurally Defective
g. Tolling
Motion May Address Any Appealable Order
3. NON-TOLLING
POST-JUDGMENT MOTIONS
4. MULTIPLE
POST-JUDGMENT MOTIONS
IV. NOTICE OF APPEAL (Form, Content and Effect on District
Court Jurisdiction)
B. DOCUMENTS CONSTITUTING NOTICE OF APPEAL
3. DOCUMENTS
CONSTRUED AS NOTICE OF APPEAL
4. DOCUMENTS
NOT CONSTRUED AS NOTICE OF APPEAL
C. CONTENTS OF NOTICE OF APPEAL
1. DESIGNATION
OF PARTIES APPEALING
a. Fed.
R. App. P. 3 Requirements
2. DESIGNATION
OF ORDER BEING APPEALED
a. Notice
of Appeal Effective Even Though Order Mistakenly or Vaguely Designated
b. Notice
of Appeal from One Part of Order Deemed to Encompass Other Part of Order
c. Notice
of Appeal from Final Judgment Deemed to Encompass Prior Rulings
d. Notice
of Appeal from Post-Judgment Order Deemed to Encompass Final Judgment
e. Effect
of Second Notice of Appeal
3. SIGNATURE
OF APPEALING PARTY OR ATTORNEY
1. ARGUMENT
SUPPORTING JUDGMENT
2. ARGUMENT
ATTACKING JUDGMENT
3. JURISDICTION
OR COMITY ARGUMENT
F. EFFECT OF NOTICE OF APPEAL ON DISTRICT COURT
JURISDICTION
2. APPEAL
FROM POST-JUDGMENT ORDER
3. APPEAL
FROM PARTIAL JUDGMENT UNDER RULE 54(b)
4. APPEAL
FROM COLLATERAL ORDER
5. APPEAL
FROM INTERLOCUTORY ORDER
6. EXCEPTIONS
TO DIVESTITURE RULE
a. Ineffective
Notice of Appeal
b. Jurisdiction
to Clarify Order, Correct Error, and Enter Written Findings
c. Jurisdiction
to Maintain Status Quo
i. Jurisdiction to Modify Injunction
ii. Jurisdiction to Award Sanctions
iii. Jurisdiction to Adjudicate Substantive Rights
V. SCOPE OF APPEAL (Which Orders and Issues Are
Considered on Appeal)
A. ORDERS CONSIDERED ON APPEAL
1. ORDERS
CONSIDERED ON APPEAL FROM FINAL DECISION
a. Rulings
That Merge into a Final Judgment
ix. Interlocutory Injunctive Order
x. Order Certified for Permissive Interlocutory Appeal
b. Rulings
That Do Not Merge into Final Judgment
i. Interlocutory Orders Not Affecting Outcome
(a) Order Denying Intervention as of Right
(b) Contempt Order against Nonparty
iii. Orders Certified under Rule 54(b)
iv. Certain Orders Denying Summary Judgment
(a) Order Denying Summary Judgment Not Reviewed
(b) Order Denying Summary Judgment Reviewed
v. Certain Orders Denying Remand
(a) Removal Defect Cured Before Final Judgment
(b) Removal Defect Not Cured Before Final Judgment
vi. Orders Preceding Dismissal for Failure to Prosecute
2. ORDERS
CONSIDERED ON APPEAL FROM AN INJUNCTIVE ORDER UNDER § 1292(a)(1)
a. Order
Granting or Denying Summary Judgment
c. Order
Granting or Denying Sanctions
f. Order
Modifying or Refusing to Modify Injunction
g. Order
Compelling Arbitration
3. ORDERS
CONSIDERED ON APPEAL FROM AN ORDER CERTIFIED UNDER § 1292(b)
a. Only
Certified Order May Be Reviewed
b. Any
Ruling Contained in Certified Order May Be Reviewed
4. ORDERS
CONSIDERED ON APPEAL FROM AN ORDER CERTIFIED UNDER FED. R. CIV. P. 54(b)
5. ORDERS
CONSIDERED ON APPEAL FROM A COLLATERAL ORDER
a. Review
of Related Rulings Permitted
b. Review
of Related Rulings Not Permitted
6. ORDERS
CONSIDERED ON APPEAL FROM A POST-JUDGMENT ORDER
a. Order
Denying Fed. R. Civ. P. 60 Motion
b. Order
Denying Motion to Intervene
B. ISSUES CONSIDERED ON APPEAL (WAIVER)
1. WAIVER
OF JURISDICTIONAL ISSUE
b. District
Court Jurisdiction
2. WAIVER
OF ISSUE IN DISTRICT COURT
iii. Waiver by Failure to Adequately Raise Issue
(a) Issue Not Adequately Raised
iv. Waiver by Stipulation or Concession
b. Exceptions
and Exemptions to Rule of Waiver
i. Preventing Manifest Injustice
iii. Intervening Change in Circumstance
v. Issue Considered by District Court
vi. Alternative Basis for Affirming
v. Repleading Dismissed Claims in Amended Complaint
d. Waiver
and Pretrial Motions
ii. Motion for Summary Judgment
v. Consistency of Jury Findings
vii. Specificity of Court Findings
viii. Waiver and Post-Trial/Post-Judgment Submissions
f. Waiver
of Magistrate/Special Master Issues
i. Waiver of Objections to Order of Reference
ii. Waiver of Objection to Magistrate’s Findings &
Recommendations
iii. Waiver of Objection to Special Master’s Findings &
Conclusions
3. WAIVER
OF ISSUE IN COURT OF APPEALS
a. Failure
to Raise Issue in Earlier Appeal
b. Failure
to Adequately Brief Issue
c. Failure
to Provide Adequate Record on Appeal
d. Explicit
Abandonment of Issue on Appeal
e. Issues
Raised Only by Amicus Curiae
1. BANKRUPTCY
APPELLATE PROCESS
2. ORIGINS
OF BANKRUPTCY APPEALS
a. Allocation
of Original Bankruptcy Jurisdiction
b. Determining
Origin of Bankruptcy Decision
i. Cases Involving District Courts
B. STATUTORY BASES FOR APPEAL TO NINTH CIRCUIT
1. APPEALS
FROM DECISIONS OF BAP OR DISTRICT COURT ACTING IN APPELLATE CAPACITY
b. Finality
under 28 U.S.C. § 158(d)
(b) Section 1291 Principles Applicable
ii. Finality of Orders that Affirm or Reverse Outright
iii. Finality of Orders Involving Remand
(a) Remand for Factfinding on Central Legal Issue
(b) Remand for Proceedings Independent of Appeal
(c) Examples of Final BAP and District Court Remand Decisions
(d) Examples of Nonfinal BAP and District Court Remand
Decisions
iv. Finality of Other BAP and District Court Orders
(a) Order Denying Permission to Appeal Non-Final
Bankruptcy Court Order
(b) Order Denying Stay Pending Appeal from Bankruptcy
Court Order
v. Determining Finality of Underlying Bankruptcy Court
Order
(b) Determining Finality under 28 U.S.C. § 158(a)(1)
(c) Examples of Final Bankruptcy Court Decisions
(1) Assumption of Lease (Approval)
(2) Assumption of Lease (Denial)
(7) Denial of Motion to Dismiss Under 11 U.S.C.
§ 707(b)
(8) Dismissal of Bankruptcy Petition
(9) Dismissal of Creditor’s Claim
(11) Fee Application (Approval)
(18) Removal of Bankruptcy Trustee
(19) Reorganization Plan (Confirmation)
(23) Summary Judgment on All Claims
(24) Summary Judgment on Less Than All Claims
(27) Vacatur of Order for Relief (Denial)
(28) Substantive Consolidation Order
(29) Order Converting Bankruptcy Case to Chapter 7
(d) Examples of Nonfinal Bankruptcy Court Decisions
(4) Disclosure Statement (Approval)
(5) Disclosure Statement (Rejection)
(6) Dismissal of Bankruptcy Petition (Denial)
(9) Fee Terms and Interim Payments
(12) Reorganization Plan (Rejection)
(13) Remanding for Additional Fact-Finding
(e) Finality under Fed. R. Bankr. P. 7054 (Equivalent to
Fed. R. Civ. P. 54(b))
c. Other
Bases for Ninth Circuit Review
2. APPEALS
FROM DECISIONS OF DISTRICT COURT EXERCISING ORIGINAL BANKRUPTCY JURISDICTION
a. Direct
Appeal to the Ninth Circuit
iii. Collateral Order Doctrine & Forgay-Conrad
Rule
c. Appealability
of Specific Orders
i. Appealable District Court Decisions
ii. Non-Appealable District Court Decisions
d. Effect
of Appeal on District Court Jurisdiction
C. TIMELINESS OF BANKRUPTCY APPEALS
1. APPEAL
FROM DECISION OF BAP OR DISTRICT COURT ACTING IN APPELLATE CAPACITY
b. Time
to Appeal BAP or District Court Appellate Decision
ii. United States as a Party to a Bankruptcy Case
iii. Filing of Notice of Appeal
iv. Entry of Judgment or Order
v. Computation of Appeal Deadline
c. Extensions
of Time to Appeal
ii. Time in Which to File Motion
iii. Restarting Time to Appeal
iv. Need for New or Amended Notice of Appeal
e. Determining
Timeliness of Underlying Appeal from Bankruptcy Court to BAP or District Court
ii. Time Period for Filing Appeal
iii. Procedure for Filing Notice
v. Effect of Notice Filed Before Entry of Judgment
vi. Extension of Time to Appeal
vii. Motions that Toll Time Period for Appeal
(b) Effect of Motion on Time to Appeal
(c) Appealing the Ruling on a Tolling Motion
2. APPEALS
FROM DECISIONS OF DISTRICT COURT EXERCISING ORIGINAL BANKRUPTCY JURISDICTION
D. SCOPE OF BANKRUPTCY APPEALS
1. MERGER
OF INTERLOCUTORY RULINGS INTO FINAL JUDGMENT
E. DECISIONS BARRED FROM REVIEW IN COURT OF APPEALS
1. DECISIONS
WHETHER TO REMAND TO STATE COURT
2. DECISIONS
WHETHER TO ABSTAIN
3. DECISIONS
WHETHER TO DISMISS OR STAY
4. DECISIONS
NOT APPEALABLE BY CERTAIN ENTITIES
a. Securities
and Exchange Commission
b. Federal
Transportation Agencies
d. State
and Local Commissions
F. CONSTITUTIONAL ISSUES IN BANKRUPTCY APPEALS
b. Examples
of Standing to Appeal
c. Examples
of No Standing to Appeal
a. Appeals
Concerning Property Transactions
ii. Broad Application of Stay Requirement
iv. Need for Transaction Participants to Be Present on
Appeal to Avoid Mootness
(b) Transactions Conditioned on Outcome of Appeal
vi. Rejected Theories for Avoiding Mootness
b. Appeals
Concerning Loan Transactions
c. Appeals
Concerning Reorganization Plans
d. Payment
of, or Inability to Pay, Judgments, Settlements or Fees
e. Dismissal
of Bankruptcy Case While Appeal is Pending
f. Nature
of Stay Needed to Prevent Mootness
i. Stay Must Be Issued by Court with Jurisdiction
ii. Stay Must Pertain to Affected Transactions
iii. Stay Must Cover Time of Affected Transactions
VII. AGENCY AND TAX COURT APPEALS
1. INITIATING
APPELLATE REVIEW OF AGENCY DECISIONS
2. AGENCY
DECISIONS FOR WHICH DIRECT REVIEW BY THE COURT OF APPEALS IS AUTHORIZED
c. Time
in Which to Petition for Review
1. INITIATING
APPELLATE REVIEW OF TAX COURT DECISIONS
3. TIME
IN WHICH TO FILE NOTICE OF APPEAL
A. APPEAL BY DEFENDANT (28 U.S.C. § 1291,
1292(a)(1))
b. Interlocutory
Order (Injunction)
2. ASSETS
SEIZURE OR RESTRAINT
b. Bail Pending
Appeal by Federal Defendants
c. Bail
in Habeas Cases Brought by Prisoners
e. Bail
in Cases Concerning Revocation of Supervised Release or Probation
i. Bail Pending Disposition in District Court
6. CONSTITUTIONALITY
OF DEATH PENALTY STATUTE
7. DANGEROUSNESS
HEARING UNDER 18 U.S.C. § 4246
8. DISCLOSURE
OF FINANCIAL INFORMATION
11. DISQUALIFICATION
OF COUNSEL
12. DOUBLE
JEOPARDY AND SUCCESSIVE PROSECUTION
c. Res
Judicata and Collateral Estoppel
d. Successive
Prosecution under 18 U.S.C. § 5032
15. INDICTMENT
CLAUSE VIOLATION
16. JURISDICTION
OF DISTRICT COURT
17. JUVENILE
PROSECUTED AS ADULT
18. JUVENILE
RIGHT TO SPEEDY TRIAL
21. PRIMARY
JURISDICTION DOCTRINE
22. PROBABLE
CAUSE DETERMINATION
b. Vindictive
or Selective Prosecution
24. RES
JUDICATA AND COLLATERAL ESTOPPEL
c. Interstate
Agreement on Detainers Act
30. SUPPRESSION
OF EVIDENCE OR RETURN OF PROPERTY
b. Criminal
Proceedings Pending
B. APPEAL BY GOVERNMENT ( 28 U.S.C. § 1291, 18 U.S.C. § 3731)
2. ORDER
GRANTING DISMISSAL, NEW TRIAL, OR ACQUITTAL
ii. Order Tantamount to Dismissal
b. Double
Jeopardy Limitations
(b) Acquittal by Judge Rather than Jury
(d) Acquittal Based on Suppression of Evidence
(e) Acquittal Based on Stipulated or Undisputed Facts
(f) Dismissal Having Effect of Acquittal
(g) Dismissals That Are Not Acquittals
c. Further
Factual Proceedings Necessary
ii. Need for Formal Finding of Guilt
d. Scope
of Double Jeopardy Bar
i. Alternative Theories of Liability
e. Use
of Mandamus to Avoid Double Jeopardy Bar
3. ORDER
SUPPRESSING/EXCLUDING EVIDENCE OR REQUIRING RETURN OF SEIZED PROPERTY
b. Provision
Broadly Interpreted
iii. “Substantial Proof of a Fact Material”
e. Cross-Appeals
by Defendants
a. Sentence
Imposed under Guidelines
b. Other
Sentences and Related Orders
5. ORDER
RELEASING PERSON CHARGED OR CONVICTED
a. Additional
Orders Appealable by the Government
b. Additional
Orders Not Appealable by the Government
C. APPEALS CONCERNING GRAND JURY PROCEEDINGS
1. ORDER
GRANTING MOTION TO QUASH GRAND JURY SUBPOENA
2. ORDER
DENYING MOTION TO QUASH GRAND JURY SUBPOENA
3. ORDER
CONFINING RECALCITRANT WITNESS ( 28
U.S.C. § 1826)
4. ORDER
DENYING KASTIGAR HEARING
5. ORDER
GRANTING OR DENYING DISCLOSURE OF GRAND JURY MATERIALS
a. Disclosure
Motions Made During Criminal Proceedings
b. Independent
Actions Seeking Disclosure
D. APPEALS FROM DECISIONS OF MAGISTRATE JUDGES
1. INITIAL
APPEAL TO DISTRICT COURT
c. Appeals
Mistakenly Taken to Ninth Circuit
2. APPEALS
FROM DISTRICT COURT TO NINTH CIRCUIT
iii. Appealability of Non-Final District Court Decisions
E. APPEALS CONCERNING DEFENSE FEES AND COMPENSATION
1. DISTRICT
COURT JURISDICTION OVER FEE APPLICATION
F. TIMELINESS OF CRIMINAL APPEALS
3. APPLICABILITY
OF FED. R. APP. P. 4(b) TIME LIMITS
a. Cases
Governed by Rule 4(b)
b. Cases
Not Governed by Rule 4(b)
4. COMPUTATION
OF APPEAL DEADLINE
b. Date
Notice of Appeal “Filed”
6. DOCUMENTS
CONSTRUED AS NOTICE OF APPEAL
8. EXTENSION
OF TIME TO APPEAL (EXCUSABLE NEGLECT / GOOD CAUSE)
i. Appeal Outside 30-Day Extension Period
ii. Appeal Within 30-Day Extension Period
b. Express
Finding by District Court
c. “Excusable
Neglect” Standard under Pioneer
d. Determining
Excusable Neglect
9. EFFECT
OF POST-JUDGMENT MOTIONS
a. Motion
for Reconsideration (by Defendant or Government)
b. Other
Post-Judgment Motions (by Defendant)
c. Notice
of Appeal Filed While Post-Judgment Motion Pending
G. SCOPE OF DIRECT CRIMINAL APPEALS
2. SCOPE OF
APPEAL BY DEFENDANT
a. Review
of Interlocutory Order on Appeal from Final Judgment
b. Ability
of Other Defendants to Join in Appeal
c. Appeals
from Separate Cases Arising from Same Conduct
d. Appeal
Following Unconditional Guilty Plea
ii. Specific Claims Waived by Guilty Plea
iii. Specific Claims Not Waived by Guilty Plea
e. Appeal
Following Conditional Guilty Plea
f. Appeal
Following Guilty Plea under Rule 11(c)(1)(C) Agreement
g. Waiver
of Right to Appeal in Plea Agreement
(b) Language Effective to Waive Appeal
(c) Language Not Effective to Waive Appeal
(1) Deviation from Sentencing Guidelines “Schema”
(2) Incorrect Application of Sentencing Guidelines
(4) Restitution Order Imposed at Sentencing
3. SCOPE
OF APPEAL BY GOVERNMENT
a. Interlocutory
Appeal from Successive Orders
b. Effect
of Contents of Notice of Appeal
H. EFFECT OF APPEAL ON DISTRICT COURT JURISDICTION
1. EFFECT
OF INTERLOCUTORY APPEALS
(a) Written Frivolousness Finding
(b) Appeal from Non-Appealable Order
2. EFFECT
OF APPEAL AFTER SENTENCING
a. Effect
on Trial of Severed Counts
b. Effect
on Motion for New Trial under Fed. R. Crim. P. 33
c. Effect
on Entry of Factual Findings under Fed. R. Crim. P. 32
d. Effect
on Correction of Sentence under Fed. R. Crim. P. 35
e. Effect
on Collateral Attack on Proceedings
a. Jurisdictional
Basis for Writs
b. Appointment
of Public Defender
c. Arraignment
by Closed-Circuit Television
d. Authority
of Government Attorney
f. Constitutionality
of Death Penalty Provision
h. Disqualification
of Defense Counsel
k. Restraint
Order Directed at Counsel
l. Sealing
of Defendant’s Financial Information
f. Policy
Restricting Pro Hac Vice Admission of Government Attorneys
h. Splitting
Elements of Crime for Trial
a. Petition
by Media Seeking Access
b. Petition
by Material Witness Seeking Release
c. Sanctions
Order Directed at Counsel
J. MOOTNESS IN CRIMINAL APPEALS
3. ISSUANCE
OF SUPERSEDING CHARGES
5. RELEASE
OF DEFENDANT FROM CONFINEMENT
b. Defendants’
Challenges to Merits of Conviction
c. Government
Challenge to Reversal of Conviction
ii. Additional Sentences Imposed on Revocation of
Probation
e. Challenges
to Competency Proceedings
f. Challenge
to Denial of Application to Proceed IFP
7. DEFENDANTS’
FUGITIVE STATUS
ii. Issues Concerning Reversal of Conviction
b. Appeals
by Defendants (Fugitive Disentitlement Doctrine)
i. General Rule Regarding Escape While Appeal is Pending
ii. Dismissal Not Constitutionally Required
iv. Application in Cases Where Defendants Return to
Custody Prior to Appeal
8. DEATH
OF DEFENDANT (Abatement Doctrine)
IX. CONSTITUTIONAL LIMITATIONS ON FEDERAL JURISDICTION
a. Constitutional
Requirements
(b) Nonparties without Standing
iii. Standing of Attorneys/Clients
iv. Standing of Prevailing Parties
vi. Standing to Appeal Voluntary Dismissal
1. JURISDICTIONAL
NATURE OF MOOTNESS
2. GENERAL
STANDARD FOR ASSESSING MOOTNESS
a. Availability
of Effective Relief
b. Kinds
of Relief Available to Preclude Mootness
ii. Focus on Injuries for Which Relief is Sought
iii. Availability of Damages to Preclude Mootness
c. “Speculative
Contingencies” Insufficient to Sustain Controversy
d. Controversy
Must Continue Throughout Litigation
a. “Capable
of Repetition Yet Evading Review”
ii. Events Capable of Being Stayed Pending Appeal
iii. Particular Cases Found Justiciable
iv. Particular Cases Found Not Justiciable
ii. Particular Cases Found Justiciable
iii. Particular Cases Not Justiciable
4. MOOTNESS
PRINCIPLES IN PARTICULAR CONTEXTS
a. Cases
Involving Changes to Legislation or Regulations
d. In Rem
and Civil Forfeiture Cases
e. Preliminary
Injunction Cases
f. Cases
Regarding Summons and Subpoenas
h. Cases
Concerning Intervention
5. SCOPE
OF MOOTING EVENT’S EFFECT
a. Relationship
Among Claims for Retrospective and Prospective Relief
b. Relationship
between Merits and Claims for Attorney’s Fees
6. PROCEDURAL
ASPECTS OF MOOTNESS
a. Duty
of Counsel to Notify Court
c. Disposition
of Moot Appeals
This outline of appellate jurisdiction
in the Ninth Circuit synthesizes the statutes, cases and rules relevant to determining
whether the court of appeals has jurisdiction over a given case.
Two basic questions to be answered in
any appeal are: (1) whether there is a statute that confers appellate
jurisdiction over the order being appealed, and (2) whether a timely notice of
appeal from the order was filed.
The statutory bases for appellate
jurisdiction in civil cases are discussed in Part II; and timeliness
considerations are discussed in Part III.
In other types of appeals, both statutory bases and timeliness are covered
in a single section. See VI
(bankruptcy appeals), VII (agency and tax court appeals), and VIII (direct
criminal appeals).
This outline covers additional issues
related to appellate jurisdiction, including the form and content of a notice
of appeal and its effect on district court jurisdiction (see IV), the
scope of an appeal, i.e. the orders and issues that will be considered
on appeal once it is determined there is a basis for exercising jurisdiction (see
V), and the constitutional limitations on appellate jurisdiction, such as
the doctrines of standing and mootness (see IX). The jurisdiction of the Federal Circuit, and
issues particular to appeals from Guam and the Northern Mariana Islands are not
covered here.
The court of appeals has jurisdiction
to hear an appeal only when a federal statute confers jurisdiction. See United States v. Pedroza, 355 F.3d 1189, 1190 (9th Cir. 2004)
(per curiam); Vylene
Enters., Inc. v. Naugles, Inc. (In re Vylene Enters., Inc.), 968 F.2d 887,
889 (9th Cir. 1992). In
civil appeals, the court has jurisdiction over final decisions pursuant to 28 U.S.C. § 1291, and
over certain interlocutory decisions pursuant to 28 U.S.C. § 1292.
Jurisdiction is at issue in all stages
of the case. See Moe v. United States, 326 F.3d 1065,
1070 (9th Cir. 2003) (holding government was not estopped from arguing
district court lacked jurisdiction).
Even if the court of appeals has filed an opinion, the court can
withdraw the opinion to ask for supplemental briefing on the issue of
jurisdiction. See Televisa S.A. De C.V. v. DTVLA
WC Inc.,
366 F.3d 981 (9th Cir. 2004) (order).
Cross-reference: II.C
(regarding the appealability of specific types of orders); VI (regarding
bankruptcy appeals); VII (regarding agency and tax court appeals); IX
(regarding constitutional limitations on federal jurisdiction).
Under 28 U.S.C. § 1291, the
court of appeals has jurisdiction over “all final decisions of the district
courts … except where a direct review may be had in the Supreme Court.” Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 373
(1981). “A
final decision is one by which a district court disassociates itself from a
case.” Gelboim v. Bank of Am. Corp., 574 U.S. 405, 135 S. Ct. 897, 902
(2015) (internal quotation marks and citation omitted). “A final decision ends the litigation on the
merits and leaves nothing for the court to do but execute the judgment.” Hall v. Hall, 138 S. Ct. 1118, 1123–24
(2018) (internal quotation marks and citation omitted). See also Coopers & Lybrand v.
Livesay, 437 U.S. 463, 467 (1978) (internal quotation marks and citation
omitted), superseded by rule as stated in
Microsoft Corp. v. Baker, 137 S. Ct. 1702
(2017); Klestadt & Winters, LLP v.
Cangelosi,
672 F.3d 809, 813 (9th Cir. 2012) (bankruptcy). The “core application [of § 1291] is to
rulings that terminate an action.” Gelboim,
135 S. Ct. at 902. “The archetypal final
decision is one that triggers the entry of judgment.” Hall, 138 S. Ct. at 1124 (internal
quotation marks and citation omitted).
A district court decision may also be
considered final where its result is that the appellant is “effectively out of
court.” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 9
(1983) (citations omitted); see also Herrera v. City of Palmdale, 918 F.3d 1037, 1042 (9th Cir. 2019); Bagdasarian Prods., LLC v. Twentieth Century Fox Film Corp., 673
F.3d 1267, 1270–71 (9th Cir. 2012) (recognizing that “courts will in
limited circumstances permit immediate appeal if the stay order effectively
puts the plaintiff ‘out of court’—creating a substantial possibility there will
be no further proceedings in the federal forum, because a parallel proceeding
might either moot the action or become res judicata on the operative question”); Blue Cross and Blue Shield of
Alabama v. Unity Outpatient Surgery Center, Inc., 490 F.3d 718, 723–24 (9th Cir.
2007) (stating that “Moses H. Cone applies whenever there is a
possibility that proceedings in another court could moot a suit or an issue,
even if there is no guarantee that they will do so” and holding that “lengthy
and indefinite stays place a plaintiff effectively out of court.”).
The finality rule is to be given a
“practical rather than a technical construction.” Microsoft Corp. v. Baker,
137 S. Ct. 1702, 1712 (2017) (“[F]inality is to be given a practical rather
than a technical construction.” (quotation marks and citation omitted)); Stone
v. Heckler, 722 F.2d 464, 467 (9th Cir. 1983) (same); see also Gelboim, 135 S. Ct. at 902; Bishop Paiute Tribe v. Inyo
Cty., 863 F.3d 1144, 1151 n.2 (9th Cir. 2017) (“[D]etermining whether a
ruling is final and therefore appealable under 28 U.S.C. § 1291 requires
‘a practical rather than a technical’ analysis.”); Sierra Forest Legacy v.
Sherman, 646 F.3d 1161, 1175 (9th Cir. 2011) (applying practical
construction to the finality requirement to determine if remand order was
final); Elliott v. White
Mountain Apache Tribal Court,
566 F.3d 842, 845 (9th Cir. 2009) (“[T]he requirement of finality is to
be given a practical rather than a technical construction.” (quotation marks
and citation omitted)); Eisen
v. Carlisle & Jacquelin,
417 U.S. 156, 170 n.9 (1974) (“[I]t is impossible to devise a formula to
resolve all marginal cases coming within what might well be called the
‘twilight zone’ of finality.” (citations omitted)). For example, an order that does not end the
litigation on the merits may nevertheless be appealable under § 1291 if it
satisfies the collateral order doctrine or is certified under Fed. R. Civ. P. 54(b). See, e.g., Gelboim, 135 S. Ct.
at 902 (“Rule 54(b) permits district courts to authorize immediate appeal of
dispositive rulings on separate claims in a civil action raising multiple
claims.”).
Note that “some cases involve more than one
final decision.” Armstrong v. Schwarzenegger, 622 F.3d 1058, 1064 (9th Cir. 2010). “In particular, appeals courts have
jurisdiction over post-judgment orders, such as a district court might enter
pursuant to the jurisdiction it has retained to enforce a prior order.” Id. (explaining that “[t]his court has declared itself less
concerned with piecemeal review when considering post-judgment orders, and more
concerned with allowing some opportunity for review, because unless such
post-judgment orders are found final, there is often little prospect that
further proceedings will occur to make them final.” (internal quotation marks
and citation omitted)).
Cross-reference: II.A.2 (regarding the collateral order doctrine); II.A.3 (regarding orders certified under Fed. R. Civ. P. 54(b)).
The
court of appeals must consider sua sponte whether an order is final and thus
appealable under 28 U.S.C.
§ 1291. See Sahagun v. Landmark Fence Co.,
Inc. (In re Landmark Fence Co., Inc.),
801 F.3d 1099, 1102 (9th Cir. 2015) (“We undertake this
jurisdictional analysis sua sponte.”); Symantec Corp. v. Global Impact, Inc., 559 F.3d 922, 923 (9th Cir. 2009) (order) (considering jurisdiction sua
sponte and dismissing appeal where district court had only entered a default,
and not a default judgment); Gupta v. Thai Airways Int’l,
Ltd., 487 F.3d 759, 763 (9th Cir. 2007); WMX Techs., Inc. v. Miller,
104 F.3d 1133, 1135 (9th Cir. 1997) (en banc); see also Couch v.
Telescope Inc.,
611 F.3d 629, 632 (9th Cir. 2010) (stating the court has “a special
obligation to satisfy [itself of its] jurisdiction even where, …, the parties
do not contest it.”). Appellate jurisdiction
can be challenged at any time, and objections to jurisdiction cannot be
waived. See Fiester v. Turner, 783 F.2d 1474,
1475 (9th Cir. 1986) (order); see also Taylor v. Cty. of Pima,
913 F.3d 930, 933 (9th Cir. 2019) (“Although we defer to the ruling of the
motions panel granting an order for interlocutory appeal, we have an
independent duty to confirm that our jurisdiction is proper.”); Dannenberg v. Software
Toolworks, Inc., 16 F.3d 1073, 1074 n.1 (9th Cir. 2004) (stating
that merits panel has independent duty to determine appellate jurisdiction,
even where motions panel has previously denied motion to dismiss on
jurisdictional grounds); Fontana
Empire Ctr., LLC v. City of Fontana, 307 F.3d 987, 990 n.1 (9th Cir. 2002)
(same).
The foundation of the final judgment
rule is the policy against piecemeal litigation. See Microsoft Corp. v. Baker, 137 S.
Ct. 1702, 1707 (2017) (stating that § 1291’s firm finality principle is
designed to guard against piecemeal appeals); Catlin v. United States,
324 U.S. 229, 233–34 (1945); Nat’l Abortion Fed’n v. Ctr. for Med.
Progress, 926 F.3d 534, 538 (9th Cir. 2019), cert. denied sub nom. Cooley
v. Nat’l Abortion Fed’n, No. 19-525, 2020 WL 129591 (Jan. 13, 2020). Piecemeal appeals present the dangers of
undermining the independence of the district judge, exposing litigants with
just claims to the harassment and cost of successive appeals, and obstructing
judicial efficiency. See Firestone Tire & Rubber Co.
v. Risjord,
449 U.S. 368, 374 (1981).
Finality determinations require a balancing of “the inconvenience and
costs of piecemeal review on the one hand and the danger of denying justice by
delay on the other.” Stone v. Heckler, 722
F.2d 464, 467 (9th Cir. 1983) (citations omitted).
The rules of finality are designed to
create more certainty as to when an order is appealable. See Nat’l Distrib. Agency v.
Nationwide Mut. Ins. Co.,
117 F.3d 432, 434 (9th Cir. 1997); see also Budinich v. Becton Dickinson
& Co.,
486 U.S. 196, 202 (1988) (“The time of appealability, having
jurisdictional consequences, should above all be clear.”).
A district court’s decision is final
for purposes of 28 U.S.C.
§ 1291 “if it (1) is a full adjudication of the issues, and (2)
‘clearly evidences the judge’s intention that it be the court’s final act in
the matter.’” Nat’l Distrib. Agency v.
Nationwide Mut. Ins. Co.,
117 F.3d 432, 433 (9th Cir. 1997) (citations omitted); see also
Bishop Paiute Tribe v. Inyo Cty., 863 F.3d 1144, 1151 n.2 (9th Cir. 2017); Van
Dusen v. Swift Transportation Co. Inc., 830 F.3d 893, 896 (9th Cir. 2016);
Elliott v. White Mountain
Apache Tribal Court,
566 F.3d 842, 846 (9th Cir. 2009); Romoland Sch. Dist. v. Inland
Empire Energy Ctr., LLC, 548 F.3d 738, 747 (9th Cir. 2008); Way v. Cty. of Ventura,
348 F.3d 808, 810 (9th Cir. 2003).
“The purpose of § 1291 is to disallow appeal from any decision
which is tentative, informal or incomplete.”
Citicorp Real
Estate, Inc. v. Smith, 155 F.3d 1097, 1101 (9th Cir. 1998) (quotation
marks and citation omitted).
Appealability under § 1291 “is to
be determined for the entire category to which a claim belongs,” rather than
according to the particular facts of a given case. Digital Equip. Corp. v.
Desktop Direct, Inc., 511 U.S. 863, 868 (1994); see also Richardson-Merrell, Inc. v.
Koller, 472 U.S. 424, 439–40 (1985) (concluding that “orders
disqualifying counsel in civil cases, as a class, are not sufficiently separate
from the merits to qualify for interlocutory appeal”).
A district court order is final only
when it is clear that the judge intended it to be final. See Nat’l Distrib. Agency v.
Nationwide Mut. Ins. Co.,
117 F.3d 432, 433 (9th Cir. 1997).
“Evidence of intent consists of the [o]rder’s content and the judge’s
and parties[’] conduct.” Slimick v. Silva (In re Slimick), 928 F.2d 304,
308 (9th Cir. 1990) (citations omitted); see also
Orr v. Plumb, 884 F.3d 923, 929 (9th Cir. 2018)
(“By allowing the jury special verdict to stand without modifying or vacating
it prior to the constructive entry of judgment, the district judge clearly
evidence[d] [his] intention that it be the court’s final act in the matter.”)
(internal quotations and citation omitted) (alterations in original)); Hotel & Motel Ass’n of
Oakland v. City of Oakland,
344 F.3d 959, 964 (9th Cir. 2003) (concluding, based on the procedural
history leading up to order, that the district court intended order to be final
even though some of the claims were dismissed without prejudice). The focus is on the intended effect of the
order, not the terminology used by the district court. See Montes v. United States, 37 F.3d 1347,
1350 (9th Cir. 1994) (holding that order dismissing “action” rather than
“complaint” is not final if court’s words and actions indicate an intent to
grant plaintiff leave to amend); see also United
States v. California, 921 F.3d 865, 878 n.5 (9th Cir. 2019) (concluding
that the court did not have jurisdiction over an appeal of a dismissal order,
where the district court did not grant California’s motion to dismiss in its
entirety, and thus that order was not a full adjudication of the issues and did
not clearly evidence the district court’s intent to be its final act in the
matter), petition for cert. filed, No. 19-532 (Oct. 22, 2019). If it is clear that the district court
intended to dispose of all the claims before it, abandoned claims will not
compromise the finality of the judgment.
See Lovell v.
Chandler,
303 F.3d 1039, 1049 (9th Cir. 2002).
If a district court judgment is
conditional or modifiable, the requisite intent to issue a final order is
lacking. See Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d 1036, 1041 (9th Cir.
2012) (concluding that district court’s
minute order was not a final appealable order because it did not clearly
evidence the judge’s intention that it would be the court’s final act on the
matter where the order expressly stated a written order would follow); Disabled Rights Action Comm. v.
Las Vegas Events, Inc., 375 F.3d 861, 870–71 (9th Cir. 2004) (concluding dismissal order not final
where no final judgment was entered, the district court reconsidered the
dismissal order, and amended it after a motion to modify was filed; however,
notice of appeal filed after subsequent dismissal order encompassed earlier
non-final judgment); Way
v. Cty. of Ventura, 348 F.3d 808, 810 (9th Cir. 2003) (concluding order
not final where district court invited party to file motions addressing qualified
immunity); Nat’l Distrib.
Agency, 117 F.3d at 433–34 (concluding order was not final where
it stated “the [c]ourt may amend or amplify this order with a more specific
statement of the grounds for its decision”); Zucker v. Maxicare Health
Plans, Inc., 14 F.3d 477, 483 (9th Cir. 1994) (concluding judgment was
not final where it stated it would become final only after parties filed a
joint notice of the decision rendered in related state court action).
Cross-reference: II.C.13 (regarding the appealability of dismissal orders generally).
An order disposing of fewer than all
claims is generally not final and appealable unless it is certified for appeal
under Fed. R. Civ. P. 54(b). See Chacon v. Babcock, 640 F.2d 221,
222 (9th Cir. 1981); see also United States v. California, 921
F.3d 865, 878 n.5 (9th Cir. 2019) (concluding that the court did not have
jurisdiction over an appeal of a dismissal order, where the district court did
not grant California’s motion to dismiss in its entirety, and the district
court did not certify the non-final dismissal order pursuant to Fed. R. Civ. P.
54(b)), petition for cert. filed, No. 19-532 (Oct. 22, 2019). But where a district court “obviously was not
trying to adjudicate fewer than all the pleaded claims,” the order may be
treated as final. Lockwood v. Wolf Corp.,
629 F.2d 603, 608 (9th Cir. 1980) (concluding judgment was final where
order granting summary judgment disposed of defendant’s counterclaim, even
though judgment did not mention the counterclaim).
Cross-reference:
II.A.3 (regarding certification under Fed. R. Civ. P. 54(b) of
order disposing of fewer than all claims); III.C.3 (regarding when finalization
of remaining claims cures a premature notice of appeal from fewer than all claims).
Under certain circumstances, a judgment
clearly establishing the rights and liabilities of the parties will be deemed
final and appealable even though the precise amount of damages is not yet
settled. See Citicorp Real Estate, Inc. v.
Smith,
155 F.3d 1097, 1101 (9th Cir. 1998) (holding that foreclosure judgments
conclusively determining liability for defaulted loans and identifying the
property to be sold were final and appealable even though district court
retained jurisdiction to hold defendants personally liable for any deficiency
remaining after judicial foreclosure sale); see also Pauly v. U.S. Dep’t of Agric., 348 F.3d 1143,
1148 (9th Cir. 2003) (holding that district court order was final
despite partial remand to Department of Agriculture for mechanical
recalculation of recapture amount); Gates v. Shinn, 98 F.3d
463, 467 (9th Cir. 1996) (holding that post-judgment contempt order
imposing sanctions for each day order violated was appealable even though
amount of sanctions undetermined and ongoing); Stone v. San Francisco, 968 F.2d 850,
855 (9th Cir. 1992) (same).
Cross-reference: II.C.10.b.ii (regarding a continuing contempt order issued after entry of judgment in underlying proceeding).
Under the “common sense” approach to
finality, the court of appeals may in appropriate cases infer rejection of a
claim or motion. See Alaska v. Andrus, 591 F.2d 537,
540 (9th Cir. 1979) (inferring rejection of claim where judgment did not
expressly deny plaintiff’s request for permanent injunctive relief, but prior
court orders indicated that plaintiff’s request had been denied); see also Lovell v. Chandler, 303 F.3d 1039,
1049–50 (9th Cir. 2002) (inferring rejection of claims where the claims
were abandoned and it was clear the trial court intended to dispose of all
claims before it); Federal
Ins. Co. v. Scarsella Bros., Inc., 931 F.2d 599, 601 (9th Cir. 1991)
(inferring rejection of claims where they remained technically undecided, but
decision “resolved all issues necessary to establish the legal rights and
duties of the parties”), overruled on
other grounds by Peralta v.
Dillard,
744 F.3d 1076, 1088 (9th Cir. 2014) (en banc); United States Postal Serv. v.
American Postal Workers Union, 893 F.2d 1117, 1119 (9th Cir. 1990)
(inferring denial of motion where district court’s ruling on certain motions
necessarily dictated outcome of others because “[a]ll parties had a clear
understanding of the practical effects of the judgment, and no prejudice
results from construing the judgment as a final judgment” disposing of all
motions).
Finality may also be found where a
district court judgment appears to be “an attempt to dispose of all claims in
the action” and “no practical benefits would accrue from a dismissal for lack
of appellate jurisdiction.” Squaxin Island Tribe v.
Washington, 781 F.2d 715, 719 (9th Cir. 1986) (concluding order was
final where district court entered summary judgment for plaintiff on state law
grounds, apparently believing it unnecessary to dispose of federal claims in
light of well-established rule that courts should not reach federal
constitutional issues where state law issues are dispositive); see also French v. Merrill Lynch, Pierce,
Fenner & Smith, Inc.,
784 F.2d 902, 905 (9th Cir. 1986) (concluding order was final where
district court confirmed in part and struck in part arbitrator’s award of
damages; construing order as “an attempt to dispose of all claims in the
action” because plaintiff did not assert the right to have overturned damages
award tried by district court).
A “technical variance between the
judgment and order” does not render the order non-final. Lockwood v. Wolf Corp.,
629 F.2d 603, 608 (9th Cir. 1980) (concluding judgment was final where
court stated in summary judgment order that counterclaim was barred, but
neglected to mention counterclaim in judgment); see also Johnson v. Meltzer, 134 F.3d 1393,
1396 (9th Cir. 1998) (concluding judgment was final even though it
omitted party’s name where body of order clearly revealed court’s intent to
include party in its grant of summary judgment); Perkin-Elmer Corp. v.
Computervision Corp., 680 F.2d 669, 670–71 (9th Cir. 1982) (concluding
judgment was final where district court entered judgment referring only to
infringement following jury verdict on both patent infringement and validity).
Finality depends in part on the scope
of the underlying action:
The Supreme Court has held that “one of
multiple cases consolidated for multidistrict litigation under 28 U.S.C.
§ 1407 is immediately appealable upon an order disposing of that case,
regardless of whether any of the others remain pending.” Hall v. Hall,
138 S. Ct. 1118, 1122 (2018) (citing to Gelboim v. Bank of America
Corp., 574 U.S. 405, 135 S. Ct. 897 (2015)).
In Hall v. Hall, the Supreme
Court held that when one of multiple cases consolidated under Fed. R. Civ. P.
Rule 42(a) is finally decided, that ruling confers upon the losing party the
right to an immediate appeal, regardless of whether any of the other
consolidated cases remain pending. Hall,
138 S. Ct. at 1131.
Prior to Hall v. Hall, the Ninth
Circuit had held that an order adjudicating all claims in one action is not
final and appealable if consolidated actions remain undecided, absent a Fed. R.
Civ. P. 54(b) certification. See
Huene v. United States, 743 F.2d 703, 705 (9th Cir. 1984). However, Huene may no longer be good
law given the Supreme Court’s holding in Hall that “when one of several
consolidated cases is finally decided, a disappointed litigant is free to seek
review of that decision in the court of appeals.” Hall, 138 S. Ct. at 1131. See also Christopher A. Goelz
and Peder K. Batalden, Federal Ninth Circuit Civil Appellate Practice,
Ch. 3-E, ¶ 3:349 (The Rutter Group 2019) (noting that Hall appeared to
overrule Huene “and implies that consolidated district court cases
require separate notices of appeal”).
Cross-reference: II.C.9 (regarding consolidated actions).
(2) Actions to Enforce or Compel
An order that would not be immediately
appealable if issued in the course of an ongoing proceeding may be an
appealable final judgment if it disposes of the only issue before the
court. For example:
·
In
a proceeding to enforce an attorney’s fee award under the Longshore and Harbor
Workers’ Compensation Act, an order dismissing without prejudice the petition
to enforce is final and appealable. See
Thompson v. Potashnick
Constr. Co.,
812 F.2d 574, 575–76 (9th Cir. 1987).
·
In
a proceeding to compel arbitration, an order dismissing the petition to enforce
is final and appealable. See Americana Fabrics, Inc. v. L
& L Textiles, Inc.,
754 F.2d 1524, 1528 (9th Cir. 1985).
Cross-reference: II.C.4 (regarding arbitration orders).
·
In
a Freedom of Information Act (“FOIA”) action, an order requiring the government
to release documents, or denying plaintiff access to documents, is a final
appealable order. See United States v. Steele (In re
Steele),
799 F.2d 461, 464–65 (9th Cir. 1986) (citations omitted) (stating that
the order represents the “full, complete and final relief available” in FOIA
action); cf. Church of
Scientology Int’l v. IRS,
995 F.2d 916, 921 (9th Cir. 1993) (stating that an order holding that a particular
document is not exempt from disclosure under the attorney-client privilege is
not a final appealable order if it does not also order the government to
produce the documents).
Cross-reference: II.C.12.c.ii (regarding final judgment in
discovery proceedings).
·
In
a proceeding involving the death of a prisoner, the plaintiffs sought discovery
of the mortality review. The district
court overruled claim of privilege and ordered the production of the document. Although the court did not decide “whether a
discovery order disposing of an asserted claim of privilege could be
independently appealed under the collateral order doctrine of Cohen[,]”
the court determined that given the nature and importance of the privilege at
issue the court had jurisdiction to review the district court’s decision. Agster v. Maricopa Cty.,
422 F.3d 836, 838–39 (9th Cir. 2005) (citation omitted).
“A significant concern in assessing
finality is whether the parties have attempted to manipulate … appellate
jurisdiction.” American States Ins. Co. v.
Dastar Corp., 318 F.3d 881, 885 (9th Cir. 2003); see also Munns v. Kerry, 782 F.3d 402,
408 n.4 (9th Cir. 2015) (Because “the record reveals no evidence of
intent to manipulate our appellate jurisdiction” through the plaintiffs’
voluntary dismissal of the private defendants in this case, the district
court’s dismissal of the government defendants is final and appealable under
§ 1291.”); Sneller v. City of Bainbridge Island,
606 F.3d 636, 638 (9th Cir. 2010); James v. Price Stern Sloan,
Inc., 283 F.3d 1064, 1070 (9th Cir. 2002). Litigants ordinarily may not manipulate
jurisdiction by manufacturing finality “without fully relinquishing the ability
to further litigate unresolved claims.” Dannenberg v. Software Toolworks,
Inc., 16 F.3d 1073, 1077 (9th Cir. 1994). Permitting an appeal without prejudice to
unresolved claims would lead to inefficient use of judicial resources. See Cheng v. Comm’r, 878 F.2d 306,
310 (9th Cir. 1989) (observing that court of appeals may have to
unnecessarily decide an issue or refamiliarize itself with a case in the event
of multiple appeals).
An agreement between the parties that
grants the appellant the right to resurrect his remaining claims at a later
point in time may evidence an attempt to manipulate jurisdiction. See Adonican v City of Los Angeles, 297 F.3d 1106,
1108 (9th Cir. 2002) (order). The
court has also found attempted manipulation of jurisdiction where the record
showed the parties discussed their attempts to create appellate jurisdiction
and the parties dismissed the remaining claims, even though there was no
explicit agreement to allow revival of the claims or waiver of the statute of
limitations. See American States Ins. Co., 318 F.3d at 885.
Note that where an appeal is dismissed
as a result of the parties’ attempt to manufacture finality in a partial
summary judgment order by dismissing other claims without prejudice, the
appellant is not divested of the right to appeal. Rather, the appellant may seek the district court’s
permission to refile his claims as allowed under the agreement and proceed to
trial, file a motion to dismiss the claims not covered by the partial summary
judgment, or file a Rule
54(b) motion for the district court’s determination. The parties will be able to seek appellate
review once all the claims have been decided or the district court enters a Rule 54(b) final
judgment. See Adonican, 297 F.3d at 1108.
Cross-reference: II.C.13.b.vi (regarding impact of voluntary
dismissal of unresolved claims on appealability of order adjudicating certain
claims).
In rare cases, appellate jurisdiction
has been found proper despite a lack of a final order where: (1) the order was
“marginally final;” (2) it disposed of “an unsettled issue of national
significance,” (3) review of the order implemented the same policy Congress
sought to promote in 28
U.S.C. § 1292(b); and (4) judicial economy would not be served by
remand. Southern
Cal. Edison Co. v. Westinghouse Elec. Corp. (In re Subpoena Served on Cal. Pub.
Util. Comm’n), 813 F.2d 1473, 1479–80 (9th Cir. 1987); see
also Solis v. Jasmine Hall Care Homes, Inc., 610 F.3d 541, 544 (9th Cir.
2010) (per curiam); Nehmer
v. U.S. Dep’t of Agric., 494 F.3d 846, 856 n.5 (9th Cir. 2007) (holding
that the district court’s order involved an unsettled issue of national
significance, was marginally final, furthered the policy underlying 28 U.S.C. § 1292(b),
and prevented harm further delay would cause).
Cross-reference: II.B.4 (regarding interlocutory permissive
appeals under § 1292(b)).
This “pragmatic finality” doctrine is a
“narrow” exception to the finality requirement, All Alaskan Seafoods, Inc. v.
M/V Sea Producer, 882 F.2d 425, 428 n.2 (9th Cir. 1989), to be used
“sparingly,” Southern Cal.
Edison Co., 813 F.2d at 1479. See also Comm’r v. JT USA, LP, 630 F.3d 1167,
1171–72 (9th Cir. 2011) (tax).
The court has applied the pragmatic finality
doctrine in exercising jurisdiction over an appeal from a partial summary
judgment for county employees in an action alleging violation of the Fair Labor
Standards Act. See Service Employees Int’l Union,
Local 102 v. Cty. of San Diego,
60 F.3d 1346, 1349–50 (9th Cir. 1995) (concluding that although damages
issue was not yet resolved, jurisdiction was proper because partial summary
judgment orders were marginally final, disposed of unsettled issues of national
significance, and remand would not promote judicial efficiency); see also Pauly v. U.S. Dep’t of Agric., 348 F.3d 1143,
1148 (9th Cir. 2003) (holding that district court order was final
despite its partial remand to the United States Department of Agriculture for
the mechanical recalculation of recapture amount).
The court has also applied the
practical finality doctrine to exercise jurisdiction over an appeal by the
Department of Veterans Affairs from two orders in which the district court, in
a class action brought by veterans of the Vietnam War exposed to Agent Orange,
granted a motion for clarification and enforcement of a consent decree and
established a procedure for processing claims of veterans with chronic
lymphocytic leukemia. See Nehmer v. U.S. Dep’t of Agric., 494 F.3d 846,
856 n.5 (9th Cir. 2007) (holding that the district court’s order
involved an unsettled issue of national significance, was marginally final,
furthered the policy underlying 28 U.S.C. § 1292(b),
and prevented harm further delay would cause).
But see Hawaii v. Trump, 863 F.3d 1102, 1104 (9th Cir. 2017)
(practical finality rule not applicable where plaintiffs could seek injunctive
relief from the district court); Comm’r v. JT USA, LP, 630 F.3d 1167, 1171–72 (9th Cir. 2011)
(“narrow ‘practical finality’ rule … not applicable …, where the Tax Court’s
determination did not even address, let alone resolve, the merits of the
case”); Way v. Cty. of
Ventura, 348 F.3d 808, 811 (9th Cir. 2003) (declining to apply
“practical finality doctrine” where district court had not completed its
qualified immunity analysis); Sierra
Club v. Department of Transp., 948 F.2d 568, 572 (9th Cir. 1991)
(declining to apply “practical finality doctrine” in environmental action); Williamson v. UNUM Life Ins.
Co. of Am., 160 F.3d 1247, 1250–51 (9th Cir. 1998) (declining to apply
“practical finality doctrine” in insurance action).
Under
the collateral order doctrine, a litigant may appeal from a “narrow class of
decisions that do not terminate the litigation, but must, in the interest of
achieving a healthy legal system, nonetheless be treated as final.” Digital Equip. Corp. v.
Desktop Direct, Inc., 511 U.S. 863, 867 (1994) (internal quotations and
citations omitted); see alsoMohawk
Indus., Inc. v. Carpenter,
558 U.S. 100, 106 (2009) (the collateral order doctrine includes only
decisions that are conclusive, resolve important questions separate from the
merits, and are effectively unreviewable on appeal from final judgment); Plata v. Brown,
754 F.3d 1070, 1075 (9th Cir. 2014) (“[S]ome rulings that do not end the
litigation will be deemed final because they are ‘too important to be denied
review’ and too independent of the merits of the case to require deferral of
review.”); Stanley v. Chappell, 764 F.3d 990, 993 (9th Cir. 2014)
(district court’s stay-and-abeyance order was not an appealable collateral
order); Metabolic
Research, Inc. v. Ferrell, 693
F.3d 795, 798 (9th Cir. 2012)
(“[T]here
is a narrow class of decisions—termed collateral orders—that do not terminate
the litigation, but must in the interest of achieving a healthy legal system
nonetheless be treated as final.” (internal quotation marks and citation
omitted)); Copley Press, Inc. v.
Higuera-Guerrero (In re Copley Press, Inc.), 518 F.3d 1022,
1025 (9th Cir. 2008). The
conditions for meeting the collateral order doctrine are “stringent.” Digital Equip. Corp., 511
U.S. at 868; SolarCity
Corp. v. Salt River Project Agric. Improvement & Power Dist., 859 F.3d
720, 724 (9th Cir. 2017); Greensprings
Baptist Christian Fellowship Trust v. Cilley, 629 F.3d 1064, 1066–67 (9th
Cir. 2010). Though often referred to
as an exception, the collateral order doctrine is “best understood” as a
“practical construction” of the final judgment rule. Digital Equip. Corp., 511 U.S. at 867.
The court “must be cautious in applying this
doctrine, because once one order is identified as collateral, all orders of
that type must be considered collaterally.”
Comm’r v. JT USA, LP, 630 F.3d 1167, 1172 (9th Cir. 2011) (also
noting that the “Supreme Court recently cautioned that the collateral order
doctrine must never be allowed to swallow the general rule that a party is
entitled to a single appeal, to be deferred until final judgment has been
entered.” (internal quotation marks and citation omitted)).
Cross-reference: II.A.3 (regarding certification under Fed. R. Civ. P. 54(b) of an order disposing of fewer than all claims).
“To
establish jurisdiction under the collateral order doctrine, the appellants must
show the order they seek to appeal determines the disputed question
conclusively, resolves an important issue completely separate from the merits
of the action, and is effectively unreviewable on appeal from a final
judgment.” Breazeale v. Victim Servs., Inc., 878 F.3d 759, 766 (9th Cir.
2017) (citing Will v. Hallock, 546 U.S. 345, 349 (2006)). See also Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100,
106 (2009); Parsons
v. Ryan, 912 F.3d 486, 502 (9th Cir. 2018), cert. denied sub nom. Ryan v. Jensen, 140 S. Ct. 142 (2019); SolarCity Corp. v. Salt River Project
Agric. Improvement & Power Dist., 859 F.3d 720, 724 (9th Cir. 2017); Alto v. Black,
738 F.3d 1111, 1130 (9th Cir. 2013) (order deferring
adjudication not conclusive and not appealable under the collateral order
doctrine); Klestadt
& Winters, LLP v. Cangelosi, 672 F.3d 809, 813 (9th Cir. 2012) (bankruptcy); Comm’r
v. JT USA, LP, 630 F.3d 1167, 1172–73 (9th Cir. 2011) (tax); Greensprings Baptist Christian Fellowship Trust v. Cilley, 629 F.3d
1064, 1066–67 (9th Cir. 2010) (order granting a motion to strike under California’s
anti-SLAPP statute); Lazy
Y Ranch Ltd. v. Behrens, 546 F.3d 580, 587 (9th Cir. 2008) (denial of
qualified immunity); Copley
Press, Inc. v. Higuera-Guerrero (In re Copley Press, Inc.), 518 F.3d 1022,
1025 (9th Cir. 2008); Estate
of Kennedy v. Bell Helicopter Textron, Inc., 283 F.3d 1107, 1110 (9th Cir.
2002); Stevens v.
Brinks Home Security, Inc., 378 F.3d 944, 947 (9th Cir. 2004)
(concluding that collateral order doctrine did not apply where the order did
not resolve an “important” question); Jeff D. v. Kempthorne, 365 F.3d 844,
849 (9th Cir. 2004). All three
requirements must be satisfied to qualify as a collateral order for the purpose
of appeal. See SolarCity, 859 F.3d at 724;
Lewis v. Ayers, 681 F.3d 992,
996 (9th Cir. 2012); Klestadt & Winters, LLP,
672 F.3d at 813; Cordoza
v. Pacific States Steel Corp.,
320 F.3d 989, 997 (9th Cir. 2003); see also Truckstop.net, LLC v. Sprint
Corp.,
547 F.3d 1065, 1068 (9th Cir. 2008) (explaining that the court lacks
jurisdiction if even one element is not met).
The appealability of a collateral order should be determined “for the
entire category to which a claim belongs.”
Digital Equip.
Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868 (1994) (citations
omitted); see also Mohawk
Indus., Inc. v. Carpenter,
558 U.S. 100, 106 (2009) (the court does not engage in an
individualized jurisdictional inquiry, but rather focuses on the entire
category to which the claim belongs); SolarCity, 859 F.3d at
724; Metabolic Research, Inc. v. Ferrell,
693 F.3d 795, 799 (9th Cir. 2012) (explaining the court must “identify the
category of cases to which [the] case belongs and consider a rule that will
work for all cases in the category, regardless of whether the order in question
is correct.”).
A district court’s refusal to abstain
is generally not appealable as a collateral order. See Gulfstream Aerospace Corp. v.
Mayacamas Corp.,
485 U.S. 271, 278 (1988) (Colorado River doctrine). However, a district court’s decision to
abstain is appealable where the effect is to send the parties out of federal
court. See Quackenbush v. Allstate Ins. Co., 517 U.S. 706,
717 (1996) (Burford doctrine); Moses H. Cone Mem’l Hosp. v.
Mercury Constr. Corp., 460 U.S. 1, 10–11 & n.11 (1983) (Colorado
River doctrine).
Cross-reference: II.C.13 (regarding abstention-based dismissals); II.C.24 (regarding abstention-based remands); II.C.26 (regarding abstention-based stays).
Orders
denying claims of immunity are immediately appealable as collateral orders
where the asserted immunity is an immunity from suit, not a mere defense to
liability, see Alaska v.
United States,
64 F.3d 1352, 1354–55 (9th Cir. 1995), and the appeal raises a question
of law, see Mitchell v.
Forsyth,
472 U.S. 511, 528–30 (1985). See
also Plumhoff v. Rickard, 572 U.S. 765, 771 (2014); Tuuamalemalo v.
Greene, 946 F.3d 471, 476 (9th Cir. 2019) (per curiam) (“A denial of
summary judgment is immediately appealable when the immunity is an immunity
from suit, but not when it is a mere defense to liability.” (citation
omitted)); Taylor
v. Cty. of Pima,
913 F.3d 930, 934 (9th Cir. 2019) (where county only asserted immunity from
liability, the collateral order doctrine did not apply); Lisker v. City of Los Angeles,
780 F.3d 1237, 1241 (9th Cir. 2015) (“We have
jurisdiction over this appeal because ‘the denial of a substantial claim of
absolute immunity is an order appealable before final judgment’ under the
collateral order doctrine.”); Ashcroft v. Iqbal, 556 U.S. 662, 671–72 (2009); Conner v. Heiman, 672 F.3d 1126, 1130 (9th Cir. 2012) (denial of a qualified immunity); Mueller v. Auker, 576 F.3d 979,
987 (9th Cir. 2009); Brittain
v. Hansen,
451 F.3d 982, 987 (9th Cir. 2006).
While
pretrial orders denying qualified immunity generally fall within the collateral
order doctrine, the scope of review over the appeal is circumscribed. See Foster v. City of Indio, 908 F.3d
1204, 1210 (9th Cir. 2018) (per curiam).
In cases “where a portion of a district court’s summary judgment order
in a qualified immunity case determines only a question of ‘evidence
sufficiency,’ i.e., which facts a party may, or may not, be able to
prove at trial,” it is not a final decision under the collateral order
doctrine.” Id.
A district court’s order deferring a
motion to dismiss on absolute immunity grounds pending further discovery is not
appealable under the collateral order doctrine.
However, the court can “treat the notice of appeal as a petition for a
writ of mandamus and consider the issues under the factors set forth in Bauman.” See Miller v. Gammie, 335 F.3d 889,
894–95 (9th Cir. 2003) (en banc).
Cross-reference: II.C.17 (regarding orders denying immunity).
An
order granting a motion to disqualify counsel is generally not appealable as a
collateral order. See Richardson-Merrell, Inc. v.
Koller,
472 U.S. 424, 440 (1985). An
order denying a motion to disqualify counsel is also generally unappealable as
a collateral order. See Firestone Tire & Rubber Co.
v. Risjord,
449 U.S. 368, 369–70 (1981). See
also Aguon-Schulte v. Guam
Election Comm’n,
469 F.3d 1236, 1239 (9th Cir. 2006) (no jurisdiction to review denial of
motions to strike appearances of private counsel). Likewise, “a sanctions order
coupled with disqualification of counsel is doubly unappealable.” Lynn v. Gateway Unified Sch. Dist., 771 F.3d 1135, 1139 (9th Cir.
2014).
Cross-reference: II.C.14 (regarding disqualification
orders).
An order denying a motion for sanctions
brought by a party to ongoing litigation is generally not appealable as a
collateral order. See McCright v. Santoki, 976 F.2d 568,
569–70 (9th Cir. 1992) (per curiam) (observing the order can be
effectively reviewed after final judgment).
An order awarding sanctions against a party to ongoing litigation is
similarly unappealable as a collateral order.
See Riverhead Sav.
Bank v. Nat’l Mortgage Equity Corp.,
893 F.2d 1109, 1113 (9th Cir. 1990).
See also Klestadt & Winters, LLP v. Cangelosi,
672 F.3d 809, 816–20 (9th Cir. 2012) (in bankruptcy case, order imposing
sanctions pursuant to Fed. R. Bank. R. 9011 was not immediately appealable); Molski v. Evergreen Dynasty
Corp., 500 F.3d 1047, 1055–56 (9th Cir. 2007) (holding that “pre-filing
orders entered against vexatious litigants are [] not immediately appealable”);
Stanley v. Woodford,
449 F.3d 1060 (9th Cir. 2006) (order awarding sanctions against attorney
was not “final decision” for purposes of appeal). However, “[a] sanctions order imposed solely
on a non-party to pay attorney’s fees and costs falls within the
collateral order exception to the finality rule and is appealable immediately
as a final order.” Riverhead Sav. Bank, 893 F.2d at 1113.
Cross-reference: II.C.10 (regarding contempt and sanctions
orders generally).
Appeal from the following orders has
been permitted under the collateral order doctrine:
·
Order
denying defendant’s motion to require plaintiffs in shareholder derivative
action to post security for costs of suit.
See Cohen v.
Beneficial Indus. Loan Corp.,
337 U.S. 541, 546 (1949).
·
Protective
order in habeas corpus proceedings limiting respondent’s communications with
certain witnesses. See Wharton v. Calderon, 127 F.3d 1201,
1204 (9th Cir. 1997).
·
Order
requiring warden to transport prisoner for medical tests. See Jackson v. Vasquez, 1 F.3d 885,
887–88 (9th Cir. 1993).
·
Order
granting motion for certificate of reasonable cause prior to dismissal of
forfeiture action. See United States v. One 1986 Ford
Pickup,
56 F.3d 1181, 1185–86 (9th Cir. 1995) (per curiam).
·
A
district court order denying the state’s motion for reconsideration of a
magistrate judge order that permitted discovery by the state of certain
privileged materials, in connection with a habeas petitioner’s claim of
ineffective assistance of counsel, but limited the state’s use of such
materials, was appealable under the collateral order doctrine. See
Osband v. Woodford,
290 F.3d 1036, 1041 (9th Cir. 2002).
·
A
district court order dismissing with leave to amend a complaint under the Fair
Labor Standards Act for failure to include the employees’ true names is
immediately appealable under the collateral order doctrine. Does I thru XXIII v. Advanced Textile Corp., 214 F.3d 1058,
1066–67 (9th Cir. 2000). Cf. Greensprings Baptist Christian
Fellowship Trust v. Cilley,
629 F.3d 1064, 1068 (9th Cir. 2010) (no jurisdiction to entertain an
appeal from an order granting a plaintiff leave to amend its complaint
following the granting of a defendant’s anti-SLAPP motion).
·
Dismissal
of claims under the Rooker-Feldman
doctrine. See Fontana Empire
Ctr. v. City of Fontana,
307 F.3d 987, 991–92 (9th Cir. 2002).
·
A
district court decision overruling a claim of privilege and ordering the
production of materials, based on the specific circumstances of the case. The court determined that “significant
strategic decisions turn on [the decision’s] validity and review after final
judgment may therefore come too late.” See
Agster v. Maricopa Cty., 422 F.3d 836,
838–39 (9th Cir. 2005) (internal quotation marks and citations omitted).
·
A
denial of a claim of tribal sovereign immunity is immediately appealable under
the collateral order doctrine. See Burlington Northern & Santa
Fe Ry. Co. v. Vaughn,
509 F.3d 1085, 1089–91 (9th Cir. 2007).
·
An
order that unseals previously sealed documents may be reviewable as a
collateral final order. See Copley Press, Inc. v.
Higuera-Guerrero (In re Copley Press, Inc.), 518 F.3d 1022, 1025 (9th Cir. 2008);
but see United States v.
Hickey,
185 F.3d 1064, 1066–68 (9th Cir. 1999) (order sealing documents is
probably not appealable).
·
District
court’s interlocutory orders requiring respondent to reimburse petitioner for
deposition expenses incurred in petitioner’s pending habeas proceeding under 28
U.S.C. § 2254 were reviewable under the collateral order doctrine. See Copeland v. Ryan, 852 F.3d 900,
903 (9th Cir. 2017).
·
District
court order denying motion to strike under California’s anti-SLAPP statute is a
collateral order subject to interlocutory appeal. See Planned Parenthood Fed’n of Am.,
Inc. v. Ctr. for Med. Progress,
890 F.3d 828, 832 (9th Cir.), amended, 897 F.3d 1224 (9th Cir. 2018), and
cert. denied sub nom. Ctr. for Med. Progress v. Planned Parenthood Fed’n of Am.,
139 S. Ct. 1446 (2019); Hilton v. Hallmark Cards, 599 F.3d 894, 900 (9th
Cir. 2010). See also Schwern v.
Plunkett,
845 F.3d 1241, 1242 (9th Cir. 2017) (holding court of appeals has
jurisdiction to hear immediate appeals from denials of Oregon anti-SLAPP
motions, recognizing that Englert
v. MacDonnell, 551 F.3d 1099, 1103–04 (9th Cir. 2009) was superseded by
statute). “While orders disposing of SLAPP motions remain generally immediately
appealable, there is no right to immediate appeal when the trial court has
determined the public interest exception applies” under the California
Anti-SLAPP statute. Breazeale v.
Victim Servs., Inc., 878 F.3d 759, 765 (9th Cir. 2017) (citing Cal. Civ.
Proc. Code § 425.17(e) and concluding that the court lacked collateral
order jurisdiction). An order granting
an anti-SLAPP motion is fully reviewable on appeal from final judgment and thus
review is not available under the collateral order doctrine. Hyan v. Hummer, 825 F.3d 1043, 1047
(9th Cir. 2016) (per curiam).
·
“[A]n
order denying a motion to unseal or seal documents is appealable either as a
final order under 28 U.S.C. § 1291 or as a collateral order.” Oliner v. Kontrabecki, 745 F.3d 1024,
1025 (9th Cir. 2014).
Appeal from the following orders has
not been permitted under the collateral order doctrine:
·
Order
expunging lis pendens in forfeiture proceeding.
See Orange Cty. v.
Hongkong & Shanghai Banking Corp.,
52 F.3d 821, 824 (9th Cir. 1995).
Cross-reference: II.C.5 (regarding appeal from orders
related to assets).
·
Order
refusing to certify or decertifying a class.
See Coopers &
Lybrand v. Livesay,
437 U.S. 463, 467–69 (1978), superseded
by rule as stated in Microsoft
Corp. v. Baker,
137 S. Ct. 1702 (2017); see also Microsoft Corp. v. Baker, 137 S. Ct. 1702, 1712–15 (2017) (federal courts of appeals lack jurisdiction
under § 1291 to
review an order denying class certification (or as in this case, an order
striking class allegations) after the named plaintiffs have voluntarily
dismissed their claims with prejudice); Hunt
v. Imperial Merchant Servs., Inc., 560 F.3d 1137, 1141 (9th Cir. 2009) (class certification orders are
generally not immediately appealable).
Cross-reference: II.C.8.a (regarding permissive interlocutory
appeal from class certification orders under Fed. R. Civ. P. 23(f)).
·
Order
granting motion to vacate dismissal entered pursuant to settlement
agreement. See Digital Equip. Corp. v. Desktop
Direct, Inc.,
511 U.S. 863, 869 (1994).
·
Pretrial
order requiring parties to deposit money into a fund to share costs of
discovery. See Lopez v. Baxter Healthcare Corp.
(In re Baxter Healthcare Corp.),
151 F.3d 1148, 1148–49 (9th Cir. 1998) (order) (observing that case management
order was subject to ongoing modification by district court and even contained
a refund provision).
·
A
district court order denying motion to issue a notice of collective action
under the Fair Labor Standards Act.
See McElmurry v. U.S.
Bank Nat’l Ass’n,
495 F.3d 1136, 1138 (9th Cir. 2007).
·
District
court’s order concerning inadvertently disclosed document is generally not
appealable under the collateral order doctrine. See Truckstop.net, LLC v. Sprint
Corp.,
547 F.3d 1065, 1068–69 (9th Cir. 2008).
·
Disclosure
order adverse to the attorney-client privilege did not qualify for immediate
appeal under the collateral order doctrine.
See Mohawk Indus.,
Inc. v. Carpenter,
558 U.S. 100, 106 (2009).
·
“[D]enial
of a pretrial special motion to dismiss under Nevada’s anti-SLAPP statute does
not satisfy the third prong of the collateral order doctrine and is not,
therefore, immediately appealable.” Metabolic Research, Inc. v.
Ferrell, 693 F.3d 795, 802 (9th
Cir. 2012). But
see DC Comics v. Pac. Pictures Corp., 706 F.3d 1009, 1015 (9th Cir. 2013) (holding that the denial of a
motion to strike made pursuant to California’s anti-SLAPP statute
remains among the class of orders for which an immediate appeal is available).
·
“While
orders disposing of SLAPP motions remain generally immediately appealable,
there is no right to immediate appeal when the trial court has determined the
public interest exception applies” under the California Anti-SLAPP
statute. Breazeale v. Victim Servs.,
Inc., 878 F.3d 759, 765 (9th Cir. 2017) (citing Cal. Civ. Proc. Code
§ 425.17(e) and concluding that the court lacked collateral order
jurisdiction). “The California legislature has now made
the substantive determination that in public interest cases, the Anti-SLAPP
statute does not provide immunity from suit, and denials of Anti-SLAPP motions
to strike are no longer immediately appealable.” Breazeale v. Victim Servs., Inc., 878 F.3d 759, 767 (9th Cir. 2017).
·
The
court lacks “jurisdiction under the collateral order doctrine to entertain an
appeal from the portion of a district court’s order granting a defendant’s
anti-SLAPP motion which gives a plaintiff leave to amend her complaint.” Greensprings Baptist Christian Fellowship Trust v. Cilley, 629 F.3d
1064, 1070 (9th Cir. 2010) (distinguishing Batzel, and discussing cases related to anti-SLAPP statutes).
·
Denial
of a motion to dismiss for lack of a case or controversy is not an immediately
appealable collateral order. Cassirer v. Kingdom of Spain, 616 F.3d 1019, 1025–26 (9th Cir.
2010).
·
“[A]
competency determination in habeas proceedings [was] not a ‘conclusive’ order,
and [did not] satisfy the first requirement of an appealable collateral
order.” Lewis v. Ayers, 681 F.3d 992, 997 (9th Cir. 2012).
·
“[A]
sanctions order coupled with disqualification of counsel is … unappealable.” Lynn v. Gateway Unified Sch. Dist., 771 F.3d 1135, 1139 (9th Cir.
2014).
·
Denial
of motion to dismiss a securities fraud charge under 18 U.S.C. § 1348 for
failing to state an offense and for violating the Double Jeopardy Clause. United States v. Decinces, 808 F.3d 785, 787, 793 (9th Cir. 2015) (as amended).
·
Collateral
order doctrine did not apply to order denying Eleventh Amendment immunity from
liability in § 1983 action, where the county’s asserted immunity from
liability could be vindicated after final judgment. See Taylor v. Cty. of Pima, 913 F.3d
930, 934 (9th Cir. 2019).
·
Order
denying a motion to dismiss based on the state-action immunity was not
reviewable under the collateral order doctrine because the state action
doctrine is a defense to liability and not an immunity from suit. SolarCity Corp. v. Salt River Project
Agric. Improvement & Power Dist., 859 F.3d 720, 727 (9th Cir. 2017).
“Rule 54(b) permits district courts to
authorize immediate appeal of dispositive rulings on separate claims in a civil
action raising multiple claims.” Gelboim v. Bank of Am. Corp., 574 U.S. 405, 135 S. Ct. 897, 902
(2015).
When an action
presents more than one claim for relief – whether as a claim, counterclaim,
crossclaim, or third-party claim – or when multiple parties are involved, the
court may direct entry of a final judgment as to one or more, but fewer than
all, claims or parties only if the court expressly determines that there is no
just reason for delay.
Fed. R. Civ. P. 54(b); see also Bates v. Bankers Life
& Cas. Co., 848 F.3d 1236, 1238 (9th Cir. 2017) (per curiam). “Rule 54(b) relaxes ‘the former general practice that, in
multiple claims actions, all the claims had to be finally decided before
an appeal could be entertained from a final decision upon any of them.’” Gelboim, 135 S. Ct. at 902 (quoting Sears, Roebuck & Co.
v. Mackey, 351 U.S. 427,
434 (1956)). See also Wood v. GCC Bend, LLC, 422 F.3d 873 (9th Cir. 2005) (holding certification not warranted);
Arizona State Carpenters
Pension Trust Fund v. Miller, 938 F.2d 1038, 1039–40 (9th Cir. 1991). “The Rule was adopted ‘specifically to avoid the possible
injustice of delay[ing] judgment o[n] a distinctly separate claim [pending]
adjudication of the entire case... . The Rule thus aimed to augment, not
diminish, appeal opportunity.’” Jewel v. Nat’l Sec. Agency, 810 F.3d 622, 628 (9th Cir. 2015)
(quoting Gelboim, 135 S. Ct. at 902–03).
An
order adjudicating fewer than all claims against all parties is not subject to
immediate review absent Rule 54(b) certification unless it satisfies the
collateral order doctrine, see II.A.2, is an appealable interlocutory
order, see II.B, or is inextricably intertwined with an order that is
immediately appealable, see V.A (Scope of Appeal).
In determining whether to certify an
order under Fed. R. Civ. P.
54(b), the district court must first determine whether the order is a final
judgment. See Curtiss-Wright Corp. v. General
Elec. Co.,
446 U.S. 1, 7 (1980). “It must be
a ‘judgment’ in the sense that it is a decision upon a cognizable claim for
relief, and it must be ‘final’ in the sense that it is ‘an ultimate disposition
of an individual claim entered in the course of a multiple claims
action.’” Id. (citation
omitted). “District courts, however, do not have the discretion under Rule
54(b) to convert a non-final judgment into a final judgment.” Bates v. Bankers Life & Cas. Co.,
848 F.3d 1236, 1238 (9th Cir. 2017) (per curiam).
The district court must then determine
whether there is any just reason for delay.
See Curtiss-Wright, 446 U.S. at
8. The court should consider:
(1) the interrelationship of the certified claims and the remaining claims in
light of the policy against piecemeal review; and (2) equitable factors such as
prejudice and delay. See id. at 8–10; Gregorian v. Izvestia,
871 F.2d 1515, 1518–20 (9th Cir. 1989); see also Pakootas v. Teck
Cominco Metals, Ltd., 905 F.3d 565, 576 (9th Cir. 2018), cert. denied
sub nom. Teck Metals Ltd. v. Confederated Tribes of the Colville Reservation,
139 S. Ct. 2693 (2019); Jewel v. Nat’l Sec. Agency, 810 F.3d 622, 628
(9th Cir. 2015); Noel v.
Hall,
568 F.3d 743, 747 (9th Cir. 2009) (the court of appeals must scrutinize
the district court’s evaluation of factors such as “the interrelationship of
the claims so as to prevent piecemeal appeals in cases which should be reviewed
only as single units”); Wood
v. GCC Bend, LLC, 422 F.3d 873, 878–79 (9th Cir. 2005).
The district court may sua sponte
reconsider, rescind or modify a certified order under 54(b) until the appellate
court grants a party permission to appeal. See City of Los Angeles, Harbor Div.
v. Santa Monica Baykeeper,
254 F.3d 882, 886 (9th Cir. 2001).
In determining whether jurisdiction
exists under Fed. R. Civ. P.
54(b), the court of appeals examines the contents of the certification
order, see II.A.3.b (below), and the propriety of certification, see II.A.3.c.
A certification order under Fed. R. Civ. P. 54(b) must
expressly determine there is “no just reason for delay.” See Fed. R. Civ. P. 54(b); see
also United States v. Gila Valley Irrigation Dist., 859 F.3d 789, 797 (9th
Cir. 2017) (explaining that finality is achieved only if the district court
makes an express determination that there is no just reason for delay and also
makes an express direction for entry of final judgment); Nat’l Ass’n of Home Builders v.
Norton,
325 F.3d 1165, 1167 (9th Cir. 2003) (order) (concluding the district
court’s initial certification was deficient because it failed to make the requisite
express determination that there was “no just reason for delay”); Frank Briscoe Co. v.
Morrison-Knudsen Co.,
776 F.2d 1414, 1416 (9th Cir. 1985) (dismissing appeal for lack of jurisdiction
where certification order referred to Fed. R. Civ. P. 54(b), and
directed entry of judgment, but did not expressly determine there was “no just
reason for delay”).
However, “Fed. R. Civ. P. 54(b) does
not require that the district court use the rule’s precise wording.” AFGE Local 1533 v. Cheney,
944 F.2d 503, 505 n.3 (9th Cir. 1991) (determining Rule 54(b)’s “no just
reason for delay” requirement was satisfied where certification order stated
that defendant would not be prejudiced by entry of judgment under Rule 54(b),
that certified claims were “substantially different” from remaining claims, and
that defendant would not be subject to conflicting orders).
It is not mandatory that a
certification order expressly refer to Fed. R. Civ. P. 54(b) where
the order finds no just reason for delay and directs entry of judgment. See Bryant v. Technical Research Co., 654 F.2d 1337,
1341 n.3 (9th Cir. 1981).
A certification order should also
contain “specific findings setting forth the reason for [certification].” Morrison-Knudsen Co. v.
Archer, 655 F.2d 962, 965 (9th Cir. 1981). However, the lack of specific findings is not
a jurisdictional defect as long as the court of appeals can determine the
propriety of certification without such findings. See Jewel v. Nat’l Sec. Agency,
810 F.3d 622, 628 (9th Cir. 2015) (“[I]f a district
court does not make any findings or give any explanation, we turn to the record
to discern whether Rule 54(b) certification was warranted.”); Noel v. Hall, 568 F.3d 743, 747 n.5 (9th Cir. 2009); Alcan Aluminum Corp.
v. Carlsberg Fin. Corp., 689 F.2d 815, 817 (9th Cir. 1982) (finding
certification order valid where posture of case “readily obtainable from the
briefs and records”); see also Noel v. Hall, 341 F.3d 1148,
1154 n.2 (9th Cir. 2003) (explaining that the court may “hear an
interlocutory appeal under Rule 54(b) if it will aid in the efficient
resolution of the action.”); Rutman
Wine Co. v. E. & J. Gallo Winery, 829 F.2d 729, 732 n.1 (9th Cir. 1987)
(noting that remand due to lack of Rule 54(b) findings would be a waste of
judicial resources because parties briefed merits).
“Pursuant to Federal Rule of Civil
Procedure 54(b), a district court ‘may direct entry of a final judgment as to
one or more, but fewer than all, claims or parties only if the court expressly
determines that there is no just reason for delay.’ District courts, however,
do not have the discretion under Rule 54(b) to convert a non-final judgment
into a final judgment.” Bates v.
Bankers Life & Cas. Co., 848 F.3d 1236, 1238 (9th Cir. 2017) (per
curiam) (holding that order striking class allegations was not final appealable
order, despite district court granting motion for entry of final judgment
pursuant to rule 54(b)).
Where a district court certifies a
decision for immediate appeal under Rule 54(b), the court of appeals must
independently determine whether the decision is final. See Arizona State Carpenters Pension
Trust Fund v. Miller,
938 F.2d 1038, 1039–40 (9th Cir. 1991).
“The partial adjudication of a single claim is not appealable, despite a
Rule 54(b)
certification.” Id. at 1040 (citation
omitted) (concluding that order dismissing punitive damages claim was not
certifiable under Rule 54(b) because the damages claim was not separate and
distinct from the remaining counts); see also Wood v. GCC Bend, LLC, 422 F.3d 873,
883 (9th Cir. 2005) (reversing the district court’s Rule 54(b)
certification).
The court of appeals reviews de novo
the district court’s evaluation of judicial concerns, such as the
interrelationship of certified claims and remaining claims, and the possibility
of piecemeal review. See Gregorian v. Izvestia, 871 F.2d 1515,
1518–19 (9th Cir. 1989) (mixed question of law and fact); see also Jewel v. Nat’l Sec. Agency,
810 F.3d 622, 628 (9th Cir. 2015); SEC v. Platforms Wireless Int’l Corp., 617 F.3d
1072, 1084 (9th Cir. 2010); AmerisourceBergen Corp. v.
Dialysis West, Inc., 465 F.3d 946, 949 (9th Cir. 2006) (as amended) (“The district court’s
Rule 54(b) certification of the judgment is reviewed de novo to determine if it
will lead to ‘piecemeal appeals’ and for ‘clear unreasonableness’ on the issue
of equities.”); Wood v.
GCC Bend, LLC,
422 F.3d 873, 879 (9th Cir. 2005) (explaining that judicial concerns are
reviewed de novo). The court of appeals
reviews for abuse of discretion the district court’s assessment of equitable
factors, such as prejudice and delay. See
Gregorian, 871 F.2d at 1519;
see also Platforms Wireless Int’l Corp., 617 F.3d at
1084 (assessing equities under “substantial deference” standard); cf.
Texaco, Inc. v. Ponsoldt, 939 F.2d 794,
797 (9th Cir. 1991) (citing Gregorian for the single proposition
that the court reviews a Rule 54(b) certification for abuse of discretion).
Cross-reference: II.A.3.a.i (regarding determinations by the
district court under Fed. R.
Civ. P. 54(b)).
iii. Scrutiny under Morrison-Knudsen
The traditional view is that Fed. R. Civ. P. 54(b) is to
be “reserved for the unusual case in which the costs and risks of multiplying
the number of proceedings and of overcrowding the appellate docket are
outbalanced by pressing needs of the litigants for an early and separate
judgment as to some claims or parties.” Morrison-Knudsen Co. v.
Archer, 655 F.2d 962, 965 (9th Cir. 1981). Where there exists a similarity of legal or
factual issues between claims to be certified and claims remaining, certification
is proper “only where necessary to avoid a harsh and unjust result.” Id. at 965–66
(finding certification improper because certified claims were legally and
factually inseverable from unadjudicated claims, and compelling circumstances
were not present).
iv. Trend Toward Greater Deference to District
Court
“The present trend is toward greater
deference to a district court’s decision to certify under Rule 54(b).” Texaco, Inc. v. Ponsoldt,
939 F.2d 794, 798 (9th Cir. 1991) (noting that Morrison-Knudsen is
“outdated and overly restrictive”); see also Int’l Longshore & Warehouse
Union v. ICTSI Oregon, Inc.,
863 F.3d 1178, 1186 (9th Cir. 2017), cert. denied, 138 S. Ct. 1262 (2018)
(recognizing that the appellate court must give substantial deference to
certain elements of the district court’s analysis); Noel v. Hall, 568
F.3d 743, 747 (9th Cir. 2009) (the court of appeals accords substantial
deference to the district court’s assessment of equitable factors such as
prejudice and delay); James
v. Price Stern Sloan, Inc., 283 F.3d 1064, 1067 n.6 (9th Cir. 2002) (“A
court of appeals may, of course, review such judgments for compliance with the
requirements of finality, but accords a great deference to the district
court.”). Under the more recent
standard, certified claims need not be separate and independent from remaining
claims; rather, a certification is appropriate if it will aid “expeditious
decision” of the case. See Texaco, Inc., 939 F.2d at 798
(stating that even under this more lenient standard, the court of appeals still
must scrutinize certification to prevent piecemeal review).
(a) Orders Properly Certified under Fed. R. Civ. P. 54(b)
The court of appeals has determined
that the district court did not err in certifying the following orders for
immediate appeal under Fed.
R. Civ. P. 54(b):
·
Order
granting partial summary judgment to defendants properly certified even though
the order eliminated no parties and left open possibility of full recovery by
plaintiff for both property damage and liability to third parties. See Continental Airlines, Inc. v.
Goodyear Tire & Rubber Co.,
819 F.2d 1519, 1524–25 (9th Cir. 1987) (“[G]iven the size and complexity
of this case, we cannot condemn the district court’s effort to carve out
threshold claims and thus streamline further litigation.”).
·
Order
granting summary judgment to defendants on plaintiffs’ claims seeking
invalidation of settlement agreement properly certified even though defendants’
counterclaim for breach of settlement agreement still pending. See Sheehan v. Atlanta Int’l Ins.
Co.,
812 F.2d 465, 468 (9th Cir. 1987) (stating that certified claims need
not be separate and independent).
·
Order
granting summary judgment for defendant on grounds that settlement agreement
unenforceable properly certified even though defendant’s counterclaim for
breach of contract, which formed the basis for the purported settlement, was
still pending. See Texaco v. Ponsoldt, 939 F.2d 794,
798 (9th Cir. 1991) (concluding that although certified claims require
proof of same facts as unadjudicated claims, resolution of legal issues on
appeal will streamline ensuing litigation).
·
Order
granting partial summary judgment to defendants as to certain theories of
recovery properly certified even though the order did not eliminate any parties
or limit possible recovery by plaintiff.
See Continental
Airlines, Inc. v. Goodyear Tire & Rubber Co., 819 F.2d 1519, 1524–25 (9th Cir.
1987) (observing that Rule 54(b) demands “pragmatic approach focusing on
severability and efficient judicial administration”).
·
Order
setting aside default as to libel claim properly certified even though civil
conspiracy and intentional infliction of emotional distress claims still pending. See Gregorian v. Izvestia, 871 F.2d 1515,
1518–20 (9th Cir. 1989) (finding libel claim to be distinct legally and
factually from conspiracy claim, and “substantially different” legally and
factually from emotional distress claim even though distress claim premised in
part on libel).
·
Order
dismissing certain defendants for lack of personal jurisdiction properly
certified even though claims against remaining defendants still pending. See Core-Vent Corp. v. Nobel Indus.
AB,
11 F.3d 1482, 1484 (9th Cir. 1993) (observing that jurisdictional issue
was “unrelated” to other issues in case and immediate appeal would aid
“expeditious decision”).
·
Order
granting summary judgment to third party defendants on contribution claim
properly certified even though multiple claims against multiple parties were
still pending in Comprehensive Environmental Response, Compensation and
Liability Act (“CERCLA”) action. See Cadillac Fairview/California,
Inc. v. United States,
41 F.3d 562, 564 n.1 (9th Cir. 1994) (noting trend toward greater
deference to district court certification under Rule 54(b)).
·
Jury
verdict for defendants on plaintiffs’ claims in complex anti-trust action
properly certified even though defendants’ counterclaims still pending because
district court ordered separate trials on claims and counterclaims. See Amarel v. Connell, 102 F.3d 1494,
1499 n.1 (9th Cir. 1997).
·
Order
granting summary judgment to one of the defendants in the action was properly
certified, where the judgment disposed of the case between the plaintiff and
that defendant, despite similar pending claims that remained against other
defendants. See Noel v. Hall, 568 F.3d 743,
747 n.5 (9th Cir. 2009).
·
Order
granting Fed. R. Civ. P. 12(b)(6) motion to dismiss antitrust counterclaim
where the claim involved discrete legal issues separate from the § 301
litigation or the adjudications still proceeding before the NLRB, the legal
issues were complicated and not routine, and the entry of partial final
judgment did not result in duplicative proceedings. See Int’l Longshore & Warehouse Union
v. ICTSI Oregon, Inc., 863 F.3d 1178, 1185–86 (9th Cir. 2017), cert.
denied, 138 S. Ct. 1262 (2018).
(b) Orders Not Properly Certified under Fed. R. Civ. P. 54(b)
The court of appeals has determined
that the following orders were not properly certified for immediate appeal
under Fed. R. Civ. P. 54(b):
·
Order
granting partial summary judgment and dismissing a Fourth Amendment claim was
not properly certified under Fed.
R. Civ. P. 54(b) where it failed to meet the “no just reason for delay”
prong, and the practical effect of certifying the Fourth Amendment issue would
deconstruct the action so as to allow piecemeal appeals with respect to the
same set of facts. Jewel v. Nat’l Sec. Agency, 810 F.3d 622 (9th Cir. 2015).
·
Order
dismissing punitive damages claim not certifiable because not separate and
distinct from remaining counts. See Arizona State Carpenters Pension
Trust Fund v. Miller,
938 F.2d 1038, 1040 (9th Cir. 1991) (“[C]omplaint asserting only one
legal right, even if seeking multiple remedies for the alleged violation of
that right, states a single claim for relief.” (citations omitted)).
·
Orders
granting judgment notwithstanding the verdict and new trial as to issues
relating to plaintiffs’ respiratory and neurological injuries not certifiable
because claims for negligence not finally determined. See Schudel v. General Elec. Co., 120 F.3d 991,
994 (9th Cir. 1997) (emphasizing that plaintiffs alleged single claims
for negligence, not separate claims for respiratory and neurological injuries),
abrogated on other grounds by Weisgram v. Marley Co.,
528 U.S. 440 (2000).
·
Order
granting summary judgment on state common law claim and statutory claim to the
extent the claims were based on constructive discharge theory because the case
was routine, the facts on all claims and issues overlapped and successive
appeals were inevitable. See Wood v. GCC Bend, LLC, 422 F.3d 873,
883 (9th Cir. 2005) (explaining that the interests of “judicial
administration counsel against certifying claims or related issues in remaining
claims that are based on interlocking facts, in a routine case, that will
likely lead to successive appeals.”).
·
Post-judgment
order dismissing applications to sever and transfer water rights, pursuant to
consent decree, was not a final appealable order, as the court never made an
“express determination” that there was no need for further delay. United States v. Gila Valley Irrigation
Dist., 859 F.3d 789, 798 (9th Cir. 2017).
The court recognized that “[t]here is no question that a post-judgment
order can be treated as a final order, even if there remain other, ongoing
post-judgment proceedings. … . But this does not free the district court from
the strictures of Rule 54(b).” Id.
·
Order
granting a motion to strike class allegations, was not a final appealable
order, and district court did not have discretion under Rule 54(b) to convert a
non-final judgment into a final judgment.
See Bates v. Bankers Life & Cas. Co., 848 F.3d 1236,
1238 (9th Cir. 2017) (per curiam).
d. Immediate Appeal from Fed. R. Civ. P. 54(b) Order Required
An order certified under Rule 54(b)
must be appealed immediately; it is not reviewable on appeal from final judgment. See Williams v. Boeing Co., 681 F.2d 615,
616 (9th Cir. 1982) (per curiam) (stating that time to appeal begins to
run upon entry of judgment under Rule 54(b)); see also Atchison, Topeka & Santa Fe
Ry. Co. v. California State Bd. of Equalization, 102 F.3d 425, 427 (9th Cir. 1996)
(holding that where notice of appeal was not filed within 30 days of partial
summary judgment certified under Rule 54(b), later appeal from modified partial
summary judgment order was untimely because modification did not adversely
affect appellant’s interest in a material matter).
Cross-reference: II.A.3.b.iii (regarding specific findings
required under Fed. R. Civ.
P. 54(b); III.C.3.a (regarding effectiveness of notice of appeal filed
after grant of partial summary judgment but before entry of Rule 54(b)
certification); III.F.2.g (regarding impact of tolling motion on time to appeal
from order certified under Rule 54(b)).
e. Denial of Rule
54(b) Certification
An order denying a request for
certification under Rule 54(b) is not itself an appealable order. See McCall v. Deeds, 849 F.2d 1259,
1259 (9th Cir. 1988) (order).
However, an order denying certification may be reviewed on appeal from
final judgment. See Blair v. Shanahan, 38 F.3d 1514,
1522 (9th Cir. 1994) (concluding district court did not abuse its
discretion in refusing to certify order granting plaintiff’s request for
declaratory judgment that statute was unconstitutional).
The court of appeals has jurisdiction
over appeals from interlocutory orders “granting, continuing, modifying,
refusing, or dissolving injunctions, or refusing to dissolve or modify
injunctions.” 28 U.S.C. § 1292(a)(1). The Supreme Court has made clear that the “label attached to an order is not
dispositive. [Rather,] where an order has the ‘practical effect’ of granting or
denying an injunction, it should be treated as such for purposes of appellate
jurisdiction.” Abbott v. Perez,
138 S. Ct. 2305, 2319 (2018).
Section 1292(a)(1) is to be construed
narrowly to encompass only appeals that “further the statutory purpose of
permitting litigants to effectually challenge interlocutory orders of serious,
perhaps irreparable consequence.” Carson v. American Brands,
Inc., 450 U.S. 79, 84 (1981) (internal quotations and citations
omitted); see also Buckingham
v. Gannon (In re Touch America Holdings, Inc. ERISA Litig.), 563 F.3d 903,
906 (9th Cir. 2009) (per curiam).
Note that the court of appeals’ denial
of permission to appeal under 28
U.S.C. § 1292(b) does not preclude appeal under 28 U.S.C. § 1292(a). See Armstrong v. Wilson, 124 F.3d 1019,
1021 (9th Cir. 1997) (noting that interlocutory appeal under
§ 1292(b) is by permission while interlocutory appeal under § 1292(a)
is by right).
An
interlocutory order specifically granting or denying an injunction is
appealable under 28 U.S.C.
§ 1292(a)(1) without a showing of irreparable harm. See Pom Wonderful LLC v. Hubbard, 775 F.3d 1118, 1122 (9th Cir. 2014) (involving district court’s denial of
motion for preliminary injunction); Arc of California v. Douglas,
757 F.3d 975, 992 (9th Cir. 2014) (appellate
jurisdiction over the district court’s denial of Arc’s motion for preliminary
injunctive relief); Paige v. California, 102 F.3d 1035, 1038 (9th Cir. 1996) (involving appeal from grant of
preliminary injunction); Shee
Atika v. Sealaska Corp., 39 F.3d 247, 248–49 (9th Cir. 1994) (involving
appeal from denial of permanent injunction).
See also Nat. Res. Def. Council v.
Cty. of Los Angeles, 840 F.3d
1098, 1101 (9th Cir. 2016) (district court’s dismissal of claims for injunctive
relief on the basis of mootness conferred jurisdiction pursuant to 28 U.S.C.
§ 1292(a)(1)); Townley v. Miller, 693 F.3d 1041,
1042 (9th Cir. 2012) (order) (concluding that notices of appeal from
order granting preliminary injunction divested the district court of
jurisdiction, giving the court of appeals jurisdiction over the interlocutory
appeal pursuant to § 1292(a)(1)).
An order that does not expressly grant or
deny an injunction may nevertheless be appealable under §1292(a)(1) if it: (1)
has the practical effect of denying an injunction; (2) could cause serious or
irreparable harm; and (3) can only be “effectually challenged” by immediate
appeal. Carson v. American Brands,
Inc., 450 U.S. 79, 84 (1981); see also Buckingham
v. Gannon (In re Touch America Holdings, Inc. ERISA Litig.), 563 F.3d 903,
906 (9th Cir. 2009) (per curiam); Negrete v. Allianz Life Ins.
Co. of North America, 523 F.3d 1091, 1097 (9th Cir. 2008); Calderon v. United States Dist.
Court,
137 F.3d 1420, 1422 n.2 (9th Cir. 1998) (noting inconsistent decisions
as to whether Carson requirements should apply only to orders denying
injunctive relief, or to both orders denying injunctive relief and orders
granting injunctive relief).
The substantial effect of the order,
not its terminology, is determinative. See
Abbott v. Perez, 138 S. Ct. 2305,
2319 (2018) (stating the Supreme Court has made it clear that
the “label attached to an order is not dispositive.
[Rather,] where an order has the ‘practical effect’ of granting or denying an
injunction, it should be treated as such for purposes of appellate
jurisdiction.”); Turtle Island Restoration Network v. United States Dep’t of
Commerce, 672 F.3d 1160, 1165 (9th
Cir. 2012) (concluding consent decree functioned as an
injunction); Tagupa v.
East-West Ctr., Inc., 642 F.2d 1127, 1129 (9th Cir. 1981) (finding denial of mandamus appealable
where substantial effect was to refuse an injunction); see also Negrete, 523 F.3d at 1097;
United States v. Orr Water
Ditch Co., 391 F.3d 1077, 1081 (9th Cir. 2004), amended by 400 F.3d 1117 (9th Cir. 2005)
(finding stay order appealable where it was the functional equivalent of a
preliminary injunction).
To determine an order’s practical
effect, the court evaluates the order “in light of the essential attributes of
an injunction.” See Orange Cty. v. Hongkong &
Shanghai Banking Corp.,
52 F.3d 821, 825 (9th Cir. 1995).
An injunction is an order that is: “(1) directed to a party, (2)
enforceable by contempt, and (3) designed to accord or protect some or all of
the substantive relief sought by a complaint in more than preliminary
fashion.” Id. (internal
quotation marks and citation omitted).
Applying the above standard, the court
of appeals has held an order expunging a lis pendens to be unappealable under
§ 1292(a)(1) because although a lis pendens may prevent transfer of
property by clouding its title, it is not directed at a party and it’s not
enforceable by contempt. See Orange Cty., 52 F.3d at
825–26. The court of appeals has
also held that a district court’s remand order vacating a final rule published
by the National Marine Fisheries Service did not have the practical effect of
entering an injunction because the order was subject to interlocutory appeal
and did not compel the service to take any action, but rather only prohibited
the service from enforcing the rule as it was written. See Alsea Valley Alliance v. Dep’t
of Commerce,
358 F.3d 1181, 1184–86 (9th Cir. 2004).
Additionally, the court of appeals has held that an order denying
exclusion of female state inmates from a plaintiff class action did not have
the practical effect of an injunction where the order did not grant or deny
injunctive relief, even though it modified the composition of the plaintiff
class. See Plata v. Davis, 329 F.3d 1101,
1105–07 (9th Cir. 2003). The
denial of an ex parte seizure order has also been held not to have the
practical effect of an injunction and thus was not appealable. See In Re Lorillard Tobacco Co., 370 F.3d 982,
981–89 (9th Cir. 2004).
In contrast, the court has permitted
appeal from an order directing a party to place assessments mistakenly paid to
it by defendant in escrow pending resolution of the underlying lawsuit, see United States v. Cal-Almond,
Inc.,
102 F.3d 999, 1002 (9th Cir. 1996), and an order granting summary judgment
to the federal government where the district court’s ruling that the government
had until a certain date to publish regulations effectively denied plaintiff
environmental groups’ request for an injunction requiring publication by an
earlier date, see Oregon
Natural Resources Council, Inc., v. Kantor, 99 F.3d 334, 336–37 (9th Cir. 1996). Jurisdiction has been also found over an
interlocutory appeal from the district court’s order to continue for the
duration of the Securities and Exchange Commission securities fraud action, the
temporary escrow of termination payments because the order was analogous to a
preliminary injunction. See Sec. & Exch.Comm’n v.
Gemstar TV Guide Intern., Inc.,
401 F.3d 1031, 1034 (9th Cir. 2005) (en banc). The court also determined that an order not
denominated an injunction, but that barred the defendant from discussing
settlement in parallel class litigation, was in substance an injunction and
thus immediately appealable under § 1292(a)(1). See Negrete v. Allianz Life Ins. Co.
of North America,
523 F.3d 1091, 1096–98 (9th Cir. 2008).
An order that has the practical effect
of denying injunctive relief is not immediately appealable unless appellant
demonstrates that serious or irreparable harm would otherwise result. See Carson v. American Brands, Inc., 450 U.S. 79, 84,
87–89 (1981) (concluding order that had effect of denying injunction was
appealable where order deprived parties of right to compromise on mutually
agreeable terms, including immediate restructuring of appellee’s employment
policies, potentially causing irreparable harm).
An order that has the effect of
granting or denying injunctive relief is not immediately appealable if it can
be effectively challenged after final judgment.
See Gamboa v.
Chandler,
101 F.3d 90, 91 (9th Cir. 1996) (en banc) (concluding orders that did
not expressly grant or deny injunctive relief were not appealable despite
injunctive effect because they could be effectively challenged following entry
of final judgment).
An order that substantially changes the
terms of an injunction or alters the legal relations between the parties is
appealable under 28 U.S.C.
§ 1292(a)(1) as an order modifying an injunction. See Gon v. First State Ins. Co., 871 F.2d 863,
866 (9th Cir. 1989); see also Karnoski v. Trump, 926 F.3d 1180,
1198 (9th Cir. 2019) (per curiam) (“Pursuant to 28 U.S.C. § 1292(a)(1), we
have jurisdiction to review an order granting, continuing, modifying, refusing
or dissolving injunctions, or refusing to dissolve or modify injunctions.”
(citation omitted)); cf. Public
Serv. Co. of Colorado v. Batt,
67 F.3d 234, 236–37 (9th Cir. 1995) (dismissing appeal from order that
enforced but did not modify injunction).
However, “a party that has failed to appeal from an injunction cannot
regain its lost opportunity simply by making a motion to modify or dissolve the
injunction, having the motion denied, and appealing the denial. In such a case, the appeal is limited to the
propriety of the denial, and does not extend to the propriety of the original
injunction itself.” Karnoski, 926
F.3d at 1198 (internal quotation marks and citation omitted).
For example, the following orders are
appealable under § 1292(a)(1) as orders modifying an injunction:
·
Order
modifying an existing injunction, mandating the qualitative assessment and
training of Deputy Commissioners and a new role for the Special Master’s as a
moderator and supervisor. See Valdivia v. Schwarzenegger, 599 F.3d 984, 987–88 (9th Cir. 2010).
·
Order
directing insurance company to pay all legal defense costs as incurred modified
prior injunction ordering payment of all legal defense costs except as to
claims and claimants clearly not covered.
See Gon v. First
State Ins. Co.,
871 F.2d 863, 865–66 (9th Cir. 1989).
·
Order
requiring law firm to submit invoices for legal services to court for in camera
review modified prior preliminary injunction freezing all client’s assets
except for purposes of paying reasonable attorney’s fees. See FSLIC v. Ferm, 909 F.2d 372,
373 (9th Cir. 1990).
·
Order
denying motion to modify consent decree, by eliminating special master
provision and substituting magistrate judge, had injunctive effect of requiring
defendants to continue paying special master fees or face contempt. See Hook v. Arizona Dep’t of Corr., 107 F.3d 1397,
1401 (9th Cir. 1997). But see Thompson v. Enomoto, 815 F.2d 1323,
1327 (9th Cir. 1987) (concluding that order appointing special master
did not modify consent decree because appointment of master was implicitly
contemplated by court’s retention of jurisdiction to establish procedures for
compliance).
·
Order
denying motion based on changed circumstances that occurred after the
injunction was entered to modify or dissolve preliminary injunction that barred
former employee from arbitrating his employment dispute before the American
Arbitration Association. See Credit Suisse First Boston Corp.
v. Grunwald,
400 F.3d 1119, 1123–25 (9th Cir. 2005).
·
Order
where district court modified preliminary injunction after remand from prior
appeal forcing Napster to disable its file transferring service until
conditions were met that would achieve full compliance with the modified
preliminary injunction. See A&M Records, Inc. v. Napster, 284 F.3d 1091,
1095 (9th Cir. 2002).
An order continues an injunction if the
injunction would otherwise dissolve by its own terms. See Public Serv. Co. of Colorado v.
Batt,
67 F.3d 234, 236–37 (9th Cir. 1995) (holding that an order “continuing”
in force an existing injunction was not appealable as a modification or
continuation order because the original injunction would have remained in
effect by its own terms even without the order).
An order that has the effect of
dissolving a prior injunction is appealable under 28 U.S.C. § 1292(a)(1). See Crawford v. Honig, 37 F.3d 485,
486–87 (9th Cir. 1995) (holding that order granting summary judgment
that had the effect of vacating a modification to a prior injunction was
appealable as an order dissolving an injunction).
An order denying a motion to modify or
dissolve an injunction is appealable only if the motion raised new matter not
considered at the time of the original injunction. See Gon v. First State Ins. Co., 871 F.2d 863,
865–66 (9th Cir. 1989); Sierra
On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1419 n.4 (9th Cir.
1984); see also K.W. ex rel. D.W. v. Armstrong,
789 F.3d 962, 969 (9th Cir. 2015) (jurisdiction to review modification of the
preliminary injunction order). The purpose of 28 U.S.C. § 1292(a)(1)
is “to permit review of orders made in response to claims of changed
circumstances, not to extend indefinitely the time for appeal from preliminary
injunction by the simple device of seeking to vacate it or modify it.” Sierra On-Line, Inc., 739
F.2d at 1419 n.4 (citations omitted).
When “reviewing denials of motions to
dissolve injunctions, [the court does] not consider the propriety of the
underlying order, but [limits its] review to the new material presented with
respect to the motion to dissolve.” Karnoski
v. Trump, 926 F.3d 1180, 1198 (9th Cir. 2019) (per curiam) (internal
quotation marks and citation omitted) (vacating the striking of defendants’
motion to dissolve the preliminary injunction and remanding for the district
court to consider the merits).
Review of an order denying a motion to modify
or dissolve an injunction is generally limited to “new matter” presented by the
motion. See Gon, 871 F.2d at 866. However, an order granting a modification may
bring up for review the original injunction if the court of appeals “perceives
a substantial abuse of discretion or when the new issues raised on
reconsideration are inextricably intertwined with merits of the underlying
order.” Id. at 867 (citation
omitted).
Cross-reference: V (regarding the inextricably intertwined
standard).
“A
party seeking modification or dissolution of an injunction bears the burden of
establishing that a significant change in facts or law warrants revision or
dissolution of the injunction.” Karnoski,
926 F.3d at 1198 (quotation marks and citation omitted).
The following interlocutory orders are
appealable under 28 U.S.C.
§ 1292(a)(1):
An order granting a permanent
injunction is appealable under § 1292(a)(1) where no final judgment has
yet been entered. See Marathon Oil Co. v. United
States,
807 F.2d 759, 763–64 (9th Cir. 1986) (reviewing permanent injunction
that was not a final judgment because the district court retained jurisdiction
to conduct an accounting); see also Bates v. United Parcel Serv.,
Inc.,
511 F.3d 974, 984 (9th Cir. 2007) (reviewing permanent injunction where
district court retained jurisdiction only for an accounting of damages); Fortyune v. American
Multi-Cinema, Inc., 364 F.3d 1075, 1079 (9th Cir. 2004) (stating that
the court of appeals has jurisdiction over interlocutory appeal from district
court order granting permanent injunction); TWA v. American Coupon Exch., 913 F.2d 676,
680 (9th Cir. 1990) (reviewing permanent injunction that was not a final
judgment because the district court retained jurisdiction to determine
damages).
An order denying a joint motion to
enter a consent decree is appealable under § 1292(a)(1) where the order
has the effect of denying injunctive relief and possibly causing irreparable
harm. See Carson v. American Brands, Inc., 450 U.S. 79,
87–90 (1981) (finding possibility of irreparable harm in denial of
parties’ right to compromise on mutually agreeable terms, including immediate restructuring
of appellee’s employment policies); Sierra Club, Inc. v.
Electronic Controls Design, Inc., 909 F.2d 1350, 1353 (9th Cir. 1990); see also Abbott v. Perez, 138 S. Ct. 2305, 2319 (2018) (explaining
that Carson held “that an order that declined to enter a
consent decree prohibiting certain conduct could be appealed under
§ 1292(a)(1) because it was the practical equivalent of an order denying
an injunction and threatened serious and perhaps irreparable harm if not
immediately reviewed”); Turtle Island Restoration Network v. U.S.
Dep’t of Commerce, 672 F.3d 1160, 1164–65 (9th Cir. 2012) (recognizing
that orders remanding an action to a federal agency are generally not
considered final and appealable, but concluding that although order at issue in
case had characteristics of a vacatur and remand, it functioned as an
injunction and the court had jurisdiction).
An order explicitly commanding a party
to act or not act at the present time is sufficiently injunctive in character
to be appealable under § 1292(a)(1) even though no motion for preliminary
injunction is filed. See United States v. Gila Valley
Irrigation Dist.,
31 F.3d 1428, 1441 (9th Cir. 1994) (reviewing order that specifically
directed a party to allow river water to flow undiverted).
An order requiring submission of a
remedial plan is appealable under § 1292(a)(1) where the order
sufficiently specifies the content and scope of the remedial scheme, and the
plan ultimately submitted would not materially alter the issues presented to
the court of appeals. See Armstrong v. Wilson, 124 F.3d 1019,
1022 (9th Cir. 1997) (noting that resolution of purely legal question
presented would not be altered by details of remedial plan).
Certain orders affecting assets are
appealable under § 1292(a)(1). See,
e.g., SEC v. Hickey, 322 F.3d 1123,
1128 n.1 (9th Cir. 2003), amended by 335 F.3d 834 (9th Cir. 2003)
(exercising jurisdiction over order freezing assets of real estate brokerage); United States v. Cal-Almond,
Inc., 102 F.3d 999, 1002 (9th Cir. 1996) (exercising jurisdiction over
order directing plaintiff to place assessments in escrow pending resolution of
enforcement proceeding); United
States v. Roth, 912 F.2d 1131, 1133 (9th Cir. 1990) (exercising
jurisdiction over order freezing assets from sale of property pending trial in
forfeiture action); FSLIC
v. Ferm, 909 F.2d 372, 373 (9th Cir. 1990) (exercising jurisdiction
over order requiring accounting that modified prior preliminary injunction
freezing client’s assets except for payment of reasonable attorney’s fees); Smith v. Eggar, 655 F.2d
181, 183–84 (9th Cir. 1981) (exercising jurisdiction over order specifically
commanding compliance with terms of security agreement between IRS and taxpayer
that had resulted in consent order discontinuing taxpayer’s motion for
preliminary injunction).
Cross-reference: II.C.5 (regarding the appealability of
assets orders generally).
An order denying relief in a mandamus
action is appealable where the order has the “substantial effect” of denying
injunctive relief. See Tagupa v. East-West Ctr., Inc., 642 F. 2d 1127,
1129 (9th Cir. 1981) (reviewing order granting partial summary judgment
to federal defendants, thereby denying plaintiff’s request for writ of mandamus
directing those defendants to carry out their duties).
An order staying extradition of a death
row inmate to another state is appealable because it has the injunctive effect
of restraining a party on penalty of contempt from taking an action it could
otherwise take. See Calderon v. United States Dist.
Court,
137 F.3d 1420, 1421–22 & n.2 (9th Cir. 1998).
A district court order denying a stay
of removal pending resolution of a habeas corpus petition was tantamount to
denial of interim injunctive relief. See
Faruqi v. Dep’t of Homeland
Sec.,
360 F.3d 985, 988–89 (9th Cir. 2004) (order).
A district court order disapproving of
a class settlement is immediately appealable if the following three
requirements are met: (1) interlocutory order has the practical effect of
denying injunction; (2) the order has serious, perhaps irreparable,
consequences, and (3) order can be effectively challenged only by immediate
appeal). See Buckingham
v. Gannon (In re Touch America Holdings, Inc. ERISA Litig.), 563 F.3d 903
(9th Cir. 2009).
An order relating only to “conduct or
progress of litigation before th[e] court ordinarily is not considered an
injunction” under § 1292(a)(1). Gulfstream Aerospace Corp. v.
Mayacamas Corp., 485 U.S. 271, 279 (1988) (overruling Enlow-Ettelson
doctrine); Nat’l Wildlife
Fed’n v. Nat’l Marine Fisheries Serv., 886 F.3d 803, 825 (9th Cir. 2018)
(quoting Gulfstream Aerospace); Gon v. First State Ins. Co., 871
F.2d 863, 865–66 (9th Cir. 1989) (stating that although they are
enforceable by contempt, orders that regulate the course of litigation, such as
discovery orders, are not immediately appealable as injunctions).
The following orders are not appealable
under 28 U.S.C.
§ 1292(a)(1):
An
order denying motion to stay or dismiss an action pursuant to the Colorado
River doctrine is not appealable under 28 U.S.C. § 1291 or § 1292(a)(1). See Gulfstream Aerospace Corp. v.
Mayacamas Corp.,
485 U.S. 271, 277–78 (1988).
Cross-reference: II.A.2.c.i (regarding the appealability of
abstention orders generally).
An order denying motion to stay foreclosure
proceeding not appealable because it could be effectively reviewed after final
judgment in the very proceeding appellant sought to stay. See Federal Land Bank v. L.R. Ranch
Co.,
926 F.2d 859, 864 (9th Cir. 1991).
Cross-reference: II.C.26 (regarding the appealability of
stay orders generally).
An order granting an England
reservation of jurisdiction to decide federal claims in conjunction with a Pullman
stay is not appealable because it does not have the practical effect of an
injunction. See Confederated Salish v. Simonich, 29 F.3d 1398,
1406 (9th Cir. 1994) (noting that order granting stay under Pullman
is appealable under § 1291 or § 1292(a)(1)).
An order denying a motion to quash a
subpoena for documents is not appealable.
See United States
v. Ryan,
402 U.S. 530, 534 (1971) (concluding order was not an injunction even
though it contained a clause directing subject of subpoena to seek permission
from Kenyan authorities to obtain documents).
See also In re Premises Located at 840
140th Ave. NE, Bellevue, Wa.,
634 F.3d 557, 565–67 (9th Cir. 2011) (stating, “In the domestic criminal context, we
lack interlocutory appellate jurisdiction over an order denying a motion to
quash a subpoena, because the order is non-final.” The court, however, distinguished the case
from domestic criminal cases, and determined that the court had jurisdiction
over appeal of district court order denying a motion for a protective order that
effectively would have quashed subpoena).
Cross-reference: II.C.12.b.ii.(a) (regarding the
appealability of orders denying motions to quash subpoena generally).
An
order granting conditional permissive intervention is not appealable, despite
its possible injunctive effect, because the order can be effectively challenged
after final judgment. See Stringfellow v. Concerned
Neighbors In Action,
480 U.S. 370, 379 (1987) (stating order is also unappealable under the
collateral order doctrine).
Cross-reference: II.C.19 (regarding the appealability of
intervention orders generally).
Certain orders affecting assets are
appealable under § 1292(a)(1). See,
e.g., SEC v. Hickey, 322 F.3d 1123,
1128 n.1 (9th Cir. 2003), amended by 335 F.3d 834 (9th Cir. 2003)
(exercising jurisdiction over order freezing assets of real estate brokerage); United States v. Cal-Almond,
Inc., 102 F.3d 999, 1002 (9th Cir. 1996) (exercising jurisdiction over
order directing plaintiff to place assessments in escrow pending resolution of
enforcement proceeding); United
States v. Roth, 912 F.2d 1131, 1133 (9th Cir. 1990) (exercising
jurisdiction over order freezing assets from sale of property pending trial in
forfeiture action); FSLIC
v. Ferm, 909 F.2d 372, 373 (9th Cir. 1990) (exercising jurisdiction
over order requiring accounting that modified prior preliminary injunction
freezing client’s assets except for payment of reasonable attorney’s fees); Smith v. Eggar, 655 F.2d
181, 183–84 (9th Cir. 1981) (exercising jurisdiction over order
specifically commanding compliance with terms of security agreement between IRS
and taxpayer that had resulted in consent order discontinuing taxpayer’s motion
for preliminary injunction).
Cross-reference: II.C.5 (regarding the appealability of
assets orders generally).
An order granting remand to an agency
for reconsideration of a consent decree is not appealable because it does not
have the practical effect of granting or denying an injunction. See United States v.
Louisiana-Pacific Corp.,
846 F.2d 43, 44–45 (9th Cir. 1988) (determining that order was also
unappealable under the collateral order doctrine). Moreover, an order denying a motion for
partial summary judgment seeking injunctive relief is not appealable where the
district court simultaneously remands to an agency to conduct a hearing
pursuant to newly enacted regulations that formed the basis for the summary
judgment motion. See Eluska v. Andrus, 587 F.2d 996,
1001–02 (9th Cir. 1978); see also Turtle Island Restoration
Network v. U.S. Dep’t of Commerce,
672 F.3d 1160, 1164–65 (9th Cir. 2012) (recognizing that orders remanding
an action to a federal agency are generally not considered final and
appealable, but concluding that although order at issue in case had
characteristics of a vacatur and remand, it functioned as an injunction and the
court had jurisdiction).
Cross-reference: II.C.24.b (regarding the appealability of
orders remanding to federal agencies generally).
An order denying a motion for summary
judgment seeking a permanent injunction is not appealable where the motion was
denied because of unresolved issues of fact.
See Switzerland
Cheese Ass’n v. E. Horne’s Mkt., Inc.,
385 U.S. 23, 24 (1966).
An order denying a joint motion for
entry of a consent decree awarding injunctive relief is not appealable by the
party against whom the injunction had been sought. See EEOC v. Pan Am. World Airways,
Inc.,
796 F.2d 314, 316–17 (9th Cir. 1986) (per curiam).
“A district court’s case management
orders are generally not appealable on an interlocutory basis.” In re Korean Air Lines Co., Ltd., 642 F.3d 685,701–02 (9th Cir.
2011) (holding that the case management orders at issue in the case were
interlocutory where the district court retained the ability to modify it at any
time, and opportunity for meaningful review would not disappear if the court
declined to review the orders). However,
where the district court retains the ability to modify the case management
order at any time, the order is interlocutory.
See id.
A district court’s order denying a
motion to clarify the scope of an injunction, is not appealable on an
interlocutory basis, where the practical effect of the requested relief is
declaratory in nature, not injunctive. See
Hawaii v. Trump, 863 F.3d 1102, 1104 (9th Cir. 2017) (order).
“Orders relating to discovery, …, are orders
that regulate the conduct of litigation and are not appealable under
§ 1292(a)(1).” Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv.,
886 F.3d 803, 825 (9th Cir. 2018) (citing Gon v. First State Ins. Co.,
871 F.2d 863, 865–66 (9th Cir. 1989)). A
disclosure order that is akin to a discovery order, and is not appealable under
§ 1292(a)(1). See Nat’l Wildlife
Fed’n, 886 F.3d at 825.
An order denying a temporary
restraining order (“TRO”) is generally not appealable because of the policy
against piecemeal review. See Religious Tech. Ctr. v. Scott, 869 F.2d 1306,
1308 (9th Cir. 1989); see also E. Bay Sanctuary Covenant v. Trump, 932 F.3d 742, 762 (9th Cir. 2018) (order)
(“Ordinarily, a TRO is not an appealable order.”); Serv. Employees Int’l Union v. Nat’l Union of Healthcare Workers,
598 F.3d 1061, 1067 (9th Cir. 2010) (TROs are generally not appealable interlocutory
orders; however, a TRO that possesses the qualities of a preliminary injunction
is reviewable).
However, an order denying a TRO may be
appealable if it is tantamount to denial of a preliminary injunction, see E.
Bay Sanctuary Covenant, 932 F.3d at 762; Religious Tech. Ctr., 869 F.2d at 1308, or if it
“effectively decide[s] the merits of the case,” Graham v. Teledyne-Continental
Motors, 805 F.2d 1386, 1388 (9th Cir. 1987). “The terminology used to characterize the
order does not control whether appeal is permissible under § 1292.” N. Stevedoring & Handling Corp.
v. International Longshoremen’s & Warehousemen’s Union, 685 F.2d 344,
347 (9th Cir. 1982); see also Serv. Employees Int’l Union, 598 F.3d at 1067;
Bennett v. Medtronic, Inc., 285 F.3d 801, 804 (9th Cir. 2010).
[The court treats]
a TRO as a preliminary injunction “where an adversary hearing has been held,
and the court’s basis for issuing the order [is] strongly challenged.” Bennett v. Medtronic, Inc., 285 F.3d
801, 804 (9th Cir. 2002) (quoting Sampson, 415 U.S. at 87, 94 S. Ct.
937). Further, a key distinction between
a “true” TRO and an appealable preliminary injunction is that a TRO may issue
without notice and remains in effect for only 14 days (or longer if the
district court finds “good cause” to extend it). Fed. R. Civ. P. 65(b).
E.
Bay Sanctuary Covenant,
932 F.3d at 762–63.
Appeal from the following orders has
been permitted under § 1292(a)(1) because the orders are tantamount to
denial of a preliminary injunction:
·
Order
denying a TRO after a full adversary hearing appealable where without review
appellants would be foreclosed from pursuing further interlocutory relief. See Envtl. Defense Fund, Inc. v.
Andrus,
625 F.2d 861, 862 (9th Cir. 1980) (order) (containing no reference to
§ 1292(a)(1)).
·
Order
denying a TRO after a non-evidentiary adversary hearing appealable where the
judge determined that prior case law precluded the requested relief. See Religious Tech. Ctr. v. Scott, 869 F.2d 1306,
1308 (9th Cir. 1989) (“The futility of any further hearing was …
patent.”).
·
Order
denying a TRO despite showing of irreparable harm appealable where parties had
stipulated that order be treated as denial of preliminary injunction for appeal
purposes. See Contract Servs. Network, Inc. v.
Aubry,
62 F.3d 294, 296–97 (9th Cir. 1995) (involving an order denying a TRO
based on lack of federal preemption).
·
Order
dissolving a TRO appealable where TRO had extended beyond time limit set by Fed. R. Civ. P. 65 and was
imposed after adversary hearing. See Bowoon
Sangsa Co. v. Micronesian Indus. Corp. (In re Bowoon Sangsa Co.), 720 F.2d 595,
597 (9th Cir. 1983).
·
Order
labeled as a TRO precluding employer from seeking to enforce non-compete
agreement was appealable preliminary injunction, rather than unappealable TRO,
because order was issued for 30 days, three times the limit set by Fed. R. Civ. P. 65 and both
parties had opportunity to argue the merits of the order. See Bennett v. Medtronic, Inc., 285 F.3d 801,
804 (9th Cir. 2002); see also Serv. Employees Int’l Union v. Nat’l Union of Healthcare Workers,
598 F.3d 1061, 1067 (9th Cir. 2010) (in circumstances analogous to Bennett, TRO was an appealable
interlocutory order).
·
District
court’s TRO that prohibited grants of asylum to aliens entering United States
along southern border with Mexico and outside of lawful port of entry, had same
effect as preliminary injunction, and thus, order was appealable. E. Bay Sanctuary Covenant v. Trump, 932 F.3d 742, 762–63 (9th Cir. 2018)
(order).
Appeal from the following orders has
been permitted under § 1292(a)(1) because the orders effectively decide
the merits of the case:
·
Order
denying a TRO appealable where application for permanent relief would be futile
and, absent an injunction, controversy would become moot. See Graham v. Teledyne-Continental
Motors,
805 F.2d 1386, 1388 (9th Cir. 1987) (holding denial of TRO to be a de
facto denial of permanent injunction because if the federal agency were allowed
to examine engines of crashed planes without observers, the claim that the exam
may destroy evidence would be mooted).
·
Order
denying a TRO appealable where “denial of all relief was implied in the trial
judge’s denial of a temporary restraining order.” See Miller v. Lehman, 736 F.2d 1268,
1269 (9th Cir. 1984) (per curiam) (reviewing denial of TRO based on
district court’s erroneous application of claim preclusion).
·
Order
denying a TRO to stay execution of inmate immediately appealable as de facto
denial of permanent injunction. See Woratzeck v. Arizona Bd. of
Executive Clemency,
117 F.3d 400, 402 (9th Cir. 1997) (per curiam).
·
Order
granting a TRO to enforce an arbitrator’s decision appealable where TRO
definitively stated rights of parties. See
N. Stevedoring & Handling
Corp. v. International Longshoremen’s & Warehousemen’s Union, 685 F.2d 344,
347 (9th Cir. 1982) (reviewing TRO premised on determination that union
could not honor picket line because, under labor agreement, it was not a bona
fide picket line).
An appeal from an order denying a
preliminary injunction is mooted by entry of final judgment. See Sec. Exch. Comm’n v. Mount
Vernon Mem’l Park,
664 F.2d 1358, 1361 (9th Cir. 1982).
An appeal from an order granting a
preliminary injunction is similarly mooted by entry of permanent
injunction. See Planned Parenthood v. Arizona, 718 F.2d 938,
949 (9th Cir. 1983).
Cross-reference: IX.B (regarding mootness generally).
The court of appeals has jurisdiction
over appeals from interlocutory orders “appointing receivers or refusing orders
to wind up receiverships or to take steps to accomplish the purposes thereof,
such as directing sales or other disposals of property.” 28 U.S.C. § 1292(a)(2).
Section 1292(a)(2) is to be strictly
construed to permit interlocutory appeals only from orders that fall within one
of the three categories specifically set forth.
See Canada Life
Assurance Co. v. LaPeter,
563 F.3d 837, 841 (9th Cir. 2009) (concluding turnover order that was
included in an order appointing a receiver was subject to interlocutory review
under § 1292(a)(2)); FTC
v. Overseas Unlimited Agency, Inc., 873 F.2d 1233, 1235 (9th Cir. 1989);
Sec. Exch. Comm’n v. Am.
Principals Holdings, Inc., 817 F.2d 1349, 1351 (9th Cir. 1987) (stating
that the statute was intended to cover orders that refuse to take steps to
accomplish purpose of receivership). See
also Office Depot Inc. v.
Zuccarini, 596 F.3d 696, 699 (9th Cir. 2010) (the court had “jurisdiction
under 28 U.S.C. § 1292(a)(2) to entertain an appeal from an
interlocutory order appointing a receiver”); SEC v. Capital
Consultants, LLC,
453 F.3d 1166, 1169 n.2 (9th Cir. 2006) (per curiam).
Appeal
from the following orders has not
been permitted under § 1292(a)(2):
·
Order
directing that funds be turned over to receiver pursuant to previous unappealed
order appointing receiver. See Overseas Unlimited Agency, Inc., 873 F.2d at 1235
(noting that a simple “turnover” order is also not appealable as an injunction
under § 1292(a)(1)); but see Canada Life Assurance Co., 563 F.3d at 841 (concluding turnover order that was included
in an order appointing a receiver was subject to interlocutory review under
§ 1292(a)(2)).
·
Order
affirming compensation payments to receiver and authorizing spinoff of some
partnerships not appealable because it took steps towards winding up
receivership rather than refusing to take such steps. See Am. Principals Holdings, Inc., 817 F.2d at
1350–51.
·
Order
denying motion to dismiss receivership. See
Morrison-Knudsen Co. v. CHG
Int’l, Inc.,
811 F.2d 1209, 1214 (9th Cir. 1987).
·
Order
refusing to terminate construction plan, where “denial of the motion [was] not
a refusal to take a step to accomplish the winding up of the receivership …
.” See
Plata v. Schwarzenegger, 603 F.3d 1088,
1099 (9th Cir. 2010).
The court of appeals has jurisdiction
over appeals from interlocutory orders “determining the rights and liabilities
of the parties to admiralty cases in which appeals from final decrees are
allowed.” 28 U.S.C. § 1292(a)(3). See,
e.g., Barnes v. Sea
Hawaii Rafting, LLC, 889 F.3d 517, 528 (9th Cir. 2018); CHMM, LLC v. Freeman Marine Equip.,
Inc.,
791 F.3d 1059, 1062 (9th Cir. 2015) (“We have jurisdiction under 28 U.S.C. § 1292(a)(3),
which allows us to hear appeals from ‘[i]nterlocutory
decrees of … district courts … determining the rights and liabilities of the
parties to admiralty cases.’ 28
U.S.C. § 1292(a)(3).”).
Section 1292(a)(3) is to be construed
narrowly to confer jurisdiction “only when the order appealed from determines
the rights and liabilities of the parties.”
Seattle-First Nat’l
Bank v. Bluewater Partnership, 772 F.2d 565, 568 (9th Cir. 1985)
(observing that the statute was intended to permit appeal from an admiralty
court’s determination of liability before action was referred to commissioner
for damages determination); see also Sw. Marine Inc. v. Danzig, 217 F.3d 1128,
1136 (9th Cir. 2000).
To be appealable, an interlocutory
admiralty order need not determine rights and liabilities as to all
parties. See All Alaskan Seafoods, Inc. v.
M/V Sea Producer,
882 F.2d 425, 427 (9th Cir. 1989) (exercising jurisdiction even though
claims between other parties unresolved); see also Seattle-First Nat’l Bank, 772 F.2d at 568
(stating that certification under Fed R. Civ. P. 54(b) is not necessary to
appeal an interlocutory admiralty order).
Appeal from the following orders has
been permitted under § 1292(a)(3):
·
Order
limiting cargo carrier’s liability to set dollar amount pursuant to bill of
lading and federal statute. See Vision Air Flight Serv., Inc. v.
M/V Nat’l Pride,
155 F.3d 1165, 1168 (9th Cir. 1998).
·
Order
determining that crewmen held preferred wage liens on maritime equipment
appealable because it eliminated any possibility of recovery by equipment
owner. See Kesselring v. F/T Arctic Hero, 30 F.3d 1123,
1125 (9th Cir. 1994) (noting it was undisputed that proceeds of sale of
vessel were insufficient to satisfy all claims).
·
Order
determining that one claimant’s lien had priority over another appealable
because it precluded possibility of recovery by subordinate lien holder where
unpaid balance of preferred lien exceeded sale proceeds of vessel. See All Alaskan Seafoods, Inc. v.
M/V Sea Producer,
882 F.2d 425, 427 (9th Cir. 1989) (distinguishing Seattle-First Nat’l Bank v.
Bluewater Partnership, 772 F.2d 565, 568 (9th Cir. 1985)).
·
Order
confirming sale of vessel appealable. See
Ghezzi v. Foss Launch &
Tug Co.,
321 F.2d 421, 422 (9th Cir. 1963) (§ 1292(a)(3) not specifically
mentioned).
·
Order
holding that contract relating to a written employment agreement that was not
signed by the vessel’s master was invalid.
See Harper v.
United States Seafoods LP,
278 F.3d 971, 973 (9th Cir. 2002).
·
Order
granting partial summary judgment limiting cruise line’s liability in wrongful
death action. See Wallis v. Princess Cruises, Inc., 306 F.3d 827,
833–34 (9th Cir. 2002).
·
Order
dismissing five tort claims as barred by the economic loss doctrine. CHMM, LLC v. Freeman Marine Equip., Inc., 791 F.3d 1059, 1062 (9th
Cir. 2015).
Appeal
from the following orders has not been permitted under § 1292(a)(3):
·
Order
determining priority of certain liens not appealable because challenge to
trustee status of priority lien holder still pending, thereby precluding
finality of lien priority determination as to any claimant. See Seattle-First Nat’l Bank v.
Bluewater Partnership,
772 F.2d 565, 568 (9th Cir. 1985).
·
Order
staying action pending arbitration not appealable under § 1292(a)(3)
because it did not determine rights and liabilities of parties. See Gave Shipping Co., S.A. v.
Parcel Tankers, Inc.,
634 F.2d 1156, 1157 (9th Cir. 1980).
·
The
court determined it lacked jurisdiction to “consider whether the district court
should have awarded maintenance” where the time to appeal that ruling on an
interlocutory basis had long expired. Barnes
v. Sea Hawaii Rafting, LLC, 889 F.3d 517, 528 (9th Cir. 2018). However, the court explained that where
appellate jurisdiction is lacking it could treat the notice of appeal as a
petition for writ of mandamus, and concluded that in this case mandamus relief
was warranted. Id.
A district judge may certify a nonappealable
order in a civil action if it “involves a controlling question of law as to
which there is substantial ground for difference of opinion and … an immediate
appeal from the order may materially advance the ultimate termination of the
litigation.” 28 U.S.C. § 1292(b); see
also Microsoft Corp. v. Baker, 137 S. Ct. 1702, 1708 (2017) (“For a party
to obtain review under § 1292(b), the district court must certify that the
interlocutory order ‘involves a controlling question of law as to which there is
substantial ground for difference of opinion and that an immediate appeal from
the order may materially advance the ultimate termination of the
litigation.’”); Nat’l Ass’n of African Am.-Owned Media v. Charter Commc’ns,
Inc., 915 F.3d 617, 622 n.2 (9th Cir. 2019), petition for cert. filed,
No. 18-1185 (March 13, 2019).
“The
court of appeals may then, ‘in its discretion, permit an appeal to be taken
from such order.’” Microsoft Corp.,
137 S. Ct. at 1708; Gelboim v. Bank of Am. Corp.,
574 U.S. 405, 135 S. Ct. 897, 906, (2015) (stating that a district court’s
certification under § 1292(b) “may be accepted or rejected in the
discretion of the court of appeals”); Bates v. Bankers Life & Cas. Co., 848 F.3d 1236, 1239 (9th Cir. 2017).
(per curiam). A petition for permission
to appeal must filed within 10 days after entry of the order in district
court. See 28 U.S.C. § 1292(b); see
also Fed. R. App. P.
5(a)(3) (stating that if the district court amends its order “to include
the required permission or statement … the time to petition runs from entry of
the amended order”).
The district court must certify an
order for immediate appeal before the court of appeals has discretion to accept
jurisdiction under § 1292(b). See
Microsoft Corp. v. Baker, 137 S. Ct. 1702, 1708 (2017) (“For a party to
obtain review under § 1292(b), the district court must certify that the
interlocutory order ‘involves a controlling question of law as to which there
is substantial ground for difference of opinion and that an immediate appeal
from the order may materially advance the ultimate termination of the
litigation.’”); Van Dusen
v. Swift Transportation Co. Inc.,
830 F.3d 893, 896 (9th Cir. 2016) (“District courts may certify a decision for interlocutory appeal
pursuant to 28 U.S.C. § 1292(b) … .”); Pride
Shipping Corp. v. Tafu Lumber Co., 898 F.2d 1404, 1406 (9th Cir. 1990)
(finding no appellate jurisdiction under § 1292(b) where district court
refused to certify order). “[M]andamus
to direct the district judge to exercise his discretion to certify [a] question
is not an appropriate remedy.” Arthur Young & Co. v.
United States Dist. Court, 549 F.2d 686, 698 (9th Cir. 1977).
The requirement that a petition be
filed with the court of appeals within ten days of entry of a certified order
in district court is jurisdictional. See
Benny v. England (In re
Benny),
791 F.2d 712, 719 (9th Cir. 1986) (dismissing appeal because petition
untimely). However, if an appeal is
dismissed as untimely under § 1292(b), the district court may recertify
the order. See Bush
v. Eagle-Picher Indus., Inc. (In re All Asbestos Cases), 849 F.2d 452,
453 (9th Cir. 1988) (dismissing initial appeal without prejudice
to refiling following recertification).
Once an order is certified, the
petitioner “has the burden of persuading the court of appeals that exceptional
circumstances justify a departure from the basic policy of postponing appellate
review until after the entry of a final judgment.” Coopers & Lybrand v.
Livesay, 437 U.S. 463, 475 (1978) (citation omitted), superseded by rule as stated in Microsoft Corp. v. Baker, 137 S. Ct. 1702
(2017).
The court of appeals may decline to
review an order certified under § 1292(b) for any reason, including docket
congestion. See Coopers & Lybrand, 437 U.S. at 475. For example, the court of appeals has
discretion to consider tactical use of certain motions as grounds for declining
jurisdiction under § 1292(b). See
Shurance v. Planning Control
Int’l Inc.,
839 F.2d 1347, 1348–49 (9th Cir. 1988) (order) (remarking that
permitting appeal from order denying motion to disqualify opposing counsel
“would greatly enhance [its] usefulness as a tactical ploy”).
Once the court of appeals has granted
permission to appeal under § 1292(b), it may subsequently determine that
permission was improvidently granted and dismiss the appeal. See Crow Tribe of Indians v. Montana, 969 F.2d 848,
848–49 (9th Cir. 1992) (order) (dismissing appeal after permission
granted because sole issue raised on appeal had been addressed by court in
prior decision); Bush
v. Eagle-Picher Indus., Inc. (In re All Asbestos Cases), 849 F.2d 452,
453–54 (9th Cir. 1988) (dismissing appeal after permission granted
because intervening Supreme Court decision clarified that appellate
jurisdiction rested in the Federal Circuit).
Although a merits panel will defer to the ruling of a motions panel that
has granted an order for interlocutory appeal, the merits panel has an
independent duty to confirm that jurisdiction is proper. Nat’l Ass’n of
African Am.-Owned Media v. Charter Commc’ns, Inc.,
915 F.3d 617, 622 n.2 (9th Cir. 2019), petition for cert. filed, No. 18-1185 (March 13, 2019); Taylor v. Cty. of Pima,
913 F.3d 930, 933 (9th Cir. 2019); Reese v. BP Expl. (Alaska) Inc., 643
F.3d 681, 688 (9th Cir. 2011).
“[A] denial of permission to appeal
under § 1292(b) does not foreclose appeal under § 1292(a), where a
litigant can meet the requirements of § 1292(a).” Armstrong v. Wilson, 124
F.3d 1019, 1021 (9th Cir. 1997) (noting that interlocutory appeal under
§ 1292(b) is by permission while interlocutory appeal under § 1292(a)
is by right).
An application for permissive appeal “shall not stay
proceedings in the district court unless the district judge or the Court of
Appeals or a judge thereof shall so order.”
28 U.S.C.
§ 1292(b).
“When a party seeks
a section 1292(b) interlocutory appeal, the court of appeals must undertake a
two-step analysis.” Arizona v. Ideal Basic Indus. (In re Cement Antitrust
Litig.), 673 F.2d 1020, 1026 (9th Cir. 1982). First, [the court determines]
whether the appeal meets the legal requirements of § 1292(b). Id.
“If [the court concludes] that the requirements have been met, [the
court] may, but need not, exercise jurisdiction. The second step in [the] analysis is
therefore to decide whether, in the exercise of the discretion granted [the
court] by the statute, [the court wants] to accept jurisdiction.” Id.; see 28 U.S.C.
§ 1292(b) (“The Court of Appeals ... may thereupon, in its discretion,
permit an appeal to be taken from such order....” (emphasis added)); … .
Taylor
v. Cty. of Pima,
913 F.3d 930, 933 (9th Cir. 2019); Arizona v. Ideal Basic Indus.
(In re Cement Antitrust Litig.), 673 F.2d 1020, 1026 (9th Cir. 1982); see
also United States v. W.R.
Grace,
526 F.3d 499, 522 (9th Cir. 2008) (concurrence) (“[O]nce the district
judge opens the gate to this court, we exercise complete, undeferential review
to determine whether the court properly found that § 1292(b)’s
certification requirements were satisfied.”).
To be appealable under § 1292(b),
an order must involve a controlling question of law. 28 U.S.C. § 1292(b); see
also Nat’l Ass’n of African Am.-Owned Media v. Charter Commc’ns, Inc., 915
F.3d 617, 622 n.2 (9th Cir. 2019), petition for cert. filed, No. 18-1185
(March 13, 2019); Mineworkers’ Pension Scheme v. First Solar Inc., 881
F.3d 750, 751 n.1 (9th Cir. 2018) (per curiam), cert. denied, 139 S. Ct.
2741 (2019). A question of law is
controlling if its resolution on appeal “could materially affect the outcome of
litigation in the district court.” Arizona v. Ideal Basic Indus.
(In re Cement Antitrust Litig.), 673 F.2d 1020, 1026 (9th Cir. 1982). However, “‘an appellate
court’s interlocutory jurisdiction under 28 U.S.C. § 1292(b)
permits it to address any issue fairly included within the certified order
because it is the order that is appealable, and not the controlling
question identified by the district court … .’”
Deutsche Bank Nat. Trust Co. v. FDIC, 744 F.3d 1124, 1134 (9th Cir.
2014) (quoting Nevada v. Bank of Am. Corp., 672 F.3d
661, 673 (9th Cir. 2012)).
A question may be controlling even
though its resolution does not determine who will prevail on the merits. See Kuehner v. Dickinson & Co., 84 F.3d 316,
318–19 (9th Cir. 1996) (concluding order involved controlling question
of law where “it could cause the needless expense and delay of litigating an
entire case in a forum that has no power to decide the matter”). However, a question is not controlling simply
because its immediate resolution may promote judicial economy. See Ideal Basic Indus., 673 F.2d at 1027.
To
permit appeal under § 1292(b), there must be substantial ground for
difference of opinion as to the question raised. See Mineworkers’ Pension Scheme v.
First Solar Inc., 881 F.3d 750, 752 n.1 (9th Cir. 2018) (per curiam), cert.
denied, 139 S. Ct. 2741 (2019); Fortyune v. City of Lomita,
766 F.3d 1098, 1101 n.2 (9th Cir. 2014); Reese v. BP Expl. (Alaska) Inc., 643 F.3d 681, 687–88 (9th Cir.
2011) (“A non-final order may be certified for interlocutory appeal where
it ‘involves a controlling question of law as to which there is substantial
ground for difference of opinion’ and where ‘an immediate appeal from the order
may materially advance the ultimate termination of the litigation.’”); Couch v. Telescope, Inc., 611 F.3d
629, 633 (9th Cir. 2010) (defendants
failed to establish the requisite substantial ground for difference of opinion); Arizona v. Ideal Basic Indus.
(In re Cement Antitrust Litig.), 673 F.2d 1020, 1026 (9th Cir. 1982); see also Bank of New York Mellon v. Watt, 867 F.3d 1155, 1159 (9th Cir. 2017); Fox Television Stations, Inc
v. Aereokiller, LLC, 851 F.3d 1002, 1007 (9th Cir. 2017); Crow Tribe of Indians v.
Montana,
969 F.2d 848, 848–49 (9th Cir. 1992) (order) (concluding permission to
appeal was improvidently granted where question raised was clearly answered in
prior decision). “A
substantial ground for difference of opinion exists where reasonable jurists
might disagree on an issue’s resolution, not merely where they have already
disagreed. Stated another way, when
novel legal issues are presented, on which fair-minded jurists might reach
contradictory conclusions, a novel issue may be certified for interlocutory
appeal without first awaiting development of contradictory precedent.” Reese, 643 F.3d at 688; see also Mineworkers’ Pension
Scheme, 881 F.3d at 752 n.1.
An order is not reviewable under
§ 1292(b) unless its immediate review may materially advance the
litigation. See 28 U.S.C. § 1292(b); see
also Mineworkers’ Pension Scheme v. First Solar Inc., 881 F.3d 750, 752 n.1
(9th Cir. 2018) (per curiam), cert. denied, 139 S. Ct. 2741 (2019); Fortyune v. City of Lomita,
766 F.3d 1098, 1101 n.2 (9th Cir. 2014). Although “material
advancement” has not been expressly defined, in one case the court determined
that immediate appeal would not materially advance the ultimate termination of
litigation where the appeal might postpone the scheduled trial date. See Shurance v. Planning Control
Int’l, Inc.,
839 F.2d 1347, 1348 (9th Cir. 1988).
The court has explained that “neither § 1292(b)’s literal
text nor controlling precedent requires that the interlocutory appeal have a
final, dispositive effect on the litigation … .” Reese v. BP Exploration (Alaska) Inc., 643 F.3d 681, 688 (9th Cir.
2011) (concluding that certification of the interlocutory appeal was
permissible).
The court of appeals has permitted appeal from the following
orders under § 1292(b):
·
Order
dismissing action under Fed.
R. Civ. P. 12(b)(7) where district court determined that under Fed. R. Civ. P. 19, the
United States was a required party that plaintiff could not join. See Paiute-Shoshone Indians of
Bishop Cmty. of Bishop Ca. v. City of Los Angeles, 637 F.3d 993,
1002 (9th Cir. 2011).
·
Order
denying motion for judgment on the pleadings contending that court of appeals
had exclusive subject matter jurisdiction under federal statute. See Owner-Operators Indep. Drivers
Assoc. of Am., Inc. v. Skinner,
931 F.2d 582, 584 (9th Cir. 1991).
·
Order
denying motion to remand for judgment on the pleadings contending that district
court lacked jurisdiction due to untimely complaint. See Valenzuela v. Kraft, Inc., 801 F.2d 1170,
1171–72 (9th Cir. 1986), amended
by 815 F.2d 570 (9th Cir. 1987).
·
Order
denying motion to remand for lack of subject matter jurisdiction. See Goldberg v. CPC Int’l, Inc., 678 F.2d 1365,
1366 (9th Cir. 1982). See also
Hawaii ex rel. Louie v. HSBC Bank Nevada,
N.A., 761 F.3d 1027, 1039 (9th Cir. 2014).
·
Order
denying summary judgment based on choice of law determination. See Schoenberg v. Exportadora de
Sal, S.A.,
930 F.2d 777, 779 (9th Cir. 1991).
·
Orders
determining liability in a bifurcated, multidistrict, multiparty action. See Steering Comm. v. United States, 6 F.3d 572, 575
& n.1 (9th Cir. 1993) (finding mixed questions of law and fact to be
within scope of appeal).
·
Order
granting motion to stay proceedings pending arbitration based on determination
that employment contract contained enforceable arbitration provision. See Kuehner v. Dickinson & Co., 84 F.3d 316, 318
(9th Cir. 1996).
·
Order
requiring attorney to answer deposition questions despite assertion of
privilege. See Tennenbaum v.
Deloitte & Touche,
77 F.3d 337, 338 (9th Cir. 1996).
·
Order
denying motion to dismiss in breach of contract action on grounds that
guarantees made within the contract were illegal due to an executive order that
prohibits United States citizens from investing in and trading with Iran. See Bassidji v. Goe, 413 F.3d 928,
932 (9th Cir. 2005).
·
Order
denying motion to dismiss in class action for securities fraud. See Reese v. BP Exploration (Alaska)
Inc.,
643 F.3d 681, 688 (9th Cir. 2011) (concluding that certification of the
interlocutory appeal was permissible).
·
Order
denying motion to dismiss complaint in case concerning whether the Americans
with Disabilities Act required local governments to provide accessible
on-street parking in the absence of regulatory design specifications for
on-street parking facilities. See Fortyune
v. City of Lomita, 766 F.3d 1098, 1101 n.2 (9th Cir. 2014).
·
District
court properly certified question for interlocutory appeal as to correct test
for loss causation under the Securities Exchange Act of 1934. See Mineworkers’ Pension Scheme v. First
Solar Inc., 881 F.3d 750, 752 (9th Cir. 2018), cert. denied, 139 S.
Ct. 2741 (2019).
·
Order
compelling arbitration. Roberts v.
AT&T Mobility LLC, 877 F.3d 833, 837 (9th Cir. 2017), cert. denied,
138 S. Ct. 2653 (2018).
·
Order
denying motion to dismiss for failure to state a claim was properly certified
under § 1292(b). See Nat’l Ass’n of African Am.-Owned Media
v. Charter Commc’ns, Inc., 915 F.3d 617, 622 n.2 (9th Cir. 2019), petition
for cert. filed, No. 18-1185 (March 13, 2019).
·
Although
the motions panel had denied plaintiff’s § 1292(b) application for
permission to appeal, the merits panel disturbed the motion panel’s determination
and exercised its discretion to review the district court’s ruling that
Plaintiff could not recover compensatory damages for wrongful incarceration,
because the situation was rare, and the court of appeals’ own rulings added to
the delay, further forestalling final resolution of the case. See Taylor v. Cty. of Pima, 913 F.3d
930, 935 (9th Cir. 2019).
The court of appeals has not permitted
appeal under § 1292(b) from the following orders:
·
Order
denying motion to disqualify opposing counsel for ethical violations. See Shurance v. Planning Control
Int’l, Inc.,
839 F.2d 1347, 1348 (9th Cir. 1988) (order) (observing that review would
not affect outcome of litigation because if attorney tried to use evidence
unethically obtained, appellant could seek protective order or exclusion of
evidence). But see Trust Corp. of Montana v. Piper
Aircraft Corp.,
701 F.2d 85, 88 (9th Cir. 1983) (permitting review of order denying
motion to disqualify counsel).
·
Order
granting motion to recuse presiding judge based on interpretation of conflict
in interest statute. See Arizona v. Ideal Basic Indus.
(In re Cement Antitrust Litig.),
673 F.2d 1020, 1026 (9th Cir. 1982) (concluding that reversal of such an
order would not materially advance outcome of case because issue was
collateral).
·
Order
remanding action to state court under 28 U.S.C. § 1447(c) due
to lack of subject matter jurisdiction; review barred by § 1447(d). See Krangel v. General Dynamics
Corp.,
968 F.2d 914, 915–16 (9th Cir. 1992) (per curiam) (noting that a
discretionary remand order may be reviewable under § 1292(b)). But see Carlsbad Tech., Inc. v. HIF Bio,
Inc.,
556 U.S. 635, 641 (2009) (holding that a district court’s order
remanding a case to state court after declining to exercise supplemental
jurisdiction over state-law claims is not a remand for lack of subject-matter
jurisdiction for which appellate review is barred by 28 U.S.C. §§ 1447(c)
and (d)).
·
Order
dismissing one of several defendants for lack of personal jurisdiction was not
appealable because the district court did not indicate in the order that
immediate appeal would advance termination of litigation. See Special Invs., Inc. v. Aero Air,
Inc.,
360 F.3d 989, 993 n.1 (9th Cir. 2004).
·
Order
denying 12(b)(6) motion to dismiss consolidated putative class action where
defendants failed to establish the requisite substantial ground for difference
of opinion. See Couch v.
Telescope, Inc., 611 F.3d 629, 633 (9th Cir. 2010).
·
Order
denying motion to dismiss, where district court determined that county was not
entitled to Eleventh Amendment immunity.
See Taylor v. Cty. of Pima, 913 F.3d 930, 935–96 (9th Cir. 2019)
(seeing no reason to second-guess the motion panel’s denial of interlocutory
review under § 1292(b) with respect to question of Eleventh Amendment
immunity, and exercising discretion to deny the County’s application for
appeal, but also exercising discretion to permit appeal under § 1292(b)
with regard to question of compensatory damages).
“Pendent appellate jurisdiction refers to the exercise of
jurisdiction over issues that ordinarily may not be reviewed on interlocutory
appeal, but may be reviewed on interlocutory appeal if raised in conjunction
with other issues properly before the court ... [and] if the rulings were
‘inextricably intertwined’ or if review of the pendent issue was necessary to
ensure meaningful review of the independently reviewable issue.” Cunningham v. Gates, 229 F.3d 1271, 1284 (9th Cir. 2000).
United States v.
Tillman, 756 F.3d 1144, 1149 (9th Cir. 2014) (declining to exercise pendent appellate jurisdiction over
disqualification of counsel appeal because although orders were “intertwined”
they were not “inextricably” so); see also Doe v. Regents of the Univ. of
California, 891 F.3d 1147, 1154 (9th Cir. 2018) (“[T]he legal theories ...
must either (a) be so intertwined that we must decide the pendent issue in
order to review the claims properly raised on interlocutory appeal, or (b)
resolution of the issue properly raised on interlocutory appeal necessarily
resolves the pendent issue.”); Woodward v. City of Tucson, 870 F.3d
1154, 1159 (9th Cir. 2017) (exercising pendent appellate jurisdiction and
reviewing grant of summary judgment “[b]ecause the district court’s grant of
partial summary judgment for Plaintiff as to the unreasonableness of the
Defendants’ entry into the apartment [was] ‘inextricably intertwined’ with its
denial of qualified immunity for that entry … .”).
The court
exercises restraint “in invoking … pendent appellate jurisdiction,” and sets a
very high bar for its exercise. Arc of California v. Douglas, 757 F.3d
975, 993 (9th Cir. 2014) (citations omitted) (holding that it could
exercise pendent appellate jurisdiction where the district court’s order
denying preliminary injunctive relief was inextricably intertwined with order
dismissing Medicaid Act claims). “[T]he
exercise of pendent appellate jurisdiction is a rare event.” United States v. Decinces, 808 F.3d 785,
792 (9th Cir. 2015) (as amended) (concluding that appeal of denial of
motion to dismiss was not inextricably intertwined with the government’s
interlocutory appeal, and declining to exercise pendent appellate
jurisdiction).
An order denying
a motion for appointment of counsel is generally not an appealable final
order. See Kuster v. Block, 773 F.2d 1048,
1049 (9th Cir. 1985) (holding that order denying appointment of counsel
in 42 U.S.C. § 1983 action was not appealable); see also Wilborn v.
Escalderon,
789 F.2d 1328, 1332 & n.2 (9th Cir. 1986) (reviewing denial of
appointed counsel after final judgment).
Such an order does not satisfy the collateral order doctrine because it
raises issues enmeshed with the merits of the underlying action. See Kuster, 773 F.2d at 1049
(reasoning that entitlement to counsel depends on merit of claim and litigant’s
ability to articulate claim in light of complexity of issues).
An order denying
appointment of counsel in a Title VII action is an appealable collateral
order. See Bradshaw v. Zoological Soc’y of San
Diego,
662 F.2d 1301, 1305 (9th Cir. 1981) (observing that denial of counsel in
a Title VII case is not ‘inherently tentative,’ the court can avoid delving
into the merits by relying on an agency determination of reasonable cause, and
immediate review is necessary to prevent plaintiff from becoming bound in a
future action by prejudicial errors).
“Congress has made explicit findings that Title VII litigants are presumptively
incapable of handling properly the complexities involved in Title VII
cases.” Wilborn
v. Escalderon, 789 F.2d 1328, 1332 n.2 (9th Cir. 1986) (harmonizing Kuster
and Bradshaw).
However, an
order denying an interim award of attorney’s fees to pay appointed counsel in a
Title VII action is not immediately appealable.
See Morgan
v. Kopecky Charter Bus Co.,
760 F.2d 919, 920–21 (9th Cir. 1985) (distinguishing Bradshaw).
In cases
governed by the Federal Arbitration Act (9
U.S.C. § 1 et seq.), the appealability of arbitration orders
is established by 9
U.S.C. § 16 (formerly 9 U.S.C. § 15). See Nichols
v. Stapleton,
877 F.2d 1401, 1403 (9th Cir. 1989) (per curiam) (applying provisions
retroactively). See also Newirth by
& through Newirth, 931 F.3d at 939 (“a district court’s denial of a
motion to compel arbitration is a final order appealable under the Federal Arbitration
Act, 9 U.S.C. § 16(a)(1)(B)).
Under 9 U.S.C. § 16,
decisions disfavoring arbitration (e.g. orders denying motions to compel
arbitration) are generally immediately appealable, while decisions favoring
arbitration (e.g. orders compelling arbitration) are generally not
appealable until after arbitration proceedings have concluded. See David D. Siegel, Practice
Commentary, 9
U.S.C. § 16; see also Sanford
v. Memberworks, Inc.,
483 F.3d 956, 960–61 (9th Cir. 2007); Dees
v. Billy, 394 F.3d 1290, 1291–92 (9th Cir. 2005); Bushley v.
Credit Suisse First Boston, 360 F.3d 1149, 1153 (9th Cir. 2004); Prudential Ins.
Co. of Am. v. Lai, 42 F.3d 1299, 1302 (9th Cir. 1994). Additionally, dismissal in favor of arbitration is an appealable
final decision, notwithstanding that the dismissal is in favor of arbitration
and the parties could later return to court to enter judgment on an arbitration
award. See Green Tree Financial Corp.-Alabama v.
Randalph,
531 U.S. 79, 89 (2000); see also Chalk
v. T-Mobile USA, Inc.,
560 F.3d 1087, 1092 n.3 (9th Cir. 2009) (jurisdiction over district
court order dismissing plaintiffs’ claims pending arbitration); Comedy Club,
Inc. v. Improv West Assocs., 553 F.3d 1277, 1283–84 (9th Cir. 2009)
(same).
“When the only
matter before a district court is a petition to compel arbitration and the
district court grants the petition, appellate jurisdiction may attach
regardless of whether the district court issues a stay.” Int’l Alliance of Theatrical Stage Employee & Moving
Picture Technicians Artists, & Allied Crafts of the United States, IATSE
Trusteed Local 720 Las Vegas, Nevada v. InSync Show Prods., Inc., 801 F.3d 1033, 1041 (9th Cir.
2015) (“[I]f the motion to compel arbitration in a given case is
the only claim before the district court, a decision to compel arbitration is
deemed to dispose of the entire case, and permit appellate review under 9 U.S.C.
§ 16(a)(3).”).
“The Federal
Arbitration Act (“FAA”), 9
U.S.C. § 1 et seq., authorize[s] courts to enforce
agreements to arbitrate statutory claims.”
Kummetz
v. Tech Mold, Inc., 152 F.3d 1153, 1155 (9th Cir. 1998); see also
New Prime Inc. v. Oliveira, 139 S. Ct. 532, 536 (2019) (“The Federal
Arbitration Act requires courts to enforce private arbitration
agreements.”). However, “[w]hile a
court’s authority under the Arbitration Act to compel arbitration may be
considerable, it isn’t unconditional.” New
Prime Inc., 139 S. Ct. at 537.
A provision of
the Federal Arbitration Act excluding from its reach “contracts of employment
of seamen, railroad employees, or any other class of workers engaged in
interstate commerce” did not exclude all employment contracts, but rather
exempted from the FAA only contracts of employment law that restricted the
ability of non-transportation employees and employers to enter into an
arbitration agreement. Circuit City
Stores, Inc. v. Adams, 532 U.S. 105, 112–13 (2001), abrogating
Craft v.
Campbell Soup Co.,
177 F.3d 1083 (9th Cir. 1998).
See
also 9 U.S.C.
§ 1 et
seq.;
Epic Sys. Corp. v. Lewis, 138
S. Ct. 1612, 1621–23 (2018); Gilmer v. Interstate/Johnson Lane
Corp., 500 U.S. 20
(1991).
The following
orders (interlocutory orders disfavoring arbitration and final arbitration
orders) are appealable under 9
U.S.C. § 16:
·
Order refusing
to stay an action pending arbitration under 9
U.S.C. § 3. See 9 U.S.C.
§ 16(a)(1)(A); Three
Valleys Mun. Water Dist. v. E.F. Hutton & Co., 925 F.2d 1136, 1138 (9th
Cir. 1991).
·
Order
denying a petition to order arbitration to proceed under 9 U.S.C. § 4. See 9
U.S.C. § 16(a)(1)(B); Newirth
by & through Newirth v. Aegis Senior Communities, LLC, 931 F.3d 935,
939 (9th Cir. 2019)Cox v. Ocean View Hotel Corp., 533 F.3d 1114, 1117
(9th Cir. 2008); Three
Valleys Mun. Water Dist., 925 F.2d at 1138.
·
Order dismissing
plaintiffs’ claims pending arbitration pursuant to 9 U.S.C. § 16(a)(3). See Chalk
v. T-Mobile USA, Inc.,
560 F.3d 1087, 1092 n.3 (9th Cir. 2009).
·
Order
denying an application to compel arbitration under 9 U.S.C. § 206. See 9
U.S.C. § 16(a)(1)(C); Mundi
v. Union Sec. Life Ins. Co., 555 F.3d 1042, 1043 (9th Cir. 2009); Wolsey, Ltd. v.
Foodmaker, Inc., 144 F.3d 1205, 1207 (9th Cir. 1998); Britton v.
Co-Op Banking Group, 4 F.3d 742, 744 (9th Cir. 1993).
·
Order
confirming or denying confirmation of an award or partial award. See 9
U.S.C. § 16(a)(1)(D).
·
Order
modifying, correcting, or vacating an award.
See 9 U.S.C. § 16(a)(1)(E). See also Aspic Eng’g & Constr. Co. v. ECC Centcom Constructors LLC, 913 F.3d 1162, 1166 (9th Cir. 2019) (reviewing district court’s
decision to vacate an arbitration award).
·
Interlocutory
order granting, continuing, or modifying injunction against arbitration. See 9
U.S.C. § 16(a)(2); Southeast
Resource Recovery Facility Auth. v. Montenay Int’l Corp., 973 F.2d 711, 712
(9th Cir. 1992) (exercising jurisdiction over order staying
arbitration).
·
Final
decision with respect to an arbitration subject to Title 9. See 9 U.S.C.
§ 16(a)(3); Lamps
Plus, Inc. v. Varela, 139 S. Ct. 1407, 1414 (2019) (District court order
compelling arbitration and dismissing underlying claims is a final appealable
order under 9 U.S.C. § 16(a)(3));
Move, Inc. v. Citigroup Glob. Markets, Inc., 840 F.3d 1152, 1154 (9th Cir. 2016) (jurisdiction under 9 U.S.C.
§ 16(a)(3) to review district court’s order dismissing action and denying
motion to vacate an arbitration award pursuant to the FAA); United States v. Park Place
Assocs., Ltd., 563 F.3d 907, 919–20 (9th Cir.
2009) (because
denial of a motion to vacate an arbitration award is not one of the specified
grounds for appeal, the order falls within the catchall provision providing for
appeal of “a final decision with respect to an arbitration that is subject to
this title” (citing 9 U.S.C. § 16(a)(3)); Prudential
Ins. Co. of Am. v. Lai, 42 F.3d 1299, 1302 (9th Cir. 1994).
·
Order
compelling arbitration and issuing a stay.
Int’l
All. of Theatrical Stage Employee & Moving Picture Technicians Artists,
& Allied Crafts of the United States, IATSE Trusteed Local 720 Las Vegas,
Nevada v. InSync Show Prods., Inc., 801 F.3d 1033, 1041 (9th Cir.
2015) (“[A] district court presented with a petition to compel
arbitration and no other claims cannot prevent appellate review of an order
compelling arbitration by issuing a stay.
Thus, the order compelling arbitration in this case is a final decision
over which we have jurisdiction.”).
Whether an order
favoring arbitration is interlocutory, and thus not immediately appealable,
depends on the scope of the proceeding in which the order is issued. See below (“Interlocutory v. Final
Arbitration Decision”). The following
orders favoring arbitration are not immediately appealable under 9 U.S.C. § 16
when they are interlocutory:
·
Interlocutory
order staying action pending arbitration under 9
U.S.C. § 3. See 9 U.S.C.
§ 16(b)(1); Delta
Computer Corp. v. Samsung Semiconductor & Telecomm. Co., 879 F.2d 662,
663 (9th Cir. 1989); see also Ventress
v. Japan Airlines,
486 F.3d 1111, 1119 (9th Cir. 2007); Dees
v. Billy, 394 F.3d 1290, 1294 (9th Cir. 2005) (holding that “a
district court order staying judicial proceedings and compelling arbitration is
not appealable even if accompanied by an administrative closing. An order administratively closing a case is a
docket management tool that has no jurisdictional effect.”).
·
Interlocutory
order directing arbitration to proceed under 9
U.S.C. § 4. See 9
U.S.C. § 16(b)(2); Nichols
v. Stapleton, 877 F.2d 1401, 1403 (9th Cir. 1989) (per curiam).
·
Interlocutory
order compelling arbitration under 9
U.S.C. § 206. See 9 U.S.C.
§ 16(b)(3); Delta
Computer Corp., 879 F.2d at 663.
·
Interlocutory
order refusing to enjoin an arbitration subject to Title 9. See 9
U.S.C. § 16(b)(4); Pacific
Reinsurance Mgmt. Corp. v. Ohio Reinsurance Corp., 935 F.2d 1019, 1022 (9th
Cir. 1991).
Whether an order
favorable to arbitration is immediately appealable depends on whether the order
is an interlocutory or a final order. See
David D. Siegel, Practice Commentary, 9
U.S.C. § 16.
For example, an
order appointing an arbitrator is unappealable if issued in the course of an
ongoing proceeding. See O.P.C. Farms Inc.
v. Conopco Inc.,
154 F.3d 1047, 1048–49 (9th Cir. 1998).
In contrast, an
order compelling arbitration is a final decision appealable under 9 U.S.C.
§ 16(a)(3) if the motion to compel arbitration was the only claim before
the district court. See Prudential Ins.
Co. of Am. v. Lai,
42 F.3d 1299, 1302 (9th Cir. 1994) (referring to a proceeding solely to
compel arbitration as an “independent” proceeding); see also Int’l All. of Theatrical Stage Employee & Moving Picture
Technicians Artists, & Allied Crafts of the United States, IATSE Trusteed
Local 720 Las Vegas, Nevada v. InSync Show Prods., Inc., 801 F.3d
1033, 1041 (9th Cir. 2015) (“[A] district court presented with a
petition to compel arbitration and no other claims cannot prevent appellate
review of an order compelling arbitration by issuing a stay. Thus, the order compelling arbitration in
this case is a final decision over which we have jurisdiction.”). An action
solely to compel arbitration is an “independent” proceeding regardless of any
related proceeding pending before a state court. See Prudential
Ins. Co. of Am., 42 F.3d at 1302; see also
Circuit City
Stores, Inc. v. Mantor,
335 F.3d 1101, 1105 (9th Cir. 2003).
An order
dismissing an action remains a “final decision” within the traditional
understanding of that term, notwithstanding that the dismissal was in favor of
arbitration and that the parties could later return to court to enter judgment
on an arbitration award. Green Tree Fin.
Corp.-Alabama v. Randolph, 531 U.S. 79, 86–87 (2000); see also Chalk v. T-Mobile
USA, Inc.,
560 F.3d 1087, 1092 n.3 (9th Cir. 2009) (jurisdiction over district
court order dismissing plaintiffs’ claims pending arbitration); Comedy Club,
Inc. v. Improv West Assocs., 553 F.3d 1277, 1283–84 (9th Cir. 2009)
(same).
A district court’s
order dismissing an action without prejudice after it determines that one of
the plaintiff’s causes of action fails to state a claim, and ordering that
parties arbitrate the remaining claims, is final and appealable. Interactive
Flight Techs., Inc. v. Swiss Air Transp. Co., 249 F.3d 1177, 1179 (9th Cir.
2001) (order). However, a
district court order staying judicial proceedings and compelling arbitration
where not all claims are dismissed is not appealable. See Dees
v. Billy
394 F.3d 1290, 1294 (9th Cir. 2005); see also Bagdasarian Prods., LLC v. Twentieth
Century Fox Film Corp., 673 F.3d 1267, 1273 (9th Cir. 2012) (order compelling enforcement of agreement
was not appealable because it was effectively reviewable on appeal from final
judgment); Ventress
v. Japan Airlines,
486 F.3d 1111, 1119 (9th Cir. 2007) (district court’s interlocutory
order compelling arbitration was not appealable because the district court
stayed the case pending arbitration); Sanford
v. Memberworks, Inc., 483 F.3d 956, 961 (9th Cir. 2007) (district
court order compelling arbitration not final and appealable where the court did
not dismiss the claims, but rather said “it would terminate the case” if
arbitration not completed in twelve months); Bushley
v. Credit Suisse First Boston, 360 F.3d 1149, 1153 (9th Cir. 2004)
(district court order compelling arbitration was not final and appealable where
the court did not rule upon defendant’s motions to stay and dismiss,
effectively staying the action pending the conclusion of arbitration).
There is a
rebuttable presumption that “an order compelling arbitration but not explicitly
dismissing the underlying claims stays the action as to those claims pending
the completion of the arbitration.” MediVas, LLC v. Marubeni Corp., 741 F.3d
4, 10 (9th Cir. 2014) (adopting a rebuttable
presumption in such cases, and concluding that the district court order
compelling arbitration was not an appealable final decision with respect to an
arbitration).
Title 9 does not
preclude permissive appeals pursuant to 28
U.S.C. § 1292(b). See
9 U.S.C.
§ 16(b); Johnson v. Consumerinfo.com, Inc., 745 F.3d
1019, 1023 (9th Cir. 2014) (§ 1292(b) provides the sole route
for immediate appeal of an order staying proceedings and compelling
arbitration); Duffield v. Robertson Stephens & Co., 144 F.3d 1182, 1186 (9th Cir. 1998) (reviewing order compelling arbitration under
§ 1292(b)), overruled on other grounds by E.E.O.C. v. Luce,
Forward, Hamilton & Scripps,
345 F.3d 742 (9th Cir. 2003) (en banc); see also Three Valleys Mun.
Water Dist. v. E.F. Hutton & Co.,
925 F.2d 1136, 1138 (9th Cir. 1991).
Cross-reference: II.B.4
(regarding interlocutory permissive appeals under § 1292(b) generally).
An order
compelling arbitration may also be reviewable if it is “inextricably bound up”
with an order over which the court of appeals has jurisdiction. See Tracer
Research Corp. v. Nat’l Envtl. Servs. Co., 42 F.3d 1292, 1294 (9th Cir. 1994)
(reviewing order compelling arbitration in appeal from order dissolving
injunction under 28 U.S.C.§1292(a)(1)). But
see Quackenbush
v. Allstate Ins. Co.,
121 F.3d 1372, 1379 & n.5 (9th Cir. 1997) (noting that U.S. Supreme
Court has yet to affirm validity of exercising appellate jurisdiction over
related rulings that are not supported by an independent jurisdictional basis).
Ordinarily, an interlocutory order restraining assets is not immediately appealable because the rights of the parties can be protected during the proceeding. See PMS Distrib. Co. v. Huber & Suhner, A.G., 863 F.2d 639, 640 (9th Cir. 1988).
For example, the following interlocutory orders restraining assets are not immediately appealable:
·
Order granting writ
of attachment. See Perpetual Am.
Bank, FSB v. Terrestrial Sys., Inc.,
811 F.2d 504, 505–06 (9th Cir. 1987) (per curiam).
·
Order denying motion
to quash writ of execution. See Steccone v.
Morse-Starrett Prods. Co.,
191 F.2d 197, 199 (9th Cir. 1951); see also United States v. Moore, 878 F.2d 331
(9th Cir. 1989) (per curiam).
·
Order granting writ
of possession. See PMS Distrib. Co., 863 F.2d at 640.
Ordinarily, an interlocutory order releasing assets is immediately appealable under the collateral order doctrine because review after final judgment would be an “empty rite.” PMS Distrib. Co. v. Huber & Suhner, A.G., 863 F.2d 639, 640 (9th Cir. 1988) (citations omitted). But see Orange Cty. v. Hong Kong & Shanghai Banking Corp., 52 F.3d 821, 823–24 (9th Cir. 1995) (holding that order expunging lis pendens is not an appealable collateral order where “the determination of whether the claimant has established the probable validity of his real property claim will thrust th[e] court into the merits of the dispute”).
·
Order vacating writ
of attachment. See Swift & Co.
Packers v. Compania Columbiana Del Caribe, 339 U.S. 684, 688–89 (1950); Pride Shipping
Corp. v. Tafu Lumber Co., 898 F.2d 1404, 1406 (9th Cir. 1990); Polar Shipping
Ltd. v. Oriental Shipping Corp., 680 F.2d 627, 630 (9th Cir. 1982).
·
Order vacating writ
of garnishment. See Stevedoring Serv.
of Am. v. Ancora Transp., N.V.,
59 F.3d 879, 881 (9th Cir. 1995).
·
Order vacating right
to attach order. See Interpool Ltd. v.
Char Yigh Marine (Panama) S.A.,
890 F.2d 1453, 1457–58 (9th Cir. 1989), amended by 918 F.2d 1476 (9th
Cir. 1990).
Generally, an order granting or denying interim attorney’s fees is not immediately appealable, either as a collateral order or as an injunction. See Rosenfeld v. United States, 859 F.2d 717, 720 (9th Cir. 1988); see also In re Diet Drugs (Phentermine/Fenfluramine/Dexfenfluramine) Prods. Litigation, 401 F.3d 143, 156 (9th Cir. 2005); cf. Finnegan v. Director, Office of Workers’ Compensation Progs., 69 F.3d 1039, 1041 (9th Cir. 1995).
·
Order awarding
interim attorney’s fees under 42 U.S.C.§ 1988. See Hillery
v. Rushen,
702 F.2d 848, 848 (9th Cir. 1983) (order).
·
Order denying interim
attorney’s fees under Title VII. See Morgan v. Kopecky
Charter Bus Co.,
760 F.2d 919, 920–21 (9th Cir. 1985) (finding no jurisdiction over order
that denied motion for reasonable fee from public fund to pay involuntarily
appointed counsel).
Cross-reference: II.C.3.b
(regarding appointment of counsel in Title VII actions).
·
Order awarding
interim attorney’s fees under the Freedom of Information Act. See Rosenfeld, 859 F.2d at 720.
·
Order awarding
interim attorney’s fees after class action settlement. See In
re Diet Drugs (Phentermine/ Fenfluramine/Dexfenfluramine) Prods. Litigation, 401 F.3d at
156–61.
“Class certification orders generally are not immediately appealable.” Hunt v. Imperial Merchant Servs., Inc., 560 F.3d 1137, 1140 (9th Cir. 2009) (quotation marks and citation omitted). For example, a district court order designating a lead plaintiff in a securities fraud class action brought under the Private Securities Litigation Reform Act was not subject to interlocutory review. Z-Seven Fund, Inc. v. Motorcar Parts & Accessories, 231 F.3d 1215, 1219 (9th Cir. 2000).
Bates, 848 F.3d at 1238 (9th Cir. 2017); see also Hunt, 560 F.3d at 1140 (The court has “discretion to permit interlocutory appeals of class certification orders under Rule 23(f).”).
Fed. R. Civ. P. 23(f). “Courts of appeals wield ‘unfettered discretion’ under Rule 23(f), akin to the discretion afforded circuit courts under § 1292(b).” Microsoft Corp. v. Baker, 137 S. Ct. 1702, 1709 (2017) (quoting Advisory Committee Note on Rule 23(f)). Rule 23(f) is not subject to equitable tolling. See Nutraceutical Corp. v. Lambert, 139 S. Ct. 710, 713 (2019).
Regarding the procedure for seeking permissive appeal, see Fed. R. App. P. 5.
An order refusing to certify, or decertifying, a class is generally not an appealable collateral order. See Coopers & Lybrand v. Livesay, 437 U.S. 463, 467–69 (1978) (reasoning that such an order is subject to revision, enmeshed with the merits, and effectively reviewable after final judgment), superseded by rule as stated in Microsoft Corp. v. Baker, 137 S. Ct. 1702 (2017). Moreover, an order denying class certification was deemed unappealable as a denial of an injunction where plaintiff sought only a permanent injunction, not a preliminary injunction. See Gardner v. Westinghouse Broad. Co., 437 U.S. 478, 479–81 & n.3 (1978) (distinguishing case where class certification denied in conjunction with denial of preliminary injunction).
Cross-reference: II.D.4.a
(regarding mandamus relief from class certification orders).
Ordinarily, an order decertifying a class, or declining to certify a class, is reviewable on appeal from a final judgment as to individual claims. See Coopers & Lybrand v. Livesay, 437 U.S. 463, 469 (1978), superseded by rule as stated in Microsoft Corp. v. Baker, 137 S. Ct. 1702 (2017).
An interlocutory order denying class certification is not reviewable after final judgment where the named plaintiff voluntarily dismissed the entire action with prejudice after settling his individual claims. See Seidman v. Beverly Hills, 785 F.2d 1447, 1448 (9th Cir. 1986) (observing in dictum that “[h]ad the stipulation narrowly provided for dismissal of [plaintiff’s] individual claims, and then had the district court, having earlier denied class certification, entered an adverse judgment dismissing the entire action, an entirely different scenario would be before us”).
Cross-reference: II.C.13.b.vi
(regarding voluntary dismissal with prejudice).
An order denying class certification does not merge in the final judgment of dismissal for failure to prosecute where the denial of certification led to abandonment of suit. See Huey v. Teledyne, Inc., 608 F.2d 1234, 1240 (9th Cir. 1979).
As a general rule, “interlocutory orders regarding certification and decertification of class actions should not be reviewed [by the court of appeals] … when the judgment pursuant to which appeal was taken is reversed or vacated and the case remanded.” Weil v. Investment/Indicators, Research & Mgmt., Inc., 647 F.2d 18, 27 (9th Cir. 1981).
Orders allocating costs of notifying class members are generally appealable collateral orders. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 172 & n.10 (1974) (order imposing costs of notification on defendants appealable); see also Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 348 n.8 (1978) (order requiring defendants, partially in their own expense, to compile a list of members of the plaintiff class appealable); Hunt v. Imperial Merchant Servs., Inc., 560 F.3d 1137, 1141 (9th Cir. 2009) (order placing class notice costs on defendant in Fair Debt Collection Practices Act appealable); Harris v. Peddle (In re Victor Tech. Secs. Litig.), 792 F.2d 862, 863–64 (9th Cir. 1986) (order requiring plaintiffs to offer to reimburse record owners of stock for costs of forwarding notice to beneficial owners appealable).
Cross-reference: II.A.3
(regarding orders certified under Fed.
R. Civ. P. 54(b)) and III.C (regarding premature notices of appeal).
In addition to these procedural considerations, an order of contempt is generally not appealable until sanctions are imposed, see Blalock Eddy Ranch v. MCI Telecomms. Corp., 982 F.2d 371, 374 (9th Cir. 1992), and an order awarding sanctions is not appealable until the amount of sanctions is determined, see Jensen Elec. Co. v. Moore, Caldwell, Rowland & Dodd, Inc., 873 F.2d 1327, 1329 (9th Cir. 1989). See also Plata v. Schwarzenegger, 560 F.3d 976, 980 (9th Cir. 2009) (civil contempt order not appealable until district court had adjudicated the contempt motion and applied sanctions). But see II.C.10.b.ii (regarding continuing contempt orders).
An order of civil contempt entered against a party to ongoing litigation is generally not immediately appealable. See Nat’l Abortion Fed’n v. Ctr. for Med. Progress, 926 F.3d 534, 538 (9th Cir. 2019) (“If the court instead held them in civil contempt, [they] would need to wait until entry of final judgment in the underlying action to obtain appellate review of the orders.”), cert. denied sub nom. Cooley v. Nat’l Abortion Fed’n, No. 19-525, 2020 WL 129591 (Jan. 13, 2020); Koninklijke Philips Elecs. N.V. v. KSD Tech., Inc., 539 F.3d 1039, 1042 (9th Cir. 2008); Bingman v. Ward, 100 F.3d 653, 655 (9th Cir. 1996); accord Portland Feminist Women’s Health Ctr. v. Advocates for Life, Inc., 859 F.2d 681, 687 (9th Cir. 1988) (order of civil contempt against parties for violating preliminary injunction not reviewable even during appeal under § 1292(a)(1) challenging constitutionality of preliminary injunction). But see Kirkland v. Legion Ins. Co., 343 F.3d 1135, 1140 (9th Cir. 2003) (holding that civil contempt order was appealable because it was based on district court’s prior order which was sufficiently final to be appealable); Dollar Rent A Car of Washington, Inc. v. Travelers Indem. Co., 774 F.2d 1371, 1376 (9th Cir. 1985) (“[A]n appeal of a civil contempt order is permissible when it is incident to an appeal from a final order or judgment, including an underlying preliminary injunction order.”).
However, an order of criminal contempt entered against a party to ongoing litigation is immediately appealable. See Nat’l Abortion Fed’n, 926 F.3d at 537–38; Koninklijke Philips Elecs. N.V., 539 F.3d at 1042; Bingman, 100 F.3d at 655 (monetary sanctions against defendant prison officials).
In determining whether a contempt sanction is civil or criminal, the court of appeals looks to the character of the relief granted, not the terminology used by the district court. See Nat’l Abortion Fed’n, 926 F.3d at 538 (“the label the district court affixes to sanctions is not dispositive”); Koninklijke Philips Elecs. N.V., 539 F.3d at 1042; Bingman, 100 F.3d at 656.
An unconditional penalty is generally criminal because it is designed to punish. See Koninklijke Philips Elecs. N.V. v. KSD Tech., Inc., 539 F.3d 1039, 1042 (9th Cir. 2008); Bingman v. Ward, 100 F.3d 653, 656 (9th Cir. 1996).
A fine is generally deemed punitive only when paid to the court, but where the purpose is clearly not compensatory, even a fine paid to complainant should be considered criminal. See Bingman, 100 F.3d at 655–56 (fine against defendant prison officials, payable in part to the plaintiff prisoner and in part to clerk of court, deemed criminal where judge stated purpose was to punish prison officials and did not indicate fines were compensatory or could be expunged; clause stating one purpose of order was “to encourage adherence to this or other orders of [the] Court” did not alone convert sanctions into civil).
A fine is deemed civil if its purpose is to compensate the complainant for losses sustained, or to compel the contemnor to comply with the court’s order by affording an opportunity to purge. See Koninklijke Philips Elecs. N.V. v. KSD Tech., Inc., 539 F.3d 1039, 1042 (9th Cir. 2008) (order was civil where attorney’s fees, lost royalties, and storage costs were assessed in order to compensate the plaintiff for losses sustained); Union of Prof’l Airmen v. Alaska Aeronautical Indus., 625 F.2d 881, 883 (9th Cir. 1980) (fine deemed civil, even though it was a substantial round sum payable immediately, where it included damages and attorney’s fees payable to opposing party for purposes of compensation and compliance); see also Hoffman v. Beer Drivers & Salesmen’s Local Union, 536 F.2d 1268, 1272 (9th Cir. 1976) (order assessing fines against party and then suspending them to permit purge of contempt was adjudication of civil contempt).
Incarceration for the purpose of coercing compliance is also generally deemed civil, although it may become criminal if it loses its coercive effect due to contemnor’s inability to comply. See SEC v. Elmas Trading Corp., 824 F.2d 732, 732–33 (9th Cir. 1987) (order) (deeming incarceration for failure to account for funds and produce records related to assets civil where purpose was to coerce party to comply); Hughes v. Sharp, 476 F.2d 975, 975 (9th Cir. 1973) (per curiam) (deeming incarceration for failure to appear at examination of judgment debtor civil where party given opportunity to purge contempt). It is within the district court’s discretion to determine whether a civil contempt order has lost its coercive effect with regard to a particular contemnor. See Elmas Trading Corp., 824 F.2d at 732–33 (district court did not abuse discretion in finding contemnor able to comply despite his assertion to the contrary).
An order awarding sanctions against a party is generally not an appealable collateral order because it can be effectively reviewed after final judgment. See Riverhead Sav. Bank v. Nat’l Mortgage Equity Corp., 893 F.2d 1109, 1113 (9th Cir. 1990) (Rule 11 sanctions); see also Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1055–56 (9th Cir. 2007) (concluding that pre-filing orders entered against vexatious litigants are generally not immediately appealable).
A contempt or sanctions order against a nonparty is ordinarily final and appealable by the nonparty upon issuance of the order despite lack of a final judgment in the underlying action. See Nat’l Abortion Fed’n v. Ctr. for Med. Progress, 926 F.3d 534, 538 (9th Cir. 2019) (“Because Cooley and Ferreira are not parties to the underlying action, a civil contempt sanction imposed against them would ordinarily be deemed a final judgment subject to immediate appeal under 28 U.S.C. § 1291.), cert. denied sub nom. Cooley v. Nat’l Abortion Fed’n, No. 19-525, 2020 WL 129591 (U.S. Jan. 13, 2020); Portland Feminist Women’s Health Ctr. v. Advocates for Life, Inc., 877 F.2d 787, 788, 790 (9th Cir. 1989) (order of civil contempt against nonparty for violation of preliminary injunction appealable); David v. Hooker Ltd., 560 F.2d 412, 415–17 (9th Cir. 1977) (sanctions order awarding expenses and attorney’s fees against nonparty officer of corporate defendant under Fed. R. Civ. P. 37(b)(2) for failure to answer interrogatories appealable). But see Jensen Elec. Co. v. Moore, Caldwell, Rowland & Dodd, Inc., 873 F.2d 1327, 1329 (9th Cir. 1989) (order awarding sanctions against nonparty attorney for filing frivolous third party complaint not final and appealable where amount of sanctions not yet determined); cf. In re Dyer, 322 F.3d 1178, 1186–87 (9th Cir. 2003) (court of appeals had jurisdiction to review district court decision on merits, as well as further decision that bankruptcy court’s attorney fee award was excessive, even though district court had remanded for additional findings on the appropriate fee award).
An order of civil contempt entered against a nonparty witness for failure to comply with a subpoena for documentary evidence is appealable despite lack of a final judgment in the underlying action. See United States Catholic Conference v. Abortion Rights Mobilization, Inc., 487 U.S. 72, 76 (1988).
Prior to Cunningham v. Hamilton Cty., 527 U.S. 198, 210 (1999), an order awarding sanctions against a nonparty attorney in an ongoing proceeding was generally immediately appealable by the attorney under the collateral order doctrine. See, e.g., Reygo Pac. Corp. v. Johnston Pump Co., 680 F.2d 647, 648 (9th Cir. 1982) (reviewing order sanctioning attorney for filing motion to compel that was not substantially justified under Fed. R. Civ. P. 37(a)(4)). However, “Cunningham effectively overruled … Ninth Circuit decisions allowing immediate appeal by attorneys from orders imposing sanctions.” Stanley v. Woodford, 449 F.3d 1060, 1063 (9th Cir. 2006).
An order imposing sanctions against a nonparty attorney is not immediately appealable where there is sufficient congruence between the interests of the attorney and his or her client in the ongoing litigation that in effect the order is jointly against a party and nonparty. See Washington v. Standard Oil Co. of California (In re Coordinated Pretrial Proceedings in Petroleum Prods. Litig.), 747 F.2d 1303, 1305–06 (9th Cir. 1984) (order of contempt imposing sanctions against state attorney general representing state in ongoing proceedings not immediately appealable by attorney general because state ultimately responsible for paying sanctions at issue and attorney general is not merely state’s attorney, but also the official responsible for initiating and directing course of litigation). See also Sali v. Corona Reg’l Med. Ctr., 884 F.3d 1218, 1221 n.3 (9th Cir. 2018) (sanctions order and contempt judgment directed at plaintiffs and their counsel were non-appealable until entry of final judgment).
An order imposing sanctions on an attorney for her discovery abuses, not on a contempt theory, but solely pursuant of the Federal Rules of Civil Procedure, was not a “final decision” from which an appeal would lie, even though the attorney no longer represented any party in the case and might well have a personal interest in pursuing an immediate appeal. Cunningham, 527 U.S. at 210; see also American Ironworks & Erectors, Inc. v. North American Constr. Corp., 248 F.3d 892, 897 (9th Cir. 2001) (holding that “an interlocutory order granting attorney’s fees as a condition of substituting counsel is not immediately appealable” like an interlocutory order imposing Rule 37(a) sanctions); see also Stanley, 449 F.3d at 1063 (district court’s order affirming sanctions ordered by magistrate judge was not a final decision).
A district court order, stating that an Assistant United States Attorney had made an improper ex parte contact with a represented party in violation of the California Rules of Professional Conduct, constitutes a sanction and is appealable. United States v. Talao, 222 F.3d 1133, 1137 (9th Cir. 2000).
An order imposing sanctions against a party’s attorney for failing to obey a scheduling or pretrial order is appealable only after a final judgment has been entered in the underlying action. Cato v. City of Fresno, 220 F.3d 1073, 1074 (9th Cir. 2000) (per curiam). “[A] sanctions order coupled with disqualification of counsel” is not subject to interlocutory appeal. Lynn v. Gateway Unified Sch. Dist., 771 F.3d 1135, 1139 (9th Cir. 2014) (discussing Cunningham).
An order of contempt issued against a nonparty journalist for refusing to comply with a discovery order directing him to produce certain materials in an ongoing defamation suit was a final appealable order. See Shoen v. Shoen, 48 F.3d 412, 413 (9th Cir. 1995) (journalist ordered incarcerated until he complied or litigation terminated).
Generally, an order awarding sanctions jointly and severally against a party and nonparty is not an appealable collateral order. See Kordich v. Marine Clerks Assoc., 715 F.2d 1392, 1393 (9th Cir. 1983) (per curiam) (order imposing sanctions against attorney and client for filing frivolous motion); see also Nat’l Abortion Fed’n v. Ctr. for Med. Progress, 926 F.3d 534, 538–39 (9th Cir. 2019), cert. denied sub nom. Cooley v. Nat’l Abortion Fed’n, No. 19-525, 2020 WL 129591 (U.S. Jan. 13, 2020). Because of the congruence of interests between an attorney and client, it is questionable whether the attorney should be considered a nonparty for purposes of determining appealability. See Kordich, 715 F.2d at 1393. (“We see no reason to permit indirectly through the attorney’s appeal what the client could not achieve directly on its own: immediate review of interlocutory orders imposing liability for fees and costs.”).
An order imposing sanctions on an attorney for her discovery abuses is not immediately appealable, even where the attorney no longer represents the party in the case. See Cunningham v. Hamilton Cty., 527 U.S. 198, 200 (1999); see also Kordich, 715 F.2d at 1393 n.1 (“That appellant withdrew from representation of plaintiffs after the sanctions were imposed is of no moment.”).
An order awarding sanctions jointly and severally against a party and nonparty also may be appealed as a collateral order where the sanctions are to be paid before final judgment and the financial instability of the recipient of the award renders the award effectively unreviewable upon final judgment. See Riverhead Sav. Bank v. Nat’l Mortgage Equity Corp., 893 F.2d 1109, 1113 (9th Cir. 1990). Where the award is payable immediately, but the recipient of the award is not financially unstable, however, appellate review must await final judgment. See Hill v. MacMillan/McGraw-Hill Sch. Co., 102 F.3d 422, 424 (9th Cir. 1996) (noting that pivotal fact in Riverhead was insolvency of recipient not immediacy of payment); See also Nat’l Abortion Fed’n v. Ctr. for Med. Progress, 926 F.3d at 539 n.1.
A pre-trial order denying a party’s motion to hold opposing party in contempt is not immediately appealable. See Sims v. Falk, 877 F.2d 31, 31 (9th Cir. 1989) (order). But see Diamontiney v. Borg, 918 F.2d 793, 796 (9th Cir. 1990) (reviewing denial of motion to hold party in contempt in conjunction with an appeal from a preliminary injunction under 28 U.S.C. § 1292(a)(1)).
An order denying a motion for sanctions brought by a party to ongoing litigation is not immediately appealable. See McCright v. Santoki, 976 F.2d 568, 569–70 (9th Cir. 1992) (per curiam) (order denying plaintiff’s motion for Rule 11 sanctions against opposing counsel can be effectively reviewed on appeal from final judgment in underlying action).
A post-judgment contempt order imposing sanctions against a party is a final appealable order. See Hilao v. Estate of Marcos, 103 F.3d 762, 764 (9th Cir. 1996); see also United States v. Ray, 375 F.3d 980, 987 (9th Cir. 2004). However, such an order is not appealable until sanctions are imposed. See Blalock Eddy Ranch v. MCI Telecomms. Corp., 982 F.2d 371, 374 (9th Cir. 1992) (contempt citation for violating injunction issued in prior action not appealable where sanctions not yet imposed); see also SEC v. Hickey, 322 F.3d 1123, 1127–28 (9th Cir. 2003), amended by 335 F.3d 834 (9th Cir. 2003) (concluding no jurisdiction to review contempt order where district court never imposed sanctions and Hickey appealed before period of time to purge contempt had expired); Donovan v. Mazzola, 761 F.2d 1411, 1416–17 (9th Cir. 1985) (post-judgment civil contempt order for failure to post bond not appealable until after a specified date on which sanctions begin accruing).
“[N]either the undetermined total amount of sanctions, nor the fact that the sanctions are conditional, defeats finality of a post-judgment [continuing] contempt order.” Gates v. Shinn, 98 F.3d 463, 467 (9th Cir. 1996); see also Stone v. San Francisco, 968 F.2d 850, 855 (9th Cir. 1992) (contempt order imposing sanctions for every day order is violated appealable even though amount of sanctions undetermined and ongoing). The appealability of a continuing contempt order for violation of a consent decree depends on a “pragmatic balancing” of the policy against piecemeal review and the risk of denying justice by delay. See Gates, 98 F.3d at 467; Stone, 968 F.2d at 855.
Moreover, a contempt order imposing sanctions is appealable even though sanctions have not begun to accrue due to a temporary stay pending appeal. See Stone, 968 F.2d at 854 n.4 (noting that defendant was not in compliance with consent decree and therefore would be required to pay fines if stay not in effect); see also Gates, 98 F.3d at 467 (staying monetary sanctions so long as there was compliance).
“[A] district court’s order refusing to vacate an underlying contempt order is nonappealable when the ground on which vacatur is sought existed at the time the contempt order was entered and the contemnor failed to appeal timely from that order.” United States v. Wheeler, 952 F.2d 326, 327 (9th Cir. 1991) (per curiam) (otherwise contemnor could indefinitely extend time period for appealing issue of ability to comply, thereby undermining time limits of Fed. R. App. P. 4(a)).
In a judicial proceeding brought by the IRS to enforce an administrative summons, an order of contempt for failure to comply with the summons is a final, appealable order. See Reisman v. Caplin, 375 U.S. 440, 445–49 (1964).
In a judicial proceeding to enforce a grand jury subpoena, an order of contempt for failure to comply with the subpoena is a final, appealable order. See Garcia-Rosel v. United States (In re Grand Jury Proceedings), 889 F.2d 220, 221 (9th Cir. 1989) (per curiam) (failure to testify before grand jury after grant of immunity); United States v. Horn (In re Grand Jury Subpoena Issued to Horn), 976 F.2d 1314, 1316 (9th Cir. 1992) (refusal by attorney to produce privileged documents potentially incriminating to client).
A contempt order imposing sanctions for violation of a prior final judgment is itself a final judgment when it is issued in a contempt proceeding limited to that issue. See Shuffler v. Heritage Bank, 720 F.2d 1141, 1145 (9th Cir. 1983) (“Even though the size of the sanction … depends upon the duration of contumacious behavior occurring after entry of the contempt order, the order is nevertheless final for purposes of § 1291.”).
A default judgment is a final appealable order under 28 U.S.C. § 1291. See Trajano v. Marcos (In re Ferdinand E. Marcos Human Rights Litig.), 978 F.2d 493, 495 (9th Cir. 1992); see also DIRECTV, Inc. v. Hoa Huynh, 503 F.3d 847, 852 (9th Cir. 2007). However, an order granting default is not final and appealable until judgment is entered. See Baker v. Limber, 647 F.2d 912, 916 (9th Cir. 1981) (finding appeal premature where damages determination still pending).
An order denying a motion for default judgment is not a final appealable order. See Bird v. Reese, 875 F.2d 256, 256 (9th Cir. 1989) (order).
An order granting a motion to set aside a default judgment is not a final appealable order where the set-aside permits a trial on the merits. See Joseph v. Office of the Consulate Gen. of Nigeria, 830 F.2d 1018, 1028 (9th Cir. 1987) (holding that court of appeals’ decision to hear interlocutory appeal regarding district court’s jurisdiction over defendants does not extend to grant of motion to set aside).
An order denying a motion to set aside a default judgment is a final appealable order. See Straub v. AP Green, Inc., 38 F.3d 448, 450 (9th Cir. 1994). But see Symantec Corp. v. Global Impact, Inc., 559 F.3d 922, 923 (9th Cir. 2009) (order) (dismissing appeal where district court had only entered a default, and not a default judgment, and explaining that the court lacked jurisdiction over an appeal from an order denying a motion to set aside entry of default alone).
An order compelling discovery issued against a party to a district court proceeding is generally not appealable by that party until after final judgment. See Sali v. Corona Reg’l Med. Ctr., 884 F.3d 1218, 1221 n.3 (9th Cir. 2018) (“[A]n order to produce discovery isn’t immediately appealable.”); Medhekar v. United States Dist. Court, 99 F.3d 325, 326 (9th Cir. 1996) (per curiam) (granting mandamus relief).
If the party complies with the discovery order, he or she may challenge “any unfair use of the information or documents produced” on appeal from final judgment, see Bank of Am. v. Nat’l Mortgage Equity Corp. (In re Nat’l Mortgage Equity Corp. Mortgage Pool Certificates Litig.), 857 F.2d 1238, 1240 (9th Cir. 1988) (per curiam), and if the party defies the discovery order, he or she may challenge any ensuing civil contempt citation on appeal from final judgment, see Bingman v. Ward, 100 F.3d 653, 655 (9th Cir. 1996) (contrasting criminal contempt citation, which is immediately appealable); see also Koninklijke Philips Elecs., N.V. v. KXD Tech., Inc., 539 F.3d 1039 (9th Cir. 2008) (distinguishing between civil and criminal contempt orders, and holding that because contempt order was civil, it was not subject to interlocutory appeal).
Cross-reference: II.C.10.a.i
(regarding the appealability of civil v. criminal contempt orders).
Similarly, an order compelling discovery issued against a nonparty is not immediately appealable by a party who is asserting a privilege regarding the sought-after information until after final judgment. See Bank of Am. v. Nat’l Mortgage Equity Corp. (In re Nat’l Mortgage Equity Corp. Mortgage Pool Certifications Litig.), 857 F.2d 1238, 1240 (9th Cir. 1988) (per curiam).
If the nonparty complies with the discovery order, the party may challenge “any unfair use of information or documents produced” on appeal from final judgment. See id.
Generally, a protective order issued in favor of a party to an ongoing proceeding is not appealable by the opposing party until after entry of final judgment. See KL Group v. Case, Kay & Lynch, 829 F.2d 909, 918 n.5 (9th Cir. 1987); see also Truckstop.net, LLC v. Sprint Corp., 547 F.3d 1065, 1067 (9th Cir. 2008) (explaining the general rule that discovery orders are interlocutory in nature and nonappealable under § 1291).
Generally, an order granting a nonparty’s motion to quash a discovery subpoena is not appealable by a party until after the entry of final judgment. See Premium Serv. Corp. v. Sperry Hutchinson Co., 511 F.2d 225, 228–29 (9th Cir. 1975).
However, where the protective order is issued by a district court in a circuit other than the one where proceedings are ongoing, a party may immediately appeal the order because the court of appeals with jurisdiction over the final judgment will not have jurisdiction over the discovery order. See id. Note that a protective order issued by a different district court in the same circuit is not immediately appealable because the court of appeals with the jurisdiction over the final judgment in the underlying action will also have jurisdiction over the discovery order. See Southern California Edison Co. v. Westinghouse Elec. Corp. (In re Subpoena Served on the California Pub. Util. Comm’n), 813 F.2d 1473, 1476–77 (9th Cir. 1987).
A pretrial order requiring parties to deposit money into a fund to share costs of discovery is not an appealable collateral order. See Lopez v. Baxter Healthcare Corp. (In re Baxter Healthcare Corp.), 151 F.3d 1148 (9th Cir. 1998) (order) (observing that order was subject to ongoing modification by district court and even contained a refund provision).
An order granting a post-judgment motion to compel production of documents is not appealable until a contempt citation issues. See Wilkinson v. Federal Bureau of Investigation, 922 F.2d 555, 558 (9th Cir. 1991) (treating motion to enforce settlement agreement as analogous to traditional discovery motion), overruled on other grounds by Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375 (1994).
However, a
post-judgment order denying a motion to compel may be immediately appealed
because the aggrieved party does not have the option of defying the order and
appealing from an ensuing contempt citation.
See Hagestad
v. Tragresser,
49 F.3d 1430, 1432 (9th Cir. 1995).
See also SEC v. CMKM Diamonds, Inc., 656 F.3d 829,
831 (9th Cir. 2011) (“We have previously held that an interlocutory
appeal in a discovery matter is available when the contempt process is
unavailable.”).
Regarding the appealability of an order denying a motion to compel, see II.C.12.b.iii.
An order compelling production of documents or testimony issued against a nonparty is generally not appealable by the nonparty. See United States v. Ryan, 402 U.S. 530, 532–33 (1971); Perry v. Schwarzenegger, 602 F.3d 976, 979 (9th Cir. 2010) (order); David v. Hooker, Ltd., 560 F.2d 412, 415–16 (9th Cir. 1977). Rather, the nonparty must choose either to comply with the order to produce or defy the order to produce and face a possible contempt citation. See Ryan, 402 U.S. at 532–33; David, 560 F.2d at 415–16 (observing that aggrieved person does not have option of challenging discovery order on appeal from a final judgment because he or she is not a party to any ongoing litigation).
If a nonparty chooses to comply with a discovery order or subpoena, he or she may appeal from an order denying post-production reimbursement of costs under the collateral order doctrine. See United States v. CBS, Inc., 666 F.2d 364, 369–70 (9th Cir. 1982). The nonparty may also object to the introduction of the materials he or she produced, or the fruits thereof, at any subsequent criminal trial. See Ryan, 402 U.S. at 532 n.3.
If a nonparty chooses to resist, he or she may appeal a subsequent adjudication of contempt. See Ryan, 402 U.S. at 532–33; David, 560 F.2d at 415–16. A contempt order against a nonparty is considered final with regard to the nonparty. See David, 560 F.2d at 416–17 (order equivalent to contempt citation, i.e. order awarding sanctions under Fed. R. Civ. P. 37(b)(2), issued against nonparty for failure to comply with court order compelling production of documents in ongoing litigation, appealable by nonparty).
Cross-reference: II.C.10
(regarding the appealability of contempt orders).
Under certain circumstances, a nonparty may appeal a discovery-related order in the absence of a contempt citation. See Unites States v. Ryan, 402 U.S. 530, 533 (1971) (stating that the exception to the rule of nonappealability is recognized “[o]nly in the limited class of cases where denial of immediate review would render impossible any review whatsoever of an individual’s claims”).
Generally, an order denying a motion to quash a grand jury subpoena directing a third party to produce documents is appealable by the person asserting a privilege as to those documents because the third party “normally will not be expected to risk a contempt citation but will instead surrender the sought-after information, thereby precluding effective appellate review at a later stage.” Alexiou v. United States (In re Subpoena to Testify Before the Grand Jury), 39 F.3d 973, 975 (9th Cir. 1994) (citing Perlman v. United States, 247 U.S. 7 (1918)). See also SEC v. CMKM Diamonds, Inc., 656 F.3d 829, 831 (9th Cir. 2011) (“Generally, we may review a discovery order only when the subpoenaed party has refused to comply with the order and appeals the resulting contempt citation. When a discovery order is directed at a disinterested third-party, however, the order is appealable.” (citation omitted)); United States v. Krane, 625 F.3d 568, 572 (9th Cir. 2010) (concluding there was jurisdiction under Perlman rule, but that trial subpoena was moot); United States v. Griffin, 440 F.3d 1138, 1143 (9th Cir. 2006) (concluding Perlman exception applied where district court order was directed at the special master, a disinterested third-party custodian of allegedly privileged documents).
However, once a third party discloses the sought-after information, the Perlman exception is no longer applicable. See Bank of Am. v. Feldman (In re Nat’l Mortgage Equity Corp. Mortgage Pool Certificates Litig.), 821 F.2d 1422, 1424 (9th Cir. 1987) (observing that the Perlman exception is intended to prevent disclosure of privileged information, not to facilitate a determination of whether previously-disclosed information is subject to a protective order or admissible at trial); see also Truckstop.net, LLC v. Sprint Corp., 547 F.3d 1065 (9th Cir. 2008) (holding the district court’s decision that e-mail was not protected by attorney-client privilege and was properly disclosed was not appealable where e-mail had already been disclosed)
(1) Examples of Orders Denying Motions to Quash Subpoenas That Are Appealable
· Order denying attorney’s motion to quash subpoena directing him to reveal information about a client under investigation. See Alexiou v. United States (In re Subpoena to Testify Before the Grand Jury), 39 F.3d 973, 975 (9th Cir. 1994) (concluding that attorney “cannot be expected to accept a contempt citation and go to jail in order to protect the identity of a client who paid his fee with counterfeit money”).
· Order denying attorney’s motion to quash a subpoena directing him to reveal information about a former client under investigation. See Schofield v. United States (In re Grand Jury Proceeding), 721 F.2d 1221, 1221–22 (9th Cir. 1983) (attorney-client relationship was ongoing during time period specified in subpoena, but had ceased by the time the subpoena was issued). Cf. Doe v. United States (In re Grand Jury Subpoena Dated June 5, 1985), 825 F.2d 231, 237 (9th Cir. 1987) (distinguishing between present and former clients in concluding order not appealable).
· Order denying client’s motion to quash subpoena directing law firm to produce client’s documents immediately appealable by client where law firm complied with subpoena by surrendering documents to court. See Does I–IV v. United States (In re Grand Jury Subpoena Dated December 10, 1987), 926 F.2d 847, 853 (9th Cir. 1991) (noting that denial of law firm’s motion to quash was an unappealable interlocutory order as to the firm because it had complied with the subpoena).
· Order denying motion to quash subpoena directing third-party psychiatrist to produce movant’s psychiatric record. See In re Grand Jury Proceedings, 867 F.2d 562, 564 (9th Cir. 1989) (per curiam) (noting that Ninth Circuit had not recognized a psychotherapist-patient privilege in the criminal context), abrogated on other grounds by Jaffee v. Redmond, 518 U.S. 1 (1996).
· Order denying police officer’s motion to quash grand jury subpoena directing his supervisor to produce an internal affairs report relating to officer. See Kinamon v. United States (In re Grand Jury Proceedings), 45 F.3d 343, 346 (9th Cir. 1995).
(2) Examples of Orders Denying Motions to Quash Subpoenas That Are Not Appealable
An order denying a client’s motion to quash an order directing his or her attorney to reveal information purportedly covered by the attorney-client privilege is not appealable by the client because “the attorney is an active participant in the litigation, appealing from the district court’s denial of his motion to quash on his own behalf.” Doe v. United States (In re Grand Jury Subpoena dated June 5, 1985), 825 F.2d 231, 237 (9th Cir. 1987) (attorney was required to act in best interests of client and to assert any applicable privileges, which he did). The Perlman rationale is less compelling in such a case because the third party attorney “is both subject to the control of the person or entity asserting the privilege and is a participant in the relationship out of which the privilege emerges.” Id. (recognizing that in certain cases, immediate appeal has been permitted even though the third party attorney was still arguably representing the client).
Similarly, an order denying a motion to quash a subpoena directed at a third-party accountant, who was an agent of the movant and a party to the relationship upon which the claim of privilege is based, is also unappealable under Perlman. See Silva v. United States (In re Grand Jury Subpoena Issued to Bailin), 51 F.3d 203, 205–06 (9th Cir. 1995) (per curiam) (concluding that under these circumstances, third party can be expected to risk contempt citation to protect the privileged relationship). See also United States v. Krane, 625 F.3d 568, 572 (9th Cir. 2010) (jurisdiction under the Perlman rule).
Instead, the attorney (or accountant) can appeal from a contempt citation following refusal to comply. See Ralls v. United States, 52 F.3d 223, 225 (9th Cir. 1995); United States v. Horn (In re Grand Jury Subpoena Issued to Horn), 976 F.2d 1314, 1316 (9th Cir. 1992). Moreover, either attorney (or accountant) or client can move to suppress evidence at any subsequent criminal trial. See Doe, 825 F.2d at 237.
An order denying a motion to quash a subpoena directed at the President of the United States is appealable. See United States v. Nixon, 418 U.S. 683, 690–92 (1974) (“To require a President of the United States to place himself in the posture of disobeying an order of a court merely to trigger the procedural mechanism for review of the ruling would be unseemly, and would present an unnecessary occasion for constitutional confrontation between two branches of the Government.”). But see Estate of Domingo, 808 F.2d 1349, 1351 (9th Cir. 1987) (holding that order denying motion to terminate deposition by former President of the Philippines was not appealable because he is “hardly comparable to … the President of the United States”).
The court of appeals has declined to recognize an exception to nonappealability for governmental entities. See Newton v. NBC, 726 F.2d 591, 593 (9th Cir. 1984) (order compelling nonparty governmental entity to produce documents despite claim of privilege not appealable by government absent a finding of contempt).
An order denying a motion to compel production of documents, or denying a motion for return of seized property may be immediately appealed by a nonparty because he or she does not have the option of defying the order and appealing from an ensuing contempt citation. See Hagestad v. Tragresser, 49 F.3d 1430, 1432 (9th Cir. 1995) (citing Wilkinson v. Federal Bureau of Investigation, 922 F.2d 555, 558 (9th Cir. 1991), overruled on other grounds by Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375 (1994)) (order denying an intervenor’s post-judgment motion to compel production of documents); see also DiBella v. United States, 369 U.S. 121, 131–32 (1962) (order denying motion for return of seized property final and appealable where no criminal prosecution pending against movant).
A discovery-related order is immediately appealable where it is entered as the final judgment in a proceeding limited to enforcement of an administrative summons or subpoena. See EEOC v. Fed. Express Corp., 558 F.3d 842, 845 (9th Cir. 2009) (order enforcing EEOC subpoena); United States Envtl. Prot. Agency v. Alyeska Pipeline Serv. Co., 836 F.2d 443, 445 (9th Cir. 1988) (order enforcing EPA subpoena), abrogated on other grounds by McLane Co. v. E.E.O.C., 137 S. Ct. 1159, 1170 (2017) (as revised); United States v. Vallance, 793 F.2d 1003, 1005 (9th Cir. 1986) (order enforcing IRS summons).
A discovery order is immediately appealable where it is entered as the final judgment in a proceeding limited to an application for discovery. See United States v. CBS, Inc., 666 F.2d 364, 369 n.4 (9th Cir. 1982).
An order compelling production of documents and things is a final appealable order in a proceeding upon a petition to perpetuate certain evidence. See Martin v. Reynolds Metals Corp., 297 F.2d 49, 52 (9th Cir. 1961).
An order appointing commissioners to facilitate gathering of evidence is a final appealable order in an action brought pursuant to 28 U.S.C. § 1782 to assist foreign and international tribunals and litigants before such tribunals. See Okubo v. Reynolds (In re Letters Rogatory from the Tokyo Dist. Prosecutor’s Office), 16 F.3d 1016, 1018 n.1 (9th Cir. 1994); see also Khrapunov v. Prosyankin, 931 F.3d 922, 924 (9th Cir. 2019) (jurisdiction to review district court’s decision on application for order to conduct discovery pursuant to § 1782); In re Premises Located at 840 140th Ave. NE, Bellevue, Wa., 634 F.3d 557, 565–67 (9th Cir. 2011) (holding “that [the court had] appellate jurisdiction over the district court’s order denying the motion for a protective order”); United States v. Sealed 1, Letter of Request for Legal Assistance from the Deputy Prosecutor General of the Russian Federation, 235 F.3d 1200, 1203 (9th Cir. 2000).
An order requesting government to release documents or denying plaintiff access to documents is a final, appealable order in a Freedom of Information Act (“FOIA”) action. See United States v. Steele (In re Steele), 799 F.2d 461, 464–65 (9th Cir. 1986) (order represents the “full, complete and final relief available” in a FOIA action). But see Church of Scientology Int’l v. IRS, 995 F.2d 916, 921 (9th Cir. 1993) (order declaring particular document not exempt under attorney-client privilege is not final and appealable if it does not also order government to produce document).
Generally, an order denying a motion to dismiss is not appealable because it does not end the litigation on the merits. See Confederated Salish v. Simonich, 29 F.3d 1398, 1401–02 (9th Cir. 1994).
· Contractual forum selection clause. See Lauro Lines S.R.L. v. Chasser, 490 U.S. 495, 498 (1989).
· Forum non conveniens. See Van Cauwenberghe v. Biard, 486 U.S. 517, 526–27 (1988); In re Orange, S.A., 818 F.3d 956, 958 (9th Cir. 2016) (“A district court order denying a motion to dismiss for forum non conveniens is not a final decision for purposes of section 1291.”). Compare Gutierrez v. Advanced Med. Optics, Inc., 640 F.3d 1025, 1028 (9th Cir. 2011) (where district court dismisses case on forum non conveniens grounds, the order is appealable).
· Claim of immunity from service of process after extradition. See Van Cauwenberghe, 486 U.S. at 523–24 (“specialty doctrine” in federal extradition law).
· Lack of venue. See Phaneuf v. Indonesia, 106 F.3d 302, 304 (9th Cir. 1997) (“Jurisdiction does not exist to review the district court’s refusal to dismiss for lack of venue.”).
· Younger abstention doctrine. See Confederated Salish, 29 F.3d at 1401–02.
· Lack of personal jurisdiction. See Cassirer v. Kingdom of Spain, 616 F.3d 1019, 1025–26 (9th Cir. 2010) (en banc) (court lacked jurisdiction to review denial of motion to dismiss based on lack of controversy and personal jurisdiction).
An order granting dismissal is final and appealable “if it (1) is a full adjudication of the issues, and (2) ‘clearly evidences the judge’s intention that it be the court’s final act in the matter.’” Nat’l Distrib. Agency v. Nationwide Mut. Ins. Co., 117 F.3d 432, 433 (9th Cir. 1997) (citation omitted); see also United States v. California, 921 F.3d 865, 878 n.5 (9th Cir. 2019) (no jurisdiction over dismissal order where California’s motion to dismiss was not granted in its entirety, and thus the order was not a full adjudication of the issues, and did not clearly evidence the judge’s intention that it be the court’s final act in the matter), petition for cert. filed, No. 19-532 (Oct. 23, 2019); Applied Underwriters, Inc. v. Lichtenegger, 913 F.3d 884, 892 n.5 (9th Cir. 2019); Elliot v. White Mountain Apache Tribal Court, 566 F.3d 842, 846 (9th Cir. 2009); Disabled Rights Action Committee v. Las Vegas Events, Inc., 375 F.3d 861, 870–72 (9th Cir. 2004). The focus is on the intended effect of the order not the label assigned to it. See Montes v. United States, 37 F.3d 1347, 1350 (9th Cir. 1994); see also Disabled Rights Action Committee, 375 F.3d at 870.
As a general rule, an order dismissing the “complaint” rather than the “action” is not a final appealable order. See California v. Harvier, 700 F.2d 1217, 1218 (9th Cir. 1983). For example, an order dismissing the complaint rather than the action was held to be unappealable where it was unclear whether the district court determined that amendment would be futile, and it appeared from the record that it may not be futile. See id. (observing that, although claims against defendants in their representative capacity were dismissed, plaintiff could amend to name defendants in their individual capacities). See also Chapman v. Deutsche Bank Nat’l Trust Co., 651 F.3d 1039, 1043 (9th Cir. 2011) (per curiam) (“Ordinarily an order dismissing the complaint rather than dismissing the action is not a final order and thus not appealable. However, if it appears that the district court intended the dismissal to dispose of the action, it may be considered final and appealable.” (quotation marks and citation omitted)).
However, the district court’s apparent intent, not the terminology it uses, is determinative. See Montes v. United States, 37 F.3d 1347, 1350 (9th Cir. 1994); see also Disabled Rights Action Committee v. Las Vegas Events, Inc., 375 F.3d 861, 870 (9th Cir. 2004). For example, an order dismissing the “action” without prejudice rather than the “complaint” was held to be unappealable where the district court’s words and actions indicated an intent to grant leave to amend. See Montes, 37 F.3d at 1350; see also McCauley v. Ford Motor Co. (In re Ford Motor Co./Citibank), 264 F.3d 952 (9th Cir. 2001) (reviewing dismissal of “complaint” because it was clear the district court intended to dismiss the action). Conversely, an order dismissing the “complaint” rather than the “action” was held to be appealable where “circumstances ma[d]e it clear that the court concluded that the action could not be saved by any amendment of the complaint.” Hoohuli v. Ariyoshi, 741 F.2d 1169, 1172 n.1 (9th Cir. 1984) (reviewing dismissal on Eleventh Amendment immunity grounds), overruled on other grounds as recognized by Arakaki v. Lingle, 477 F.3d 1048, 1062 (9th Cir. 2007); see also Chapman, 651 F.3d at 1043 (concluding it appeared the district court intended to fully and finally resolve the action).
Where the district court expressly grants leave to amend, the dismissal order is not final and appealable. See Greensprings Baptist Christian Fellowship Trust v. Cilley, 629 F.3d 1064, 1068 (9th Cir. 2010) (“An order dismissing a case with leave to amend may not be appealed as a final decision under § 1291.”); Telluride Mgmt. Solutions v. Telluride Inv. Group, 55 F.3d 463, 466 (9th Cir. 1995), overruled on other grounds by Cunningham v. Hamilton Cty., 527 U.S. 198 (1999). The order is not appealable even where the court grants leave to amend as to only some of the dismissed claims. See Indian Oasis-Baboquivari Unified Sch. Dist. v. Kirk, 109 F.3d 634, 636 (9th Cir. 1997) (en banc).
A plaintiff may not simply appeal a dismissal with leave to amend after the period for amendment has elapsed; the plaintiff must seek a final order if the district court does not take further action on its own. See WMX Tech., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc); see also Baldwin v. Sebelius, 654 F.3d 877, 878 (9th Cir. 2011).
Where the district court expressly denies leave to amend, the order is final and appealable. See Scott v. Eversole Mortuary, 522 F.2d 1110, 1112 (9th Cir. 1975).
A district court’s failure to expressly grant (or deny) leave to amend supports an inference that the court determined the complaint could not be cured by amendment. See Hoohuli v. Ariyoshi, 741 F.2d 1169, 1172 n.1 (9th Cir. 1984), overruled on other grounds as recognized by Arakaki v. Lingle, 477 F.3d 1048, 1062 (9th Cir. 2007).
(1) Deficiencies Appear Incurable
An order of dismissal is appealable where it appears from the record that the complaint’s deficiencies cannot be cured by amendment. See Ford Motor Co./Citibank (South Dakota) v. Ford Motor Co., 264 F.3d 952, 956 (9th Cir. 2001); see also Barboza v. California Ass’n of Prof’l Firefighters, 651 F.3d 1073, 1076 (9th Cir. 2011) (treating dismissal of claims for failure to exhaust administrative remedies as final); Griffin v. Arpaio, 557 F.3d 1117, 1119 (9th Cir. 2009) (treating the dismissal as final because there was “no way of curing the defect found by the court”); Butler v. Adams, 397 F.3d 1181, 1183 (9th Cir. 2005) (failure to exhaust claim); Martinez v. Gomez, 137 F.3d 1124, 1126 (9th Cir. 1998) (per curiam) (statute of limitations); Ramirez v. Fox Television, Inc., 998 F.2d 743, 747 (9th Cir. 1993) (failure to exhaust grievance procedures); Nevada v. Burford, 918 F.2d 854, 855 (9th Cir. 1990) (lack of standing); Gerritsen v. de la Madrid Hurtado, 819 F.2d 1511, 1514 (9th Cir. 1987) (no state action); Kilkenny v. Arco Marine Inc., 800 F.2d 853, 855–56 (9th Cir. 1986) (proper parties).
(2) Deficiencies Appear Curable
An order of dismissal is not appealable where it is unclear whether the district court determined amendment would be futile, and it appears from the record that it may not be futile. See California v. Harvier, 700 F.2d 1217, 1218 (9th Cir. 1983) (claims against defendants in their representative capacity dismissed but plaintiff could amend to name defendants in their individual capacities).
A dismissal with prejudice is a final appealable order. See Al-Torki v. Kaempen, 78 F.3d 1381, 1384–85 (9th Cir. 1996).
Whether a dismissal “without prejudice” is final depends on whether the district court intended to dismiss the complaint without prejudice to filing an amended complaint, or to dismiss the action without prejudice to filing a new action. See Montes v. United States, 37 F.3d 1347, 1350 (9th Cir. 1994); see also Lopez v. Needles, 95 F.3d 20, 22 (9th Cir. 1996) (holding that where record indicates district court anticipated amendment, order is not final and appealable).
A dismissal
without prejudice is appealable where leave to amend is not specifically
granted and amendment could not cure the defect. See Griffin
v. Arpaio,
557 F.3d 1117, 1119 (9th Cir. 2009) (treating the dismissal as final
because there was “no way of curing the defect found by the court”); see also Barboza
v. California Ass’n of Prof’l Firefighters, 651 F.3d 1073, 1076 (9th Cir. 2011)
(treating dismissal of claims for failure to exhaust administrative remedies as
final); Martinez v. Gomez, 137 F.3d 1124,
1126 (9th Cir. 1998) (per curiam) (treating dismissal without prejudice
as final order where statute of limitations bar could not be cured by
amendment). A dismissal without
prejudice is also appealable where it “effectively sends the party out of
[federal] court.” See Ramirez v. Fox
Television, Inc.,
998 F.2d 743, 747 (9th Cir. 1993) (involving dismissal for failure to
exhaust grievance procedures following finding of preemption); United States
v. Henri, 828 F.2d 526, 528 (9th Cir. 1987) (per curiam) (involving
dismissal under primary jurisdiction doctrine); see also Bishop Paiute Tribe
v. Inyo Cty., 863 F.3d 1144, 1151 n.2 (9th Cir. 2017) (although under Fed.
R. Civ. P. 41(b) “dismissals for lack of jurisdiction are generally without
prejudice and are therefore not final appealable orders”, the court of appeals
had jurisdiction where it was clear the district court judge intended the order
to be his final act in the case).
A dismissal for failure to prosecute is a final appealable order. See Al-Torki v. Kaempen, 78 F.3d 1381, 1386 (9th Cir. 1996) (dismissal with prejudice); Ash v. Cvetkov, 739 F.2d 493, 497–98 (9th Cir. 1984) (dismissal without prejudice). See also Applied Underwriters, Inc. v. Lichtenegger, 913 F.3d 884, 890 (9th Cir. 2019) (whether dismissal was for failure to state a claim or failure to prosecute or to comply with court order, district court’s entry of judgment constituted final appealable decision).
However, prior interlocutory rulings are not subject to review by the court of appeals, whether the failure to prosecute was deliberate or due to negligence or mistake. See Al-Torki, 78 F.3d at 1386; Ash, 739 F.2d at 497–98.
Cross-reference: V.A.1.b (regarding
rulings that do not merge into a final judgment).
A voluntary dismissal under Fed. R. Civ. P. 41 is presumed to be without prejudice unless under otherwise stated. See Concha v. London, 62 F.3d 1493, 1506 (9th Cir. 1995) (holding a Fed. R. Civ. P. 41 dismissal to be with prejudice).
Generally, a voluntary dismissal without prejudice is not appealable by the plaintiff (the dismissing party) because it is not adverse to the plaintiff’s interests. See Concha, 62 F.3d at 1507 (observing that plaintiff is free to “seek an adjudication of the same issue at another time in the same or another forum”); see also United States v. Gila Valley Irrigation Dist., 859 F.3d 789, 797 (9th Cir. 2017) (“Indeed, the general rule in this circuit is that voluntary dismissals without prejudice do not create appealable, final judgments.” (internal quotation marks and citation omitted)).
“However, when a party that has suffered an adverse partial judgment subsequently dismisses remaining claims without prejudice with the approval of the district court, and the record reveals no evidence of intent to manipulate … appellate jurisdiction, the judgment entered after the district court grants the motion to dismiss is final and appealable under 28 U.S.C. § 1291.” Sneller v. City of Bainbridge Island, 606 F.3d 636, 638 (9th Cir. 2010) (internal quotation marks and citations omitted). See also Munns v. Kerry, 782 F.3d 402, 408 n.4 (9th Cir. 2015) (Because “the record reveals no evidence of intent to manipulate our appellate jurisdiction” through the plaintiffs’ voluntary dismissal of the private defendants in this case, the district court’s dismissal of the government defendants is final and appealable under § 1291.”); Stevedoring Serv. of Am. v. Armilla Int’l B.V., 889 F.2d 919, 920–21 (9th Cir. 1989) (reaching the merits).
Cross-reference: IX.A
(regarding requirements for standing to appeal).
(1) Voluntary Dismissal by Losing Party
As a general rule, a losing party may not create appellate jurisdiction over an order adjudicating fewer than all claims by voluntarily dismissing without prejudice any unresolved claims. See Dannenberg v. Software Toolworks, Inc., 16 F.3d 1073, 1076–77 (9th Cir. 1994) (concluding there was no jurisdiction where remaining claims dismissed without prejudice pursuant to stipulation); Fletcher v. Gagosian, 604 F.2d 637, 638–39 (9th Cir. 1979) (stating that policy against piecemeal appeals cannot be avoided at “the whim of the plaintiff”). The dismissal of certain claims without prejudice to revival in the event of reversal and remand is not a final order. See Dannenberg, 16 F.3d at 1076–77.
However, an order dismissing without prejudice claims against unserved defendants does not affect the finality of an order dismissing with prejudice claims against all served defendants. See Cooper v. Pickett, 137 F.3d 616, 621–22 (9th Cir. 1998) (noting that dismissal was pursuant to stipulation of the parties).
Cross-reference: II.C.13.b.viii
(regarding dismissal of fewer than all claims).
Moreover, an order dismissing without prejudice a claim for indemnification was held not to affect the finality of a partial summary judgment because the indemnity claim was entirely dependent upon plaintiff’s success on the underlying claim. See Horn v. Berdon, Inc. Defined Benefit Pension Plan, 938 F.2d 125, 126–27 n.1 (9th Cir. 1991) (per curiam) (noting that dismissal was pursuant to stipulation of parties).
“When a party that has suffered an adverse partial judgment subsequently dismisses remaining claims without prejudice with the approval of the district court, and the record reveals no evidence of intent to manipulate … appellate jurisdiction, the judgment entered after the district court grants the motion to dismiss is final and appealable” as a final decision of the district court. James v. Price Stern Sloan, 283 F.3d 1064, 1070 (9th Cir. 2002); see also Sneller v. City of Bainbridge Island, 606 F.3d 636, 638 (9th Cir. 2010) (no evidence of intent to manipulate jurisdiction where reason for dismissal of remaining state law claims appeared legitimate); American States Ins. Co. v. Dastar Corp., 318 F.3d 881, 885 (9th Cir. 2003); Amadeo v. Principle Mut. Life Ins. Co., 290 F.3d 1152, 1158 n.1 (9th Cir. 2002).
(2) Voluntary Dismissal by Prevailing Party
If after adjudication of fewer than all claims, a prevailing party voluntarily dismisses remaining claims without prejudice, the order adjudicating certain claims is final and appealable. See Local Motion, Inc. v. Niescher, 105 F.3d 1278, 1279, 1281 (9th Cir. 1997) (per curiam) (prevailing party failed in its attempt to prevent opposing party from appealing grant of summary judgment by dismissing remaining claims without prejudice); cf. United Nat’l Ins. Co. v. R & D Latex Corp., 141 F.3d 916, 918 n.1 (9th Cir. 1998) (prevailing party succeeded in its attempt to facilitate opposing party’s appeal from grant of summary judgment by dismissing remaining claims without prejudice); see also United States v. Cmty. Home & Health Care Servs., Inc., 550 F.3d 764, 766 (9th Cir. 2008) (stating that “A prevailing party’s decision to dismiss its remaining claims without prejudice generally renders a partial grant of summary judgment final.”).
However, a voluntary dismissal with prejudice is generally not appealable where it is entered unconditionally pursuant to a settlement agreement. See Seidman v. City of Beverly Hills, 785 F.2d 1447, 1448 (9th Cir. 1986) (order) (no jurisdiction over order dismissing entire action with prejudice pursuant to stipulation because order not adverse to appellant).
Following adjudication of fewer than all claims, a plaintiff may dismiss with prejudice any unresolved claims in order to obtain review of the prior rulings. See Rodriguez, 896 F.3d at 956 (Plaintiff’s dismissal with prejudice created a valid final judgment for purposes of 28 U.S.C. § 1291.); Dannenberg v. Software Toolworks, Inc., 16 F.3d 1073, 1078 (9th Cir. 1994) (observing that a voluntary dismissal with prejudice precludes possibility of later pursuing the dismissed claims); Coursen v. A.H. Robins Co., 764 F.2d 1329, 1342, corrected by 773 F.2d 1049 (9th Cir. 1985).
Cross-reference: IX.A
(regarding the requirements for standing to appeal).
If a district court judgment is conditional or modifiable, the requisite intent to issue a final order is lacking. See Zucker v. Maxicare Health Plans Inc., 14 F.3d 477, 483 (9th Cir. 1994) (concluding order was not final where it stated it would become final only after parties filed a joint notice of state court decision); see also Disabled Rights Action Comm. v. Las Vegas Events, Inc., 375 F.3d 861, 871 (9th Cir. 2004) (concluding order not final where district court granted motion to modify previous order, explaining that, had it intended the order to be final, it would have denied the motion to modify as moot); Nat’l Distrib. Agency v. Nationwide Mut. Ins. Co., 117 F.3d 432, 433–34 (9th Cir. 1997) (concluding order was not final where it stated “the court may amend or amplify this order with a more specific statement of the grounds for its decision”).
As a general rule, an order dismissing fewer than all claims is not final and appealable unless it is certified under Fed. R. Civ. P. 54(b). See Prellwitz v. Sisto, 657 F.3d 1035, 1038 (9th Cir. 2011) (“[T]he district court’s order was not final because it did not dispose of the action as to all claims between the parties.”); Chacon v. Babcock, 640 F.2d 221, 222 (9th Cir. 1981). See also United States v. California, 921 F.3d 865, 878 n.5 (9th Cir. 2019) (concluding that the court did not have jurisdiction over an appeal of a dismissal order, where the district court did not grant California’s motion to dismiss in its entirety, and the district court did not certify the non-final dismissal order pursuant to Fed. R. Civ. P. 54(b)), petition for cert. filed, No. 19-532 (Oct. 22, 2019). Cross-reference: II.A.1.b.ii (regarding what constitutes dismissal of all claims).
Moreover, an order dismissing fewer than all claims may be treated as a final order where the remaining claims are subsequently finalized. See Anderson v. Allstate Ins. Co., 630 F.2d 677, 680–81 (9th Cir. 1980) (federal claim dismissed as to remaining defendants and state claim remanded to state court); see also Gallea v. United States, 779 F.2d 1403, 1404 (9th Cir. 1986) (action remanded to state court following dismissal of federal claim).
Disqualification
orders are not immediately appealable, but certain disqualification orders may
be reviewed on petition for writ of mandamus.
See Unified
Sewerage Agency v. Jelco, Inc.,
646 F.2d 1339, 1343–44 (9th Cir. 1981); see also United States v. Tillman, 756 F.3d
1144, 1149–50 (9th Cir. 2014) (court lacked jurisdiction over claim that
counsel was improperly removed, but concluded mandamus jurisdiction was
appropriate to consider sanctions order because it had an immediate impact on
counsel). See II.D.4.d
(regarding the availability of mandamus relief from disqualification orders).
Orders disqualifying counsel are not immediately appealable collateral orders. See Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 440–41 (1985); Lynn v. Gateway Unified Sch. Dist., 771 F.3d 1135, 1139 (9th Cir. 2014) (stating, the “United States Supreme Court has explicitly held that ‘orders disqualifying counsel in civil cases … are not collateral orders subject to appeal as final judgments within the meaning of 28 U.S.C. § 1291” and that the Court of Appeals lacks jurisdiction to entertain such an appeal. (quoting Richardson–Merrell, 472 U.S. at 440–41)).
In Flanagan [v. United States, 465 U.S. 259 1984)], the Supreme Court held that
“[a]n order disqualifying counsel lacks the critical characteristics that make
orders ... immediately appealable.” 465 U.S. at 266,
104 S. Ct. 1051. The Court
reasoned that a judgment of acquittal or a direct appeal could vindicate the
defendant’s right
to a certain
counsel. Id. at 267, 104
S. Ct. 1051. The Court also determined
that a disqualification order “is not independent of the issues to be tried,”
and that “[i]ts validity cannot be adequately reviewed until trial is complete”
because it requires an evaluation of prejudice to the defendant. Id.
at 268–69,
104 S. Ct. 1051. Under Flanagan, [the appellate court lacks]
jurisdiction over the disqualification of counsel order.
United States v. Tillman, 756 F.3d 1144, 1149 (9th Cir. 2014) (court lacked jurisdiction over claim that counsel was improperly removed, but concluded mandamus jurisdiction was appropriate to consider sanctions order because it had an immediate impact on counsel).
Orders denying disqualification of counsel are also unappealable. See Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 369–70 (1981); see also Aguon-Schulte v. Guam Election Com’n, 469 F.3d 1236, 1239 (9th Cir. 2006) (motion to strike appearances by outside counsel).
An order granting recusal of a district court judge is not an appealable collateral order. See Arizona v. Ideal Basic Indus. (In re Cement Antitrust Litig.), 673 F.2d 1020, 1023–25 (9th Cir. 1982) (plaintiffs have no protectable interests in particular judge continuing to preside over action).
An order denying disqualification of a district court judge is also unappealable. See United States v. Washington, 573 F.2d 1121, 1122 (9th Cir. 1978).
As a general rule, an order denying a motion to proceed in forma pauperis is an appealable final order. See Roberts v. United States Dist. Court, 339 U.S. 844, 845 (1950) (per curiam) (citing Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949)); see also Andrews v. King, 398 F.3d 1113, 1118 (9th Cir. 2005).
However, a magistrate judge has no authority to enter a final order denying in forma pauperis status absent reference by the district court and consent of litigants in compliance with 28 U.S.C. § 636(c). See Tripati v. Rison, 847 F.2d 548, 548–49 (9th Cir. 1988). Thus, an appeal from such an order must be dismissed and the action remanded to the district court judge. See id.
Moreover, where a magistrate judge recommends that the district court deny a motion to proceed in forma pauperis, the movant was not entitled to file written objections. See Minetti v. Port of Seattle, 152 F.3d 1113, 1114 & n.1 (9th Cir. 1998) (per curiam) (holding that objection procedure under 28 U.S.C. § 636(b)(1)(C) did not apply to motion to proceed in forma pauperis, and affirming district court judgment denying forma pauperis status).
See Office of Staff Attorneys’ Immigration Outline.
An order denying immunity, whether an order of dismissal or of summary judgment, may be immediately appealed under the collateral order doctrine if the asserted immunity is “an immunity from suit rather than a mere defense to liability.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985); see also Will v. Hallock, 546 U.S. 345, 350 (2006) (orders rejecting absolute immunity and qualified immunity are immediately appealable); Tuuamalemalo v. Greene, 946 F.3d 471, 476 (9th Cir. 2019) (per curiam) (order denying summary judgment to officer on state-law claims, immediately appealable because the immunity functioned as immunity from suit); Taylor v. Cty. of Pima, 913 F.3d 930, 934 (9th Cir. 2019) (where county only asserted immunity from liability, the collateral order doctrine did not apply); KRL v. Estate of Moore, 512 F.3d 1184, 1188 (9th Cir. 2008) (order denying motion for summary judgment was appealable because the motion was based on qualified immunity); Kohlrautz v. Oilmen Participation Corp., 441 F.3d 827, 830 (9th Cir. 2006) (jurisdiction where claim of official immunity was asserted as a defense to state-law cause of action); Lee v. Gregory, 363 F.3d 931, 932 (9th Cir. 2004) (order denying motion for summary judgment was appealable because the motion was based on qualified immunity); cf. Metabolic Research, Inc. v. Ferrell, 693 F.3d 795, 801–02 (9th Cir. 2012) (holding denial of pretrial motion to dismiss was not immediately appealable under collateral order doctrine, and distinguishing between immunity from “civil liability” and immunity from “suit” or “trial”). Such an order is reviewable to the extent it raises an issue of law. See Mitchell, 472 U.S. at 528; see also Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 587 (9th Cir. 2008); Kohlrautz, 441 F.3d at 830. A district court order that defers a ruling on immunity for a limited time to determine what relevant functions were performed is generally not appealable. See Miller v. Gammie, 335 F.3d 889, 894–95 (9th Cir. 2003); see also Moss v. United States Secret Serv., 572 F.3d 962, 973 (9th Cir. 2009). Also, a district court’s denial of summary judgment in a qualified immunity case where the court’s order implicates a question of evidence sufficiency is not immediately appealable. See Moss, 572 F.3d at 972; see also Alston v. Read, 663 F.3d 1094, 1098 (9th Cir. 2011). Additionally, the court of appeals will not have jurisdiction to review the denial of a motion for summary judgment based on qualified immunity where the district court fails to make a complete, final ruling on the issue. See Way v. Cty. of Ventura, 348 F.3d 808, 810 (9th Cir. 2003).
An order denying summary judgment based on assertion of absolute presidential immunity is an appealable collateral order. See Nixon v. Fitzgerald, 457 U.S. 731, 743 (1982).
Similarly, an order denying a motion to dismiss on absolute legislative immunity grounds is appealable as a collateral order. See Trevino v. Gates, 23 F.3d 1480, 1481 (9th Cir. 1994).
“Under the
collateral order doctrine, [the court has] appellate jurisdiction under
§ 1291 to consider a State’s claims of immunity from suit, but there is no
such appellate jurisdiction to consider claims of immunity from liability.” Walden v. Nevada, 945 F.3d 1088, 1091
(9th Cir. 2019). “[A]n ordinary claim of
Eleventh Amendment immunity encompasses a claim of immunity from suit.” Taylor v. Cty. of Pima, 913 F.3d 930,
934 (9th Cir. 2019) (concluding no jurisdiction to review under § 1291 where
county was only asserting immunity from liability). An order denying a motion to dismiss based on
state sovereign immunity under the Eleventh Amendment is an appealable
collateral order. See Puerto Rico
Aqueduct and Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139,
144–46 (1993) (observing that Eleventh Amendment confers immunity from
suit on states and arms of state); see also Walden, 945 F.3d at 1091; Taylor,
913 F.3d at 934,
Del Campo v. Kennedy, 517 F.3d 1070, 1074 (9th Cir. 2008); Clark v. State
of Cal., 123 F.3d 1267, 1269 (9th Cir. 1997); see also Alaska v. EEOC, 564 F.3d 1062,
1065 n.1 (9th Cir. 2009) (agency remand order that turned on claim of
sovereign immunity reviewable even though not final agency decision); Phiffer v.
Columbia River Correctional, Institute, 384 F.3d 791, 792 (9th Cir. 2004)
(per curiam) (explaining that the court has never required a showing of a
“serious and unsettled question of law” for an interlocutory appeal of Eleventh
Amendment immunity); Miranda
B. v. Kitzhaber,
328 F.3d 1181, 1184 n.1 (9th Cir. 2003) (per curiam); Thomas v.
Nakatani, 309 F.3d 1203, 1207–08 (9th Cir. 2002) (explaining that
the court of appeals will hear a state’s appeal from a decision denying
immunity because the “benefit of the immunity is lost or severely eroded once
the suit is allowed to proceed past the motion stage of the litigation”).
An order denying a motion to dismiss based on foreign sovereign immunity is an appealable collateral order. See Cassirer v. Kingdom of Spain, 616 F.3d 1019, 1024–25 (9th Cir. 2010) (en banc) (“The point of immunity is to protect a foreign state that is entitled to it from being subjected to the jurisdiction of courts in this country, protection which would be meaningless were the foreign state forced to wait until the action is resolved on the merits to vindicate its right not to be in court at all.”); Marx v. Guam, 866 F.2d 294, 296 (9th Cir. 1989). See also SolarCity Corp. v. Salt River Project Agric. Improvement & Power Dist., 859 F.3d 720, 725 (9th Cir. 2017) (noting that the court has permitted appeals from denials of foreign sovereign immunity).
Similarly, an order denying foreign sovereign immunity under the Foreign Sovereign Immunities Act is appealable as a collateral order. See Doe v. Holy See, 557 F.3d 1066, 1074 (9th Cir. 2009); Gupta v. Thai Airways Int’l, Ltd., 487 F.3d 759, 763–64 (9th Cir. 2007); Blaxland v. Commonwealth Dir. of Pub. Prosecutions, 323 F.3d 1198, 1203 (9th Cir. 2003) (Australia); In re Republic of Philippines, 309 F.3d 1143, 1148–49 (9th Cir. 2002) (Philippines); Holden v. Canadian Consulate, 92 F.3d 918, 919 (9th Cir. 1996) (Canada); Schoenberg v. Exportadora de Sal, S.A., 930 F.2d 777, 779 (9th Cir. 1991) (Mexico); Compania Mexicana de Aviacion, S.A. v. United States Dist. Court, 859 F.2d 1354, 1358 (9th Cir. 1988) (per curiam) (Mexico).
An order denying a motion to dismiss based on an assertion of Feres intramilitary immunity is an appealable collateral order. See Lutz v. Secretary of the Air Force, 944 F.2d 1477, 1480–84 (9th Cir. 1991); see also Jackson v. Brigle, 17 F.3d 280, 281–82 (9th Cir. 1994).
“Parties intending to appeal the determination of qualified immunity must ordinarily appeal before final judgment.” Johnson v. Walton, 558 F.3d 1106, 1108 n.1 (9th Cir. 2009) (although appeal of qualified immunity must ordinarily be appealed before final judgment, officer lacked opportunity because the district court certified the interlocutory appeal as forfeited). “This is so because such orders conclusively determine whether the defendant is entitled to immunity from suit; this immunity issue is both important and completely separate from the merits of the action, and this question could not be effectively reviewed on appeal from a final judgment because by that time the immunity from standing trial will have been irretrievably lost.” Plumhoff, 572 U.S. at 772; see also Foster, 908 F.3d at 1209–10.
An order denying qualified immunity may be immediately appealable whether the immunity was raised in a motion to dismiss or a motion for summary judgment. See Mitchell v. Forsyth, 472 U.S. 511, 526 (1985); see also Rodis v. City, Cty. of San Francisco, 558 F.3d 964, 968 (9th Cir. 2009) (denial of motion for summary judgment); KRL v. Estate of Moore, 512 F.3d 1184, 1188 (9th Cir. 2008) (order denying motion for summary judgment was appealable because the motion was based on qualified immunity); Brittain v. Hansen, 451 F.3d 982, 987 (9th Cir. 2006). “Unless the plaintiff’s allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery.” Mitchell, 472 U.S. at 526 (citations omitted). “Even if the plaintiff’s complaint adequately alleges the commission of acts that violated clearly established law, the defendant is entitled to summary judgment if discovery fails to uncover evidence sufficient to create a genuine issue as to whether the defendant in fact committed those acts.” Id. (citations omitted).
Cross-reference: II.C.17.g.iii
(regarding successive appeals from orders denying immunity).
In reviewing an order denying summary judgment on the grounds of qualified immunity, the scope of the appellate court’s review is circumscribed. See Advanced Bldg. & Fabrication, Inc. v. California Highway Patrol, 918 F.3d 654, 657–58 (9th Cir. 2019); Foster v. City of Indio, 908 F.3d 1204, 1210 (9th Cir. 2018) (per curiam). The court may not review a fact-related dispute about the pretrial record. See Advanced Bldg. & Fabrication, Inc., 918 F.3d at 657; Foster, 908 F.3d at 1210. Rather, only legal determinations are subject to review. See Mitchell v. Forsyth, 472 U.S. 511, 528 (1985) (A pretrial order denying immunity is reviewable only to the extent it raises an issue of law.); Johnson v. Jones, 515 U.S. 304, 319–20 (1995) (holding “that a defendant, entitled to invoke a qualified immunity defense, may not appeal a district court’s summary judgment order insofar as that order determines whether or not the pretrial record sets forth a ‘genuine’ issue of fact for trial); Foster, 908 F.3d at 1210 (“To the extent the district court’s order denies summary judgment on purely legal issues, however, we do have jurisdiction.”); Ames v. King Cty., Washington, 846 F.3d 340, 347 (9th Cir. 2017) (“[W]e may adjudicate ‘legal’ interlocutory appeals … .”); see also Alston v. Read, 663 F.3d 1094, 1098 (9th Cir. 2011); Mattos v. Agarano, 661 F.3d 433, 439 & n.2 (9th Cir. 2011); Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 587 (9th Cir. 2008); Kohlrautz v. Oilmen Participation Corp., 441 F.3d 827, 830 (9th Cir. 2006);.
For purposes of resolving a purely legal question, the court may assume disputed facts in the light most favorable to the nonmoving party. See Plumhoff v. Rickard, 572 U.S. 765, 768 (2014) (viewing the facts in the light most favorable to the nonmoving party in case arising from the denial of the officers’ motion for summary judgment); see also Ames, 846 F.3d at 347; Kohlrautz, 441 F.3d at 830; Beier v. City of Lewiston, 354 F.3d 1058, 1063 (9th Cir. 2004).
“[A]n order denying qualified immunity on the ground that a genuine issue of material fact exists is not a final, immediately appealable order.” Maropulos v. Cty. of Los Angeles, 560 F.3d 974, 975 (9th Cir. 2009) (per curiam) (citing Johnson v. Jones, 515 U.S. 304, 307 (1995)).
Whether governing law was clearly established is a legal determination. See Plumhoff v. Rickard, 572 U.S. 765, 773 (2014) (explaining that petitioners raised legal issues where they contended that their conduct did not violate the Fourth Amendment and, did not violate clearly established law); Mitchell v. Forsyth, 472 U.S. 511, 528 (1985); Foster v. City of Indio, 908 F.3d 1204, 1210 (9th Cir. 2018) (per curiam) (explaining that question of whether conduct violates Fourth Amendment or violates clearly established law raises legal issues); Moran v. Washington, 147 F.3d 839, 843 (9th Cir. 1998); V-1 Oil Co. v. Smith, 114 F.3d 854, 856 (9th Cir. 1997); Brewster v. Bd. of Educ. of the Lynwood Unified Sch. Dist., 149 F.3d 971, 976–77 (9th Cir. 1998).
Whether specific facts constitute a violation of established law is a legal determination. See Osolinski v. Kane, 92 F.3d 934, 935–36 (9th Cir. 1996) (operative facts undisputed); see also Ames v. King Cty., Washington, 846 F.3d 340, 347 (9th Cir. 2017) (explaining the court “may properly review a denial of qualified immunity where a defendant argues … that the facts, even when considered in the light most favorable to the plaintiff, show no violation of a constitutional right, or no violation of a right that is clearly established in law”); V-1 Oil Co., 114 F.3d at 856 (assuming facts in light most favorable to nonmoving party). For example, where a summary judgment motion based on qualified immunity is denied, it is a legal determination whether the facts as shown by the nonmoving party demonstrate that the official acted reasonably. See Gausvik v. Perez, 345 F.3d 813, 816 (9th Cir. 2003).
Whether a dispute of fact is material is a legal determination. See Collins v. Jordan, 110 F.3d 1363, 1370 (9th Cir. 1996) (“[A] denial of summary judgment on qualified immunity grounds is not always unappealable simply because a district judge has stated that there are material issues of fact in dispute.”); see also Bingue v. Prunchak, 512 F.3d 1169, 1172 (9th Cir. 2008) (explaining that the court can determine whether the disputed facts simply are not material).
The court of appeals may consider the legal question of whether, taking all facts and inferences therefrom in favor of the plaintiff, the defendant is entitled to qualified immunity as a matter of law. Isayeva v. Sacramento Sheriff’s Dep’t, 872 F.3d 938, 945–46 (9th Cir. 2017); Jeffers v. Gomez, 267 F.3d 895, 903–06 (9th Cir. 2001) (per curiam); see also Bingue, 512 F.3d at 1172; Wilkins v. City of Oakland, 350 F.3d 949, 951–52 (9th Cir. 2003).
Whether the record raises a genuine issue of fact is a factual determination. See Isayeva v. Sacramento Sheriff’s Dep’t, 872 F.3d 938, 945 (9th Cir. 2017) (“We do not have jurisdiction to decide whether there is a genuine issue of material fact.”); Ames v. King Cty., Washington, 846 F.3d 340, 347 (9th Cir. 2017) (“Where the district court has determined the parties’ evidence presents genuine issues of material fact, such determinations are not reviewable on interlocutory appeal.”); Lee v. Gregory, 363 F.3d 931, 932 (9th Cir. 2004) (“The district court’s determination that the parties’ evidence presents genuine issues of material fact is not reviewable on an interlocutory appeal.”); see also Johnson v. Jones, 515 U.S. 304, 313 (1995) (questions of “evidence sufficiency” or which facts a party may or may not be able to prove at trial are not reviewable); Karl v. City of Mountlake Terrace, 678 F.3d 1062, 1067–68 (9th Cir. 2012); Eng v. Cooley, 552 F.3d 1062, 1067 (9th Cir. 2009) (“A district court’s determination that the parties’ evidence presents genuine issues of material fact is categorically unreviewable on interlocutory appeal.”); Thomas v. Gomez, 143 F.3d 1246, 1248 (9th Cir. 1998); Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996).
There is “no jurisdictional bar to successive interlocutory appeals of orders denying successive pretrial motions on qualified immunity grounds.” Knox v. Southwest Airlines, 124 F.3d 1103, 1106 (9th Cir. 1997) (appeal from second denial of summary judgment permissible despite failure to appeal first denial of summary judgment); see also Behrens v. Pelletier, 516 U.S. 299, 308–10 (1996) (permitting appeal from denial of summary judgment despite prior appeal from denial of dismissal because “legally relevant factors” differ at summary judgment and dismissal stages).
Unlike an order denying qualified immunity to an individual officer, an order denying a local government’s motion for summary judgment under Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978) is not immediately appealable. See Horton by Horton v. City of Santa Maria, 915 F.3d 592, 603 (9th Cir. 2019) (“The denial of summary judgment to a municipal defendant on a Monell claim is … no different from the denial of any ordinary motion for summary judgment, and so is not immediately appealable.”); Collins v. Jordan, 110 F.3d 1363, 1366 n.1 (9th Cir. 1996); Henderson v. Mohave Cty., 54 F.3d 592, 594 (9th Cir. 1995).
An order denying a motion to dismiss based on an extradited person’s claim of immunity from civil service of process under the “principle of specialty” is not immediately appealable. See Van Cauwenberghe v. Biard, 486 U.S. 517, 523–24 (1988) (claim of immunity under the principle of specialty effectively reviewable following final judgment because not founded on the right not to stand trial).
An order vacating a dismissal predicated on litigants’ settlement agreement is not immediately appealable. See Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 869 (1994) (rejecting contention that “right not to stand trial” created by private settlement agreement could not be effectively vindicated following final judgment).
The denial of a claim of absolute judicial immunity is immediately appealable under the collateral order doctrine. Meek v. Cty. of Riverside, 183 F.3d 962, 965 (9th Cir. 1999).
The denial of a claim of absolute political immunity is not immediately appealable under the collateral order doctrine. Meek v. Cty. of Riverside, 183 F.3d 962, 969 (9th Cir. 1999).
An order denying
summary judgment based on assertion of absolute witness immunity is an
appealable collateral order. Paine v. City
of Lompoc, 265 F.3d 975, 980–81 (9th Cir. 2001). See also Lisker v. City of Los Angeles,
780 F.3d 1237, 1241 (9th Cir. 2015) (denial of a substantial claim of absolute
witness immunity was appealable before final judgment under the collateral
order doctrine).
An order denying a tribe’s sovereign immunity claim is an appealable collateral order. Burlington Northern & Santa Fe Ry. Co. v. Vaughn, 509 F.3d 1085, 1090 (9th Cir. 2007) (explaining that tribal sovereign immunity is an immunity to suit rather than a mere defense). See also SolarCity Corp. v. Salt River Project Agric. Improvement & Power Dist., 859 F.3d 720, 725 (9th Cir. 2017) (noting that the court has permitted appeals from denials of tribal sovereign immunity); Bodi v. Shingle Springs Band of Miwok Indians, 832 F.3d 1011, 1015 (9th Cir. 2016) (stating that “the denial of a claim of tribal sovereign immunity is immediately appealable even absent a final judgment).
See II.B.1
(Interlocutory Injunctive Orders).
An order denying a motion to intervene as of right is a final appealable order where the would-be intervenor is prevented from becoming a party in any respect. See Stringfellow v. Concerned Neighbors in Action, 480 U.S. 370, 377 (1987); Citizens for Balanced Use v. Montana Wilderness Ass’n, 647 F.3d 893, 896 (9th Cir. 2011) (exercising jurisdiction over the denial of a motion to intervene as of right as a final appealable order under 28 U.S.C. § 1291); League of United Latin Am. Citizens v. Wilson, 131 F.3d 1297, 1302 (9th Cir. 1997); Petrol Stops Northwest v. Continental Oil Co., 647 F.2d 1005, 1009 (9th Cir. 1981). Moreover, an order denying a motion to intervene as of right or permissively is immediately appealable even though the would-be intervenors were granted amicus status. See Forest Conservation Council v. United States Forest Serv., 66 F.3d 1489, 1491 & n.2 (9th Cir. 1995), abrogated on other grounds by Wilderness Soc’y v. U.S. Forest Serv., 630 F.3d 1173 (9th Cir. 2011).
An order denying a motion to intervene as of right is not immediately appealable where permissive intervention is granted. See Stringfellow v. Concerned Neighbors in Action, 480 U.S. 370, 375–78 (1987) (observing that litigant granted permissive intervention was party to action and could effectively challenge denial of intervention as of right, and conditions attached to permissive intervention, after litigation of the merits). Similarly, an order granting in part a motion to intervene as of right is not immediately appealable. See Churchill Cty. v. Babbitt, 150 F.3d 1072, 1081–82 (9th Cir. 1998) (order granting intervention as of right as to remedial phase of trial appealable only after final judgment), amended and superseded by 158 F.3d 491 (9th Cir. 1998); see also Prete v. Bradbury, 438 F.3d 949, 959 n.14 (9th Cir. 2006).
Although an order denying permissive intervention has traditionally been held nonappealable, or appealable only if the district court has abused its discretion, “jurisdiction to review [such an order] exists as a practical matter because a consideration of the jurisdictional issue necessarily involves a consideration of the merits – whether an abuse of discretion occurred.” Benny v. England (In re Benny), 791 F.2d 712, 720–21 (9th Cir. 1986); see also Canatella v. California, 404 F.3d 1106, 1117 (9th Cir. 2005); League of United Latin Am. Citizens v. Wilson, 131 F.3d 1297, 1307–08 (9th Cir. 1997).
An order denying permissive intervention is appealable at least in conjunction with denial of intervention as of right. See Forest Conservation Council v. United States Forest Serv., 66 F.3d 1489, 1491 & n.2 (9th Cir. 1995) (concluding appellate jurisdiction existed where intervention as of right and permissive intervention denied, but amicus status granted), abrogated on other grounds by Wilderness Soc’y v. United States Forest Serv., 630 F.3d 1173 (9th Cir. 2011).
An order denying a motion to intervene as of right must be timely appealed following entry of the order. See United States v. Oakland, 958 F.2d 300, 302 (9th Cir. 1992) (dismissing appeal for lack of jurisdiction where appellant failed to appeal from denial of intervention as of right until after final judgment and neglected to move for leave to intervene for purposes of appeal).
When a magistrate judge enters a final judgment under 28 U.S.C. § 636(c)(1), appeal is directly to the court of appeals. See 28 U.S.C. § 636(c)(3); Fed. R. Civ. P. 73(c); see also Robert Ito Farm, Inc. v. Cty. of Maui, 842 F.3d 681, 688 (9th Cir. 2016) (“Section 636(c)(3) gives parties to a suit proceeding before a magistrate judge the right to appeal the magistrate judge’s final judgment to the court of appeals.”). “An appeal from a judgment by a magistrate judge in a civil case is taken in the same way as an appeal from any other district court judgment.” Fed. R. App. P. 3(a)(3).
Cross-reference: V.B.2.f
(regarding reference to a magistrate judge under 28 U.S.C. § 636(b) for
findings and recommendations rather than entry of final judgment).
“Where … a magistrate judge enters judgment on behalf of the district court, [appellate] jurisdiction on appeal ‘depends on the magistrate judge’s lawful exercise of jurisdiction.’” Allen v. Meyer, 755 F.3d 866, 867 (9th Cir. 2014) (quoting Anderson v. Woodcreek Venture Ltd., 351 F.3d 911, 914 (9th Cir. 2006)). A final judgment entered by a magistrate judge who lacked authority is not an appealable order. See Tripati v. Rison, 847 F.2d 548, 548–49 (9th Cir. 1988) (per curiam); see also Parsons v. Ryan, 912 F.3d 486, 495 (9th Cir. 2018) (appellate jurisdiction depends on the proper exercise of magistrate judge jurisdiction), cert. denied sub nom. Ryan v. Jensen, 140 S. Ct. 142 (2019); Williams v. King, 875 F.3d 500, 502 (9th Cir. 2017) (jurisdiction on appeal depends on the magistrate judge’s lawful exercise of jurisdiction.); cf. Reynaga v. Cammisa, 971 F.2d 414, 415 n.1 & 418 (9th Cir. 1992) (treating attempted appeal as petition for writ of mandamus).
A magistrate judge lacks authority to enter a final judgment absent special designation by the district court, see Tripati, 847 F.2d at 548–49, and the uncoerced consent of the parties, see Alaniz v. California Processors, Inc., 690 F.2d 717, 720 (9th Cir. 1982), overruled on other grounds as recognized by Wilhelm v. Rotman, 680 F.3d 1113, 1119–20 (9th Cir. 2012). See also Kamakana v. City & Cty. of Honolulu, 447 F.3d 1172, 1178 n.2 (9th Cir. 2006).
Where a magistrate judge acts without jurisdiction in purporting to enter a final judgment, the magistrate judge’s lack of jurisdiction deprives this court of appellate jurisdiction. See Holbert v. Idaho Power Co., 195 F.3d 452, 454 (9th Cir. 1999) (order).
“[N]o party will be denied independent review by an Article III judge unless all parties have consented to the magistrate judge exercising plenary jurisdiction.” Branch v. Umphenour, 936 F.3d 994, 1001 (9th Cir. 2019). “[A] court may infer consent where ‘the litigant or counsel was made aware of the need for consent and the right to refuse it, and still voluntarily appeared to try the case before the Magistrate Judge.’” Wilhelm v. Rotman, 680 F.3d 1113, 1119–20 (9th Cir. 2012) (quoting Roell v. Withrow, 538 U.S. 580, 590 (2003) and recognizing that “[t]o the extent that [the court] previously held that [it could] never infer consent, [the court has] been overruled by the Supreme Court in Roell.”)
A statement of consent should specifically refer to “trial before a magistrate” or “section § 636(c),” or contain equally explicit language. Sec. Exch. Comm’n v. American Principals Holdings, Inc. (In re San Vicente Med. Partners, Ltd.), 865 F.2d 1128, 1130 (9th Cir. 1989) (concluding that stipulation to have dispute heard before a named district court judge or “anyone” that judge deems appropriate was insufficient).
Voluntary consent may be implied in limited, exceptional circumstances. See Roell v. Withrow, 538 U.S. 580, 589 (2003); see also Wilhelm, 680 F.3d at 1119–20. In Roell, the parties’ behavior as reflected in the record “clearly implied their consent” and showed their voluntary participation in the proceedings before the magistrate judge. See 538 U.S. at 584, cf. Anderson v. Woodcreek Venture Ltd., 351 F.3d 911, 919 (9th Cir. 2003) (even though she signed the consent form, pro se plaintiff’s voluntary consent to proceed before magistrate judge could not be implied where she twice refused to consent, consent form did not advise her that she could withhold consent, and she only consented after the court denied her motion to reject magistrate judge’s jurisdiction).
Clear and unambiguous stipulations on the pretrial statement may constitute consent to proceed before a magistrate judge. Gomez v. Vernon, 255 F.3d 1118, 1126 (9th Cir. 2001).
The parties’ express oral consent to a magistrate judge’s authority is sufficient to grant the magistrate judge authority to enter final judgment. Kofoed v. International Bhd. of Elec. Workers, 237 F.3d 1001, 1004 (9th Cir. 2001).
Consent to a magistrate judge’s jurisdiction may also be given by a “virtual representative.” See Irwin v. Mascott, 370 F.3d 924, 929–31 (9th Cir. 2004).
A defendant’s lack of proper consent to the magistrate judge’s entry of final judgment cannot not be cured by the defendant expressly consenting on appeal to the magistrate judge’s exercise of authority. Hajek v. Burlington N. R.R. Co., 186 F.3d 1105, 1108 (9th Cir. 1999).
Cross-reference: V.B.2.f
(regarding objections to order of reference and to purposed findings and
recommendations in matters referred to a magistrate judgment under 28 U.S.C.
§ 636(b) rather than § 636(c)).
A post-judgment order may be final and appealable “(1) as an ‘integral part’ of the final judgment on the merits even though not entered concurrently with that judgment; (2) as an independent final order in a single case involving two ‘final’ decisions; or (3) as a collateral interlocutory order subject to immediate review under Cohen, if it is viewed as preliminary to a later proceeding.” United States v. One 1986 Ford Pickup, 56 F.3d 1181, 1184–85 (9th Cir. 1995) (per curiam).
The finality rule must be given a practical construction, particularly in the context of post-judgment orders. See United States v. Gila Valley Irrigation Dist., 859 F.3d 789, 798 (9th Cir. 2017); United States v. Washington, 761 F.2d 1404, 1406 (9th Cir. 1985). Permitting immediate appeal of post-judgment orders creates little risk of piecemeal review and may be the only opportunity for meaningful review. See Gila Valley Irrigation Dist., 859 F.3d at 798; One 1986 Ford Pickup, 56 F.3d at 1184–85; see also Plata v. Brown, 754 F.3d 1070, 1074 (9th Cir. 2014) (explaining that an order entered after the underlying dispute has been settled is appealable because it does not implicate the concern with avoiding piecemeal appellate review that underlies the final judgment rule; however, the court concluded that the order in this case raised the problem of piecemeal review, because the particular litigation had been in the post-judgment, remedial phase since the entry of the first consent decree in 2002, which operated as a final judgment); Diaz v. San Jose Unified Sch. Dist., 861 F.2d 591, 594 (9th Cir. 1988) (concluding that post-judgment order approving student assignment plan pursuant to previously entered desegregation order was appealable); Washington, 761 F.2d at 1406–07 (concluding that post-judgment order adopting interim plan allocating fishing rights was final and appealable); see also Armstrong v. Schwarzenegger, 622 F.3d 1058, 1064 (9th Cir. 2010) (explaining that the court is “less concerned with piecemeal review when considering post-judgment orders, and more concerned with allowing some opportunity for review, because unless such post-judgment orders are found final, there is often little prospect that further proceedings will occur to make them final” (internal quotation marks, alterations, and citation omitted)).
However, a post-judgment order cannot be final if the underlying judgment is not final. See Branson v. City of Los Angeles, 912 F.2d 334, 336 (9th Cir. 1990) (stating that denial of motion to alter nonfinal judgment is effectively a reaffirmation of that judgment).
Cross-reference: II.A.1
(regarding finality generally).
Unless a post-judgment order is appealed at the same time as the judgment on the merits, a separate notice of appeal is generally required to challenge the post-judgment order. See Whitaker v. Garcetti, 486 F.3d 572, 585 (9th Cir. 2007) (finding no jurisdiction over order denying attorney’s fees where no separate notice of appeal filed); Farley v. Henderson, 883 F.2d 709, 712 (9th Cir. 1989) (per curiam) (finding no jurisdiction over order awarding attorney’s fees where no separate notice of appeal filed); Culinary & Serv. Employees Local 555 v. Hawaii Employee Benefit Admin., Inc., 688 F.2d 1228, 1232 (9th Cir. 1982) (same). See also Avila v. L.A. Police Dep’t, 758 F.3d 1096, 1104 n.8 (9th Cir. 2014) (“After the City filed its notice of appeal, the district court awarded trial preparation costs to Avila. Because the City never filed an amended or separate notice of appeal, [the court] lack[ed] jurisdiction to review that award.”). But see California Union Ins. Co. v. Am. Diversified Sav. Bank, 948 F.2d 556, 567 (9th Cir. 1991) (“Although it would have been impossible for FSLIC to have filed a notice of appeal from an order that did not exist as of the date of the notice, we determine that the notice of appeal from the judgment incorporates the appeal of the denial of the motion to retax costs.”).
An order granting or denying a post-judgment motion for attorney’s fees is generally an appealable final order. See United States ex rel. Familian Northwest, Inc. v. RG & B Contractors, Inc., 21 F.3d 952, 954–55 ( 9th Cir. 1994); Int’l Ass’n of Bridge, Structural, Ornamental, & Reinforcing Ironworkers’ Local Union 75 v. Madison Indus., Inc., 733 F.2d 656, 659 (9th Cir. 1984). An order awarding periodic attorney’s fees for monitoring compliance with a consent decree is also a final appealable order. See Madrid v. Gomez, 190 F.3d 990, 994 n.4 (9th Cir. 1999), superseding Madrid v. Gomez, 150 F.3d 1030 (9th Cir. 1998); Gates v. Rowland, 39 F.3d 1439, 1450 (9th Cir. 1994). A periodic fee award made during the remedial phase of a prisoner civil rights case is appealable if it disposes of the attorney’s fees issue for the work performed during the time period covered by the award. See Madrid, 190 F.3d at 994 n.4.
However, “an award of attorney’s fees does not become final until the amount of the fee award is determined.” Intel Corp. v. Terabyte Int’l, Inc., 6 F.3d 614, 617 (9th Cir. 1993).
A post-judgment order granting or denying a motion for costs is final and appealable. See Burt v. Hennessey, 929 F.2d 457, 458 (9th Cir. 1991).
A notice of appeal must “designate the judgment, order, or part thereof being appealed.” Fed. R. App. P. 3(c)(1)(B). But “an order fixing costs in the district court, while an appeal was pending, should be considered an inseparable part of the pending appeal” and need not be separately appealed. California Union Ins. Co. v. Am. Diversified Sav. Bank, 948 F.2d 556, 567 (9th Cir. 1991) (internal quotation marks omitted).
Draper v. Rosario, 836 F.3d 1072, 1086 (9th Cir. 2016).
An order conditionally granting or denying a motion for new trial under Fed. R. Civ. P. 50(c) or (d) is reviewable in conjunction with an appeal from the grant or denial of a renewed motion for judgment as a matter of law under Fed. R. Civ. P. 50(b). See Neely v. Martin K. Elby Constr. Co., 386 U.S. 317, 322–24 (1967); Ace v. Aetna Life Ins. Co., 139 F.3d 1241, 1248 (9th Cir. 1998); Air-Sea Forwarders, Inc. v. Air Asia Co., 880 F.2d 176, 190 & n.15 (9th Cir. 1989).
However, an order unconditionally granting a motion for new trial is not appealable. See Schudel v. General Elec. Co., 120 F.3d 991, 995 n.9 (9th Cir. 1997) (involving order granting new trial under Fed. R. Civ. P. 50(b), abrogated on other grounds by Weisgram v. Marley Co., 528 U.S. 440 (2000); Roy v. Volkswagenwerk Aktiengesellschaft, 781 F.2d 670, 671 (9th Cir. 1985) (per curiam) (involving order granting new trial under Fed. R. Civ. P. 59).
An order granting a motion to enforce a settlement agreement and seal court files, and denying a motion to compel production of documents, is final and appealable. See Hagestad v. Tragesser, 49 F.3d 1430, 1432 (9th Cir. 1995).
Similarly, an order granting intervenors’ motion, after settlement and dismissal, to modify a protective order to permit intervenors access to deposition transcripts is appealable. See Beckman Indus. v. Int’l Ins. Co., 966 F.2d 470, 472 (9th Cir. 1992).
An order of contempt for violation of previously entered judgment is final and appealable. See Davies v. Grossmontafer Union High Sch. Dist., 930 F.2d 1390, 1393–94 (9th Cir. 1991); Stone v. San Francisco, 968 F.2d 850, 854 (9th Cir. 1992) (consent decree).
An order granting or denying relief under Fed. R. Civ. P. 60 is final and appealable. See Harman v. Harper, 7 F.3d 1455, 1457 (9th Cir. 1993); see also United States v. Sierra Pac. Indus., Inc., 862 F.3d 1157, 1166 (9th Cir. 2017) (“[T]he denial of a Rule 60 motion for relief from judgment is a final, appealable order.”). But see Los Angeles Mem’l Coliseum Comm’n v. NFL, 726 F.2d 1381, 1386 n.2 (9th Cir. 1984) (dismissing appeal from denial of 60(b) motion because district court lacked jurisdiction to consider motion). Additionally, the denial of a motion to vacate a consent decree under 60(b) is final and appealable under 28 U.S.C. § 1291. See Jeff D. v. Kempthorne, 365 F.3d 844, 849–50 (9th Cir. 2004).
A vacatur of a judgment in response to a Rule 60(b) order is not a final judgment. Ballard v. Baldridge, 209 F.3d 1160, 1161 (9th Cir. 2000) (order).
An order granting or denying a motion for extension of time to appeal is final and appealable. See Corrigan v. Bargala, 140 F.3d 815, 817 n.3 (9th Cir. 1998); Diamond v. United States Dist. Court, 661 F.2d 1198, 1198 (9th Cir. 1981) (order).
An order issuing a certificate of reasonable cause after dismissal of a forfeiture action is also appealable. See United States v. One 1986 Ford Pickup, 56 F.3d 1181, 1184–85 (9th Cir. 1995).
“[P]re‑filing orders entered against vexatious litigants are not conclusive and can be reviewed and corrected (if necessary) after final judgment,” and thus are not immediately appealable. See Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1055–56 (9th Cir. 2007) (holding that “pre-filing orders entered against vexatious litigants are [] not immediately appealable”). But see Moy v. United States, 906 F.2d 467, 469–71 (9th Cir. 1990) (pre-Cunningham v. Hamilton Cty., 527 U.S. 198 (1999) case that states, “The district court’s order is most aptly characterized as a final order precluding the clerk from accepting papers from [appellant] without leave of court.”).
Cross-reference: II.B.2 (Interlocutory Receivership Orders).
Under 28 U.S.C. § 1447(d), an order remanding a removed action to state court for lack of subject matter jurisdiction or a defect in removal procedure is not reviewable on appeal or otherwise. See 28 U.S.C. § 1447(d); Things Remembered, Inc. v. Petrarca, 516 U.S. 124, 127 (1995) (“only remands based on grounds specified in § 1447(c) are immune from review” under § 1447(d)) (citations omitted); Kunzi v. Pan Am. World Airways, Inc., 833 F.2d 1291, 1293 (9th Cir. 1987). Note that the court of appeals does have jurisdiction to determine whether the district court had the authority under § 1447(c) to remand. See Lively v. Wild Oats Markets, Inc., 456 F.3d 933, 938 (9th Cir. 2006).
Section 1447(d) generally bars review of an order remanding an action to state court regardless of the statutory basis on which the action was originally removed to federal court. See Things Remembered, Inc., 516 U.S. at 128. For example, § 1447(d) applies to actions removed under the general removal statute, see 28 U.S.C. § 1441(a); Hansen v. Blue Cross of California, 891 F.2d 1384, 1386 (9th Cir. 1989), and actions removed under the bankruptcy removal statute, see 28 U.S.C. § 1452(a); Benedor Corp. v. Conejo Enters., Inc. (In re Conejo Enters., Inc.), 96 F.3d 346, 350–51 (9th Cir. 1996). However, § 1447(d) does not bar review of remand orders in certain civil rights actions, see 28 U.S.C. §§ 1443 & 1447(d); Patel v. Del Taco, Inc., 446 F.3d 996, 998 (9th Cir. 2006), or in actions involving the FDIC, see 12 U.S.C. § 1819(b)(2)(C) (stating that the FDIC may appeal any order of remand entered by any United States District Court); Maniar v. FDIC, 979 F.2d 782, 784–85 & n.1, n.2 (9th Cir. 1992). Section 1447(d) also does not bar review of remand orders in which the case was removed pursuant to § 1442 (federal officers or agencies). 28 U.S.C. § 1447(d) (“An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise, except that an order remanding a case to the State court from which it was removed pursuant to section 1442 or 1443 of this title shall be reviewable by appeal or otherwise.”).
In determining the grounds for remand, the court of appeals looks to the substance of the remand order. See United Investors Life Ins. Co. v. Waddell & Reed Inc., 360 F.3d 960, 964 (9th Cir. 2004) (although the district court did not explicitly identify the specific grounds for remand, the court of appeals examined the “full record before the district court to ascertain the court’s ‘actual reason’ for remanding.”). The district court’s characterization of its authority for remand is not controlling. See Ferrari, Alvarez, Olsen & Ottoboni v. Home Ins. Co., 940 F.2d 550, 553 (9th Cir. 1991); Kunzi v. Pan Am. World Airways, Inc., 833 F.2d 1291, 1293 (9th Cir. 1987); see also Atlantic Nat. Trust, LLC v. Mt. Hawley Ins. Co., 621 F.3d 931, 936 (9th Cir. 2010) (explaining that “even when the district court purport[s] to remand an action on jurisdictional grounds, [the court has] held that [it] can look behind the district court’s ruling to determine whether the court correctly characterized the basis for its remand.”). However, “‘review of the District Court’s characterization of its remand … should be limited to confirming that that characterization was colorable.’” Atlantic Nat. Trust, LLC, 621 F.3d at 937 (quoting Powerex Corp. v. Reliant Energy Services, Inc., 551 U.S. 224 (2007)).
Note that “[w]hen a district court remands claims to a state court after declining to exercise supplemental jurisdiction, the remand order is not based on a lack of subject‑matter jurisdiction for purposes of §§ 1447(c) and (d),” as would preclude a court of appeals from reviewing the order. Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 641 (2009).
An order of remand premised on a defect in removal procedure is not reviewable if the motion to remand was timely filed under 28 U.S.C. § 1447(c). See Things Remembered, Inc. v. Petrarca, 516 U.S. 124, 128 (1995) (holding remand order not reviewable because motion to remand filed within 30 days of removal); see also Atlantic Nat. Trust, LLC v. Mt. Hawley Ins. Co., 621 F.3d 931, 932 & 934 (9th Cir. 2010) (holding that the court lacks “appellate jurisdiction to review a federal district court order remanding a case to state court based on a ground colorably characterized as a ‘defect’ for purposes of 28 U.S.C. § 1447(c)”). Kamm v. ITEX Corp., 568 F.3d 752, 754–55 (9th Cir. 2009). Thus, the court of appeals must determine whether a defect in removal procedure was timely raised. See N. California Dist. Council of Laborers v. Pittsburgh-Des Moines Steel Co., 69 F.3d 1034, 1038 (9th Cir. 1995) (stating that if defect in removal procedure not timely raised, district court lacked power under § 1447(c) to order remand).
An order of remand premised on lack of subject matter jurisdiction is not reviewable. See Levin Metals, Corp. v. Parr-Richmond Terminal Co., 799 F.2d 1312, 1315 (9th Cir. 1986); see also Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 638–39 (2009). The district court’s underlying conclusions regarding the existence of subject matter jurisdiction are also immune from review. See Hansen v. Blue Cross of California, 891 F.2d 1384, 1388 (9th Cir. 1989). However, “§ 1447(d) does not preclude review if the district court lacked authority to remand under § 1447(c) in the first instance.” Smith v. Mylan Inc., 761 F.3d 1042, 1044 (9th Cir. 2014). Also, a substantive determination made prior to, or in conjunction with, remand may be reviewable under the collateral order doctrine if it is separate from any jurisdictional determination. See Gallea v. United States, 779 F.2d 1403, 1404 (9th Cir. 1986) (concluding that pre-remand order dismissing United States was reviewable). For example:
·
Review of order
remanding due to lack of complete diversity barred by § 1447(d). See Gravitt
v. Sw. Bell Tel. Co.,
430 U.S. 723, 723 (1977) (per curiam) (mandamus relief not available).
·
Review of order
remanding due to lack of federal question jurisdiction barred by
§ 1447(d). See Krangel v. General
Dynamics Corp.,
968 F.2d 914, 915–16 (9th Cir. 1992) (per curiam) (order not reviewable
despite certification under § 1292(b)); Levin
Metals, Corp., 799 F.2d at 1315 (simultaneous order dismissing
counterclaim reviewable because counterclaim had independent basis for federal
jurisdiction).
·
Review of order
remanding due to lack of subject matter jurisdiction barred by § 1447(d),
but order dismissing party prior to remand reviewable because “[t]o hold
otherwise would immunize the dismissal from review.” Gallea,
779 F.2d at 1404 (pre-remand order dismissing United States reviewable);
see also Nebraska,
ex rel., Dep’t of Soc. Servs. v. Bentson, 146 F.3d 676, 678 (9th Cir. 1998)
(pre-remand order dismissing IRS reviewable).
·
Review of order
remanding due to lack of complete federal preemption barred by
§ 1447(d). See Whitman v. Raley’s
Inc.,
886 F.2d 1177, 1180–81 (9th Cir. 1989) (underlying determination that
the LMRA and ERISA did not completely preempt state law also unreviewable); Hansen, 891
F.2d at 1387 (underlying determination that ERISA did not apply, though
“clearly wrong,” also unreviewable).
·
Review of an order
remanding due to violation of the minimum amount in controversy requirement for
diversity jurisdiction is barred by 28
U.S.C. § 1447(d). McCauley v.
Ford Motor Co. (In re Ford Motor Co./Citibank), 264 F.3d 952, 964–65 (9th
Cir. 2001).
·
A district court’s
remand order, based on a finding that ERISA did not completely preempt former
employee’s state law claims against employer and therefore federal subject
matter jurisdiction was lacking, was unreviewable on appeal. Lyons
v. Alaska Teamsters Employers Serv. Corp., 188 F.3d 1170, 1173–74 (9th Cir.
1999).
·
A district court’s
order remanding an administrative forfeiture proceeding to state court,
primarily for lack of subject matter jurisdiction, was unreviewable on
appeal. Yakama
Indian Nation v. State of Wash. Dep’t of Revenue, 176 F.3d 1241, 1248 (9th
Cir. 1999).
·
A district court’s
order remanding to state court a class action suit alleging that stockbroker
misled investors about its on-line trading system because district court lacked
subject matter jurisdiction and remand was not discretionary, was unreviewable
on appeal. Abada v. Charles Schwab & Co.,
Inc., 300 F.3d 1112 (9th Cir. 2002).
Section 1447(d) does not bar review of an order remanding an action to state court for reasons other than lack of subject matter jurisdiction or a defect in removal procedure. See Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 712–15 (1996); see also Williams v. Costco Wholesale Corp., 471 F.3d 975, 976 n.3 (9th Cir. 2006) (per curiam). Section 1447(d) also does not bar review of an order remanding state law claims on discretionary grounds despite the existence of supplemental jurisdiction over the claims in federal court. See Scott v. Machinists Auto. Trades Dist. Lodge 190, 827 F.2d 589, 592 (9th Cir. 1987) (per curiam).
A remand order not based on lack of subject matter jurisdiction or a defect in removal procedure is reviewable if it satisfies some basis for appellate jurisdiction. See Things Remembered, Inc. v. Petrarca, 516 U.S. 124, 127 (1995). A remand order is appealable as a collateral order under 28 U.S.C. § 1291 if it conclusively determines a disputed question separate from the merits and is effectively unreviewable on appeal from final judgment, or if it puts parties “effectively out of court” by depriving them of a federal forum. See Quackenbush, 517 U.S. at 712–13; Snodgrass v. Provident Life & Accident Ins. Co., 147 F.3d 1163, 1165–66 (9th Cir. 1998); Huth v. Hartford Ins. Co. of the Midwest, 298 F.3d 800, 802 (9th Cir. 2002). An order remanding pendent state law claims is a reviewable order. California Dep’t of Water Resources v. Powerex Corp., 533 F.3d 1087, 1091–96 (9th Cir. 2008), overruling Executive Software N.A., Inc. v. United States Dist. Court, 24 F.3d 1545, 1549–50 (9th Cir. 1994) and Lee v. City of Beaumont, 12 F.3d 933, 936 (9th Cir. 1993).
·
District court order
remanding “claims to a state court after declining to exercise supplemental
jurisdiction,” was not based on a lack of subject-matter jurisdiction for
purposes of §§ 1447(c) and (d), as
would preclude a court of appeals from reviewing the order. See Carlsbad
Tech., Inc. v. HIF Bio, Inc.,
556 U.S. 635, 638–39 (9th Cir. 2009); see also California Dep’t
of Water Resources,
533 F.3d at 1096 (district court’s discretionary decision to decline
supplemental jurisdiction and remand pendent state claims is reviewable under
28 U.S.C. § 1291).
·
District court order
granting motion to remand to state court based on a forum selection clause in
contract was appealable because the forum selection clause was not a “defect”
within the meaning of § 1447(c). Kamm v. ITEX
Corp., 568 F.3d 752, 754–55 (9th Cir. 2009).
·
Remand order based on
merits determination that employee handbook authorized plaintiff to choose
forum reviewable under 28
U.S.C. § 1291. See Clorox Co. v.
United States Dist. Court,
779 F.2d 517, 520 (9th Cir. 1985).
·
Remand order premised
on merits determination that contractual forum selection clause was valid and
enforceable reviewable under the collateral order doctrine. See Pelleport Investors, Inc. v. Budco
Quality Theatres, Inc., 741 F.2d 273, 277 (9th Cir. 1984); see also N. California Dist.
Council of Laborers v. Pittsburgh-Des Moines Steel Co., 69 F.3d 1034,
1036 n.1 (9th Cir. 1995); Ferrari,
Alvarez, Olsen & Ottoboni v. Home Ins. Co., 940 F.2d 550, 553 (9th Cir.
1991) (reviewing order of remand premised on forum selection clause
without explicitly discussing basis for jurisdiction).
·
Remand order premised
on abstention doctrine reviewable under the collateral order doctrine. See Quackenbush, 517 U.S. at
712–13 (Burford abstention); Bennett
v. Liberty Nat’l Fire Ins. Co., 968 F.2d 969, 970 (9th Cir. 1992) (Colorado
River abstention).
·
Remand order issued
pursuant to discretionary jurisdiction provision of Declaratory Judgment Act
reviewable under the collateral order doctrine.
See Snodgrass, 147 F.3d at
1165–66.
·
Order remanding
pendent state law claims, following grant of summary judgment as to federal
claims, reviewable. See Scott, 827 F.2d at 592
(basis for appellate jurisdiction not expressly stated).
·
Order remanding
pendent state law claims, following amendment deleting grounds for removal to
federal court, reviewable under 28
U.S.C § 1292(b) pursuant to district court certification. See Nat’l
Audubon Soc’y v. Dep’t of Water,
869 F.2d 1196, 1205 (9th Cir. 1989).
·
The court of appeals
has jurisdiction to review an award of sanctions upon remand. Gibson
v. Chrysler Corp., 261 F.3d 927, 932 (9th Cir. 2001).
·
Where district court
denied motion to remand, the court of appeals determined it had interlocutory
appellate jurisdiction to determine whether federal question jurisdiction
existed to permit removal. Nevada
v. Bank of Am. Corp.,
672 F.3d 661, 672–73 (9th Cir. 2012).
An order remanding an action to a federal agency is generally not considered a final appealable order. See Chugach Alaska Corp. v. Lujan, 915 F.2d 454, 457 (9th Cir. 1990); see also Alaska v. EEOC, 564 F.3d 1062, 1065 n.1 (9th Cir. 2009) (en banc) (recognizing that a remand order is not a final agency decision, but exercising jurisdiction to review remand order that turned on claim of sovereign immunity). However, such an order is considered final where: “(1) the district court conclusively resolves a separable legal issue, (2) the remand order forces the agency to apply a potentially erroneous rule which may result in a wasted proceeding, and (3) review would, as a practical matter, be foreclosed if an immediate appeal were unavailable.” Chugach, 915 F.2d at 457.
A remand order requiring an agency to clarify its decision on a factual issue is not final. See Gilcrist v. Schweiker, 645 F.2d 818, 819 (9th Cir. 1981) (per curiam). Similarly, a remand order permitting an agency to fully develop the facts is not final. See Eluska v. Andrus, 587 F.2d 996, 1000–01 (9th Cir. 1978). Additionally, a remand order pursuant to sentence six of 42 U.S.C. § 405(g) does not constitute a final judgment. See Akopyan v. Barnhart, 296 F.3d 852, 855 (9th Cir. 2002) (in social security benefits case, distinguishing between sentence four and sentence six remands, explaining that sentence six remands “may be ordered in only two situations: where the Commissioner requests a remand before answering the complaint, or where new, material evidence is adduced that was for good cause not presented before the agency.”).
A remand order requiring an agency to apply a different legal standard is generally considered a final appealable order. See Stone v. Heckler, 722 F.2d 464, 466–68 (9th Cir. 1983); see also Chugach Alaska Corp. v. Lujan, 915 F.2d 454, 457 (9th Cir. 1990) (“[F]ailure to permit immediate appeal might foreclose review altogether: Should the Secretary lose on remand, there would be no appeal, for the Secretary cannot appeal his own agency’s determinations.”)
Under this principle, the following remand orders have been held appealable:
·
Order reversing
denial of social security benefits due to application of erroneous legal
standard, and remanding to Secretary of Health and Human Services for further
proceedings. See Stone, 722 F.2d at
467–68 (permitting Secretary to appeal remand order); Rendleman v.
Shalala, 21 F.3d 957, 959 & n.1 (9th Cir. 1994).
·
Order reversing
denial of social security benefits because legal conclusion inadequately supported
by factual record, and remanding to Secretary of Health and Human Services for
further proceedings. See Forney v. Apfel, 524 U.S. 266,
272 (1998) (permitting claimant to appeal remand order).
·
Order reversing
denial of land conveyance based on interpretation of federal statute, and
remanding to Interior Board of Land Appeals.
See Chugach
Alaska Corp.,
915 F.2d at 456–57 (Security permitted to appeal remand order).
·
Order reversing
denial of fees because agency erroneously concluded the Equal Access of Justice
Act did not apply to the proceedings, and remanding to Interior Board of Land
Appeals. See Collord v. U.S. Dep’t of the Interior, 154 F.3d 933,
935 (9th Cir. 1998); see also Aageson
Grain & Cattle v. United States Dep’t of Agric., 500 F.3d 1038,
1040–41 (9th Cir. 2007) (order remanding to determine attorney fees and
costs under EAJA was reviewable final order because it determined separable
legal issue).
·
“Unusual remand
order” to Provider Reimbursement Review Board for consideration of jurisdiction
over potential wage index claim “if [plaintiff] chooses to pursue this avenue”
was appealable where plaintiff did not seek, and chose not to pursue,
remand. See Skagit Cty. Pub. Hosp. Dist. No. 2 v.
Shalala,
80 F.3d 379, 384 (9th Cir. 1996) (after vacating partial remand, court
of appeals concluded judgment was final and reviewed dismissal of remaining
claims for lack of subject matter jurisdiction).
An order denying a petition for removal under 28 U.S.C. § 1446(d) is reviewable under the collateral order doctrine. See Ashland v. Cooper, 863 F.2d 691, 692 (9th Cir. 1988) (concluding that order requiring litigant who had been granted in forma pauperis status to post a removal bond was reviewable).
An order denying a motion to remand is not a final decision and does not fall under the collateral order doctrine. See Bishop v. Bechtel Power Corp. (Estate of Bishop), 905 F.2d 1272, 1274–75 (9th Cir. 1990) (stating that order denying remand could be reviewed on appeal from final judgment). But see Nevada v. Bank of America Corp., 672 F.3d 661, 665 (9th Cir. 2012) (granting Nevada’s request for leave to appeal the district court’s denial of its motion to remand pursuant to 28 U.S.C. § 1453(c)(1)”); San Francisco v. PG&E Corp., 433 F.3d 1115, 1120 (9th Cir. 2006) (explaining that the general rule that the denial of a motion to remand is not a final decision, does not apply if a district court’s order effectively ends the litigation or sends a party out of court).
Cross-reference: V.A.1.b.v
(regarding the reviewability of certain orders denying remand during an appeal
from final judgment); V.A.2.b (regarding the reviewability of an order denying
remand during an appeal from an injunctive order under 28 U.S.C. § 1292(a)(1)).
See II.C.10 (Contempt and Sanctions).
Generally, orders granting or denying stays are not appealable final orders under 28 U.S.C. § 1291. See Herrera v. City of Palmdale, 918 F.3d 1037, 1042 (9th Cir. 2019); Davis v. Walker, 745 F.3d 1303, 1308 (9th Cir. 2014) (“Ordinarily, a stay order is not an appealable final decision.”); Silberkleit v. Kantrowitz, 713 F.2d 433, 434 (9th Cir. 1983). However, such orders are appealable under certain circumstances, including where the order places the parties “effectively out of court.” Silberkleit, 713 F.2d at 433 (citation omitted). See also Herrera, 918 F.3d at 1042; Davis, 745 F.3d at 1308 (where the stay order amounts to dismissal of the suit, it is reviewable as a final decision under § 1291); Bagdasarian Prods., LLC v. Twentieth Century Fox Film Corp., 673 F.3d 1267, 1270–71 (9th Cir. 2012) (concluding stay order did not effectively put party “out of court”).
The following orders, granting abstention-based stays, are appealable under 28 U.S.C. § 1291 because their effect is to deprive the parties of a federal forum:
· Order granting a stay under the Colorado River doctrine. See Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 11–13 (1983); Neuchatel Swiss Gen. Ins. Co. v. Lufthansa Airlines, 925 F.2d 1193, 1194 n.1 (9th Cir. 1991); see also Lockyer v. Mirant Corp., 398 F.3d 1098, 1102 (9th Cir. 2005) (exercising jurisdiction under the Moses H. Cone doctrine where district court order granting a stay of Attorney General’s Clayton Act suit against Chapter 11 debtor pending resolution of the debtor’s bankruptcy case effectively put the Attorney General out of court). Cf. Stanley v. Chappell, 764 F.3d 990, 995–96 (9th Cir. 2014) (“Where the district court stays and holds in abeyance a petitioner’s federal habeas claims to allow the petitioner to exhaust his claims in state court, we cannot say that the sole purpose and effect of the stay is precisely to surrender jurisdiction of a federal suit to a state court, … . Rather, such a stay merely has the practical effect of allowing a state court to be the first to rule on a common issue.” (internal quotation marks and citation omitted)).
· Order granting a stay under the Burford abstention doctrine. See Tucker v. First Maryland Sav. & Loan, Inc., 942 F.2d 1401, 1402, 1405 (9th Cir. 1991) (noting that Burford abstention doctrine generally mandates dismissal, not stay).
· Order granting a stay under the Pullman abstention doctrine. See Confederated Salish v. Simonich, 29 F.3d 1398, 1407 (9th Cir. 1994) (stating that stay order was also appealable under 28 U.S.C. § 1292(a)(1)).
· Order granting a stay under the Younger abstention doctrine. See Herrera v. City of Palmdale, 918 F.3d 1037, 1042 (9th Cir. 2019) (Order granting stay under Younger abstention on damages claims pending resolution of proceedings in parallel state action “is effectively a final decision and thus the district court order is final for purposes of appellate review.”); Confederated Salish v. Simonich, 29 F.3d 1398, 1401 (9th Cir. 1994) (noting that when the Younger abstention doctrine is applicable, the district court is required to dismiss the action).
·
Order granting stay
pending resolution of foreign proceedings.
See Dependable
Highway Express, Inc. v. Navigators Ins. Co., 498 F.3d 1059, 1063–64 (9th Cir.
2007).
·
Order staying federal
claims pending resolution of dismissed pendent state claims in state court is
appealable under § 1292(a)(1). See
Privitera v.
California Bd. of Med. Quality Assurance, 926 F.2d 890, 893–94 (9th Cir. 1991)
(determining stay was appealable because it had effect of denying injunctive
relief, without reaching finality issue).
Cross-reference: II.B.1
(regarding interlocutory injunctive orders).
·
Order by Benefits
Review Board staying award of compensation benefits, despite statutory policy
that benefits be paid promptly, is appealable under 33 U.S.C. § 921(c), which
permits review of final decisions by the Board.
See Edwards
v. Director, Office of Workers’ Compensation Programs, 932 F.2d 1325,
1327 (9th Cir. 1991).
·
Order staying federal
civil rights action indefinitely pending exhaustion of habeas corpus remedies
is appealable. See Marchetti v.
Bitterolf,
968 F.2d 963, 966 (9th Cir. 1992).
But see Alexander
II v. Arizona,
80 F.3d 376, 376 (9th Cir. 1996) (order) (holding that order staying
civil rights action for 90 days to permit exhaustion of prison administrative
remedies was not appealable).
·
Order indefinitely
staying state prisoner’s § 1983 actions against prison officials until he
was found restored to competency was immediately appealable. Davis v. Walker, 745 F.3d 1303, 1308–10
(9th Cir. 2014).
Cross-reference: II.C.4 (regarding
the appealability of a stay pending arbitration in an action governed by the
Federal Arbitration Act, 9 U.S.C.
§ 16).
·
Order denying a stay
under the Colorado River doctrine.
See Gulfstream
Aerospace Corp. v. Mayacamas Corp.,
485 U.S. 271, 278 (1988) (observing that order is inherently tentative
because “denial of such a motion may indicate nothing more than that the
district court is not completely confident of the propriety of a stay … at the
time”).
·
Order denying a stay
under the Burford abstention doctrine.
See Quackenbush
v. Allstate Ins. Co.,
121 F.3d 1372, 1382 (9th Cir. 1997).
·
Order denying a stay
under the Younger abstention doctrine.
See Confederated
Salish v. Simonich,
29 F.3d 1398, 1401 (9th Cir. 1994).
·
Order denying motion
to stay a removed state law foreclosure proceeding under federal statute. See Federal
Land Bank v. L.R. Ranch Co.,
926 F.2d 859, 864 (9th Cir. 1991) (concluding that validity of
defendant’s statutory defense, which was the basis for the stay motion, could
be effectively reviewed after final judgment).
Cross-reference: II.C.4
(regarding the appealability of an order denying a stay pending arbitration in
an action governed by the Federal Arbitration Act, 9 U.S.C. § 16).
An order denying a motion for summary judgment is generally an unappealable interlocutory order. See Isayeva v. Sacramento Sheriff’s Dep’t, 872 F.3d 938, 944 (9th Cir. 2017) (explaining that under 28 U.S.C. § 1291, the court normally does not have jurisdiction to hear interlocutory appeals from the denial of summary judgment); Hopkins v. City of Sierra Vista, 931 F.2d 524, 529 (9th Cir. 1991); see also Jones-Hamilton Co. v. Beazer Materials & Servs., Inc., 973 F.2d 688, 694 n.2 (9th Cir. 1991) (stating that order denying summary judgment may in certain instances be reviewed on appeal from final judgment); Carey v. Nevada Gaming Control Bd., 279 F.3d 873, 877 n.1 (9th Cir. 2002) (same). However, “an exception arises where the movant was denied summary judgment based on qualified immunity. … Under the collateral order doctrine, such denials are considered appealable ‘final decisions’ because ‘[q]ualified immunity is immunity from suit, not just a defense to liability.’ … The immunity ‘is effectively lost if a case is erroneously permitted to go to trial.’” Isayeva, 872 F.3d at 944–45. Cross-reference: II.C.17.
Generally, an order granting partial summary judgment is not an appealable final order. See Dannenberg v. Software Toolworks, Inc., 16 F.3d 1073, 1074 (9th Cir. 1994).
However, an order granting partial summary judgment may be immediately appealable if:
· Order is properly certified under Fed. R. Civ. P. 54(b). See Texaco, Inc. v. Ponsoldt, 939 F.2d 794, 798 (9th Cir. 1991); II.A.3.
· Order has the effect of denying an injunction under 28 U.S.C. § 1292(a)(1). See American Tunaboat Ass’n v. Brown, 67 F.3d 1404, 1406 (9th Cir. 1995); II.B.1.
· Order satisfies the practical finality doctrine. See Service Employees Int’l Union, Local 102 v. Cty. of San Diego, 60 F.3d 1346, 1349–50 (9th Cir. 1995); II.A.1.d.
This court has also determined that an order granting partial summary judgment was subject to pendent appellate jurisdiction where the ruling was inextricably intertwined with the district court’s order denying summary judgment on basis of qualified immunity. See Mueller v. Auker, 576 F.3d 979, 989 (9th Cir. 2009). See also Woodward v. City of Tucson, 870 F.3d 1154, 1159 (9th Cir. 2017) (exercising pendent appellate jurisdiction and reviewing grant of summary judgment “[b]ecause the district court’s grant of partial summary judgment for Plaintiff as to the unreasonableness of the Defendants’ entry into the apartment [was] ‘inextricably intertwined’ with its denial of qualified immunity for that entry … .”).
“Once an administrative agency designated by Congress has been delegated authority to take lands for a public use, the courts have no jurisdiction to review action of that administrative agency in its determination as to the parcels of land that are or are not necessary to the project.” United States v. 0.95 Acres of Land, 994 F.2d 696, 699 (9th Cir. 1993) (as amended) (quoting United States v. 80.5 Acres of Land, 448 F.2d 980, 983 (9th Cir. 1971)). In United States v. 32.42 Acres of Land, 683 F.3d 1030 (9th Cir. 2012), the court determined that where the Navy determined that it wanted to take property from California’s public trust, in fee full simple in order to “fulfill its military mission for the nation,” the court lacked jurisdiction to review that determination. Id. at 1038–39.
See VII.C (Tax Court Decisions).
An order transferring an action from one district court to another is generally not appealable, but may be reviewed upon petition for writ of mandamus. See Sunshine Beauty Supplies, Inc. v. United States Dist. Court, 872 F.2d 310 (9th Cir. 1989) (issuing writ of mandamus), abrogated on other grounds by Cortez Byrd Chips, Inc. v. Bill Harbert Constr. Co., 529 U.S. 193 (2000).
Cross-reference: II.D.4.h
(regarding the availability of mandamus relief from transfer orders).
An order transferring an action from the district court to the court of appeals due to lack of subject matter jurisdiction is appealable under 28 U.S.C. § 1291. See Carpenter v. Dep’t of Transp., 13 F.3d 313, 314 (9th Cir. 1994) (explaining that district court transferred action under 28 U.S.C. § 1631 on the grounds that the court of appeals had exclusive jurisdiction to review regulation issued by Federal Highway Administration).
“The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. § 1651(a).
The burden is on a petitioner seeking a writ to show that his or her “right to the writ is clear and indisputable.” Calderon v. United States Dist. Court, 103 F.3d 72, 74 (9th Cir. 1996) (citation omitted). Ordinarily, where a decision is within the district court’s discretion, “it cannot be said that a litigant’s right to a particular result is ‘clear and indisputable.’” Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 36 (1980) (per curiam). “Even when a petitioner has carried this burden, [the court] may not grant relief unless [it is] satisfied that the writ is appropriate under the circumstances.” Bozic v. United States Dist. Court (In re Bozic), 888 F.3d 1048, 1052 (9th Cir. 2018) (internal quotation marks and citation omitted).
Credit
Suisse v. United States Dist. Court, 130 F.3d 1342, 1345 (9th Cir. 1997)
(quoting Bauman
v. United States Dist. Court, 557 F.2d 650, 654–55 (9th Cir. 1977)). See also Williams-Sonoma,
Inc. v. United States Dist. Court. (In
re Williams-Sonoma, Inc.), 947 F.3d 535, 538 (9th Cir.
2020); Barnes
v. Sea Hawaii Rafting, LLC,
889
F.3d 517, 535 (9th Cir. 2018) (as amended); Stanley
v. Chappell, 764 F.3d 990, 996 (9th Cir.
2014)
(declining to construe appeal as a petition for writ of mandamus).
“None of these guidelines is determinative and all five guidelines need not be satisfied at once for a writ to issue.” Credit Suisse, 130 F.3d at 1345 (only in rare cases will all guidelines point in the same direction or even be relevant). See also Williams-Sonoma, 947 F.3d at 538 (“Not all of those factors need to be satisfied, and all must be ‘weighed together’ on a case-by-case basis.”); Barnes, 889 F.3d at 535 (stating that the factors are not exhaustive and need not all be met to grand mandamus relief). “[I]ssuance of the writ is in large part a matter of discretion with the court to which the petition is addressed.” Kerr v. United States Dist. Court, 426 U.S. 394, 403 (1976).
Note that the guidelines for issuing a writ are more
flexible when the court of appeals exercises its supervisory mandamus
authority, which is invoked in cases “involving questions of law of major
importance to the administration of the district courts.” Arizona v.
United States Dist. Court (In re Cement Antitrust Litig.), 688 F.2d 1297,
1303, 1307 (9th Cir. 1982) (showing of actual injury and ordinary
error may suffice).
“A writ of mandamus is an extraordinary remedy that is
not available when the same review may be obtained through contemporaneous
ordinary appeal.” Snodgrass v. Provident
Life And Accident Ins. Co., 147 F.3d 1163, 1165 (9th Cir. 1998)
(internal quotations and citation omitted); see
also Bozic v. United States Dist. Court (In re Bozic), 888 F.3d 1048, 1052
(9th Cir. 2018); Compania Mexicana de Aviacion, S.A. v. United States Dist.
Court, 859 F.2d 1354, 1357 (9th Cir. 1988).
The availability of review under 28 U.S.C.
§ 1291, as a final or collateral order, precludes review by
mandamus. See Snodgrass, 147 F.3d at
1165–66. The availability of
review under 28
U.S.C. § 1292(a) also precludes review by mandamus. See Calderon
v. United States Dist. Court,
137 F.3d 1420, 1422 (9th Cir. 1998) (order prohibiting California from
extraditing defendant to Missouri appealable as an injunction under
§ 1292(a)(1)). Moreover, failure to
file a timely notice of appeal from an appealable order generally precludes
mandamus relief. See Demos v. United
States Dist. Court,
925 F.2d 1160, 1161 n.3 (9th Cir. 1991) (order) (“[M]andamus may not be
used as a substitute for an untimely notice of appeal.”).
However, failure to seek certification under 28 U.S.C.
§ 1292(b) does not preclude mandamus relief. See Executive
Software North Am., Inc. v. United States Dist. Court, 24 F.3d 1545,
1550 (9th Cir. 1994) (stating that permissive appeal under
§ 1292(b) is not a “contemporaneous ordinary appeal”), overruled on
other grounds by California
Dep’t of Water Resources v. Powerex Corp., 533 F.3d 1087 (9th Cir. 2008).
The second Bauman factor, which is closely
related to the first, is satisfied by “severe prejudice that could not be
remedied on direct appeal.” Credit Suisse
v. United States Dist. Court, 130 F.3d 1342, 1346 (9th Cir. 1997)
(finding severe prejudice where an order compelling a bank to respond to
discovery requests forced the bank to choose between contempt of court and
violation of Swiss banking secrecy and penal laws); see also Barnes v. Sea Hawaii Rafting, LLC, 889 F.3d 517, 536 (9th Cir. 2018); Philippine Nat’l
Bank v. United States Dist. Court, 397 F.3d 768, 774 (9th Cir. 2005)
(finding severe prejudice where bank would be forced to choose between
violating Philippine law and contempt of court); Medhekar v. United States Dist.
Court, 99 F.3d 325, 326–27 (9th Cir. 1996) (per curiam) (finding
irreparable harm where an order compelled defendants in a securities fraud
action to undergo the burden and expense of initial disclosures prior to the
district court ruling on a motion to dismiss because the issue would be moot on
appeal from final judgment).
In a supervisory mandamus case, the injury requirement
may be satisfied by a showing of “actual injury.” See Arizona v. United
States Dist. Court (In re Cement Antitrust Litig.), 688 F.2d 1297,
1303, 1307 (9th Cir. 1982) (stating that supervisory authority is
invoked in cases “involving questions of law of major importance to the
administration of the district courts”).
A petitioner’s failure to show clear error may be
dispositive of a petition for writ of mandamus.
See Williams-Sonoma, Inc. v. United States Dist. Court. (In re Williams-Sonoma, Inc.), 947 F.3d 535, 538 (9th Cir. 2020) (absence of clear error as a matter
of law will always defeat a petition for mandamus); McDaniel
v. United States Dist. Court, 127 F.3d 886, 888 (9th Cir. 1997) (per curiam). See
also Bozic v. United States Dist. Court (In re Bozic), 888 F.3d 1048, 1052
(9th Cir. 2018) (stating, “Clear legal error is necessary, but not sufficient,
for issuance of the writ.” (citing Cheney v. United States Dist. Court,
542 U.S. 367, 380 (2004))).
Note that in a supervisory mandamus case, the
petitioner only needs to show an ordinary error, not clear error. See Barnes
v. Sea Hawaii Rafting, LLC,
889 F.3d 517, 537 (9th Cir. 2018) (“Where a petition for mandamus raises an
important issue of first impression, however, a petitioner need show only
ordinary (as opposed to clear) error.” (internal quotation marks and citations
omitted)); Calderon v. United States Dist. Court, 134 F.3d 981, 984 (9th
Cir. 1998) (recognizing a lesser showing is required in supervisory
mandamus cases, where the petition raises an important question of law of first
impression, the answer to which would have a substantial impact on the
administration of the district courts), abrogated on other grounds as
recognized by Jackson
v. Roe,
425 F.3d 654 (9th Cir. 2005); Arizona v.
United States Dist. Court (In re Cement Antitrust Litig.), 688 F.2d 1297,
1307 (9th Cir. 1982) (stating that supervisory authority is
invoked in cases “involving questions of law of major importance to the
administration of the district courts”).
The fourth and fifth Bauman factors will rarely
both be present in a single case because one requires repetition and the other
novelty. See Armster v. United States Dist. Court, 806 F.2d 1347,
1352 n.4 (9th Cir. 1987) (“Where one of the two is present, the absence
of the other is of little or no significance.”). But see Barnes
v. Sea Hawaii Rafting, LLC,
889 F.3d 517, 537 (9th Cir. 2018) (concluding that both factors supported
mandamus relief where the district court’s error was oft-repeated, and the
questions involved were of first impression); Portillo v. United States
Dist. Court, 15 F.3d 819, 822 (9th Cir. 1994) (observing that
presentence urine testing raised issue of first impression and that routine
testing “will constitute an oft-repeated error”).
Mandamus relief may be appropriate to settle an
important question of first impression that cannot be effectively reviewed
after final judgment. See Medhekar v. United
States Dist. Court,
99 F.3d 325, 327 (9th Cir. 1996) (per curiam) (noting that where the
fifth Bauman factor is present, the third and fourth factors generally
will not be present). See also Barnes
v. Sea Hawaii Rafting, LLC, 889 F.3d 517, 537 (9th Cir. 2018) (concluding
that the fourth and fifth factors supported mandamus relief where the district
court’s error was oft-repeated, and the questions involved were of first
impression).
The court of appeals often relies on its supervisory
mandamus authority in cases raising an important question of law of first
impression. See Calderon v. United
States Dist. Court,
134 F.3d 981, 984 (9th Cir. 1998), abrogated on other grounds as
recognized by Jackson
v. Roe,
425 F.3d 654 (9th Cir. 2005); Arizona v.
United States Dist. Court (In re Cement Antitrust Litig.), 688 F.2d
1297, 1307 (9th Cir. 1982).
The court of appeals has discretion to construe an
appeal as a petition for writ mandamus. See
Reynaga v.
Cammisa,
971 F.2d 414, 418 (9th Cir. 1992); see also United States v. Zone, 403 F.3d 1101,
1110 (9th Cir. 2005) (“[W]e may even construe an appeal as a petition
for writ of mandamus sua sponte.”).
However, the court will construe an appeal as a writ petition only in an
“extraordinary case,” Lee
v. City of Beaumont, 12 F.3d 933, 936 (9th Cir. 1993), overruled
on other grounds by California
Dep’t of Water Resources v. Powerex Corp., 533 F.3d 1087 (9th Cir. 2008),
and “mandamus may not be used as a substitute for an untimely notice of
appeal,” Demos
v. United States Dist. Court, 925 F.2d 1160, 1161 n.3 (9th Cir. 1991). “‘Whether [the court] construe[s] the appeal
as a writ of mandamus depends on whether mandamus is itself justified.’” Barnes
v. Sea Hawaii Rafting, LLC, 889 F.3d 517, 535 (9th Cir. 2018) (quoting Hernandez
v. Tanninen, 604 F.3d 1095, 1099 (9th Cir. 2010)).
In determining whether to construe an appeal as a
petition, the court generally evaluates the appeal in light of the Bauman
factors. See Lee, 12 F.3d at 936, overruled
on other grounds by California
Dep’t of Water Resources,
v. Powerex Corp., 533 F.3d 1087 (9th Cir. 2008).
An appeal has been construed as a petition where three
Bauman factors were clearly present in an appeal from an order
appointing a special master to monitor compliance with a previously entered
injunction. See Nat’l Org. for the
Reform of Marijuana Laws v. Mullen,
828 F.2d 536, 542 (9th Cir. 1987) (denying petition).
An appeal has been construed as a petition where a
magistrate judge issued a stay it had no authority to issue and the petitioner
was a pro se inmate likely powerless to prevent the invalid stay order from
being enforced. See Reynaga v. Cammisa, 971 F.2d 414,
418 (9th Cir. 1992) (granting petition without discussing Bauman
factors).
An appeal has been construed as a petition where the
district court’s order allowed the defendant to disclose to the government
communications between the defendant and co-defendants that occurred outside
the presence of counsel. See United
States v. Austin, 416 F.3d 1016, 1025 (9th Cir. 2005) (denying
petition because the order was not clearly erroneous and the Bauman
factors did not weigh in favor of granting the writ).
In California
Dep’t of Water Resources v. Powerex Corp., 533 F.3d 1087, 1091–96 (9th Cir.
2008), the court held that a district court’s discretionary decision to
decline supplemental jurisdiction and remand, must be challenged pursuant to an
appeal, rather than in a petition for writ of mandamus, overruling Survival Sys. Div.
of the Whittaker Corp. v. United States Dist. Court, 825 F.2d 1416
(9th Cir. 1987), Executive
Software N.A., Inc. v. United States Dist. Court, 24 F.3d 1545, 1549–50
(9th Cir. 1994) and Lee
v. City of Beaumont,
12 F.3d 933, 936 (9th Cir. 1993).
The court of appeals declined to construe an appeal as
a petition where no Bauman factors were present in an appeal from a
discretionary remand of pendent state claims.
See Lee, 12 F.3d at
936–38, overruled on other grounds by California
Dep’t of Water Resources v. Powerex Corp., 533 F.3d 1087 (9th Cir. 2008).
Note that the following decisions should be considered
in light of Fed.
R. Civ. p. 23(f), which provides for permissive interlocutory appeal
from class certification orders.
Cross-reference: II.C.8 (regarding the
appealability of class certification orders).
An order granting a motion to certify a class, or
denying a motion to amend an order certifying a class, may warrant mandamus
relief. See Green v. Occidental Petroleum Corp., 541 F.2d 1335,
1338 (9th Cir. 1976) (granting petition in part where district court
clearly erred in certifying a class under Fed. R. Civ. P. 23); McDonnell-Douglas
Corp. v. United States Dist. Court, 523 F.2d 1083, 1087 (9th Cir. 1975)
(same). But see Bauman v. United
States Dist. Court,
557 F.2d 650, 654–62 (9th Cir. 1977) (denying mandamus relief from order
denying motion to delete certain provisions from class certification order).
However, the court of appeals “has not looked
favorably upon granting extraordinary relief to vacate a class
certification.” Valentino v. Carter-Wallace, Inc.,
97 F.3d 1227, 1232 (9th Cir. 1996).
A petition for writ of mandamus is an available avenue
for relief from an order of civil contempt against a party to ongoing district
court proceedings. See Goldblum v. NBC, 584 F.2d 904,
906 n.2 (9th Cir. 1978) (granting petition).
A petition for writ of mandamus is an available avenue
for relief from certain discovery orders.
See United
States v. Fei Ye,
436 F.3d 1117, 1121–24 (9th Cir. 2006) (granting petition for writ of
mandamus from order granting defendants’ motion for pretrial deposition of the
government’s expert witnesses); Medhekar
v. United States Dist. Court, 99 F.3d 325, 326–27 (9th Cir. 1996)
(per curiam) (granting petition for writ of mandamus from order compelling
defendants to make initial disclosures under Fed.
R. Civ. P. 26(a)(1) despite statutory provision staying discovery in
securities fraud actions pending disposition of motions to dismiss); City of Las
Vegas v. Foley, 747 F.2d 1294, 1296–97 (9th Cir. 1984) (granting
petition for writ of mandamus from order prohibiting plaintiff from reopening
discovery to depose city officials regarding their motives for enacting the
zoning ordinance at issue).
Mandamus is particularly appropriate “for the review
of orders compelling discovery in the face of assertions of absolute
privilege.” Admiral Ins. Co. v. United States
Dist. Court, 881 F.2d 1486, 1491 (9th Cir. 1989) (granting petition
for writ of mandamus from order compelling defendant to produce statements
purportedly covered by the attorney-client privilege); see also Taiwan v. United
States Dist. Court,
128 F.3d 712, 717–19 (9th Cir. 1997) (granting petition for writ of
mandamus from order compelling deposition of foreign defendants despite claim
of testimonial immunity under the Taiwan Relations Act).
A petition for writ of mandamus is not an available
avenue for relief from certain discovery orders because other remedies are
available. See In re United States, 895 F.3d 1101, 1105 (9th Cir. 2018) (per curiam)
(mandamus relief not warranted where government continued to have available
means to obtain relief from improper discovery requests); Bank of Am. v.
Feldman (In re Nat’l Mortgage Equity Corp. Mortgage Pool Certificates), 821
F.2d 1422, 1425 (9th Cir. 1987) (concluding mandamus relief
inappropriate where privileged information has already been disclosed and any
possible remedy is available on appeal from final judgment); Guerra v. Board
of Trustees, 567 F.2d 352, 355 (9th Cir. 1977) (concluding mandamus
relief inappropriate because less drastic remedies appeared available where
district court had not shown unwillingness to protect confidentiality of
documents by other means); Belfer
v. Pence, 435 F.2d 121, 122–23 (9th Cir. 1970) (per curiam) (concluding
mandamus relief inappropriate where nonparty has option of defying discovery
order and appealing from subsequent contempt citation).
Cross-reference: II.C.12 (regarding the
appealability of discovery-related orders).
A petition for writ of mandamus may be an appropriate
means for seeking the review of an order granting disqualification or recusal
of a district court judge because effective review is not available after final
judgment. See Arizona
v. United States Dist. Court (In re Cement Antitrust Litig.), 688 F.2d 1297,
1302–03 (9th Cir. 1982) (denying petition under supervisory
mandamus authority).
However, an order denying disqualification or recusal
of a district court judge generally will not warrant mandamus relief because it
can be effectively reviewed after final judgment. See id.
(dicta). But see King v. United
States Dist. Court,
16 F.3d 992, 993 (9th Cir. 1994) (order) (concluding mandamus relief was
unavailable because denial of disqualification was not clearly erroneous, but
noting in concurrence that petition for writ of mandamus may be appropriate
means for seeking review of district court judge’s refusal to recuse himself).
A petition for writ of mandamus may be an appropriate
means for seeking review of an order denying a motion to disqualify opposing
counsel. See Unified Sewerage Agency v. Jelco, Inc., 646 F.2d 1339,
1344 (9th Cir. 1981) (observing that review on appeal from final
judgment may not be adequate to remedy any improper use of information by
counsel during trial, but denying relief from order denying motion to
disqualify opposing counsel due to conflict of interest); see also Merle Norman
Cosmetics, Inc. v. United States Dist. Court, 856 F.2d 98, 100–02 (9th Cir. 1988)
(denying petition for writ of mandamus from order denying motion to disqualify
opposing counsel due to conflict of interest).
An order granting a motion to disqualify opposing
counsel may warrant mandamus relief. See
Firestone
Tire & Rubber Co. v. Risjord,
449 U.S. 368, 378 n.13 (1981); Cole
v. United States Dist. Court, 366 F.3d 813, 816–17 (9th Cir. 2004)
(explaining that writ of mandamus may be used to review disqualification of
counsel, and denying the petition); Christensen
v. United States Dist. Court,
844 F.2d 694, 696–99 (9th Cir. 1988) (observing that inability to be
represented during trial by chosen counsel cannot be effectively reviewed on
appeal from final judgment, and granting petition for writ of mandamus from
order disqualifying law firm from representing defendant in action brought by
FSLIC, due to prior representation of client with adverse interests). Cf. United States v. Tillman, 756 F.3d
1144, 1149 (9th Cir. 2014) (court
lacked jurisdiction over claim that counsel was improperly removed, but
concluded mandamus jurisdiction was appropriate to consider sanctions order
because it had an immediate impact on counsel).
A petition for writ of mandamus is an available avenue
for relief from an order denying trial by jury.
See Wilmington
Trust v. United States Dist. Court,
934 F.2d 1026, 1028 (9th Cir. 1991) (right to jury trial occupies
“exceptional place” in history of federal mandamus, and showing of “clear and
indisputable” right not required). “If
the plaintiffs are entitled to a jury trial, their right to the writ is clear.” Tushner
v. United States Dist. Court, 829 F.2d 853, 855 (9th Cir. 1987)
(citation omitted). “Bauman does
not apply in the extraordinary case where the petitioner claims erroneous
deprivation of a jury trial.” County
of Orange v. United States Dist. Court (In re Cty. of Orange), 784 F.3d
520, 526 (9th Cir. 2015) (granting petition).
A writ of mandamus properly issues where the district
court denies trial by jury due to an erroneous conclusion that petitioner has
no right to trial by jury or that petitioner failed to timely demand a
jury. See Wilmington Trust, 934 F.2d at 1028
(granting petition where district court erroneously concluded that petitioner
had no right to trial by jury); Tushner,
829 F.2d at 855–56 (granting petition where district court erroneously
concluded that jury demand in original federal action was untimely); Mondor v.
United States Dist. Court, 910 F.2d 585, 587 (9th Cir. 1990)
(granting petition where district court erroneously concluded that petitioner
failed to properly demand jury after removal to federal court); Myers v. United
States Dist. Court, 620 F.2d 741, 743–44 (9th Cir. 1980) (granting
petition where district court erroneously concluded that petitioner failed to
properly demand jury prior to removal to federal court).
A petition for writ of mandamus is an available avenue
for relief from an order denying the media access to court proceedings or
documents. See Oregonian Publ’g
Co. v. United States Dist. Court,
920 F.2d 1462, 1464 (9th Cir. 1990) (observing that the media does not
have standing to appeal because it is not a party to the proceeding, and absent
mandamus relief, it faces serious injury to important First Amendment
rights). But see Copley Press, Inc.
v. Higuera-Guerrero (In re Copley Press, Inc.), 518 F.3d 1022,
1025–26 (9th Cir. 2008) (determining that the court had jurisdiction
pursuant to the collateral order doctrine to review an order unsealing
documents).
In particular, a writ of mandamus may be appropriate
to permit media access to documents filed in criminal proceedings. See Oregonian
Publ’g Co.,
920 F.2d at 1467–68 (granting petition seeking access to documents
relating to plea agreement filed under seal); Seattle
Times Co. v. United States Dist. Court, 845 F.2d 1513, 1519 (9th Cir. 1988)
(granting petition seeking access to pretrial detention hearings and
documents); United
States v. Schlette, 842 F.2d 1574, 1576 (9th Cir.) (granting
petition seeking access to presentence report, psychiatric report, and
postsentence probation report), amended by 854 F.2d 359 (9th Cir. 1988); Valley Broad.
Co. v. United States Dist. Court, 798 F.2d 1289, 1297 (9th Cir. 1986)
(granting petition seeking access to certain exhibits received in evidence in
criminal trial); CBS,
Inc. v. United States Dist. Court, 765 F.2d 823, 826 (9th Cir. 1985)
(granting petition seeking access to sealed post-conviction documents); CBS, Inc. v.
United States Dist. Court, 729 F.2d 1174, 1184 (9th Cir. 1984)
(granting petition seeking dissemination of government surveillance tapes
created during criminal investigation).
An order granting remand may warrant mandamus relief
if appellate review is not barred by 28
U.S.C. § 1447(d), and the order is not appealable under the
collateral order doctrine. See Garamendi v.
Allstate Ins. Co.,
47 F.3d 350, 352–53 & n.7 (9th Cir. 1995).
A writ of mandamus was deemed appropriate where the
district court permitted removal and vacated its prior remand order upon
defendant’s second removal. See Seedman v. United
States Dist. Court,
837 F.2d 413, 414 (9th Cir. 1988) (per curiam) (stating that “after
certification to the state court a federal court cannot vacate a remand order
issued under § 1447(c),” and ordering district court to remand action to
state court).
An order remanding an action to state court under 28 U.S.C.
§ 1447(c), for lack of subject matter jurisdiction or defect in
removal procedure, is not reviewable under § 1447(d), including by
mandamus petition. See Allegheny Corp. v.
United States Dist. Court,
881 F.2d 777, 777 (9th Cir. 1989) (order). Moreover, an order remanding an action to
state court based on a substantive determination apart from jurisdiction is
reviewable as a collateral order, so mandamus relief is inappropriate. See Garamendi
v. Allstate Ins. Co.,
47 F.3d 350, 353–54 & n.7 (9th Cir. 1995); see also Quackenbush v.
Allstate Ins. Co., 517 U.S. 706, 711–15 (1996); Snodgrass v.
Provident Life & Accident Ins. Co., 147 F.3d 1163, 1166 (9th Cir. 1998). Additionally, a district court’s
discretionary decision to decline supplemental jurisdiction is properly
challenged pursuant to appeal, rather than in a petition for mandamus relief. See California
Dep’t of Water Resources v. Powerex Corp., 533 F.3d 1087, 1092–93 (9th Cir.
2008).
Cross-reference: II.C.24 (regarding the
appealability of the remand orders).
A petition for writ of mandamus is an available avenue
for relief from an order transferring an action from one district court to
another. See Washington Pub. Util. Group v. United
States Dist. Court,
843 F.2d 319, 324–25 (9th Cir. 1988).
In the following instances, the court of appeals
granted mandamus relief from an order of transfer:
·
Order transferring action from one district court to another due
to improper venue under 28
U.S.C. § 1406(a). See Varsic v. United
States Dist. Court,
607 F.2d 245, 250–52 (9th Cir. 1979) (granting petition where in forma
pauperis plaintiff seeking petition benefits would suffer “peculiar hardship”
if forced to await final judgment to challenge transfer).
·
Order transferring action from one district court to another for
convenience of parties and witnesses under 28
U.S.C. § 1404(a). See Sunshine Beauty
Supplies, Inc. v. United States Dist. Court, 872 F.2d 310, 311–12 (9th Cir. 1989)
(granting petition where district court improperly failed to consider forum
selection clause before ordering discretionary transfer orders), abrogated
on other grounds by Cortez
Byrd Chips, Inc. v. Bill Harbert Const. Co., 529 U.S. 193 (2000). But see Washington
Pub. Util. Group v. United States Dist. Court, 843 F.2d 319, 324–25 (9th Cir. 1988)
(denying petition where petitioners failed to show severe prejudice would
result if transfer order not reviewed until after final judgment).
·
Order transferring action from district court to Claims Court
under 28 U.S.C.
§ 1631. See Town of North
Bonneville v. United States Dist. Court, 732 F.2d 747, 750–52 (9th Cir. 1984)
(granting petition where district court clearly erred in transferring actions
to court that had no jurisdiction to entertain them).
Note that the court of appeals has jurisdiction to
consider a petition for writ of mandamus challenging an order transferring an
action to a district court in another circuit even after the action is docketed
in the transferee court. See NBS Imaging Syst.,
Inc. v. United States Dist. Court,
841 F.2d 297, 298 (9th Cir. 1988) (order) (denying mandamus relief where
district court did not clearly err and petitioner delayed seeking relief).
Cross-reference: II.C.30 (regarding the
appealability of transfer orders).
·
Order of reference to special master. See Nat’l
Org. for the Reform of Marijuana Laws v. Mullen, 828 F.2d 536,
546 (9th Cir. 1987) (denying petition where district court did not
clearly err in assigning certain duties to special master and allocating costs
to defendants).
·
Order directing special master to inspect new prison pursuant to
permanent injunction. See Rowland v. United
States Dist. Court,
849 F.2d 380, 382 (9th Cir. 1988) (per curiam) (granting petition where
district court acted outside its jurisdiction by ordering inspection of a
prison not within the scope of the prior injunction).
·
Order denying motion to dismiss counterclaims against qui tam
plaintiffs. See Mortgages, Inc. v.
United States Dist. Court,
934 F.2d 209, 211–12 (9th Cir. 1997) (per curiam) (granting petition
where order clearly erroneous).
·
Order holding amended habeas petition in abeyance pending
exhaustion in state court of claims deleted from petition. See Calderon
v. United States Dist. Court,
134 F.3d 981, 988 (9th Cir. 1998) (denying petition where order
circumvented precedent but was not clearly erroneous under law as articulated),
abrogated as recognized by Jackson
v. Roe,
425 F.3d 654 (9th Cir. 2005).
·
Order to show cause directing parties to brief issue of district
court’s authority to reassign case. See
Brown v.
Baden,
815 F.2d 575, 576–77 (9th Cir. 1987) (per curiam) (granting petition
because district court failed to comply with prior appellate order that case be
reassigned upon remand).
·
Order prohibiting attorneys in criminal proceeding from
communicating with the media. See Levine v. United
States Dist. Court,
764 F.2d 590, 601 (9th Cir. 1985) (granting petition directing district
court to properly define scope of restraining order).
·
Order staying civil rights action brought by pro se inmate. See Reynaga v. Cammisa, 971 F.2d 414,
418 (9th Cir. 1992) (granting petition where magistrate issued stay it
had no authority to issue and petitioner likely powerless to prevent invalid
stay order from being enforced).
·
Order staying anti-trust action pending outcome of parallel state
proceeding. See Selma-Kingsburg-Fowler
Cty. Sanitation Dist. v. United States Dist. Court, 604 F.2d 643,
644 (9th Cir. 1979) (order) (granting petition because district court
had no authority to stay federal action premised solely on federal law).
·
Order requiring attorney to represent indigent litigants in civil
action. See Mallard v. United States Dist. Court, 490 U.S. 296,
308–10 (1989) (holding that court of appeals should have granted
petition because district court acted outside its jurisdiction under 28 U.S.C.
§ 1915(d) by coercively appointing counsel).
·
Order directing attorneys to deposit money into discovery
fund. See Hartland v. Alaska Airlines, 544 F.2d 992,
1001–02 (9th Cir. 1976) (granting petition where district court “had not
even a semblance of jurisdiction original, ancillary or pendent to order
anything or anybody” to pay money into a fund).
·
Order sanctioning removed counsel and referring him to the
California State Bar for disciplinary proceedings. United
States v. Tillman, 756 F.3d 1144, 1149 (9th Cir. 2014) (considering
sanctions order because it had an immediate impact on counsel granting petition
for writ of mandamus).
·
Order denying motion to quash grand jury subpoena. See Silva
v. United States (In re Grand Jury Subpoena Issued to Bailin), 51 F.3d 203,
206–07 (9th Cir. 1995) (noting writ relief generally not available to
avoid final judgment rule in the context of motions to quash grand jury
subpoenas, and denying petition because district court ruling did not
constitute usurpation of judicial power).
·
Order granting a new trial.
Allied
Chem. Corp v. Daiflon, Inc., 449 U.S. 33, 36 (1980) (observing that
new trial order “rarely, if ever, will justify the issuance of a writ”).
·
Order denying motion to amend pleadings. See Hartford
Fire Ins. Co. v. Herrald,
434 F.2d 638, 639 (9th Cir. 1970) (per curiam).
Ordinarily, a notice of appeal from a district court
decision in a civil case “must be filed with the district clerk within 30 days
after entry of the judgment or order appealed from.” Fed.
R. App. P. 4(a)(1)(A). “The
thirty-day deadline serves an important purpose, which is to set a definite
point of time when litigation shall be at an end, unless within that time the
prescribed application has been made; and if it has not, to advise prospective
appellees that they are freed of the appellant’s demands.” Melendres v.
Maricopa Cty., 815 F.3d 645, 649 (9th Cir. 2016) (internal quotation marks
and citation omitted).
When the United States or its officer or agency is a
party, the “notice of appeal may be filed by any party within 60 days after entry of the
judgment or order appealed from[.]” Fed.
R. App. P. 4(a)(1)(B).
“If one party timely files a notice of appeal, any
other party may file a notice of appeal within 14 days after the date when the
first notice was filed, or within the time otherwise prescribed by this Rule
4(a), whichever period ends later.” Fed. R. App. P.
4(a)(3).
Fed. R. App. P. 4(a) is to be read liberally to avoid uncertainty as to
whether the 30-day or 60-day time period for appeal applies. See Wallace
v. Chappell,
637 F.2d 1345, 1347 (9th Cir. 1981) (en banc) (per curiam). The purpose of the lengthier appeal time in
cases in which a federal official or agency is a party is to permit time for
routing the case to government officials responsible for deciding whether or
not to appeal. See id.; Hoag Ranches v.
Stockton Prod. Credit Ass’n (In re Hoag Ranches), 846 F.2d 1225,
1227 (9th Cir. 1988) (order) (Rule 4 should be interpreted in light of
its purpose).
For Fed.
R. App. P. 4(a) purposes, the United States is considered a party, and
therefore the 60-day rule applies, where: (1) defendant officers were acting
under color of office or color of law or lawful authority; or (2) any party is
represented by a government attorney. See
Wallace v.
Chappell,
637 F.2d 1345, 1348 (9th Cir. 1981) (en banc) (per curiam) (applying
60-day period in race discrimination action against Navy personnel acting in
their individual and official capacities).
Actions that must be brought in the name of the United
States are generally subject to the 60-day time period. See United
States ex rel. Custom Fabricators, Inc. v. Dick Olson Constructors, Inc., 823 F.2d 370,
371 (9th Cir. 1987) (order) (per curiam) (holding United States is a
party to an action brought under the Miller Act, 40 U.S.C. § 270a). Compare
United States ex. Rel. Eisenstein v. City of New York,
New York,
556 U.S. 928 (2009) (holding that because the False Claims Act action
did not need to be brought by the United States, the 30-day period for filing a
notice of appeal was applicable).
“The United States need not be a party at the time an
appeal is taken for the appeal to fit within the 60-day rule.” Diaz
v. Trust Territory of the Pac. Islands, 876 F.2d 1401, 1404 (9th Cir. 1989)
(considering United States a party for purposes of Fed. R. App. P. 4(a)(1) even
though dismissed as a defendant prior to filing of appeal) (citation omitted).
“[W]hen the United States is a named party,
participates in the general action and is, or may be, interested in the outcome
of an appeal, even though it is not a party to the appeal, then it is a ‘party’
for purposes of F.R.A.P.
4(a) and the 60-day time limit for appeal applies.” Kalinsky
v. McDonnell Douglas (In re Paris Air Crash of March 3, 1974), 578 F.2d
264, 265 (9th Cir. 1978) (per curiam) (citations omitted); see also Lonberg v. Sanborn
Theaters, Inc.,
259 F.3d 1029, 1031 (9th Cir. 2001).
Where the United States is a party to one action,
parties to consolidated actions are also entitled to the 60-day time limit. See Burchinal
v. Cent. Wash. Bank (In re Adams Apple, Inc.), 829 F.2d 1484, 1487 (9th Cir. 1987)
(finding notices of appeal timely under both Fed. R. App. P. 4(a)(1), (3)).
An appeal by a foreign government is subject to the
30-day time limit. See Dadesho v. Gov’t
of Iraq,
139 F.3d 766, 767 (9th Cir. 1998) (“We find no basis for extending to
foreign governments all the procedural protections our laws accord our own
government.”).
The district court is not a party to an attorney
discipline proceeding for purposes of Fed.
R. App. P. 4(a), so the 30-day time limit applies. See In
re the Suspension of Pipkins,
154 F.3d 1009, 1009 (9th Cir. 1998) (per curiam).
In determining whether an entity is an agency for
purposes of Fed.
R. App. P. 4(a), the court of appeals considers the following factors:
·
Extent to which entity performs governmental functions;
·
Scope of government involvement in entity’s management;
·
Whether entity’s operations are funded by the government;
·
Whether entity is referred to as an agency in other federal
statutes;
See Waldron, Tr. for Venture Fin. Grp., Inc. v. Fed.
Deposit Ins. Corp., 935 F.3d 844, 848 (9th Cir. 2019) (per curiam); Hoag Ranches v.
Stockton Prod. Credit Ass’n (In re Hoag Ranches), 846 F.2d 1225,
1227–28 (9th Cir. 1988) (order).
The Trust Territory of the Pacific Islands is
considered an agency of the United States for purposes of Fed. R. App. P.
4(a). See Diaz v. Trust
Territory of the Pac. Islands,
876 F.2d 1401, 1404–05 (9th Cir. 1989).
However, the government of Guam is not an agency of
the United States for purposes of Fed.
R. App. P. 4(a). See Blas v. Gov’t of
Guam,
941 F.2d 778, 779 (9th Cir. 1991).
Product Credit Agencies are also not agencies of the United States for
purposes of Fed.
R. App. P. 4(a). See Hoag Ranches v.
Stockton Prod. Credit Ass’n (In re Hoag Ranches), 846 F.2d 1225,
1228 (9th Cir. 1988) (order).
A notice of appeal must be “filed with the district
clerk within [prescribed numbers of] days after the judgment or order appealed
from is entered.” Fed. R. App. P.
4(a)(1). The guidelines for
computing notice of appeal deadlines are set forth in Fed. R. App. P. 26(a). See III.B (regarding when an order is
deemed entered, thus triggering the time period of appeal).
In calculating the deadline for filing a notice of
appeal, intermediate Saturdays, Sundays, and legal holidays are included. See Fed.
R. App. P. 26(a)(1). The
following rules also apply: (1) the day of the event that begins the time to
appeal is excluded; and (2) the last day of prescribed time period is included,
unless it is a Saturday, Sunday, or legal holiday. See Fed.
R. App. P. 26(a); Aldabe
v. Aldabe, 616 F.2d 1089, 1091 n.1 (9th Cir. 1980) (per curiam)
(“When the 30th day falls on a weekend, the deadline for filing the notice of
appeal is extended to the following Monday.”).
Legal holidays include: New Year’s Day, Martin Luther
King, Jr.’s Birthday, Washington’s Birthday, Memorial Day, Independence Day,
Labor Day, Columbus Day, Veteran’s Day, Thanksgiving Day, Christmas Day, “any
day declared a holiday by the President or Congress,” and “any other day
declared a holiday by the state where either of the following is located: the
district court that rendered the challenged judgment or order, or the circuit
clerk’s principal office.” See Fed.
R. App. P. 26(a)(6).
Where the 30th day after the district court’s entry of
judgment was a day on which the clerk’s office was officially closed — the day
after Thanksgiving — the time for filing a notice of appeal was extended
pursuant to the Federal Rule of Appellate Procedure providing for such an
extension when the last day of the 30-day deadline is a day on which “weather
or other conditions make the clerk’s office inaccessible.” Regardless of whether the day after
Thanksgiving qualified as a legal holiday, it was a day on which the clerk’s
office was “inaccessible,” despite the presence of an after-hours “drop
box.” Keyser
v. Sacramento City Unified Sch. Dist., 265 F.3d 741, 747 (9th Cir. 2001).
A notice of appeal is timely “filed” under Fed. R. App. P.
4(a) if it is received by the district court within the prescribed
time. See Klemm v. Astrue, 543 F.3d 1139,
1142 (9th Cir. 2008) (concluding notice of appeal was timely filed
although it was accompanied by a postdated check and mailed in district that
had adopted an electronic case filing system); Aldabe
v. Aldabe, 616 F.2d 1089, 1091 (9th Cir. 1980) (per curiam) (“[A]n
appellant has no control over delays between receipt and filing.”); see also
Lundy v.
Union Carbide Corp.,
695 F.2d 394, 395 n.1 (9th Cir. 1982) (arrival of notice of appeal at
former address for district court clerk within prescribed time constituted
“constructive receipt” and was deemed sufficient to confer appellate
jurisdiction).
Cross-reference: IV (regarding the form and
content of a notice of appeal).
A notice of appeal mistakenly submitted to the court
of appeals is to be transferred to the district court clerk with a notation of
the date of receipt, and “[t]he notice is then considered filed in the district
court on the date so noted.” Fed. R. App. P.
4(d); see also Decker
v. Advantage Fund, Ltd.,
362 F.3d 593, 595 (9th Cir. 2004) (exercising jurisdiction when the
notice of appeal was mistakenly filed in the bankruptcy court, where it would
have been timely had it been filed in the district court); Portland Fed. Employees
Credit Union v. Cumis Ins. Soc’y, Inc., 894 F.2d 1101, 1103 (9th Cir. 1990)
(per curiam).
A petition for review of a Board of Immigration
Appeals decision was timely “received” by the clerk on the day the postal
employee put notification slips in the clerk’s Post Office box stating that the
petition, which had been sent by overnight express mail, was available for
pickup, not on the following day when the petition was brought to the clerk’s
office and stamped by the clerk, because the local rule provided that all mail
was to be sent to the court’s Post Office box, not to the street address. Sheviakov
v. INS, 237 F.3d 1144, 1148 (9th Cir. 2001).
A notice of appeal by a pro se prisoner is deemed
timely filed “if it is deposited in the institution’s internal mail system on
or before the last day for filing.” Fed. R. App. P.
4(c)(1); see also Paul
Revere Ins. Group v. United States,
500 F.3d 957, 960 n.4 (9th Cir. 2007); Koch v. Ricketts, 68 F.3d 1191,
1193 (9th Cir. 1995) (Fed. R. App. P. 4(c) codifies Houston v. Lack,
487 U.S. 266 (1988)). “If an
institution has a system designed for legal mail, the inmate must use that
system to receive the benefit of this Rule 4(c)(1).” Fed.
R. App. P. 4(c)(1).
A notarized statement or declaration setting forth the
date of deposit and stating that first-class postage has been prepaid may
constitute proof of timely filing. See
Fed. R. App.
P. 4(c)(1). The opposing party
then has the burden of “producing evidence in support of a contrary factual
finding.” Caldwell v. Amend, 30 F.3d
1199, 1203 (9th Cir. 1994); see also Koch, 68 F.3d at 1194.
Where the initial notice of appeal is deposited in a
prison’s mail system, the 14-day time period for another party to file a notice
of appeal “runs from the date when the district court dockets the first
notice.” Fed.
R. App. P. 4(c)(2).
The time limits set forth in Fed. R. App. P. 4(a) apply to
civil appeals. Types of orders that are,
and are not, deemed civil for purposes of calculating the time period for
appeal are enumerated below.
Fed. R. App. P. 4(a) time limits apply to the following appeals:
·
Appeal from order
granting or denying a petition for writ of error coram nobis. Fed.
R. App. P. 4(a)(1)(c); United
States v. Kwan, 407 F.3d 1005, 1011 (9th Cir. 2005), abrogated on other grounds by Padilla v. Kentucky, 559 U.S. 356
(2010).
·
Appeal from order
concerning grand jury subpoena. See Manges v. United
States (In re Grand Jury Proceedings),
745 F.2d 1250, 1251 (9th Cir. 1984).
·
Appeal from order
issued in a criminal proceedings prohibiting INS from deporting defendant. See United
States v. Yacoubian,
24 F.3d 1, 4–5 (9th Cir. 1994) (a civil order that does not constitute a
“step in the criminal case” is governed by the civil time limits even though
issued in a criminal proceeding).
·
Appeal from order
issued in criminal proceeding enjoining government from filing forfeiture
action against acquitted defendant. See
United
States v. Kismetoglu,
476 F.2d 269, 270 n.1 (9th Cir. 1973) (per curiam).
·
Appeal from order
forfeiting bail bond. See United States v.
Vaccaro,
51 F.3d 189, 191 (9th Cir. 1995) (concluding that enforcement of bond
forfeiture is a civil action even though it arises from a prior criminal
proceeding).
·
Appeal from order
denying third party petition to amend criminal forfeiture order. See United
States v. Alcaraz-Garcia,
79 F.3d 769, 772 n.4 (9th Cir. 1996).
·
Appeals from
orders in bankruptcy actions. See Bennett v. Gemmill
(In re Combined Metals Reduction Co.),
557 F.2d 179, 203 (9th Cir. 1977); see also VI.C
(Bankruptcy Appeals).
Fed. R. App. P. 4(a) time limits do not apply to the following appeals:
·
Permissive
Appeals under 28
U.S.C. § 1292(b). See Fed. R. App. P. 5;
see also II.B.4 (Permissive Appeals).
·
Criminal
Appeals. Appeals from orders
constituting a “step in the criminal case” are governed by Fed. R. App. P.
4(b) unless the proceeding arises from a statute providing its own
procedures and time limits. See United States v.
Ono,
72 F.3d 101, 102–03 (9th Cir. 1995) (order); see also VIII.F
(Criminal Appeals).
·
Tax Court and
Agency Appeals. See VII (Agency
and Tax Court Appeals).
·
Petition for Writ
of Mandamus. See II.D (Petition
for Writ of Mandamus).
·
Bail Decisions in
Extradition Cases. See United States v.
Kirby (In re Requested Extradition of Kirby), 106 F.3d 855,
857 n.1 (9th Cir. 1996).
“If one party timely files a notice of appeal, any
other party may file a notice of appeal within 14 days after the date when the
first notice was filed, or within the time otherwise prescribed by this Rule
4(a), whichever period ends later.” Fed. R. App. P.
4(a)(3).
Where the initial notice of appeal is deposited in a
prison mail system by a pro se prisoner, the 14-day time period “runs from the
date when the district court dockets the first notice.” Fed.
R. App. P. 4(c)(2).
If the notice of appeal is untimely, then any
subsequent notice of cross-appeal is also untimely even if filed within 14 days
of the initial notice. See Meza v. Washington
State Dep’t of Soc. & Health Servs., 683 F.2d 314, 316 (9th Cir. 1982).
The time period for appeal as of right in a civil
action begins to run on the date “the judgment or order appealed from” is
entered. Fed.
R. App. P. 4(a)(1); Fed. R. Civ. P. 54(a) (“judgment”
includes any appealable order). “Rule 58
sets forth the framework for determining when and how an appealable order or
judgment is entered.” Orr v. Plumb,
884 F.3d 923, 927 (9th Cir. 2018).
Fed. R. Civ. P. 58 was amended in 2002, adding a 150-day limit to the
time a judgment can go unentered. “Thus,
even if the district court does not set forth the judgment on a separate
document, an appealable final order is considered entered when 150 days have
run from the time the final order is docketed.”
Stephanie-Cardona
LLC v. Smiths’ Food and Drug Ctrs., 476 F.3d 701, 703 (9th Cir. 2007).
The 150-day rule has been in applied in the following
cases:
·
Where the district court did not enter a separate judgment, the
notice of appeal was timely even though it was filed prematurely. See Stratton v. Buck, 697 F.3d 1004,
1007 (9th Cir. 2012).
·
Where the district court dismissed the first amended complaint for
failure to satisfy the “short and plain statement” standard, the court held
that the appeal period began to run 150 days after the dismissal. See Hearns
v. San Bernardino Police Dep’t,
530 F.3d 1124, 1129 (9th Cir. 2008).
·
Where the district court failed to set forth judgment on a
separate document after an order dismissing all claims had been entered, the
court held that the notice of appeal was timely because it was filed before 150
days had run. See Peng v. Mei Chin
Penghu,
335 F.3d 970, 975 (9th Cir. 2003).
·
Where the district court granted summary judgment by a minute
order, but did not set forth the judgment on a separate document, the court
held the notice of appeal filed before the end of the 150-day period was timely. See Ford
v. MCI Communications Corp. Health & Welfare Plan, 399 F.3d 1076,
1080 (9th Cir. 2005), overruled on
other grounds by Cyr
v. Reliance Standard Life Ins. Co.,
642 F.3d 1202 (9th Cir. 2011) (en banc).
·
Where the appealed judgment was not set forth on a separate
document, the appeal was timely where it was filed within 180 days after entry
of the judgment — 150 days for entry of the judgment, plus 30 days for filing the
notice of appeal. See ABF Capital Corp.
v. Osley,
414 F.3d 1061, 1064–65 (9th Cir. 2005).
·
Where the notice of appeal was not filed within 180 days of the
district court’s stipulation and order disposing of all claims in the lawsuit,
the court lacked jurisdiction over the appeal.
See Stephanie-Cardona
LLC v. Smith’s Food & Drug Ctrs.,
476 F.3d 701, 704–05 (9th Cir. 2007).
·
Where judgment was not entered on separate document, the 30-day
period for filing of notice of appeal began to run 150 days after entry of
order in civil docket dismissing case for lack of personal jurisdiction, and
thus notice of appeal filed 176 days after entry of order was timely. See Menken
v. Emm,
503 F.3d 1050, 1056 (9th Cir. 2007).
(1) for judgment under Rule
50(b);
(2) to amend or make additional
findings under Rule 52(b);
(3) for attorney’s fees under
Rule 54;
(4) for a new trial, or to alter
or amend the judgment, under Rule 59; or
“The sole purpose of the separate-document requirement
… [is] to clarify when the time for appeal … begins to run.” Bankers
Trust Co. v. Mallis, 435 U.S. 381, 384 (1978) (per curiam); see
also Orr v.
Plumb,
884 F.3d 923, 927 (9th Cir. 2018);Whitaker v. Garcetti, 486 F.3d 572,
579 (9th Cir. 2007).
“A sheet containing the judgment, usually prepared by
the clerk, must be distinct from any opinion or memorandum.” Vernon
v. Heckler, 811 F.2d 1274, 1276 (9th Cir. 1987) (internal quotation
and citations omitted). The separate
document rule is to be “mechanically applied” and all formalities
observed. See McCalden v. Cal. Library Ass’n, 955 F.2d 1214,
1218 (9th Cir. 1990) (citations omitted), superseded by rule as stated in Harmston
v. City & Cty. of San Francisco,
627 F.3d 1273, 1279–80 (9th Cir. 2010).
Note many of the authorities discussed below predate
the 150-day rule set forth in Fed.
R. Civ. P. 58(c). Cross-reference
III.B.2 150-Day Rule for instances where the 150-day rule was applied due
to lack of a separate document.
Without more, the following documents do not satisfy
the requirements of Fed.
R. Civ. P. 58:
·
Order containing
the grounds for decision, entered in the docket and mailed to the parties. See Vernon
v. Heckler, 811 F.2d 1274, 1276 (9th Cir. 1987) (involving four-page
order outlining facts, law, and legal analysis); see also Corrigan v.
Bargala,
140 F.3d 815, 817–18 (9th Cir. 1998) (involving two-page order setting
forth basis for dismissal); Hard
v. Burlington N. R.R. Co.,
870 F.2d 1454, 1458 (9th Cir. 1989) (citation omitted) (involving
nine-page memorandum that denied motion in last sentence); Mitchell v.
Idaho, 814 F.2d 1404, 1405–06 (9th Cir. 1987) (per curiam)
(involving eight-page document that “discussed the facts and law and detailed
the reasons for the district court’s decision”).
·
Order granting
summary judgment stamped “entered.” See
United
States v. Carter,
906 F.2d 1375, 1376 (9th Cir. 1990).
·
Document entitled
“Findings of Fact and Conclusions of Law,” stating that “judgment shall be
entered in favor of Defendants and against Plaintiffs.” Ferguson
v. Int’l Ass’n of Bridge, Structural & Ornamental Iron Workers, 854
F.2d 1169, 1173 & n.3 (9th Cir. 1988).
·
Order refusing to
enter judgment on the mistaken premise that judgment had already been
entered. McCalden
v. Cal. Library Ass’n, 955 F.2d 1214, 1218–19 (9th Cir. 1990)
(“Since the very purpose of Rule 4(a) is to avoid confusion, we cannot hold,
Magritte-like, that an order stating that ‘this is not an entry of judgment’ is
nonetheless an entry of judgment.”), superseded
by rule as stated in Harmston
v. City & Cty. of San Francisco,
627 F.3d 1273, 1279–80 (9th Cir. 2010).
·
Order which
“consists only of a district court’s adoption of a magistrate’s
recommendation.” Yang v. Shalala, 22 F.3d 213,
216 (9th Cir. 1994).
The requirements of Fed.
R. Civ. P. 58 were satisfied in the following instances:
·
Following a seven-page document outlining facts, law, and
analysis, the district court entered a five-line “Supplemental Judgment” that
“no more than reaffirm[ed]” the previous order.
Paddack
v. Morris, 783 F.2d 844, 846 (9th Cir. 1986).
·
Following entry of a minute order, the district court entered an
amended judgment granting pre-judgment interest pursuant to a Fed. R. Civ. P. 59
motion. See Pac. Employers Ins. Co. v. Domino’s
Pizza, Inc.,
144 F.3d 1270, 1277–78 (9th Cir. 1998) (pointing out that amended
judgment referred to district court proceedings and ruling on Rule 59 motion,
but contained no facts, law, or analysis).
·
Following an “order and judgment” that contained facts and legal
analysis, an amendment in the form of a separate judgment that corrected a few
typographical errors was entered. The
court of appeals found that the subsequent amendment satisfied the separate
judgment requirements of Fed.
R. Civ. P. 58. See Long v. Coast
Resorts, Inc.,
267 F.3d 918, 922 (9th Cir. 2001).
“Rule 58 does not require district courts to enter
detailed orders addressing the merits of the case prior to entering the final
judgment.” Pac. Employers Ins. Co. v. Domino’s
Pizza, Inc., 144 F.3d 1270, 1278 (9th Cir. 1998). “In fact, under Rule 58, a district court is
not even required to file two separate documents.” Id.
(citation omitted).
Thus, Fed.
R. Civ. P. 58 may be satisfied by entry of a single document in the form
of a brief order that clearly indicates the decision is final. See United
States v. Schimmels (In re Schimmels),
85 F.3d 416, 421–22 (9th Cir. 1996) (single sentence reciting history of
case did not preclude order satisfying separate document rule upon entry).
A minute order may satisfy Fed. R. Civ. P. 58 where it
states on its face that it is an order, and it is mailed to counsel, signed by
the clerk, and entered on the docket sheet.
See Beaudry
Motor Co. v. Abko Props., Inc.,
780 F.2d 751, 754–56 (9th Cir. 1986) (minute order constituted separate
judgment); see also Brown
v. Wilshire Credit Corp. (In re Brown), 484 F.3d 1116, 1122 (9th Cir. 2007)
(reaffirming “rule that a minute entry ordering the denial of a motion for new
trial, after a final judgment has already been entered starts the appeal
clock); cf. Carter
v. Beverly Hills Sav. & Loan Ass’n, 884 F.2d 1186, 1190 (9th Cir. 1989)
(concluding minute order did not constitute separate judgment because it was
not signed by the deputy clerk who prepared it, it did not contain language
stating “IT IS ORDERED,” and it merely represented what occurred at pretrial
conference); but see Radio
Television Espanola S.A. v. New World Entm’t, Ltd., 183 F.3d 922,
931–32 (9th Cir. 1999) (even though minute order contained the language
“IT IS SO ORDERED,” the order did not satisfy the local rules to constitute an
entry of judgment, and thus the court of appeals did not decide whether it
satisfied Fed.
R. Civ. P. 58).
This court has held that where a minute order merely
memorialized the bankruptcy court’s ruling on pre-judgment motions it was not a
judgment, and thus did not trigger the appeal window. See Brown, 484 F.3d at 1122.
The lack of a separate document does not preclude
appellate jurisdiction. See Bankers Trust Co.
v. Mallis,
435 U.S. 381, 386 (1978) (per curiam); Kirkland
v. Legion Ins. Co., 343 F.3d 1135, 1140 (9th Cir. 2003) (explaining
that although a final judgment requires a separate document, satisfaction of
Rule 58 is not a prerequisite to appeal); United
States v. Nordbrock, 38 F.3d 440, 442 n.1 (9th Cir. 1994); Sutton v.
Earles, 26 F.3d 903, 906 n.1 (9th Cir. 1994). Where appeal is taken from a final, entered
order, and appellee does not object to lack of a separate judgment, the
separate document rule is deemed waived.
See Orr v. Plumb, 884 F.3d 923, 931 (9th Cir. 2018)
(“[W]hen the parties treat a fully dispositive summary judgment order as if it
were a final judgment, the requirement in Federal Rule of Civil Procedure 58
that the judgment ‘be set forth on a separate document’ can be waived.”); Bankers Trust
Co. v. Mallis, 435 U.S. 381, 386 (1978) (per curiam); Spurlock v. FBI,
69 F.3d 1010, 1015 (9th Cir. 1995) (“[I]f no question exists as to the
finality of the district court’s decision, the absence of a Rule 58 judgment
will not prohibit appellate review.” (citation omitted)). Waiver of the separate judgment requirement
has been found where the district court granted summary judgment and concluded
“IT IS SO ORDERED” and the plaintiff subsequently moved for relief from
judgment. See Casey v. Albertson’s Inc., 362 F.3d 1254,
1259 (9th Cir. 2004); see also Whitaker
v. Garcetti, 486 F.3d 572, 580 (9th Cir. 2007) (where the parties
treated a fully dispositive summary judgment order as if it were a final
judgment, the separate document requirement was waived); Long v. Cty. of
Los Angeles, 442 F.3d 1178, 1184 n.3 (9th Cir. 2006).
An appellee’s failure to timely object to the lack of
a separate document constitutes waiver of the separate document
requirement. See Fuller v. M.G.
Jewelry,
950 F.2d 1437, 1441 (9th Cir. 1991); see also Vernon v. Heckler, 811 F.2d 1274,
1276–77 (9th Cir. 1987) (deeming requirement waived where appellee
objected to timeliness of appeal but not to lack of separate judgment).
The separate document rule should be construed “to
prevent loss of the right of appeal, not to facilitate loss.” Bankers
Trust Co. v. Mallis, 435 U.S. 381, 386 (1978) (per curiam) (citation
omitted). Therefore, an appellant’s
failure to invoke the separate document requirement generally will not be
construed as waiver if to do so would defeat appellate jurisdiction. See Corrigan
v. Bargala,
140 F.3d 815, 818 (9th Cir. 1998) (concluding that pro se appellant’s
motion to extend time to file appeal, premised on mistaken belief that deadline
for appeal had already passed, did not constitute waiver of separate document
requirement, reversing order denying extension of time to appeal, and remanding
case for entry of judgment).
However, an appellant may waive the separate document
requirement by entering into a stipulation that no formal order need be
entered. See Taylor Rental Corp. v. Oakley, 764 F.2d 720,
721–22 (9th Cir. 1985) (dismissing appeal as untimely where, although
order denying post-judgment motions was never properly entered, appellants had
previously stipulated that it need not be).
Additionally, the appellant may waive the separate document requirement
where the district court granted summary judgment and concluded “it is so
ordered” and the appellant subsequently moved for relief from judgment, thereby
indicating the belief that judgment had been entered. See Casey
v. Albertson’s Inc.,
362 F.3d 1254, 1259 (9th Cir. 2004).
Because the sole purpose of the separate document
requirement is to clarify when the time period for appeal begins to run, an
appellee’s objection to a district court’s failure to enter a separate judgment
does not preclude appellate jurisdiction absent a showing of prejudice. See Harris
v. McCarthy,
790 F.2d 753, 756–57 & n.1 (9th Cir. 1986) (concluding that notice
of appeal filed within prescribed time period conferred appellate jurisdiction
despite appellee’s objection to lack of a separate judgment because appellee
could show no prejudice and “nothing but delay would flow” from remand to
require entry of judgment). However,
“[i]f a separate judgment is not entered by the district court and, as a
result, the appellant is able to file an appeal after the prescribed period,
the appellee would have suffered prejudice.”
Id. at 756 n.1.
All orders, verdicts, and judgments must be entered
chronologically in the docket. Fed. R. Civ. P.
79(a). “Each entry must briefly
show … the substance and date of entry of each order and judgment.” Id.;
Bankers
Trust Co. v. Mallis, 435 U.S. 381, 384 n.4 (1978) (per curiam)
(dicta discussing requirement and rationale of entry under Fed. R. Civ. P.
79(a)).
The clerk’s substantial compliance with Fed. R. Civ. P.
79(a) requirements may be sufficient to render judgment “entered.” See, e.g., Rodgers v. Watt, 722 F.2d 456,
461 (9th Cir. 1983) (judgment satisfactorily entered even though last
docket entry indicated motion still under advisement because penultimate entry,
bearing higher bracketed number, indicated motion had been decided and “strict
chronology [is] almost impossible”).
However, where the date of entry of judgment is
ambiguous, the court of appeals may construe the ambiguity in favor of
appellant. See, e.g., MGIC Indem. Corp.
v. Weisman,
803 F.2d 500, 502 (9th Cir. 1986) (“it would be harsh, overtechnical,
and contrary to substantive justice” to hold appellant to original entry date
where clerk whited it out and inserted new date after correcting clerical error
in the judgment); see also United
States v. Depew,
210 F.3d 1061, 1065 (9th Cir. 2000) (construing ambiguity in favor of
saving appeal when the entry date of judgment was unclear because docket entry
had one date, but entry was followed by notation of a second later date).
Before a judgment is entered under Fed. R. Civ. P. 58,
it is to be signed by the clerk. See
Fed. R. Civ.
P. 58; Carter
v. Beverly Hills Sav. & Loan Ass’n, 884 F.2d 1186, 1189 (9th Cir. 1989)
(holding entry of civil minutes in docket did not satisfy Fed. R. Civ. P. 58
where, among other things, minutes not signed by deputy clerk who was present
during proceedings and who prepared the order).
“Lack of notice of the entry [of judgment] does not
affect the time for appeal or relieve – or authorize the court to relieve – a
party for failing to appeal within the time allowed … .” Fed.
R. Civ. P. 77(d)(2); Molloy
v. Wilson, 878 F.2d 313, 315 n.3 (9th Cir. 1989). Although notice of entry of judgment required
under Fed.
R. App. P. 4(a)(6) is not confined to written communication alone, the
quality of the communication must rise to the functional equivalent of written
notice to satisfy the Rule’s notice requirement, meaning it must be specific,
reliable, and unequivocal. See Nguyen v. S.W.
Leasing & Rental Inc.,
282 F.3d 1061, 1066 (9th Cir. 2002).
However, lack of notice may be a factor in determining
whether to extend the time for appeal under Fed.
R. App. P. 4(a)(6). See III.D.3
(regarding extension of time to appeal under Fed.
R. App. P. 4(a)(6)).
“A notice of appeal filed after the court announces a
decision or order – but before the entry of the judgment or order – is treated
as filed on the date of and after the entry.”
Fed.
R. App. P. 4(a)(2).
Fed. R. App. P. 4(a)(2) applies only when a district court announces “a
decision that would be appealable if immediately followed by the entry of
judgment.” FirsTier Mortgage Co. v. Investors
Mortgage Ins. Co., 498 U.S. 269, 276 (1991). The premature notice may be deemed effective
if appellant reasonably but mistakenly believed the earlier decision was the
final judgment and appellee would not be prejudiced. See id. at 276–77 (purpose of Fed. R. App.
P. 4(a)(2) is “to protect the unskilled litigant” whose actions are
reasonable but mistaken); see also Manrique v. United States, 137
S. Ct. 1266, 1273 (2017) (quoting FirsTier).
A premature notice of appeal may be effective to
appeal from a subsequently entered final judgment if, at the time the notice
was filed, all that remained for the district court to do was the ministerial
act of entering judgment. See Fed. R. App. P.
4(a)(2); Hajro
v. U.S. Citizenship & Immigration Servs., 811 F.3d 1086, 1096 (9th Cir.
2016);Kennedy v. Applause, Inc., 90 F.3d 1477, 1482–83 (9th Cir. 1996);
Kendall v.
Homestead Dev. Co. (In re Jack Raley Constr., Inc.), 17 F.3d 291, 294 (9th
Cir. 1994). The Supreme
Court has explained that Fed. R. App. P. 4(a)(2) “was intended to protect the
unskilled litigant who files a notice of appeal from a decision that he
reasonably but mistakenly believes to be a final judgment, while failing to
file a notice of appeal from the actual final judgment.” FirsTier Mortgage
Co. v. Investors Mortgage Ins. Co.,
498 U.S. 269, 276 (1991); see also Manrique v. United States, 137
S. Ct. 1266, 1273 (2017) (quoting FirsTier).
Cross-reference: III.B (regarding what
constitutes entry of judgment).
A premature notice of appeal was deemed effective
under Fed.
R. App. P. 4(a)(2) in the following instances:
·
Notice of appeal filed after district court orally granted summary
judgment as to all claims and all that remained for court to do was enter final
judgment along with findings of fact and conclusions of law. See FirsTier
Mortgage Co. v. Investors Mortgage Ins. Co., 498 U.S. 269, 276–77 (1991).
·
Notice of appeal filed after magistrate judge ordered entry of
judgment, but before judgment in fact entered.
See Price
v. Seydel,
961 F.2d 1470, 1473 (9th Cir. 1992) (concluding that notice of appeal was
only “technically premature”).
·
Notice of appeal filed after district court entered “Memorandum
and Order” dismissing action but before judgment entered. See Attwood
v. Mendocino Coast Dist. Hosp.,
886 F.2d 241, 242 (9th Cir. 1989).
·
Notice of appeal filed after announcement of verdict but before
entry of judgment on verdict. See United States v.
30.64 Acres of Land,
795 F.2d 796, 798 (9th Cir. 1986).
·
Notice of appeal filed after district court granted summary
judgment and dismissed remaining supplemental claims, but before entry of
judgment. See Long v. Cty. of Los Angeles, 442 F.3d 1178,
1183 n.3 (9th Cir. 2006).
·
Notice of appeal filed after district court orally announced
decision, but before the district court issued its written order, became effective
on date of entry of the order. See U.S.
ex rel. Found. Aiding The Elderly v. Horizon West, 265 F.3d 1011,
1013 n.1 (9th Cir. 2001).
Where more than a ministerial act remains after a
decision, a notice of appeal from the decision is ordinarily not effective to
appeal a subsequently entered judgment. See
Kendall v.
Homestead Dev. Co. (In re Jack Raley Constr., Inc.), 17 F.3d 291, 294
(9th Cir. 1994) (considering reasonableness of appellant’s belief
that notice of appeal was effective).
A premature notice of appeal was deemed ineffective
under Fed.
R. App. P. 4(a)(2) in the following instances:
·
Matter of pre-judgment interest not decided until after notice
filed. See Kendall
v. Homestead Dev. Co. (In re Jack Raley Constr., Inc.), 17 F.3d 291, 294
(9th Cir. 1994) (concluding appellants had no reasonable belief
that notice of appeal was effective especially where they requested permission
to brief and argue remaining issue).
·
Amount of costs and fees award not decided until after notice
filed. Kennedy
v. Applause, Inc., 90 F.3d 1477, 1482–83 (9th Cir. 1996) (concluding
appellants had no reasonable belief that notice of appeal was effective
especially where court requested further submissions as to remaining issue).
·
Notice of appeal from magistrate judge’s report and recommendation
ineffective because judgment not entered by district court until after notice
filed. See Serine v. Peterson, 989 F.2d 371,
372–73 (9th Cir. 1993) (order) (concluding appellant had no reasonable
belief that notice of appeal was effective where appellant filed objection to
report and recommendation in district court).
·
Notice of appeal from “a clearly interlocutory decision” not
effective to appeal final judgment. See
FirsTier
Mortgage Co. v. Investors Mortgage Ins. Co., 498 U.S. 269, 276 (1991) (“A
belief that such a decision is a final judgment would not be reasonable.”).
·
Notice of appeal from a magistrate judge’s report and
recommendation was ineffective, and the magistrate judge’s holding of the
premature notice of appeal did not convert it into an effective notice of
appeal. See Burnside v. Jacquez, 731 F.3d 874, 875
(9th Cir. 2013) (order).
A notice of appeal from an order that disposes of
fewer than all claims against all parties, and is not certified under Fed. R. Civ. P.
54(b), may be rendered effective by subsequent events such as
finalization of the remaining claims. See
Anderson v.
Allstate Ins. Co.,
630 F.2d 677, 680 (9th Cir. 1980); see also Martinez
v. Barr, 941 F.3d 907,
916 (9th Cir. 2019) (noting that the court has “allowed premature notices of
appeal directed at all manner of non-appealable orders to ripen into notices of
appeal of subsequent, appealable judgments.”); Wolkowitz v. FDIC (In re
Imperial Credit Indus., Inc.), 527 F.3d 959, 979 n.12 (9th Cir. 2008). Note that a premature notice of appeal cannot
be cured where the dispositive final order is not an appealable final judgment
or other appealable order. See Special Invs.,
Inc. v. Aero Air, Inc.,
360 F.3d 989, 993 (9th Cir. 2004).
A premature notice of appeal cannot be cured by
subsequent events once the court of appeals dismisses the premature appeal for
lack of jurisdiction. See Noa v. Key
Futures, Inc.,
638 F.2d 77, 78 (9th Cir. 1980) (per curiam).
A notice of appeal from an order disposing of fewer
than all claims against all parties may be cured by the district court’s
subsequent certification of the order under Fed.
R. Civ. P. 54(b), as long as neither party is prejudiced. See Freeman
v. Hittle,
747 F.2d 1299, 1302 (9th Cir. 1984).
See II.A.3 (regarding the requirements for certification under Fed. R. Civ. P.
54(b)).
A premature notice of appeal has been cured where:
·
District court subsequently dismissed federal claim as to
remaining defendants and remanded state claims to state court. See Anderson
v. Allstate Ins. Co.,
630 F.2d 677, 680 (9th Cir. 1980).
·
District court subsequently dismissed remaining pendent state
claims. See Rano v. Sipa Press, Inc., 987 F.2d 580,
584 (9th Cir. 1993).
·
District court subsequently dismissed counterclaim. See Ethridge
v. Harbor House Rest.,
861 F.2d 1389, 1402 (9th Cir. 1988).
·
Appellant subsequently dismissed claims against remaining
defendant. See Fidelity &
Deposit Co. v. City of Adelanto,
87 F.3d 334, 336 (9th Cir. 1996).
·
Remaining consolidated action was subsequently settled and
dismissed. See Fadem v. United
States,
42 F.3d 533, 534–35 (9th Cir. 1994) (order).
·
District court subsequently entered final judgment disposing of
all claims between parties. See Wolkowitz v. FDIC
(In re Imperial Credit Indus., Inc.),
527 F.3d 959, 979 n.12 (9th Cir. 2008).
A premature notice of appeal is not cured where the
remaining claim is voluntarily dismissed without prejudice. See Dannenberg
v. Software Toolworks, Inc.,
16 F.3d 1073, 1076–78 (9th Cir. 1994) (reasoning that remaining claim
not “finalized” because it could be resurrected under the terms of the
stipulation, thereby defeating the policy against piecemeal review); see
also II.C.13.b.v.
Under the Federal Rules of Appellate Procedure, the
court of appeals “may not extend the time to file … a notice of appeal (except
as authorized in Rule
4).” Fed.
R. App. P. 26(b)(1).
The district court has limited authority under Fed. R. App. P.
4(a)(5) and (a)(6), and Fed.
R. Civ. P. 60(b) to extend the time for filing an appeal. The following three sections discuss those
provisions in turn.
“The district court may extend the time to file a
notice of appeal if: (i) a party so moves no later than 30 days after the time
[for appeal] expires; and (ii) … that party shows excusable neglect or good
cause.” Fed.
R. App. P. 4(a)(5)(A).
A “formal motion” is required under Fed. R. App. P.
4(a)(5). See Malone v. Avenenti, 850 F.2d 569, 572–73
(9th Cir. 1988) (holding that pro se letter that did not explicitly
request extension, and did not give proper notice to other parties, did not
constitute motion for extension of time to appeal under Fed. R. App. P. 4(a)(5)); Cel-A-Pak v.
Cal. Agric. Labor Relations Bd., 680 F.2d 664, 666 (9th Cir. 1982)
(per curiam) (declining to construe district court’s mere acceptance of
untimely notice of appeal as grant of extension where appellant did not move
for extension).
A motion for extension under Fed. R. App. P. 4(a)(5) filed
before expiration of the time to appeal “may be ex parte unless the court
requires otherwise.” Fed. R. App. P.
4(a)(5)(B). If a motion for
extension is filed after expiration of the time period for appeal, “notice must
be given to the other parties in accordance with local rules.” Fed.
R. App. P 4(a)(5)(B); Malone
v. Avenenti, 850 F.2d 569, 572 (9th Cir. 1988).
A motion for extension filed before expiration of the
original time for appeal must show “good cause,” whereas a motion for extension
filed after expiration of the original time for appeal must show “excusable
neglect.” Oregon v. Champion Int’l Corp.,
680 F.2d 1300, 1301 (9th Cir. 1982) (per curiam).
The court of appeals reviews for abuse of discretion a
district court’s extension order granting a party an extension of time in which
to file a notice of appeal. See Mendez v. Knowles, 556 F.3d 757,
764 (9th Cir. 2009); Pincay
v. Andrews,
389 F.3d 853, 858 (9th Cir. 2004) (en banc).
The less stringent “good cause” standard was added to Fed. R. App. P.
4(a)(5) because the excusable neglect standard “never fit exactly the
situation in which the appellant seeks an extension before the expiration of
the initial time.” Oregon v.
Champion Int’l Corp., 680 F.2d 1300, 1301 (9th Cir. 1982) (per
curiam) (citing Advisory Committee Notes to 1979 amendment to Fed. R. App. P.
4(a)(5); 9 Moore’s Federal Practice 204.13 (2nd ed. 1980)).
The Ninth Circuit has applied to Fed. R. App. P.
4(a)(5) the “excusable neglect” standard established by the Supreme
Court in Pioneer
Inv. Servs. Co. v. Brunswick Assocs. Ltd. Partnership, 507 U.S. 380 (1993)
(bankruptcy case). See also Stutson v. United
States,
516 U.S. 193, 195 (1996) (per curiam).
Whether neglect is “excusable” is an equitable
determination that must take into account all relevant circumstances,
including: (1) danger of prejudice to nonmovant; (2) length of delay and its
potential impact on proceedings; (3) reason for delay and whether it was in
movant’s control; and (4) whether movant acted in good faith. See Los
Altos El Granada Investors v. City of Capitola, 583 F.3d 674, 683 (9th Cir. 2009); Mendez
v. Knowles,
556 F.3d 757, 764–65 (9th Cir. 2009) (the district court did not abuse
its discretion in granting the motion for an extension of time for filing the
notice of appeal); Briones
v. Riviera Hotel & Casino,
116 F.3d 379, 381 (9th Cir. 1997) (per curiam). See also Iopa v. Saltchuk-Young Bros.,
Ltd., 916 F.3d 1298, 1301 (9th Cir. 2019) (per curiam) (applying excusable
neglect analysis to untimely petition for attorney fees).
“[I]nadvertence, ignorance of the rules, or mistakes
construing the rules do not usually constitute ‘excusable’ neglect.” Pioneer,
507 U.S. at 392. This aspect of
the Pioneer standard has been applied in analogous contexts. See Hill
v. Valkswagen, AG (In re Volkswagen “Clean Diesel” Mktg., Sales Practices,
& Prod. Liab. Litig.),
895 F.3d 597, 618 (9th Cir. 2018) (holding that misunderstanding clear
directions did not constitute excusable neglect under Fed. R. Civ. P. 6(b)),
cert. denied sub nom. Fleshman v. Volkswagen, AG, 139 S. Ct. 2645 (2019); Comm.
for Idaho’s High Desert, Inc. v. Yost, 92 F.3d 814, 825 (9th Cir. 1996)
(holding that ignorance of amendments to federal and local rules does not
constitute excusable neglect under Fed. R. Civ. P. 6(b)); Kyle v.
Campbell Soup Co., 28 F.3d 928, 931–32 & n.4 (9th Cir. 1994)
(holding that misconstruction of a nonambiguous rule does not constitute
excusable neglect under Fed. R. Civ. P. 6(b)).
Note there is no per se rule making a mistake of law inexcusable. See Pincay
v. Andrews,
389 F.3d 853, 860 (9th Cir. 2004) (en banc). Rather, whether an extension of time to file
notice of appeal should be granted is entrusted to the discretion of the
district court. See id.; see
also Mendez, 556 F.3d at 764.
“[T]he fact that counsel was experiencing upheaval in
his law practice at the time of the bar date,” is also accorded little
weight. Pioneer,
507 U.S. at 397; see also United
States ex rel. Familian Nw., Inc. v. RG & B Contractors, Inc., 21 F.3d 952, 956
(9th Cir. 1994) (failure to locate documents earlier due to confusion
caused by corporate restructuring did not constitute excusable neglect under
Fed. R. Civ. P. 6(b)).
“No extension under this Rule 4(a)(5) may exceed 30
days after the prescribed time or 14 days after the date when the order
granting the motion is entered, whichever is later.” Fed.
R. App. P. 4(a)(5)(C).
An order granting or denying a motion for extension of
time to appeal is an appealable final decision.
See Diamond
v. United States Dist. Court,
661 F.2d 1198, 1198 (9th Cir. 1981) (order); see also Corrigan v.
Bargala,
140 F.3d 815, 817 n.3 (9th Cir. 1998).
(A) the court finds that the
moving party did not receive notice under Federal
Rule of Civil Procedure 77(d) of the entry of the judgment or order
sought to be appealed within 21 days after entry;
(B) the motion is filed within
180 days after the judgment or order is entered or within 14 days after the
moving party receives notice under Federal
Rule of Civil Procedure 77(d) of the entry, whichever is earlier; and
(C) the court finds that no party
would be prejudiced.
Fed. R. App. P. 4(a)(6). However, even
where the requirements of Fed.
R. App. P. 4(a)(6) are met, the district court has the discretion to
deny the motion. See Arai v. Am. Bryce
Ranches Inc.,
316 F.3d 1066, 1069 (9th Cir. 2003).
A motion under Fed.
R. App. P. 4(a)(6) must be filed “within 180 days after the judgment or
order is entered or within 14 days after the moving party receives notice under
Federal Rule
of Civil Procedure 77(d) of the entry, whichever is earlier … .” Fed.
R. App. P. 4(a)(6)(B); see also Nunley
v. City of Los Angeles,
52 F.3d 792, 794 (9th Cir. 1995) (under prior version of rule, holding
that the seven-day period is triggered by “actual notice”). Fed.
R. App. P. 4(a)(6) allows “any winning party to shorten the 180-day
period by sending (and establishing proof of receipt of) its own notice of
entry of a judgment, as authorized by Fed.
R. Civ. P. 77(d).” See 119
Adv. Comm. Notes to Fed.
R. App. P. 4(a)(6).
As a general rule, Fed.
R. App. P. 4(a)(6) requires a formal motion served in accordance with
local rules. See Nunley v. City of
Los Angeles,
52 F.3d 792, 795 (9th Cir. 1995).
However, an ex parte application may suffice where the
opposing party is informed of the ex parte application, does not object, and
responds to it. See id. (noting
district court’s broad discretion to depart from local rules where substantial
rights not at stake).
To qualify for relief under Fed. R. App. P. 4(a)(6), a
party must have been entitled to notice of entry of a judgment or order and
must not have received the notice within the requisite time period. See Fed.
R. App. P. 4(a)(6).
The district court clerk must immediately upon entry
of judgment serve notice of entry “on each party who is not in default for
failure to appear.” Fed. R. Civ. P.
77(d)(1). A party may also serve
notice of entry. See id.
“Once a party has appeared generally in an action, he
is entitled to notice of all proceedings and actions taken in the case,
irrespective of whether he failed to ‘appear’ at some subsequent stage of the
proceedings.” Molloy v. Wilson, 878 F.2d 313,
315 (9th Cir. 1989) (citations omitted).
When a party is represented by an attorney, service
“must be made on the attorney unless the court orders service on the
party.” Fed.
R. Civ. P. 5(b); see also Alaska
Limestone Corp. v. Hodel,
799 F.2d 1409, 1412 (9th Cir. 1986) (per curiam) (“[R]eceipt of notice
by one of two counsel of record … sufficiently informs the party of the entry
of judgment.” (citation omitted)).
The burden is on the moving party to show non-receipt
of notice of entry of judgment. See Nunley v. City of
Los Angeles,
52 F.3d 792, 795 (9th Cir. 1995).
The following principles apply in determining whether the moving party
meets its burden: (1) proper mailing of notice raises a rebuttable presumption
that it was received by the addressee, see id. at 796 & n.5
(concluding that notation on order and docket that notice was sent raised
presumption of receipt where post office did not return envelope); (2) the
presumption is rebutted by a “specific factual denial of receipt,” id. at 796;
and (3) if the presumption is rebutted, “a district judge must then weigh the
evidence and make a considered factual determination concerning receipt, rather
than denying the motion out of hand based upon proof of mailing,” id. at
796–97 (stating that district court’s factual determination is reviewed
for clear error on appeal).
“[W]here non-receipt has been proven and no other
party would be prejudiced, the denial of relief cannot rest on a party’s
failure to learn independently of the entry of judgment during the thirty-day
period for filing notices of appeal.” Id. at 798
(noting that the concept of “excusable neglect” is inapplicable in the context
of determining whether an extension should be granted under Fed. R. App. P.
4(a)(6)).
The district court may reopen the time period for
appeal under Fed.
R. App. P. 4(a)(6) only if no party would be prejudiced. See Fed.
R. App. P. 4(a)(6)(C). Prejudice
consists of “some adverse consequence other than the cost of having to oppose
the appeal and encounter the risk of reversal.”
See 1991 Adv. Comm. Notes to Fed.
R. App. P. 4(a)(6) (noting that prejudice might be found where “the
appellee had taken some action in reliance on the expiration of the normal time
period for filing a notice of appeal.”).
The district court may reopen the time to appeal “for
a period of 14 days after the date when its order to reopen is entered.” Fed.
R. App. P. 4(a)(6); Vahan
v. Shalala, 30 F.3d 102, 103 (9th Cir. 1994) (per curiam) (stating
that district court has no discretion to grant extension beyond time set forth
in Fed. R. App. P. 4(a)(6)).
An order granting or denying a motion for extension of
time to appeal is an appealable final decision.
See Diamond
v. United States Dist. Court,
661 F.2d 1198, 1198 (9th Cir. 1981) (order); see also Corrigan v.
Bargala,
140 F.3d 815, 817 n.3 (9th Cir. 1998).
A district court may for “compelling reasons” vacate
its original entry of judgment and then reenter its judgment to permit an
otherwise untimely appeal. See Zurich Ins. Co. v.
Wheeler,
838 F.2d 338, 340 (9th Cir. 1988) (citation omitted); see also Mackey
v. Hoffman,
682 F.3d 1247, 1250–51 (9th Cir. 2012).
Fed. R. App. P. 4(a)(6) precludes the use of Rule 60(b) to cure problems of
lack of notice. See Mitchell v. Gordon
(In re Stein), 197 F.3d 421,
425 (9th Cir. 2000); see also Zimmer
St. Louis, Inc. v. Zimmer Co.,
32 F.3d 357, 360–61 (8th Cir. 1994).
Compare Mackey, 682 F.3d at 1252
(distinguishing In re Stein where
Mackey was not “seeking to utilize Rule 60(b)(6) to cure a rule 77(d) ‘lack of
notice’ problem”).
A Rule
60(b)(1) motion arguing excusable neglect must be “made within a
reasonable time … and … no more than a year after the entry of the judgment or
order … .” Fed. R. Civ. P. 60(c); Nevitt v.
United States, 886 F.2d 1187, 1188 (9th Cir. 1989) (holding that
time for filing Rule 60(b) motion not tolled by the pendency of an
appeal). “[E]xcusable neglect under Rule
60(b)(1) applies when a party’s failure to file on time is within his or her
control.” Washington v. Ryan, 833
F.3d 1087, 1098 (9th Cir. 2016) (en banc).
Rule 60(b) relief is only available if the excusable
neglect arises after the period covered by Fed.
R. App. P. 4(a)(5). See Rodgers v. Watt, 722 F.2d 456,
459 (9th Cir. 1983) (en banc).
In determining the applicability of Rule 60(b), the
district court should consider: “(1) absence of Rule 77(d) notice; (2) lack of
prejudice to respondent; (3) prompt filing of a motion after actual notice; and
(4) due diligence, or reason for lack thereof, by counsel in attempting to be informed
of the date of the decision.” Rodgers v. Watt,
722 F.2d 456, 460 (9th Cir. 1983) (en banc) (citation omitted); see
also Fed.
R. Civ. P. 77(d) (requiring clerk to serve notice of entry of
judgment). If the district court abuses
its discretion in extending the appeal period by vacating and reentering
judgment, the court of appeals is without jurisdiction. See Zurich
Ins. Co. v. Wheeler,
838 F.2d 338, 340 (9th Cir. 1988).
The district court did not abuse its discretion in
vacating and reentering judgment where the court clerk failed to notify the
parties of entry of judgment, counsel’s assistant diligently checked docket,
docket entries were out of sequence, and upon learning of entry counsel
immediately filed Rule 60(b) motion. See
Rodgers, 722 F.2d at 461. Along the same lines, the district court’s
vacation and reentry of judgment was appropriate where the clerk failed to
notify the parties of entry of judgment, counsel diligently checked with the
court clerk, the clerk misinformed counsel that the order had not been entered,
counsel filed a 60(b) motion within two weeks of discovering entry of judgment,
and there was no prejudice to the opposing party. See Zurich
Ins. Co.,
838 F.2d at 340.
The district court did not abuse its discretion in
refusing to vacate and reenter judgment where counsel heard court’s oral ruling
granting summary judgment motion, failed to investigate status of case until
after time for appeal had expired, never checked docket, and did not file a Rule 60(b)
motion until about eight months after discovering entry of judgment. See Stevens
v. ITT Sys., Inc.,
868 F.2d 1040, 1041–43 nn.3 & 5
(9th Cir. 1989).
The Supreme Court in Bowles v. Russell, 551
U.S. 205, 214 (2007) held that because an appeal deadline prescribed by statute
is jurisdictional and the court has “no authority to create equitable
exceptions to jurisdictional requirements,” the use of the “‘unique
circumstances’ doctrine is illegitimate.”
Prior to Bowles, despite the jurisdictional bar to review an
untimely appeal, “[u]nder the ‘unique circumstances’ doctrine, an appellate
court [could] hear a late-filed appeal if the delay was induced by affirmative
assurances from the district court that the appeal would be timely.” Mt.
Graham Red Squirrel v. Madigan, 954 F.2d 1441, 1462 (9th Cir. 1992)
(citation omitted). But see Anderson v.
Mouradick (In re Mouradick),
13 F.3d 326, 329 n.5 (9th Cir. 1994) (observing that although the Supreme
Court has not repudiated the doctrine, recent decisions have “cast doubt upon
[its] viability”).
Prior to the Supreme Court’s decision in Bowles v.
Russell, 551 U.S. 205, 214 (2007), this court applied the unique
circumstances doctrine where “a party ha[d] performed an act that, if properly
done, would postpone the deadline for filing his appeal and ha[d] received
specific assurance by a judicial officer that this act ha[d] been properly
done.” Osterneck
v. Ernst & Whinney, 489 U.S. 169, 179 (1989); Fiester v.
Turner, 783 F.2d 1474, 1476 (9th Cir. 1986) (order) (noting that the
judicial act must occur within the original time period for appeal).
The unique circumstances doctrine was not satisfied
where the district court considered and resolved an untimely motion for
reconsideration without commenting as to its timeliness. See Mt.
Graham Red Squirrel v. Madigan,
954 F.2d 1441, 1462 (9th Cir. 1992) (noting that party has duty to seek clarification
if it believes court has acted ambiguously as to an appeal deadline). Moreover, “some unidentified statement by an
unidentified clerk of the district court” as to the time period for appeal did
not satisfy the unique circumstances doctrine. In
re the Suspension of Pipkins, 154 F.3d 1009, 1009 (9th Cir. 1998)
(per curiam) (citing Osterneck).
Additionally, the doctrine was not satisfied where the party did not
file a motion that would extend the time to file the notice of appeal and the
district court did not represent to party that the time to file appeal would be
extended. See Lobatz v. U.S. W. Cellular of Cal.,
Inc.,
222 F.3d 1142, 1146 (9th Cir. 2000).
Note that it was “not enough that the court … engaged in some ambiguous
or implicitly misleading conduct. The
court must have explicitly misled a party.”
Wiersma
v. Bank of the West (In re Wiersma), 483 F.3d 933, 940 (9th Cir. 2007)
(internal quotations marks and citations omitted) (concluding that doctrine of
unique circumstances did not apply where neither the bankruptcy appellate panel
or the bankruptcy court had explicitly misled debtors or given affirmative
assurances that a subsequent appeal would be timely).
However, the unique circumstances doctrine was deemed
satisfied where the district court erroneously granted appellant’s motion for
extension of time to file a Fed.
R. Civ. P. 59(e) motion within the time period for appeal. See Miller
v. Maxwell’s Int’l, Inc.,
991 F.2d 583, 585–86 (9th Cir. 1993) (citing Barry v. Bowen, 825 F.2d 1324
(9th Cir. 1987), but not Osterneck). Note that Miller is a pre-Bowles
case.
Osterneck
“invalidated” the prior Ninth Circuit standard of reasonable and good faith
reliance on judicial action. See Slimick v. Silva
(In re Slimick),
928 F.2d 304, 310 (9th Cir. 1990); see also Wiersma v. Bank of the West (In re
Wiersma),
483 F.3d 933, 940 (9th Cir. 2007).
However, the court has commented on the probable outcome of prior cases
under the Osterneck standard. See
Slimick, 928 F.2d at 310
n.8 (dicta).
The Supreme Court held in Bowles v. Russell, 551 U.S.
205, 214 (2007) that it would no longer recognize the unique
circumstances exception to excuse an untimely filing. The court clarified that “the timely filing
of a notice of appeal in a civil case is a jurisdictional requirement” when the
time limit is prescribed by statute, and that use of the of the “unique
circumstances doctrine is illegitimate.”
Id. See also Hamer v. Neighborhood Hous.
Servs. of Chicago, 138 S. Ct. 13, 16 (2017) (discussing Bowels and
making clear jurisdictional distinction between court-made rules and limits
enacted by Congress).
The effect of a post-judgment motion depends on
whether it is a tolling motion (specified in Fed.
R. App. P. 4(a)(4)(A)), see below, or a non-tolling motion, see
III.F.3.
“If a party timely files in the district court [a
specified tolling motion], the time to file an appeal runs for all parties from
the entry of the order disposing of the last such remaining motion.” Fed.
R. App. P. 4(a)(4)(A); McCarthy
v. Mayo, 827 F.2d 1310, 1313 n.1 (9th Cir. 1987) (citations
omitted); see also Shapiro
v. Paradise Valley Unified Sch. Dist. No. 69, 374 F.3d 857, 863 (9th Cir. 2004).
“If a party files a notice of appeal after the court
announces or enters a judgment—but before it disposes of [a specified tolling
motion,]—the notice becomes effective to appeal a judgment or order, in whole
or in part, when the order disposing of the last such remaining motion is
entered.” Fed. R. App. P. 4(a)(4)(B)(i). Thus, a notice of appeal filed while a timely
post-judgment tolling motion is pending is “held in abeyance until the motion
is resolved.” Leader Nat’l Ins. Co. v. Indus.
Indemnity Ins. Co., 19 F.3d 444, 445 (9th Cir. 1994) (order) (noting
that prior to the 1993 amendment, a notice of appeal filed during the pendency
of a timely post-judgment tolling motion was a “nullity”).
“A party intending to challenge an order disposing of
[a tolling motion], or a judgment’s alteration or amendment upon such a motion,
must file a notice of appeal, or an amended notice of appeal … within the time
prescribed by this Rule measured from the entry of the order disposing of the
last such remaining motion.” Fed. R. App. P.
4(a)(4)(B)(ii); see also Pac.
Employers Ins. Co. v. Domino’s Pizza, Inc., 144 F.3d 1270, 1277–78 (9th Cir.
1998) (stating that absent timely notice of appeal from order granting
Fed. R. Civ. P. 59 motion, court of appeals lacked jurisdiction to review
amended judgment awarding prejudgment interest).
Cross-reference: III.F.3 (regarding non-tolling
motions).
Under Fed.
R. App. P. 4(a)(4)(A), only the following motions toll the time for
appeal:
·
Motion for
judgment under Fed.
R. Civ. P. 50(b).
·
Motion to amend
or make additional findings under Fed.
R. Civ. P. 52(b), whether or not granting the motion would alter the
judgment.
·
Motion for
attorney’s fees under Fed.
R. Civ. P. 54, if the district court extends time to appeal under Fed. R. Civ. P. 58.
·
Motion to alter
or amend the judgment under Fed.
R. Civ. P. 59.
·
Motion for a new
trial under Fed.
R. Civ. P. 59.
·
Motion for relief
under Fed.
R. Civ. P. 60 if the motion is filed no later than 28 days after the
judgment is entered.
A motion listed in Fed.
R. App. P. 4(a)(4) ordinarily tolls the time for appeal only if it is
timely filed. See Fed. R. App. P.
4(a)(4)(A); see also Stevens v. Jiffy Lube Int’l, Inc.,
911 F.3d 1249, 1251 (9th Cir. 2018); Catz
v. Chalker, 566 F.3d 839, 841 (9th Cir. 2009) (order); Mt. Graham Red
Squirrel v. Madigan, 954 F.2d 1441, 1462 (9th Cir. 1992).
The motions enumerated in Fed. R. App. P. 4(a)(4)(A) must
be filed within the following time periods to toll the time to appeal from a
final judgment:
·
Motion for judgment as
a matter of law must be filed “[n]o later than 28 days after the entry of
judgment—or if the motion addresses a jury issue not decided by a verdict, no
later than 28 days after the jury was discharged … .” Fed.
R. Civ. P. 50(b).
·
Motion to amend or
make additional findings of fact must be “filed no later than 28 days after the
entry of judgment … .” Fed. R. Civ. P.
52(b).
·
Motion for attorney’s
fees under Fed.
R. Civ. P. 54 “must be filed no later than 14 days after the entry of
judgment” unless otherwise provided by statute or court order. Fed.
R. Civ. P. 54(d)(2)(B). If before
a notice of appeal has been filed and become effective, the district court so
orders, the motion tolls the time for appeal.
See Fed.
R. Civ. P. 58; Fed.
R. App. P. 4(a)(4)(A)(iii).
·
Motion to alter or
amend judgment “must be filed no later than 28 days after the entry of the
judgment.” Fed. R. Civ. P. 59(e).
·
Motion for new trial
“must be filed no later than 28 days after the entry of the judgment.” Fed.
R. Civ. P. 59(b).
·
Motion for relief from
judgment may be timely if filed more than 28 days after entry of judgment, see
Fed. R. Civ.
P. 60(b), but it tolls the time for appeal only if “filed no later than
28 days after the judgment is entered.” Fed. R. App. P.
4(a)(4)(A)(vi).
·
Motion to correct
clerical mistake, under Rule 60(a) only if “filed no later than 28 days after
the judgment is entered.” See Fed. R. App. P.
4(a)(4)(A)(vi); Catz
v. Chalker, 566 F.3d 839, 841 (9th Cir. 2009) (order) (applying
former version of rule providing for 10-day time period).
In calculating the time to file a tolling motion under
Fed. R. Civ.
P. 50, 52, or 59, or 60, when the period is stated in days or a longer
unit of time, exclude the day of the event that triggers the period, and count
every day, including intermediate Saturdays, Sundays, and legal holidays. See Fed.
R. Civ. P. 6(a)(1).
The time period for filing a post-judgment motion
begins to run upon entry of a separate judgment in compliance with Rule
58. See Carter v. Beverly Hills Sav. &
Loan Ass’n,
884 F.2d 1186, 1189 (9th Cir. 1989) (Rule 60(b) motion); Bonin v.
Calderon, 59 F.3d 815, 847 (9th Cir. 1995).
However, in determining whether to classify a motion
as pre-judgment or post-judgment, the court looks to the date of the district
court’s dispositive order, even if it is not set forth on a separate document
in accordance with Fed.
R. Civ. P. 58. See Bonin, 59 F.3d at 847
(“Although entry of judgment on a separate document pursuant to Rule 58
triggers the running of the time limit for filing a notice of appeal and for
filing postjudgment motions, the district court’s order mark[s] the appropriate
threshold between prejudgment and postjudgment motions.”).
Thus, a motion filed after a dispositive order is
properly treated as a motion for relief from judgment under Fed. R. Civ. P. 60,
not as a motion to amend pleadings under Fed.
R. Civ. P. 15, even though judgment was not entered on a separate
document. See Bonin, 59 F.3d at 847.
(noting that because motion was properly treated as a Rule 60(b) motion, it was
subject to the cause and prejudice standard).
Cross-reference: III.B (regarding the
requirements for entering judgment under Fed.
R. Civ. P. 58).
A timely appeal from an untimely tolling motion brings
up for review only the post-judgment motion, not the underlying judgment. See Mt.
Graham Red Squirrel v. Madigan,
954 F.2d 1441, 1462–63 (9th Cir. 1992); Fiester
v. Turner, 783 F.2d 1474, 1476 (9th Cir. 1986) (order).
Under the Federal Rules of Civil Procedure, a motion
must be in writing “unless made during a hearing or trial.” Fed.
R. Civ. P. 7(b); Atchison,
Topeka & Santa Fe Ry. Co. v. Cal. State Bd. of Equalization, 102 F.3d
425, 427 (9th Cir. 1996) (oral comments at status conference did not
constitute motion because, unlike a trial or hearing, status conference was not
recorded).
In determining whether a post-judgment motion is a
tolling motion, “nomenclature is not controlling.” Munden
v. Ultra-Alaska Assocs., 849 F.2d 383, 386 (9th Cir. 1988) (citation
omitted); see also Havensight Capital LLC v. Nike, Inc., 891 F.3d 1167, 1172 (9th Cir. 2018) (“The title of
the pleading does not control this determination”); United States ex rel.
Hoggett v. Univ. of Phoenix, 863 F.3d 1105, 1108 (9th Cir. 2017). Rather, the court of appeals looks to the
substance of the requested relief to see whether it could have been granted
pursuant to one of the enumerated tolling motions. See Havensight Capital, 891 F.3d at
1172; Munden, 849 F.2d at 386.
However, the court does not “strain to characterize artificially” a
motion “merely to keep the appeal alive.” Munden, 849 F.2d at 386; see
also Hogget, 863 F.3d at 1108–09 (explaining the court will “not
strain to characterize artificially a motion as something it is not, simply to
keep an appeal alive”).
The following motions may be treated as tolling
motions even if they do not refer to Fed.
R. Civ. P. 59:
·
Motion to vacate
order of dismissal or summary judgment. See
Hamid v.
Price Waterhouse,
51 F.3d 1411, 1415 (9th Cir. 1995) (dismissal order); Mir v. Fosburg,
646 F.2d 342, 344 (9th Cir. 1980) (same); Tripati v. Henman, 845 F.2d
205, 206 & n.1 (9th Cir. 1988) (per curiam) (summary judgment
order).
·
Motion to
reconsider order of dismissal or summary judgment. See Havensight
Capital LLC v. Nike, Inc.,
891 F.3d 1167, 1172 (9th Cir. 2018) (although styled as a motion to vacate the
judgment and re-open the case, the motion sought reconsideration of the
decision on the merits); Shapiro v. Paradise Valley Unified Sch. Dist. No.
69, 374 F.3d 857 (9th Cir. 2004) (motion brought under local rule); Schroeder v.
McDonald, 55 F.3d 454, 459 (9th Cir. 1995) (same); Bestran Corp.
v. Eagle Comtronics, Inc., 720 F.2d 1019, 1019 (9th Cir. 1983)
(same); Hoffman
v. Gen. Motors Acceptance Corp., 814 F.2d 1385, 1387 (9th Cir. 1987)
(per curiam).
A motion for clarification that does not seek a
substantive change in the judgment generally will be treated as a Fed. R. Civ. P. 60
motion because it implicates the district court’s power to correct clerical
errors. See Hasbrouck v. Texaco, Inc., 879 F.2d 632,
635–36 (9th Cir. 1989) (“A court’s failure to memorialize part of its
decision is a clerical error.” (citation omitted)). See also Catz
v. Chalker,
566 F.3d 839, 841 (9th Cir. 2009) (order) (motion to correct a clerical
mistake pursuant to Fed. R. Civ. P. 60(a) tolls the time for filing notice of
appeal).
A motion for attorney’s fees generally will not be
treated like a Fed.
R. Civ. P. 59(e) motion because it “raises legal issues collateral to
the main cause of action.” White v. N.H.
Dep’t of Employment Sec., 455 U.S. 445, 451–52 (1982) (“[T]he
federal courts generally have invoked Rule 59(e) only to support
reconsideration of matters properly encompassed in a decision on the merits.”)
(citation omitted); United
States ex rel. Familian Northwest., Inc. v. RG & B Contractors, Inc.,
21 F.3d 952, 955 (9th Cir. 1994).
However, a post-judgment motion for attorney’s fees
may toll the time for appeal if it is filed within 14 days of entry of judgment
and the district court extends the time to appeal under Fed. R. Civ. P. 58. See Fed.
R. Civ. P. 54(d)(2)(B); Fed.
R. App. P. 4(a)(4)(A)(iii); see also Stephanie-Cardona
LLC v. Smith’s Food and Drug Ctrs.,
476 F.3d 701, 705 (9th Cir. 2007).
A post-judgment motion for costs generally will not be
treated as a Rule
59(e) motion because it “raises issues wholly collateral to the
judgment.” Buchanan v. Stanships, Inc.,
485 U.S. 265, 267–69 (1988) (per curiam) (motion for costs under Fed. R.
Civ. P. 54(d) did not constitute Rule 59(e) motion); Durham v. Kelly, 810 F.2d 1500,
1503 (9th Cir. 1987) (concluding that motion to reallocate costs seeking
only clerical changes did not constitute Rule 59(e) motion).
However, a post-judgment motion relating to costs may
be treated as a Rule
59(e) motion if it raises a substantive challenge to the appropriateness
of awarding costs. See Whittaker v.
Whittaker Corp.,
639 F.2d 516, 520–21 (9th Cir. 1981) (stating that motion to award costs
against a different party, to delete a previous award of costs, or to add a new
award of costs may be considered under Rule 59(e)), abrogated on other grounds by Credit
Suisse Securities (USA) LLC v. Simmonds, 566 U.S. 221 (2012). Additionally, revising a judgment to include
mandatory prejudgment interest is not a correction of clerical error subject to
no time limit, but rather is an alteration of the judgment, which the party
must move for no later than ten days after judgment. See McCalla
v. Royal MacCabees Life Ins. Co.,
369 F.3d 1128, 1131–32 (9th Cir. 2004).
For example, the following motions related to costs
may be construed as Fed.
R. Civ. P. 59(e) tolling motions:
·
Motion for costs
provided “as an aspect of the underlying action.” Buchanan,
485 U.S. at 268 (dicta).
·
Motion to retax
costs on the grounds that defendant rather than plaintiffs should be deemed
prevailing party. See Whittaker, 639 F.2d at
520–21.
·
Motion to adjust
costs on the grounds that post-offer interest should be considered in
determining whether offer of judgment exceeded actual recovery. See Munden
v. Ultra-Alaska Assocs.,
849 F.2d 383, 387 (9th Cir. 1988).
A post-judgment motion for discretionary prejudgment
interest generally constitutes a Rule
59 motion because, unlike costs and attorney’s fees, prejudgment
interest is generally considered a part of plaintiff’s compensation on the
merits, and a motion for discretionary prejudgment interest does not raise
issues collateral to the judgment. See
Osterneck v.
Ernst & Whinney,
489 U.S. 169, 175 (1989); see also McCalla
v. Royal MacCabees Life Ins. Co.,
369 F.3d 1128, 1130 (9th Cir. 2004) (not limiting Osterneck to
post-judgment motions for discretionary interest).
As long as a tolling motion is timely filed, it
generally tolls the time for appeal even though it lacks merit because it fails
to include new grounds for granting the motion.
See Clipper
Exxpress v. Rocky Mountain Motor Tariff Bureau, Inc., 690 F.2d 1240,
1249–50 (9th Cir. 1982) (concluding that Rule 59 motion to amend
judgment tolled time for appeal even though it “simply rehashe[d] arguments
heard at trial”); Sierra
On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1419 (9th Cir.
1984).
Similarly, a motion tolls the time for appeal even
though it is procedurally defective. See
Cabrales v.
Cty. of Los Angeles,
864 F.2d 1454, 1459 & n.1 (9th Cir. 1988), vacated on other
grounds by 490
U.S. 1087 (1989), reinstated by 886
F.2d 235 (9th Cir. 1989) (stating that Rule 50 motion for judgment as a
matter of law tolled time for appeal even though appellant’s failure to file a
prior motion for directed verdict rendered the Rule 50 motion procedurally
defective).
Moreover, a motion that complies with specificity
requirements of Fed.
R. Civ. P. 7(b) tolls time for appeal even if supporting documents are
filed outside the 10-day time period. See
Clipper
Exxpress,
690 F.2d at 1248–49 & n.10 (concluding that, because Rule 59 motion
was complete without later filed affidavits, there was no need to decide
whether failure to file necessary affidavits at time of motion as required by Fed. R. Civ. P.
6(d) would defeat timeliness).
Under the Federal Rules of Civil Procedure, “any order
from which an appeal lies” qualifies as a judgment. Fed.
R. Civ. P. 54(a). Thus, the time
to appeal any decision, whether interlocutory, final or post-judgment, may be
tolled under Fed.
R. App. P. 4(a)(4) by the timely filing of one of the enumerated
motions. Cf. Balla v. Idaho State Bd. of Corrs., 869 F.2d 461,
466–67 (9th Cir. 1989).
For example, a timely filed motion that could have
been brought under Rule 59 tolls the time to appeal from a preliminary
injunction. See S.O.C., Inc. v.
Cty. of Clark,
152 F.3d 1136, 1141 n.4 (9th Cir. 1998), amended by 160 F.3d 541 (9th
Cir. 1998); United
States v. Nutri-cology, Inc., 982 F.2d 394, 396–97 (9th Cir. 1992). Such a motion also tolls the time to appeal
from a partial summary judgment certified under Rule
54(b). See Stephenson v.
Calpine Conifers II, Ltd.,
652 F.2d 808, 811 (9th Cir. 1981), overruled on other grounds by Puchall v.
Houghton, Cluck, Coughlin, & Riley (In re Washington Pub. Power Supply Sys.
Sec. Litig.),
823 F.2d 1349, 1351 (9th Cir. 1987) (en banc).
A post-judgment motion not specifically enumerated in Fed. R. App. P.
4(a)(4) does not toll the time period for appeal. See Fed.
R. App. P. 4(a)(4)(A). Therefore,
the final judgment and the order disposing of the post-judgment non-tolling
motion must be separately appealed. See
Stone v. INS, 514 U.S. 386,
403 (1995) (“[M]otions that do not toll the time for taking an appeal
give rise to two separate appellate proceedings that can be consolidated.”); T.B. ex rel.
Brenneise v. San Diego Unified Sch. Dist., 806 F.3d 451, 466 n.2 (9th Cir.
2015) (as amended) (quoting Stone); TAAG Linhas Aereas de Angola v.
Transamerica Airlines, Inc., 915 F.2d 1351, 1354 (9th Cir. 1990).
If a notice of appeal from a final judgment is filed
before disposition of a post-judgment non-tolling motion, the district court
retains jurisdiction to decide the motion, and the court of appeals retains
jurisdiction to review the judgment. See
Stone, 514 U.S. at 401.
If the district court grants a post-judgment motion to
amend judgment, a subsequent timely post-judgment tolling motion further tolls
the time for appeal. See Munden v.
Ultra-Alaska Assocs.,
849 F.2d 383, 386 (9th Cir. 1988).
However, if the district court does not substantively alter its judgment
in response to the first motion, a successive motion will not toll the time for
appeal. See Wages v. IRS, 915 F.2d 1230,
1234 n.3 (9th Cir. 1990).
Cross-reference: III.F.2 (regarding the effect
and requirements of tolling motions generally).
“To secure appellate review of a judgment or order, a
party must file a notice of appeal from that judgment or order. Filing a notice of appeal transfers
adjudicatory authority from the district court to the court of appeals.” Manrique v. United States, 137 S. Ct.
1266, 1271 (2017). A notice of appeal
must specify the parties appealing, the order or judgment being appealed, and
the court to which appeal is taken. See
Fed. R. App.
P. 3(c); Smith
v. Barry, 502 U.S. 244, 247–48 (1992). However, “[a]n appeal must not be dismissed
for informality of form or title of the notice of appeal, or for failure to
name a party whose intent to appeal is otherwise clear from the notice.” Fed.
R. App. P. 3(c)(4). See also
Smith, 502 U.S. at 248 (explaining that Rule 3 should be construed
liberally when determining whether it has been complied with); West v.
United States, 853 F.3d 520, 523 (9th Cir. 2017) (same). Although courts should liberally construe the
requirements of Fed.
R. App. P. 3 in determining compliance, noncompliance precludes
jurisdiction. See Smith, 502 U.S. at 248;
United
States ex rel. Alexander Volkhoff, LLC v. Janssen Pharmaceutica N.V., 945
F.3d 1237, 1243 (9th Cir. 2020); Le v. Astrue, 558 F.3d 1019, 1022 (9th
Cir. 2009) (explaining that Rule 3 should be construed liberally, but
that noncompliance with Rule 3 is fatal to an appeal).
A document that does not technically comply with Fed. R. App. P. 3
may nevertheless be effective as a notice of appeal if it is “the functional
equivalent of what the rule requires.” Torres v.
Oakland Scavenger Co., 487 U.S. 312, 317 (1988) (superseded by
rule); see also West v. United States, 853 F.3d 520, 523 (9th Cir.
2017); Le
v. Astrue, 558 F.3d 1019, 1022 (9th Cir. 2009).
A document not denominated a notice of appeal will be
treated as such if it: (1) indicates an intent to appeal, (2) is served on other
parties, and (3) is filed within the time specified by Fed. R. App. P. 4. See Rabin
v. Cohen,
570 F.2d 864, 866 (9th Cir. 1978).
See also Smith v. Barry, 502 U.S. 244, 248 (1992) (explaining
that Rule 3 should be construed liberally when determining whether it has been
complied with); West, 853 F.3d at 523 (same).
The purpose of these requirements is to provide
sufficient notice to the other parties and the court. See Smith, 502 U.S. at 248–49 (“If a
document filed within the time specified by Rule 4 gives the notice required by
Rule 3, it is effective as a notice of appeal.”); see also Estrada v.
Scribner,
512 F.3d 1227, 1236 (9th Cir. 2008) (pro se prisoner’s motion for
appellate counsel satisfied requirements for notice of appeal where the motion
identified the party seeking to take the appeal, and referenced the judgment
that he sought to appeal and the district court’s issuance of a certificate of
appealability).
Note that Fed.
R. App. 3(c)(4) makes clear that “[a]n appeal must not be dismissed for
informality of form or title of the notice of appeal, or for failure to name a
party whose intent to appeal is otherwise clear from the notice.”
“In determining whether a document will be construed
as a notice of appeal, th[e] court uses a more lenient standard when the
appellant is not represented by counsel.”
Allah
v. Superior Court, 871 F.2d 887, 889 (9th Cir. 1989) (holding that
appellate brief constituted notice of appeal), superseded by rule as stated in Harmston v. City & Cty. of S.F., 627
F.3d 1273, 1279–80 (9th Cir. 2010); see also Estrada v. Scribner, 512 F.3d 1227,
1236 (9th Cir. 2008) (holding that pro se prisoner’s motion for appointment
of appellate counsel satisfied the requirements of a notice of appeal); Taylor v. Knapp,
871 F.2d 803, 805 n.1 (9th Cir. 1989) (holding that motion to proceed in
forma pauperis constituted notice of appeal).
“[T]he more lenient standard does not apply to cases
in which a party is represented by an attorney, absent extraordinary
circumstances.” Hollywood v. City of Santa Maria,
886 F.2d 1228, 1232 (9th Cir. 1989) (holding that motion for stay
pending appeal did not constitute notice of appeal). Accordingly, the more lenient standard has
been applied only where appellant is not represented by counsel, life or
liberty is at stake, or “the interests of substantive justice require it.” Munden
v. Ultra-Alaska Assocs., 849 F.2d 383, 388 (9th Cir. 1988) (citation
omitted) (holding that civil appeal docketing statement did not constitute
notice of appeal). But see Intel Corp. v.
Terabyte Int’l, Inc.,
6 F.3d 614, 618 (9th Cir. 1993) (appellate brief served as notice of
appeal); Noa
v. Key Futures, Inc., 638 F.2d 77, 78–79 (9th Cir. 1980) (per
curiam) (stipulation to enter judgment under Rule 54(b) served as notice of
appeal); Rabin
v. Cohen, 570 F.2d 864, 866 (9th Cir. 1978) (stipulation and motion
requesting transfer of prior record and briefs on appeal to new appeal served
as notice of cross-appeal).
·
Appellate brief. See Smith v. Barry, 502 U.S. 244,
249–50 (1992) (pro se appellant); Intel
Corp. v. Terabyte Int’l, Inc., 6 F.3d 614, 618 (9th Cir. 1993)
(counseled appellant); Allah
v. Superior Court,
871 F.2d 887, 889–90 (9th Cir. 1989) (pro se appellant), superseded by rule as stated in Harmston v. City
& Cty. of S.F.,
627 F.3d 1273, 1279–80 (9th Cir. 2010).
·
Motion to proceed in forma pauperis. See Taylor
v. Knapp,
871 F.2d 803, 805 n.1 (9th Cir. 1988) (pro se appellant); Wilborn v.
Escalderon,
789 F.2d 1328, 1330 (9th Cir. 1986) (pro se appellant).
·
Stipulation to enter judgment under Fed. R. Civ. P. 54(b) following
dismissal of appeal on grounds that judgment ran against fewer than all
parties. See Noa v. Key Futures, Inc., 638 F.2d 77,
78–79 (9th Cir. 1980) (per curiam).
·
Stipulation and motion requesting transfer of prior record and
briefs on appeal to new appeal. See Rabin v. Cohen, 570 F.2d 864,
866 (9th Cir. 1978) (permitting documents to serve as notice of
cross-appeal after initial appeal and cross-appeal dismissed because judgment
not properly entered).
·
Motion for permission to appeal preliminary injunction. See San
Diego Comm. Against Registration & the Draft (CARD) v. Governing Bd., 790 F.2d 1471,
1474 & n.4 (9th Cir. 1986) (noting appeal as of right from
preliminary injunction under 1292(a)(1)), abrogation on other grounds
recognized by Planned
Parenthood of S. Nev., Inc. v. Clark Cty. Sch. Dist., 887 F.2d 935
(9th Cir. 1989).
·
“Petition for Leave to Appeal” from final judgment. See Portland
Fed. Employees Credit Union v. Cumis Ins. Soc., Inc., 894 F.2d 1101,
1103 (9th Cir. 1990) (per curiam).
·
Motion to intervene in appeal.
See Gomez
v. Gates (In re Boeh),
25 F.3d 761, 762 n.1 (9th Cir. 1994).
·
Pro se letter. See Brannan v. United
States,
993 F.2d 709, 710 (9th Cir. 1993).
See also United States v. Withers, 638 F.3d 1055,
1061 (9th Cir. 2011) (holding the court “must construe a pro se appellant’s
notice of appeal as a motion to reopen the time for filing an appeal when he
alleges that he did not receive timely notice of the entry of the order or
judgment from which he seeks to appeal”).
·
Document filed via facsimile.
See United
States v. Clay,
925 F.2d 299, 301 (9th Cir. 1991), disapproved on other grounds by
Gozlon-Peretz
v. United States, 498 U.S. 395 (1991).
·
Certificate of probable cause in counseled habeas case. See Ortberg
v. Moody,
961 F.2d 135, 137 (9th Cir. 1992).
·
Motion for appointment of appellate counsel. See Estrada
v. Scribner,
512 F.3d 1227, 1236 (9th Cir. 2008) (pro se prisoner). See
also Burnside
v. Jacquez,
731 F.3d 874, 876 (9th Cir. 2013) (order) (construing letter and motion
for appointment of counsel as a notice of appeal from final judgment).
·
Petition for writ of mandamus in case where it is not unreasonable
for petitioner to believe order is reviewable only by mandamus, not by direct
appeal. See Compania Mexicana de Aviacion, S.A. v.
United States Dist. Court,
859 F.2d 1354, 1357–58 (9th Cir. 1988) (construing petition as notice of
appeal where “no prior authority exists in this circuit for a direct appeal
from a denial of foreign sovereign immunity … [and] the time for notice of an
interlocutory appeal has expired”); Clorox
Co. v. United States Dist. Court, 779 F.2d 517, 520 (9th Cir. 1985)
(construing petition as notice of appeal to prevent manifest injustice where
appeal authorized by arguably unforeseeable change in circuit law that occurred
after time for direct appeal had elapsed).
The following documents have been found ineffective as
a notice of appeal:
·
Motion for stay
pending appeal filed by counseled appellant following denial of motion for new
trial. See Hollywood v. City of Santa Maria, 886 F.2d 1228,
1232 (9th Cir. 1989).
·
Document
containing petition for rehearing and motion for injunction pending appeal
filed by counseled party. See Cel-A-Pak v. Cal.
Agric. Labor Relations Bd.,
680 F.2d 664, 666–67 (9th Cir. 1982) (per curiam).
·
Letter to
bankruptcy court requesting transcripts.
See Miyao
v. Kuntz (In re Sweet Transfer & Storage, Inc.), 896 F.2d 1189,
1193 (9th Cir. 1990), superseded by rule as stated in Arrowhead Estates
Development v. Jarrett (In re Arrowhead Estates Development Co.), 42 F.3d 1306
(9th Cir. 1994).
·
Petition for writ
of mandamus in case where it was not reasonable for petitioner to believe order
is reviewable only by mandamus, not by direct appeal. See Helstoski
v. Meanor,
442 U.S. 500, 508 (1979). But
see IV.B.3 (regarding instances where it was considered reasonable to
believe an order was reviewable only by mandamus).
The notice of appeal must “specify the party or
parties taking the appeal by naming each one in the caption or body of the
notice, but an attorney representing more than one party may describe those
parties with such terms as ‘all plaintiffs,’ ‘the defendants,’ ‘the plaintiffs
A, B, et al.,’ or ‘all defendants except X’.”
Fed.
R. App. P. 3(c)(1)(A). However,
“[a]n appeal must not be dismissed for informality of form or title of the
notice of appeal, or for failure to name a party whose intent to appeal is
otherwise clear from the notice.” Fed. R. App. P.
3(c)(4).
“In a class action, whether or not the class has been
certified, the notice of appeal is sufficient if it names one person qualified
to bring the appeal as representative of the class.” Fed.
R. App. P. 3(c)(3).
“A pro se notice of appeal is considered filed on
behalf of the signer and the signer’s spouse and minor children (if they are
parties), unless the notice clearly indicates otherwise.” Fed.
R. App. P. 3(c)(2).
Prior to the amendment to Fed. R. App. P. 3 in 1993, a
notice of appeal that named certain appellants but not others, and did not
include a generic term adequately identifying the unnamed parties, was
ineffective to confer jurisdiction over the unnamed parties. See, e.g., Torres v. Oakland Scavenger Co.,
487 U.S. 312, 317–48 (1988) (superseded by rule) (Notice of appeal
naming one party “et al.” in caption, but naming only 15 of 16 plaintiffs in
body ineffective as to sixteenth plaintiff); Argabright
v. United States, 35 F.3d 472, 474 (9th Cir. 1994) (Notice of appeal
naming two plaintiffs in caption and body, but not designating remaining
plaintiffs at all, ineffective as to unnamed plaintiffs even though district
court’s order dismissing complaint referred only to the two named plaintiffs.),
superseded by statute on other grounds as stated in Miller v. C.I.R., 310 F.3d 640
(9th Cir. 2002); Sauceda
v. Dep’t of Labor, 917 F.2d 1216, 1218 (9th Cir. 1990) (superseded
by rule) (Notice of appeal listing only 5 of 6 plaintiffs in caption and
referring to “plaintiffs” in body, ineffective as to sixth plaintiff.); Farley Transp.
Co. v. Santa Fe Trail Transp. Co., 778 F.2d 1365, 1368–69 (9th Cir. 1985)
(Notice of appeal naming only one of several related corporate plaintiffs
ineffective as to unnamed corporations.);
Cook & Sons Equip., Inc. v. Killen, 277 F.2d 607, 609 (9th Cir.
1960) (Notice of appeal naming corporate defendant but not two
individual defendants ineffective as to individual defendants.). Compare Hale
v. Arizona,
993 F.2d 1387, 1390–91 (9th Cir. 1992) (on rehearing) (finding notice of appeal
referring to “plaintiff consolidated in the captioned cause” effective as to
all plaintiffs); Cammack v. Waihee, 932 F.2d 765, 768–69 (9th Cir. 1991)
(notice sufficient to indicate that all plaintiffs were seeking to appeal); Benally v.
Hodel, 940 F.2d 1194, 1197 (9th Cir. 1991) (Notice of appeal naming
one plaintiff “et al.” in caption and body fairly indicated all plaintiffs
intended to appeal.); Gilbreath
v. Cutter Biological Inc., 931 F.2d 1320, 1323 (9th Cir. 1991)
(Notice of appeal in consolidated action referring to “plaintiffs, as
consolidated into this cause” fairly indicated all plaintiffs intended to
appeal.); Nat’l Ctr. for Immigrants’ Rights, Inc. v. INS, 892 F.2d 814,
816 (9th Cir. 1989) (per curiam) (Notice of appeal naming one defendant
“et al.” in caption and referring to “defendants” in body fairly indicated all
defendants intended to appeal.).
“The notice of appeal … must designate the judgment,
order, or part thereof being appealed.” Fed. R. App. P.
3(c)(1)(B); see also Smith
v. Nat’l Steel & Shipbuilding Co.,
125 F.3d 751, 753 (9th Cir. 1997).
“[A] mistake in designating the judgment appealed from should not result
in loss of the appeal as long as the intent to appeal from a specific judgment
can be fairly inferred from the notice and the appellee is not misled by the
mistake.” El-Shaddai v. Zamora,
833 F.3d 1036, 1041 n.1 (9th Cir. 2016).
See also Orr v. Plumb, 884 F.3d 923, 932 (9th Cir. 2018)
(where notice of appeal indicated that Plumb was appealing only of the denial
of JMOL motion, the court deemed forfeited late raised challenges to jury
instructions and contention that he was denied a fair trial); Cadkin v.
Loose, 569 F.3d 1142, 1147 (9th Cir. 2009); Le v. Astrue, 558 F.3d
1019, 1023 (9th Cir. 2009); Ahlmeyer v. Nevada System of Higher Educ.,
555 F.3d 1051, 1055 (9th Cir. 2009); United States v. One 1977 Mercedes Benz,
708 F.2d 444, 451 (9th Cir. 1983).
Although “[a] notice of appeal must ‘designate the
judgment, order, or part thereof being appealed.’ Fed. R. App. P. 3(c)(1)(B)[,]
‘an order fixing costs in the district court, while an appeal was pending,
should be considered an inseparable part of the pending appeal’ and need not be
separately appealed. California Union Ins. Co. v. Am. Diversified
Sav. Bank, 948 F.2d 556, 567 (9th Cir. 1991) (internal quotation marks
omitted).” Draper
v. Rosario, 836 F.3d 1072, 1086 (9th Cir. 2016) (concluding that
where notice of appeal from final judgment was filed prior to district court
order taxing costs, and no separate appeal from the cost award was filed, the
notice of appeal incorporated the district court’s cost award).
·
Appeal from “that part
of the judgment” awarding one defendant attorney’s fees and costs provided
sufficient notice of intent to appeal underlying judgment as to that defendant
where fee award was based on provision in contract at issue in the liability
determination. See Pope v. Savs. Bank
of Puget Sound,
850 F.2d 1345, 1347–48 (9th Cir. 1988).
·
Notice of appeal
naming both defendants, but only citing judgment in favor of one defendant,
provided adequate notice of intent to appeal both judgments where other
defendant was served with appellate brief challenging both judgments. See Lynn
v. Sheet Metal Workers’ Int’l Ass’n,
804 F.2d 1472, 1481 (9th Cir. 1986). See also One Indus., LLC v. Jim O’Neal Distrib., Inc.,
578 F.3d 1154, 1159 (9th Cir. 2009) (appellants intent to appeal otherwise
unnamed order clear from briefs and appellees suffered not prejudice).
·
Notice of appeal that
failed to specify order being appealed was effective to appeal that order where
entire appellate brief was devoted to challenging that order. See United States v. $84,740.00 Currency, 981 F.2d 1110,
1112 (9th Cir. 1992) (noting that appellant specifically reserved the
right to appeal the subject order in a stipulated judgment).
·
Notice of appeal from “summary
judgment” effective to appeal order granting motion on the pleadings entered on
the specified date. See Smith v. Nat’l
Steel & Shipbuilding Co.,
125 F.3d 751, 753–54 (9th Cir. 1997).
·
Notice of appeal
effective to appeal judgment awarding attorney fees even though not explicitly
listed on line specifying order being appealed, where notice of appeal referred
to the attorney’s fees, and notification form filed concurrently with notice of
appeal identified two items. See Cadkin v. Loose, 569 F.3d 1142,
1147 (9th Cir. 2009).
·
Claimant’s mistake in
appealing from denial of motion for summary judgment, rather than from the
grant of Commissioner’s motion for summary judgment did not prevent appellate
court from exercising jurisdiction over both dispositions. See Le
v. Astrue,
558 F.3d 1019, 1023 (9th Cir. 2009).
·
Notice of appeal that
failed to expressly reference order dismissing claims in ADEA action did not
bar appeal where the issue presented to the court was stated precisely in the
notice of appeal, and there was no prejudice.
See Ahlmeyer
v. Nevada System of Higher Educ.,
555 F.3d 1051, 1055 (9th Cir. 2009).
A notice of appeal from partial summary judgment for
plaintiffs on the issue of qualified immunity also served as a notice of appeal
from denial of summary judgment to defendant on the same issue where the
cross-motions were disposed of in the same order but the notice of appeal
designated only the portion of the order granting partial summary
judgment. See Duran v. City of Douglas, 904 F.2d 1372,
1375 n.1 (9th Cir. 1997); see also Le
v. Astrue,
558 F.3d 1019, 1023 (9th Cir. 2009) (claimant’s mistake in appealing
from denial of motion for summary judgment, rather than from the grant of
Commissioner’s motion for summary judgment did not prevent appellate court from
exercising jurisdiction over both dispositions).
·
Notice of appeal from
summary judgment adequately raised challenge to dismissal of third party
complaint where third parties served with appellate brief addressing
issue. See United States v. One 1977 Mercedes
Benz,
708 F.2d 444, 451 (9th Cir. 1983) (noting that appellant had reason to
believe she had properly appealed the dismissal as well as the summary judgment
in light of the merger doctrine).
·
Notice of appeal from
final judgment awarding damages also conferred jurisdiction over previous
judgment as to liability because liability judgment merged into final
judgment. See Sheet Metal Workers’ Int’l Ass’n v.
Madison Indus., Inc.,
84 F.3d 1186, 1193 (9th Cir. 1994) (noting that initial appeal from
non-final judgment did not divest district court of jurisdiction to award
damages).
·
Notice of appeal from
summary judgment as to one claim conferred jurisdiction over previous dismissal
of other claims because dismissal order merged into final judgment. See Litchfield
v. Spielberg,
736 F.2d 1352, 1355 (9th Cir. 1984); see also Yamamoto v. Bank of New York, 329 F.3d 1167,
1169 n.2 (9th Cir. 2003); Lovell
v. Chandler,
303 F.3d 1039, 1049 (9th Cir. 2002).
·
Notice of appeal from
final judgment dismissing the action encompassed prior order dismissing the
complaint because prior order was not final.
See Montes
v. United States,
37 F.3d 1347, 1351 (9th Cir. 1994).
·
Notice of appeal from
order dismissing action encompassed previous order denying appellant’s motion
to remand where appellees were aware of intent to appeal denial of remand and
fully briefed the issue. See Kruso v. Int’l
Tel. & Tel. Corp.,
872 F.2d 1416, 1422–23 (9th Cir. 1989).
·
Notice of appeal from
final judgment also served as notice of appeal from denial of motion for leave
to amend complaint where issue included in opening brief on appeal. See Levald,
Inc. v. City of Palm Desert,
998 F.2d 680, 691 (9th Cir. 1993).
·
Notice of appeal from
dismissal order also encompassed earlier dismissal order because “[a]n appeal
from a final judgment draws in question all earlier, non-final orders and
rulings which produced the judgment.” See
Disabled
Rights Action Comm. v. Las Vegas Events, Inc., 375 F.3d 861, 872 n.7 (9th Cir.
2004).
·
Notice of appeal from
final order granting summary judgment “implicitly brought all of the district
court’s subordinate orders within jurisdiction” of the court, giving the court
jurisdiction to review earlier denial of motion to amend complaint. See Hall v. City of
Los Angeles,
697 F.3d 1059, 1070–71 (9th Cir. 2012).
“As long as the opposing party cannot show prejudice,
courts of appeal may treat an appeal from a postjudgment order as an appeal
from the final judgment.” Washington
State Health Facilities, Ass’n v. Washington Dep’t of Social & Health
Servs., 879 F.2d 677, 681 (9th Cir. 1989) (internal quotation marks
and citation omitted) (both parties fully briefed the issues on appeal). Note that these decisions predate the current
version of Fed.
R. App. P. 4(a)(4)(B) which holds a notice of appeal from final judgment
in abeyance until district court disposes of tolling motion (see
III.F.2):
·
Notice of appeal
from denial of Rule 59 motion served as notice of appeal from underlying
judgment where previous appeal from judgment dismissed as premature due to
pendency of Rule 59 motion. See Medrano v. City of
Los Angeles,
973 F.2d 1499, 1503 (9th Cir. 1992).
·
Notice of appeal
from denial of Rule 60(b) motion extended to underlying judgment where district
court incorporated underlying judgment in Rule 60(b) order, appellant’s opening
brief addressed the propriety of the underlying judgment, and defendants fully
briefed the issue. See McCarthy v. Mayo, 827 F.2d 1310,
1314 (9th Cir. 1987).
A second notice of appeal challenging a particular
issue may indicate lack of intent to appeal that issue in a previous notice of
appeal. See Hasbro Indus., Inc. v. Constantine, 705 F.2d 339,
343 (9th Cir. 1983) (per curiam) (finding, without discussing contents
of first notice of appeal, that issue challenged in second untimely notice of
appeal was not subject to review because not within scope of previous timely
notice of appeal).
A notice of appeal must be signed by the appealing
party or the party’s attorney. See McKinney v. de
Bord,
507 F.2d 501, 503 (9th Cir. 1974).
“A pro se notice of appeal is considered filed on behalf of the signer
and the signer’s spouse and minor children (if they are parties), unless the
notice clearly indicates otherwise.” Fed. R. App. P.
3(c)(2); see also Price
v. United States Navy,
39 F.3d 1011, 1015 (9th Cir. 1994) (holding that notice of appeal signed
by sole appellant’s husband, explicitly on her behalf, was effective as to
appellant because she immediately corrected the notice and no apparent
confusion or prejudice resulted).
While the federal rules require a signature on a
notice of appeal, the failure to sign a timely notice of appeal does not
require the court of appeals to dismiss the appeal, as the lapse is curable and
not a jurisdictional impediment. Becker v.
Montgomery, 532 U.S. 757, 765 (2001).
A corporation’s notice of appeal, signed and filed by
a corporate officer, is not invalid because it was not signed and filed by
counsel. Bigelow
v. Brady (In re Bigelow), 179 F.3d 1164, 1165 (9th Cir. 1999); but
see D-Beam
Ltd. P’ship v. Roller Derby Skates, Inc., 366 F.3d 972, 974 (9th Cir. 2004)
(distinguishing Bigelow and concluding shareholder’s signature was
ineffective as to a limited liability partnership, where the shareholder failed
to sign the notice of appeal on behalf of the partnership, both the shareholder
and the partnership had potential claims on appeal, and the shareholder only
referred to “plaintiff” instead of “plaintiffs” in the notice of appeal”).
The court of appeals “possesses the inherent power to
allow a party to amend a notice of appeal even without a formal motion.” Pope
v. Savs. Bank of Puget Sound, 850 F.2d 1345, 1347 (9th Cir. 1988).
An appellant must file a notice of appeal or amend a
previously-filed notice of appeal to secure review of denial of a post-judgment
order. See Fed. R. App. P.
4(a)(4)(B)(ii). Where a party
fails to amend a notice of appeal to include denial of a post-judgment motion,
that order will not be considered on appeal.
See Harris v. Mangum, 863 F.3d 1133, 1138 n.1 (9th Cir. 2017)
(“Because Harris did not amend his notice of appeal to include the denial of
his motion for reconsideration, that order is not before us.”).
An appellant may amend a notice of appeal to clarify
the orders being appealed, though amendment generally is not necessary for this
purpose. See Pope v. Savs.
Bank of Puget Sound, 850 F.2d 1345, 1347 (9th Cir. 1988).
A notice of appeal cannot be amended to add parties as
appellants after the time period for appeal has expired. See Farley
Transp. Co. v. Santa Fe Trail Transp. Co., 778 F.2d 1365, 1368 (9th Cir. 1985). Moreover, a void notice of appeal cannot be
amended to become anything other than a void notice of appeal. See Trinidad
Corp. v. Maru,
781 F.2d 1360, 1362 (9th Cir. 1986) (per curiam) (treating “amended”
notice of appeal as new notice of appeal).
Generally, “a cross-appeal is required to support
modification of the judgment.” Ball v. Rodgers,
492 F.3d 1094, 1118 (9th Cir. 2007) (internal quotation marks and
citation omitted); Gilliam
v. Nevada Power Co., 488 F.3d 1189, 1192 n.3 (9th Cir. 2007); United States v.
Bajakajian, 84 F.3d 334, 338 (9th Cir. 1996), aff’d by 524 U.S. 321
(1998); Engleson
v. Burlington N. R.R. Co.,
972 F.2d 1038, 1041–42 (9th Cir. 1992) (citation omitted); see also Mahach-Watkins
v. Depee,
593 F.3d 1054, 1063 (9th Cir. 2010).
“Where standing—and thus federal court jurisdiction—is in question,
however, this rule does not apply.” Victory
Processing, LLC v. Fox, 937 F.3d 1218, 1225 n.5 (9th Cir. 2019).
The requirement of a notice of cross-appeal is a rule
of practice that can be waived at the court’s discretion, not a jurisdictional
prerequisite, once the court’s jurisdiction has been invoked by the filing of
the initial notice of appeal. Mendocino
Envtl. Ctr. v. Mendocino Cty., 192 F.3d 1283, 1298 (9th Cir. 1999). See also Lee
v. Burlington N. Santa Fe Ry. Co.,
245 F.3d 1102, 1107 (9th Cir. 2001) (“the cross-appeal
requirement is a rule of practice and not a jurisdictional bar, an appellate
court has broad power to make such dispositions as justice requires.” (citation
and quotation marks omitted)); Bryant v. Technical Research Co., 654 F.2d 1337, 1341 (9th Cir. 1981) (stating that once an initial appeal has been filed,
a “cross-appeal is only the proper procedure, not a jurisdictional prerequisite”
(internal quotation and citation omitted)).
Although “[o]rdinarily, a late notice of cross-appeal is not fatal
because the court’s jurisdiction over the cross-appeal derives from the initial
notice of appeal,” where the “notice of appeal ... itself [is] untimely, there
[is] no prior invocation of jurisdiction that [can] sustain the cross-appeal.” Stephanie-Cardona
LLC v. Smith’s Food & Drug Ctrs., Inc., 476 F.3d 701, 705 (9th Cir. 2007);
see also Mujica
v. AirScan, Inc.,
771 F.3d 580, 590 (9th Cir. 2014).
In deciding whether to allow a cross-appeal that has
not been properly noticed, the court considers factors such as the
interrelatedness of the issues on appeal and cross-appeal, whether a notice of
cross-appeal was merely late or not filed at all, whether the nature of the
district court opinion should have put the appellee on notice of the need to
file a cross-appeal, the extent of any prejudice to the appellant caused by the
absence of notice, and — in a case involving certification of an interlocutory
appeal — whether the scope of the issues that could be considered on appeal was
clear. Mendocino
Envtl. Ctr., 192 F.3d at 1299; see
also Mahach-Watkins, 593 F.3d at 1063
(where issues raised in challenging reduction of fee award were interrelated to
issues properly on appeal, court could consider them).
“[A]rguments that support the judgment as entered can
be made without a cross-appeal.” Engleson v.
Burlington N. R.R. Co., 972 F.2d 1038, 1041–42 (9th Cir. 1992) (citation
omitted). An argument in support is
permitted even if it presents alternative grounds for affirmance, see Rodrigues v.
Herman,
121 F.3d 1352, 1355 n.2 (9th Cir. 1997), or was explicitly rejected by
the district court, see United
States v. Hilger,
867 F.2d 566, 567 (9th Cir. 1989) (permitting defendant to argue
improper venue as alternative ground for affirming even though district court
rejected argument in granting motion to dismiss); Engleson, 972 F.2d at 1041–42
(permitting defendant to argue statute of limitations as alternative ground for
affirming summary judgment even though district court rejected argument in
denying motion to dismiss). See also Gilliam v. Nevada
Power Co.,
488 F.3d 1189, 1192 n.3 (9th Cir. 2007) (addressing argument even though
appellee failed to cross-appeal where appellee was not trying to enlarge its
rights, but rather only offered a slightly different ground to support
affirming the district court judgment); Rivero
v. City & Cty. of San Francisco,
316 F.3d 857, 862 (9th Cir. 2002) (explaining that “an appellee [may]
argue an alternative ground for affirming a district court judgment without
taking a cross-appeal, when the only consequence of the court of appeals’
agreement with the argument would be the affirmance of the judgment”).
“An appellee who fails to file a cross-appeal cannot
attack a judgment with a view towards enlarging his own rights.” Spurlock
v. FBI, 69 F.3d 1010, 1018 (9th Cir. 1995). But see Interstate
Prod. Credit Ass’n. v. Firemen’s Fund Ins. Co., 944 F.2d 536,
538 & n.1 (9th Cir. 1991) (citing the merger doctrine, court
considered grant of partial summary judgment to appellant even though appellee
did not file cross-appeal).
·
Appellee could
not argue district court erred by reducing its attorney’s fee award. See Doherty
v. Wireless Broad. Sys. of Sacramento, Inc., 151 F.3d 1129, 1131 (9th Cir. 1998).
·
Appellee could
not argue district court erred in finding certain documents exempt from
disclosure. See Spurlock, 69 F.3d at 1018.
·
Appellee could
not argue on appeal from jury verdict that district court erred in denying its
motion seeking qualified immunity. See
Gulliford v.
Pierce Cty.,
136 F.3d 1345, 1351 (9th Cir. 1998).
·
Appellees could
not argue district court erred in determining they had no property right to
continuous water service. See Turpen v. City of
Corvallis,
26 F.3d 978, 980 (9th Cir. 1994) (per curiam) (concluding that argument
supported modification of judgment, not affirmance on an alternative ground).
·
Appellee could
not argue that forfeiture order should be set aside altogether during
government appeal claiming amount of forfeiture was too low. See United
States v. Bajakajian,
84 F.3d 334, 338 (9th Cir. 1996), aff’d by 524 U.S. 321
(1998) (“[a]lthough pursuant to the Excessive Fines Clause [defendant]
cannot be ordered to forfeit any of the unreported currency, he is nonetheless
forced to accept the decision of the district court” because his failure to
cross-appeal deprived court of appeals of jurisdiction to set aside the order).
An appellee who fails to file a cross-appeal may
nonetheless challenge subject matter jurisdiction. See Yang
v. Shalala,
22 F.3d 213, 215 n.4 (9th Cir. 1994).
As a rule, absent a cross-appeal, an appellee may urge in support of a
decree any matter appearing in the record, but may not attack the decree with a
view either to enlarging his own rights thereunder or lessening his adversary’s
rights, and “comity considerations” are inadequate to defeat the institutional
interests this rule advances. El Paso Natural
Gas Co. v. Neztsosie, 526 U.S. 473, 479–82 (1999), vacating 136 F.3d 610 (9th
Cir. 1998).
“As a general rule, the filing of a notice of appeal
divests a district court of jurisdiction over those aspects of the case
involved in the appeal.” Stein v. Wood,
127 F.3d 1187, 1189 (9th Cir. 1997).
The divestiture rule is a rule of judicial economy designed to avoid
“the confusion and waste of time that might flow from putting the same issues
before two courts at the same time.” Id.
(citation omitted). See also Townley
v. Miller,
693 F.3d 1041, 1042 (9th Cir. 2012) (amended order) (concluding the
filing of notices of appeal from order granting preliminary injunction divested
district court of jurisdiction).
“Recognizing the importance of avoiding uncertainty
and waste, but concerned that the appeals process might be abused to run up an
adversary’s costs or to delay trial, [the court has] authorized the district
court to go forward in appropriate cases by certifying that an appeal is
frivolous or waived.” Rodriguez v.
Cty. of Los Angeles, 891 F.3d 776, 790–91 (9th Cir. 2018). Additionally, the court of appeals has
recognized exceptions to the divestiture rule to permit district courts to
correct clerical errors or clarify its judgment, to supervise the status quo
during the pendency of an appeal, or to aid in execution of a judgment. See Stein, 127 F.3d at 1189
(citations omitted). A district court
may also retain jurisdiction by statute.
Id. (citing Stone v. I.N.S., 514 U.S. 386, 401–02
(1995)).
Cross-reference: IV.F.6 (regarding exceptions to
the divestiture rule).
·
Amend its
opinion. See Pro Sales, Inc. v. Texaco, U.S.A., 792 F.2d 1394,
1396 n.1 (9th Cir. 1986); Sumida v. Yumen, 409 F.2d 654, 656–57
(9th Cir. 1969) (amended order, filed after the notice of appeal, was a
nullity).
·
Entertain a
motion for leave to file an amended complaint.
See Davis
v. United States,
667 F.2d 822, 824 (9th Cir. 1982).
·
Quantify
sanctions while order imposing sanctions is on appeal. See Shuffler
v. Heritage Bank,
720 F.2d 1141, 1145 n.1 (9th Cir. 1983) (sanctions imposed in contempt
proceedings to enforce prior money judgment).
·
Award attorney’s
fees. See Masalosalo v. Stonewall Ins. Co., 718 F.2d 955,
957 (9th Cir. 1983).
·
Issue
extraordinary discovery order pending appeal.
See Fed.
R. Civ. P. 27(b); Campbell
v. Blodgett, 982 F.2d 1356, 1357 (9th Cir. 1993).
·
Issue order
enforcing judgment pending appeal. See
Lara v.
Secretary,
820 F.2d 1535, 1543 (9th Cir. 1987) (final judgment and authorization
for writ of assistance under Fed. R. Civ. P. 70 entered during appeal of order
affirming arbitrator’s decision).
·
Consider
post-judgment motions under Fed.
R. Civ. P. 59 and 60. See Stone v. INS, 514 U.S. 386,
402–03 (1995).
An appeal from a post-judgment order of contempt to
enforce a money judgment generally divests the district court of jurisdiction
to quantify sanctions imposed pursuant to the contempt finding. See Donovan
v. Mazzola,
761 F.2d 1411, 1415 (9th Cir. 1985).
Cross-reference: II.C.10 (regarding the
appealability of contempt and sanctions orders generally).
During the pendency of an appeal from a judgment under
Fed. R. Civ.
P. 54(b), the district court generally retains jurisdiction to proceed
with remaining claims. See Beltz Travel
Serv., Inc. v. Int’l Air Transp. Ass’n, 620 F.2d 1360, 1367 (9th Cir. 1980)
(during appeal from order granting partial summary judgment to certain
defendants, district court retained jurisdiction to proceed with claims against
remaining defendants).
Cross-reference: II.A.3 (regarding the
appealability of Fed.
R. Civ. P. 54(b) orders generally).
While an order from a collateral order is pending, the
district court generally retains jurisdiction to proceed with the underlying
action. See Britton v. Co-Op Banking Group, 916 F.2d 1405,
1412 (9th Cir. 1990) (while appeal from order denying motion to compel
arbitration was pending, district court retained jurisdiction to proceed with
merits of action); see also Fed.
R. Civ. P. 23(f) (“An appeal [from a class certification order] does not
stay proceedings in the district court unless the district judge or the court
of appeals so orders.”).
However, while an appeal from a pretrial denial of
qualified immunity is pending, the district court is generally deprived of
jurisdiction. See Chuman v. Wright, 960 F.2d 104,
105 (9th Cir. 1992) (order).
Under the doctrine of “dual jurisdiction,” the district court may
nevertheless proceed with trial during a qualified immunity appeal if it first
certifies in writing that the defendants’ claim of qualified immunity is
frivolous or has been waived. See id.; see
also Behrens
v. Pelletier,
516 U.S. 299, 310–11 (1996); Padgett
v. Wright, 587 F.3d 983 (9th Cir. 2009) (“Although a pretrial appeal
of an order denying qualified immunity normally divests the district court of
jurisdiction to proceed with trial, the district court may certify the appeal
as frivolous and may then proceed with trial, as the district court did
here.”). “In the absence
of such certification, the district court is automatically divested of
jurisdiction to proceed with trial pending appeal.” Chuman, 960 F.2d at 105. However, where the district court proceeds
without certification, in violation of Chuman, reversal is only required
if the error was prejudicial. Rodriguez
v. Cty. of Los Angeles, 891 F.3d 776, 791 (9th Cir. 2018).
As a general rule, while an appeal from an
interlocutory order is pending, the district court retains jurisdiction to
continue with other stages of the case. See
Plotkin v.
Pac. Tel. & Tel. Co.,
688 F.2d 1291, 1293 (9th Cir. 1982).
For example:
·
During
plaintiff’s appeal from denial of a preliminary injunction, district court
retained jurisdiction to enter summary judgment for defendant. See id.
·
During
defendant’s appeal from preliminary injunction, district court retained
jurisdiction to enter stipulated dismissal as to certain claims, thereby
mooting defendant’s appeal as to those claims.
See ACF
Indus. Inc. v. Cal. State Bd. of Equalization, 42 F.3d 1286, 1292 n.4 (9th Cir.
1994) (stating that stipulated dismissal mooted portions of defendant’s
appeal from denial of motions considered in conjunction with preliminary
injunction on appeal).
·
During defendant’s
interlocutory appeal from criminal contempt order, district court retained
jurisdiction to certify for immediate appeal under § 1292(b) a
previously-entered order denying defendant’s motion to dismiss. See Marrese
v. Am. Acad. of Orthopaedic Surgeons,
470 U.S. 373, 379 (1985).
·
“An appeal [from
a class certification order] does not stay proceedings in the district court
unless the district judge or the court of appeals so orders.” Fed.
R. Civ. P. 23(f).
A notice of appeal from a nonappealable order is a
nullity and does not transfer jurisdiction to the court of appeals. See United
States v. Hickey,
580 F.3d 922, 928 (9th Cir. 2009) (district court’s ruling that it had
jurisdiction to proceed with pretrial matters not subject to interlocutory
review); Estate
of Conners v. O’Connor,
6 F.3d 656, 658 (9th Cir. 1993) (notice of appeal from order magistrate
judge lacked authority to enter); Christian
v. Rhode, 41 F.3d 461, 470 (9th Cir. 1994) (notice of appeal filed
in habeas case prior to probable cause determination); Ruby v. Secretary, 365 F.2d
385, 388 (9th Cir. 1966) (notice of appeal from nonfinal order
dismissing complaint but not action).
Because the divestiture rule should not be employed to
defeat its purpose nor to “induce needless paper shuffling,” a district court
retains jurisdiction to make certain clarifications and corrections even after
a notice of appeal is filed. Kern Oil &
Ref. Co. v. Tenneco Oil Co., 840 F.2d 730, 734 (9th Cir. 1988)
(following notice of appeal from final judgment, district court retained
jurisdiction to enter findings of fact and conclusions of law where it was
clear district court intended that they be filed at same time as final
judgment) (citation omitted); see also Fed.
Trade Comm’n. v. Enforma Natural Prods., Inc., 362 F.3d 1204, 1216 n.11
(9th Cir. 2004) (explaining that district court retained jurisdiction to
make findings five days after injunction was granted where the additional
findings served to facilitate review); Silberkraus
v. Seely Co. (In re Silberkraus), 336 F.3d 864, 869 (9th Cir. 2003)
(concluding that bankruptcy court retained jurisdiction to publish written
findings of fact and conclusions of law where they were consistent with the
court’s oral findings and they aided in review of the decision); Thomas v. Cty. of Los Angeles, 978 F.2d
504, 507 n.1 (9th Cir. 1992) (as amended) (concluding that notice of
appeal did not divest district court of jurisdiction to file written findings
and conclusions in furtherance of injunction order and this court’s review of
that order); Morris v. Morgan Stanley & Co., 942 F.2d 648, 654–55 (9th Cir. 1991) (following notice of appeal from dismissal for
failure to prosecute, district court retained jurisdiction to clarify that
appealed order dismissed both state and federal claims with prejudice); see also Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d 1036, 1041 (9th Cir. 2012)
(finding notice of appeal did not divest district court of jurisdiction to
enter a written order granting preliminary injunction and provisionally
certifying class, after previously indicating orally and in a minute order that
the motion would be denied, because notice of appeal was premature and had no
operative effect where minute order expressly stated a written order would
follow).
Cross-reference: II.A.1.b.i (regarding district court’s intention in
determining finality).
“While an appeal is pending from an interlocutory
order or final judgment that grants, dissolves, or denies an injunction, the
court may suspend, modify, restore, or grant an injunction on terms for bond or
other terms that secure the opposing party’s rights.” Fed.
R. Civ. P. 62(c). Rule 62
codifies a district court’s inherent power “to preserve the status quo where,
in its sound discretion the court deems the circumstances so justify.” Christian
Science Reading Room Jointly Maintained v. City & Cty. of San Francisco,
784 F.2d 1010, 1017 (9th Cir. 1986) (citation omitted), amended by 792 F.3d 124 (9th Cir. 1986).
The district court’s power to maintain the status quo
includes the power to modify the terms of the injunction being appealed. See Christian
Science Reading Room Jointly Maintained v. City & Cty. of San Francisco, 784 F.2d 1010,
1017 (9th Cir. 1986) (concluding that during appeal from permanent
injunction district court retained jurisdiction to approve settlement agreement
and issue an order pursuant thereto), amended
by 792
F.3d 124 (9th Cir. 1986); Meinhold
v. United States, 34 F.3d 1469, 1480 n.14 (9th Cir. 1994)
(concluding that during appeal from permanent injunction district court
retained jurisdiction to clarify injunction by broadening scope of relief, and
to supervise compliance following filing of contempt motion); see also A & M Records,
Inc. v. Napster, Inc.,
284 F.3d 1091, 1099 (9th Cir. 2002) (explaining that district court was
authorized under Rule 62 to continue supervising compliance with the injunction
during the pendency of the appeal).
Where the district court is supervising a continuing
course of conduct pursuant to an injunction, the district court’s duty to
maintain the status quo pending appeal includes the power to impose
sanctions. See Hoffman v. Beer
Drivers & Salesmen’s Local Union,
536 F.2d 1268, 1276 (9th Cir. 1976) (stating that while appeal from
contempt order for violation of an injunction was pending, district court
retained jurisdiction to issue further contempt orders for subsequent
violations of the injunction even though the later orders were based in part on
the appealed order).
However, while a contempt order imposing a per diem
fine is on appeal, the district court does not retain jurisdiction to quantify
accrued sanctions following purported compliance by the contemnor. See Donovan
v. Mazzola,
761 F.2d 1411, 1415 (9th Cir. 1985) (concluding district court lacked
jurisdiction to quantify sanctions imposed pursuant to order of contempt to
enforce money judgment); Shuffler
v. Heritage Bank, 720 F.2d 1141, 1145 (9th Cir. 1983) (same).
Cross-reference: II.C.10 (regarding the
appealability of contempt and sanctions orders generally).
Although the district court retains jurisdiction “to
make orders appropriate to preserve the status quo,” it may not “adjudicate
substantial rights directly involved in the appeal.” McClatchy
Newspapers v. Cent. Valley Typographical Union, 686 F.2d 731, 734–35 (9th
Cir. 1982) (citation omitted) (determining that during appeal from order
confirming arbitrator’s decision declaring certain rights under labor
agreement, district court lacked jurisdiction to adjudicate merits of related
substantive issue not covered by judgment on appeal).
“An appeal from a final judgment draws in question all
earlier, non-final orders and rulings which produced the judgment.” Litchfield
v. Spielberg, 736 F.2d 1352, 1355 (9th Cir. 1984); see also Hall v. City of
Los Angeles,
697 F.3d 1059, 1070 (9th Cir. 2012) (“Once a district court enters final
judgment and a party appeals, however, those earlier, non-final orders become
reviewable.”); Lovell v. Chandler, 303 F.3d 1039, 1049 (9th Cir. 2002)
An order dismissing one defendant is reviewable on
appeal from a final order dismissing all defendants. See Munoz
v. Small Bus. Admin.,
644 F.2d 1361, 1364 (9th Cir. 1981).
See also Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876, 887 (9th Cir. 2010)
(“Under federal law, … dismissal [pursuant to Fed. R. Civ. P. 12(b)] as to only
one of several defendants is appealable when , …, it has merged into the final
judgment).
Cross-reference: II.C.13 (regarding the
appealability of dismissal orders generally).
An order granting partial summary judgment to
appellant was reviewable on appeal from final order granting summary judgment
to appellee. See Interstate Prod.
Credit Assoc. v. Firemen’s Fund Ins. Co., 944 F.2d 536, 538 n.1 (9th Cir.
1991).
Cross-reference: IV.E (regarding when it is
necessary to file a cross-appeal).
An order denying a motion to dismiss or for summary
judgment on grounds of qualified immunity may be appealed upon entry of the
order or after final judgment. See
Horton by Horton v. City of Santa Maria, 915 F.3d 592, 603 n.10 (9th Cir.
2019) (explaining that “even though appellate review of a denial of qualified
immunity would be possible after a final judgment, immediate appeal is
permitted to protect the right of officials to be free from the burdens of
litigation.”); DeNieva
v. Reyes, 966 F.2d 480, 484 (9th Cir. 1992); see also Rivero v. City
& Cty. of San Francisco,
316 F.3d 857, 863 (9th Cir. 2002).
Cross-reference: II.C.17 (regarding the
appealability of immunity orders generally).
An order granting a new trial is reviewable on appeal
from a verdict in a second trial. See
Roy v.
Volkswagen of Am., Inc.,
896 F.2d 1174, 1176 (9th Cir. 1990), amended
by 920
F.2d 618 (9th Cir. 1990) (order).
Cross-reference: II.C.8.b (regarding review of
class certification orders after final judgment).
An order denying a motion to transfer venue under 28 U.S.C.
§ 1404(a) is reviewable on appeal from final judgment. See Los
Angeles Mem’l Coliseum Comm’n v. NFL,
726 F.2d 1381, 1399 (9th Cir. 1984) (involving appeal from jury
verdict). However, the court of appeals
may not review a transfer under 28
U.S.C. § 1404 by a district court outside of its circuit to a
district court within its circuit. See
Posnanski v.
Gibney,
421 F.3d 977, 979–80 (9th Cir. 2005) (not following as dicta Am. Fid. Fire
Ins. Co. v. United States Dist. Court, 538 F.2d 1371, 1377 n.4 (9th Cir.
1976) which stated that order granting motion to transfer venue under § 1404(a) or
§ 1406(a) is reviewable on appeal from final judgment even if
transferor court is outside circuit of reviewing court).
Cross-reference: II.C.30 (regarding the
appealability of transfer orders generally).
An order denying a motion to disqualify a district
court judge is reviewable on appeal from final judgment. See Thomassen
v. United States,
835 F.2d 727, 732 n.3 (9th Cir. 1987).
An order of civil contempt against a party to a
district court proceeding is reviewable on appeal from final judgment. See Thomassen
v. United States,
835 F.2d 727, 731 (9th Cir. 1987).
Cross-reference: II.C.10 (regarding the
appealability of contempt orders generally).
When no interlocutory appeal from an injunctive order
is taken under § 1292(a)(1), the interlocutory order merges into the final
judgment and may be reviewed on appeal from that judgment. See Balla
v. Idaho State Bd. of Corr.,
869 F.2d 461, 467 (9th Cir. 1989).
But see Burbank-Glendale-Pasadena
Airport Auth. v. City of Los Angeles,
979 F.2d 1338, 1340 n.1 (9th Cir. 1992) (stating that where preliminary
injunction merges into permanent injunction, court of appeals reviews only
permanent injunction).
The following orders, which were immediately
appealable but not appealed under 28
U.S.C. § 1292(a)(1), merged into the final judgment:
·
Order denying motion
to modify injunction merged into final order of contempt because motion to
modify and motion for contempt were sufficiently intertwined. See Hook
v. Arizona Dep’t of Corr.,
107 F.3d 1397, 1401 (9th Cir. 1997) (“A party does not lose the right to
appeal an interlocutory order by not immediately appealing … .”).
·
Order establishing
plaintiffs’ entitlement to injunctive relief merged into final judgment
specifying injunctive relief. See Balla, 869 F.2d at 467.
·
Order dismissing civil
forfeiture complaint merged into final judgment. See United
States v. Real Property Located at 475 Martin Lane, 545 F.3d 1134,
1141 (9th Cir. 2008).
·
Order granting partial
summary judgment, which had effect of denying injunctive relief to opposing
party, merged into final judgment following bench trial as to remaining claims.
See Baldwin
v. Redwood City,
540 F.2d 1360, 1364 (9th Cir. 1976).
When timely appeal is not taken from an interlocutory
order certified for permissive appeal under 28
U.S.C. § 1292, that order merges into the final judgment and may be
reviewed on appeal from that judgment. See
Richardson
v. United States,
841 F.2d 993, 995 n.3 (9th Cir. 1988), amended by 860 F.2d 357 (9th
Cir. 1988) (reviewing order that established applicable standard of care
on appeal from final judgment where district court had certified order for
immediate appeal under § 1292(b), appellant’s notice of interlocutory
appeal was two days late, and district court refused to recertify order).
Cross-reference: II.B.4 (regarding interlocutory
permissive appeal under § 1292(b) generally).
“A failure to rule on a motion is appealable.” See Plumeau
v. Sch. Dist. #40 Cty. of Yamhill,
130 F.3d 432, 439 n.5 (9th Cir. 1997) (considering letter from
plaintiffs even though magistrate judge never explicitly ruled on request
contained therein because letter could be construed as motion for leave to
amend).
Orders that were not material to the judgment are not
subject to review on appeal from final judgment. See Nat’l
Am. Ins. Co. v. Certain Underwriters at Lloyd’s London, 93 F.3d 529, 540
(9th Cir. 1995) (declining to review order compelling defendants to turn
over certain documents during appeal from summary judgment for plaintiff
because district court did not consider contested documents due to defendants’
refusal to turn them over).
Cross-reference: II.A.2 (regarding the
collateral order doctrine).
An order denying intervention as of right is
appealable upon entry and does not merge into a final judgment. See United
States v. City of Oakland,
958 F.2d 300, 302 (9th Cir. 1992) (noting that would-be intervenors may
seek leave to intervene for purposes of appeal after final judgment).
Cross-reference: II.C.19 (regarding the
appealability of intervention orders generally).
An order awarding sanctions for civil contempt against
a nonparty to district court proceedings is appealable upon entry and does not
merge into the final judgment in the underlying action. See Mesirow
v. Pepperidge Farm, Inc.,
703 F.2d 339, 345 (9th Cir. 1983).
Cross-reference: II.C.10 (regarding the
appealability of contempt orders generally).
“Unlike an interlocutory order, which may be appealed
either at the time of entry or after final judgment, [an order certified under
Rule 54(b) is] final as to the claims and parties within its scope, and
[cannot] be reviewed as part of an appeal from a subsequent judgment as to the
remaining claims and parties.” Williams v.
Boeing Co., 681 F.2d 615, 616 (9th Cir. 1982) (per curiam). Thus, the time to appeal an order certified
under Rule 54(b), granting summary judgment in favor of certain defendants on
certain claims, begins to run upon entry of certification order. See id.
(reinstating appeal despite “the lack of understanding of appellate procedure
demonstrated by appellant’s counsel”).
Cross-reference: II.A.3 (regarding orders
certified under Fed.
R. Civ. P. 54(b)).
Generally, an order denying
summary judgment will not be reviewed on appeal from final judgment. See Lum
v. City & Cty. of Honolulu,
963 F.2d 1167, 1169–70 (9th Cir. 1992) (“Such a review is a pointless
academic exercise.”). See also Ortiz
v. Jordan, 562 U.S. 180, 184 (2011) (order denying summary judgment may not
be appealed after full trial on the merits; the order retains its interlocutory
character as a step to final judgment); Williams v. Gaye, 895 F.3d 1106,
1121–22 (9th Cir. 2018) (as amended); Escriba v. Foster
Poultry Farms, Inc., 743 F.3d 1236, 1243 (9th Cir. 2014).
·
Denial of summary
judgment to appellee not reviewed during appeal from final judgment for
appellee after bench trial. See Lum v. City &
Cty. of Honolulu,
963 F.2d 1167, 1169–70 (9th Cir. 1992).
·
Denial of summary
judgment to appellant not reviewed during appeal from judgment for appellee
after jury trial. See Locricchio v.
Legal Servs. Corp.,
833 F.2d 1352, 1358–59 (9th Cir. 1987).
·
Pre-trial denial of
summary judgment to appellant not reviewed during appeal from final judgment
entered after a full trial on the merits.
See Lakeside-Scott
v. Multnomah Cty.,
556 F.3d 797, 802 n.4 (9th Cir. 2009).
·
Denial of summary
judgment to appellant on appellee’s counterclaim not reviewed after directed
verdict entered for appellant on that claim.
See Gen.
Signal Corp. v. MCI Telecomms. Corp.,
66 F.3d 1500, 1506–07 (9th Cir. 1995) (“[E]ven if denial of summary
judgment arguably could prejudice the moving party by forcing it to expend
resources on a frivolous claim, that problem is more properly addressed through
a motion for interlocutory appeal.”); see also Jones v. City of Santa Monica, 382 F.3d 1052,
1057 (9th Cir. 2004) (the court of appeals does “not review the denial
of summary judgment on factual issues when the case proceeds to trial, even if
that trial ends with a directed verdict”).
Prior to Ortiz, the court had stated, “The
better cases recognize that on appeal from a final judgment an earlier denial
of summary judgment can be reviewed if it becomes relevant upon disposition of
other issues and if the record is sufficiently developed to support intelligent
review.” See Jones-Hamilton Co. v. Beazer Materials
& Serv., Inc.,
973 F.2d 688, 694 n.2 (9th Cir. 1992) (internal quotation and citation
omitted) (noting that court of appeals is not obligated to review denial of
summary judgment). Thus, on appeal from
summary judgment for defendant, the court of appeals reversed summary judgment
for defendant and reversed denial of partial summary judgment for plaintiff
where no issues of material fact remained.
See id. at 693–95. See also Brodheim
v. Cry,
584 F.3d 1262, 1274 (9th Cir. 2009) (reviewing denial of motion for
partial summary judgment where accompanied by a final order disposing of all
issues and affirming the district court’s decision).
An order denying a motion to remand for lack of
subject matter jurisdiction generally does not merge into final judgment. See Caterpillar
Inc. v. Lewis,
519 U.S. 61, 77 (1996). Rather,
on appeal from final judgment the issue is whether the district court had
jurisdiction at the time of judgment, not whether removal was proper in the
first place. See id.
Cross-reference: II.C.24 (regarding remand
orders generally).
Where an order denying motion to remand erroneously
found complete diversity, final judgment nevertheless stood because pretrial
dismissal of non-diverse defendant resulted in diversity jurisdiction at the
time of judgment. See Caterpillar Inc.
v. Lewis,
519 U.S. 61, 77 (1996) (“To wipe out the adjudication post-judgment, and
return to state court a case now satisfying all federal jurisdictional
requirements, would impose an exorbitant cost on our dual court system … .”).
Similarly, where the district court denied a motion to
remand even though removal was procedurally defective because certain parties
failed to timely join the notice of removal, final judgment stood because the
parties joined the notice of removal before entry of judgment. See Parrino
v. FHP, Inc.,
146 F.3d 699, 704 (9th Cir. 1998) (“[A] procedural defect existing at
the time of removal but cured prior to entry of judgment does not warrant
reversal and remand of the matter to state court.”), superseded by statute
on other grounds as stated in Abrego
Abrego v. Dow Chem. Co.,
443 F.3d 676, 681 (9th Cir. 2006).
Where an order denying motion to remand erroneously
found complete preemption, final judgment was vacated because district court
lacked jurisdiction at the time of judgment.
See Campbell
v. Aerospace Corp.,
123 F.3d 1308, 1315 (9th Cir. 1997).
On appeal from a dismissal for failure to prosecute,
earlier-entered interlocutory orders are not subject to review “whether the
failure to prosecute is purposeful or is a result of negligence or
mistake.” Al-Torki v. Kaempen, 78 F.3d
1381, 1386 (9th Cir. 1996) (citation omitted) (declining to review
orders setting aside jury verdict for defendant and granting motion for new
trial); see also Ash
v. Cvetkov,
739 F.2d 493, 497–98 (9th Cir. 1984) (declining to review numerous
interlocutory rulings); Huey
v. Teledyne, Inc., 608 F.2d 1234, 1239 (9th Cir. 1979) (declining to
review order denying class certification).
Cross-reference: II.C.13.b.iv (regarding
dismissals for failure to prosecute).
An order disposing of a 60(b) motion, is separately
appealable, apart from the final judgment.
See TAAG
Linhas Aereas de Angola v. Transamerica Airlines, Inc., 915 F.2d 1351,
1354 (9th Cir. 1990).
A post-judgment order granting attorney’s fees also
must be separately appealed. See Farley v. Henderson, 883 F.2d 709,
712 (9th Cir. 1989).
The scope of an appeal from an injunctive order under
§ 1292(a)(1) extends only to “matters inextricably bound up with the
injunctive order from which the appeal is taken.” Self-Realization
Fellowship Church v. Ananda Church of Self-Realization, 59 F.3d 902, 905
(9th Cir. 1995). The
“inextricably intertwined” standard should be “narrowly construed.” State
of Cal., on Behalf of Cal. Dep’t of Toxic Substances Control v. Campbell,
138 F.3d 772, 778–79 (9th Cir. 1998) (“Just because the same facts are
involved in both issues does not make the two issues inextricably
intertwined.”).
Note that previous decisions extending jurisdiction
under § 1292(a)(1) to “related issues” in the “interest of judicial
economy” did not survive Swint
v. Chambers Cty. Comm’n, 514 U.S. 35 (1995). See Paige
v. State of Cal.,
102 F.3d 1035, 1039 (9th Cir. 1996).
Cross-reference: II.B.1 (regarding injunctive
appeals generally).
·
Order granting
summary judgment for defendants on liability reviewable on appeal from
permanent injunction only to the extent it established liability of plaintiff
subject to injunction on appeal. See State of Cal., on
Behalf of Cal. Dep’t of Toxic Substances Control v. Campbell, 138 F.3d 772,
778–79 (9th Cir. 1998).
·
Order granting
partial summary judgment to plaintiff reviewable on appeal from preliminary
injunction for plaintiff where summary judgment order provided basis for
issuing injunction. See Paige v. State of
Cal.,
102 F.3d 1035, 1040 (9th Cir. 1996) (applying “inextricably bound”
standard).
·
Order granting
summary judgment to defendant reviewable on appeal from dissolution of
preliminary injunction for plaintiff where summary judgment order provided
basis for dissolving injunction. See Self-Realization
Fellowship Church v. Ananda Church of Self-Realization, 59 F.3d 902, 905
(9th Cir. 1995) (applying “inextricably bound” standard).
·
Orders granting
partial summary judgment to plaintiff reviewable on appeal from permanent
injunction for plaintiff where summary judgment orders provided basis for
issuing injunction. See Transworld
Airlines, Inc. v. Am. Coupon Exch., Inc., 913 F.2d 676, 680–81 (9th Cir. 1990)
(although injunction was permanent, appeal was interlocutory because district
court retained jurisdiction to determine damages).
·
Order granting
partial summary judgment to defendant reviewable on appeal from permanent
injunction for defendant where summary judgment order provided basis for
issuing injunction. See Marathon Oil Co.
v. United States,
807 F.2d 759, 764–65 (9th Cir. 1986) (applying “inextricably bound”
standard; although injunction was permanent, appeal was interlocutory because
district court retained jurisdiction to conduct an accounting).
However, an order denying partial summary judgment to
defendant was not reviewable on appeal from the grant of a preliminary
injunction for plaintiff where the record was insufficiently developed to
permit review. See Paige, 102 F.3d at 1040
(applying “inextricably bound” standard).
The court of appeals has, in certain cases, reviewed
orders denying remand in conjunction with interlocutory orders granting or
denying injunctive relief. See Takeda v. Nw.
Nat’l Life Ins. Co.,
765 F.2d 815, 818 (9th Cir. 1985); see also O’Halloran
v. Univ. of Wash., 856 F.2d 1375, 1378 (9th Cir. 1988); Lou v. Belzberg, 834 F.2d 730,
733 (9th Cir. 1987). Note, these
cases rely on the judicial economy rationale that was rejected in Swint v.
Chambers Cty. Comm’n, 514 U.S. 35, 50–51 (1995).
In conjunction with reversing a preliminary
injunction, the court of appeals may reverse an order imposing sanctions for
violation of the injunction. See Dollar Rent A Car
of Wash., Inc. v. Travelers Indem., Inc., 774 F.2d 1371, 1375–76 (9th Cir.
1985); see also Diamontiney
v. Borg,
918 F.2d 793, 796–97 (9th Cir. 1990) (affirming preliminary injunction
for plaintiff and affirming refusal to impose sanctions on defendants for
violating injunction under “closely related” standard).
The entry of default was reviewable on appeal from an
order granting injunctive relief where the “relief was premised solely upon the
entry of default.” See Phoecene
Sous-Marine, S.A. v. U.S. Phosmarine, Inc., 682 F.2d 802, 805 (9th Cir. 1982)
(applying “inextricably bound” test).
An order certifying a class is reviewable on appeal
from an order granting an interim injunction where the injunction awards
class-wide relief and therefore the order upholding the injunction necessarily
upholds class certification. See Paige v. State of
Cal.,
102 F.3d 1035, 1039 (9th Cir. 1996) (deciding issue before enactment of
Fed. R. Civ. P. 23(f), which specifically provides for appeal from class
certification orders); see also Immigrant
Assistance Project of Los Angeles Cty. Fed’n of Labor v. INS, 306 F.3d 842,
869 (9th Cir. 2003) (exercising jurisdiction to review certification of
the class for which the order provided relief). Cf. Hunt
v. Imperial Merchant Servs.,
560 F.3d 1137, 1140–41 (9th Cir. 2009) (concluding that court lacked
appellate jurisdiction to review objections to class certification where notice
cost order only affected the parties, and not every class member).
Cross-reference: II.C.8.a (regarding permissive
interlocutory appeal from class certification order under Fed. R. Civ. P.
23(f)).
Karnoski, 926
F.3d at 1198 (citations omitted).
·
Order granting an
injunction reviewable on appeal from later order denying motion to modify the
injunction where motion to modify was filed within ten days of grant of
injunction, thereby tolling time period for appeal. See Sierra
On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1420–21 (9th Cir.
1984).
·
Order granting
injunctive relief reviewable on appeal from later order when the court of
appeals “perceives a substantial abuse of discretion or when the new issues raised
on reconsideration are inextricably intertwined with the merits of the
underlying order.” Gon v. First
State Ins. Co., 871 F.2d 863, 866–67 (9th Cir. 1989) (citation
omitted) (appeal from original injunction would otherwise be untimely).
An order compelling arbitration was reviewable on
appeal from an order denying an injunction where the purpose of the requested
injunction was to “protect or effectuate the district court’s order compelling
arbitration.” Quackenbush v. Allstate Ins. Co.,
121 F.3d 1372, 1379–80 (9th Cir. 1997) (requested injunction would have
enjoined state court proceedings while federal arbitration proceeded). Similarly, an order compelling arbitration
was reviewable on appeal from an order dissolving an injunction where the
district court relied solely on the arbitrator’s findings in dissolving the
injunction. See Tracer Research
Corp. v. Nat’l Envtl. Serv.,
42 F.3d 1292, 1294 (9th Cir. 1994).
Cross-reference: II.C.4 (regarding the
appealability of orders relating to arbitration in actions governed by the
Federal Arbitration Act, 9
U.S.C. § 16).
“[W]here the record is fully developed, the plaintiff
requested both preliminary and permanent injunctions on the issues being
appealed, and the district court’s denial of injunctive relief rested primarily
on interpretations of law, not on the resolution of factual issues, [the court
of appeals] may consider the merits of the case and enter a final judgment to
the extent appropriate.” Beno v. Shalala,
30 F.3d 1057, 1063 (9th Cir. 1994) (internal quotations and citations
omitted) (in reversing denial of motion for preliminary injunction, court of
appeals reached merits); see also Blockbuster
Video, Inc. v. City of Tempe,
141 F.3d 1295, 1301 (9th Cir. 1998) (in affirming in part and reversing
in part grant of preliminary injunction, court of appeals directed entry of
final judgment).
On appeal from an order certified under
§ 1292(b), the court of appeals “may not reach beyond the certified order
to address other orders made in the case.”
Yamaha
Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 205 (1996). But see Taxel
v. Elec. Sports Research (In re Cinematronics, Inc.), 916 F.2d 1444,
1448–49 (9th Cir. 1990) (citation omitted) (reviewing issue decided in
prior order because “where reconsideration of a ruling material to an order
provides grounds for reversal of the entire order, review of issues other than
those certified by the district court as ‘controlling’ is appropriate”).
Thus, the court of appeals lacked jurisdiction over
the following orders:
·
On appeal from
certified order denying motion to dismiss plaintiff’s Bivens claim,
court of appeals did not have jurisdiction to review prior orders dismissing
plaintiff’s FTCA claims. See United States v.
Stanley,
483 U.S. 669, 677 (1987).
·
On appeal from
certified order denying motion for partial summary judgment as to plaintiff’s
malpractice claim in one case, court of appeals lacked jurisdiction to review
orders denying motions to dismiss related claims in companion case. See Durkin
v. Shea & Gould,
92 F.3d 1510, 1515 n.12 (9th Cir. 1996) (passing reference to prior
orders in certified order did not confer jurisdiction).
The court of appeals may address any issue “fairly
included within the certified order” because it is the order, not the
controlling question identified by the district court that is appealable. Yamaha
Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 204–05 (1996) (citation
omitted) (although district court only certified questions regarding types of
damages recoverable in action governed exclusively by federal maritime law,
court of appeals had jurisdiction to review district court’s underlying
conclusion that maritime law provided the exclusive remedies); see also Barahona
v. Union Pac. R.R. Co., 881 F.3d 1122, 1130–31 (9th Cir. 2018) (“Although
we have authority to review issues fairly included within the certified order,
review of issues not included in the certified order would obliterate the
distinction between interlocutory appeals and appeals after final judgment and
would encourage circumvention of the conventional appeals process.”); Lenz
v. Universal Music Corp., 815 F.3d 1145, 1150 (9th Cir. 2016) (as amended);
Deutsche Bank Nat. Trust Co. v. F.D.I.C., 744 F.3d
1124, 1134 (9th Cir. 2014) (“[A]n appellate court’s interlocutory
jurisdiction under 28
U.S.C. § 1292(b) permits it to address any issue fairly included
within the certified order because it is the order that is appealable,
and not the controlling question identified by the district court ... .” Nevada v. Bank
of Am. Corp., 672 F.3d 661,
673 (9th Cir. 2012) (citation and internal quotation marks omitted)
(emphasis in the original)); EEOC v. United Parcel Serv., Inc., 424 F.3d 1060, 1073–74 n.11 (9th Cir. 2005) (although UPS argued that court could not affirm
under a different rationale, the court of appeals affirmed the district court’s
partial summary judgment on a basis that was part of the general question that
was certified by the district court); Steering
Comm. v. United States,
6 F.3d 572, 575 (9th Cir. 1993) (although certified order contained
mixed questions of law and fact, court of appeals had jurisdiction in
multidistrict, multiparty negligence action to review order attributing
liability).
Moreover, “where reconsideration of a ruling material
to an order provides grounds for reversal of the entire order, review of issues
other than those certified by the district court as ‘controlling’ is appropriate.” Taxel
v. Elec. Sports Research (In re Cinematronics, Inc.), 916 F.2d 1444,
1448–49 (9th Cir. 1990) (citation omitted) (reviewing issue decided in
prior order).
On appeal from orders certified for appeal pursuant to
28 U.S.C.
§ 1292(b), the court of appeals had pendent jurisdiction to review
other interlocutory orders denying motions to dismiss and for summary judgment
on the same grounds as the certified orders.
Streit
v. Cty. of Los Angeles, 236 F.3d 552, 559 (9th Cir. 2001).
Cross-reference: II.B.4 (regarding interlocutory
permissive appeals under § 1292(b) generally).
On appeal from an order certified under Rule 54(b),
the court of appeals does not have jurisdiction to review rulings not contained
in the certified order. See Air-Sea
Forwarders, Inc. v. Air Asia Co.,
880 F.2d 176, 179 n.1, 190 n.17 (9th Cir. 1989) (on appeal from
certified order granting judgment notwithstanding the verdict as to two claims,
court of appeals had jurisdiction to review order conditionally granting new
trial as to these claims, but could not reach directed verdict and grant of new
trial as to two other claims).
Cross-reference: II.A.3 (regarding the
appealability of Fed.
R. Civ. P. 54(b) orders generally).
On appeal from a collateral order, the court of
appeals may have jurisdiction to review other rulings that are “inextricably
intertwined with” or “necessary to ensure meaningful review of” the appealable
collateral order. See Swint v. Chambers
Cty. Comm’n,
514 U.S. 35, 50–51 (1995) (declining to “definitively or preemptively
settle … whether or when it may be proper for a court of appeals, with
jurisdiction over one ruling, to review … related rulings that are not
themselves independently appealable”).
On appeal from denial of qualified immunity, court of
appeals had jurisdiction to review grant of partial summary judgment as to
liability because the two orders were “inextricably intertwined.” Marks
v. Clarke, 102 F.3d 1012, 1018 (9th Cir. 1997) (reversal of
qualified immunity rulings necessarily led to reversal of consequent liability
rulings); see also Bull v. City &
Cty. of San Francisco,
595 F.3d 964, 971 (9th Cir. 2010).
In another qualified immunity appeal, the court reached the merits of a
motion to dismiss for failure to state a claim because it raised only legal
issues. Jensen
v. City of Oxnard, 145 F.3d 1078, 1082–84 (9th Cir. 1998) (not
discussing inextricably intertwined standard).
Cross-reference: II.C.17 (regarding the
appealability of immunity orders generally).
·
Denial of county
defendant’s motion for summary judgment asserting “a mere defense to liability”
not an immunity from suit. See Swint v. Chambers
Cty. Comm’n,
514 U.S. 35, 43, 51 (1995); see also Watkins
v. City of Oakland,
145 F.3d 1087, 1092 (9th Cir. 1998) (observing that challenge to
municipality’s policy and custom is not inextricably intertwined with qualified
immunity claims of individual officers).
·
Partial grant of
qualified immunity. See Sanchez v. Canales, 574 F.3d 1169,
1172 (9th Cir. 2009) (explaining that grant of qualified immunity
on interlocutory appeal was not inextricably entwined with a denial of
qualified immunity, and thus the court lacked jurisdiction), overruled on other grounds by United States v.
King,
687 F.3d 1189, 1189 (9th Cir. 2012) (en banc); Eng v. Cooley, 552 F.3d 1062,
1067 (9th Cir. 2009) (same).
·
Determination
whether defendant could be sued for Title IX violation under § 1983. See Doe
v. Petaluma City Sch. Dist.,
54 F.3d 1447, 1449 (9th Cir. 1995).
·
Denial of
defendant’s motion for summary judgment contending plaintiff’s claims for
prospective relief were moot. See Malik v. Brown, 71 F.3d 724, 727
(9th Cir. 1995).
·
Merits of
underlying action. See Neely v. Feinstein, 50 F.3d 1502,
1505 n.2 (9th Cir. 1995), disapproved
on other grounds by L.W.
v. Grubbs,
92 F.3d 894, 897 (9th Cir. 1996).
An appeal from denial of a Rule 60 motion brings up for
review only the denial of the motion, unless the motion is filed within 28 days
of entry of judgment. See Fed.
R. App. P. 4(a)(4)(A)(vi); Henson
v. Fid. Nat’l Fin., Inc., 943 F.3d 434, 444 (9th Cir. 2019) (“[A]n appeal
from the denial of a Rule 60(b) motion brings up for review only the denial of
that motion, but not the underlying judgment.”); Maraziti v. Thorpe, 52
F.3d 252, 254 (9th Cir. 1995) (relying on earlier version of rule); Harman v.
Harper, 7 F.3d 1455, 1458 (9th Cir. 1993) (no jurisdiction to
consider underlying judgment).
On appeal from an order denying a motion to intervene
for purposes of appeal, the court of appeals had jurisdiction to consider the
merits. See United States v. Covington Tech. Co., 967 F.2d 1391,
1396–97 (9th Cir. 1992) (after reversing district court’s denial of
government’s motion to intervene as a matter of right for purposes of appeal,
court of appeals reversed dismissal of underlying action).
Cross-reference: II.C.19 (regarding the
appealability of intervention orders generally).
Ordinarily, the court of appeals must raise a
jurisdictional issue sua sponte if the parties do not raise it. See Nicusor-Remus v. Sessions, 902 F.3d 895, 897 (9th Cir. 2018) (stating the court
of appeals has an obligation to review its jurisdiction sua sponte); Symantec Corp.
v. Global Impact, 559 F.3d 922, 923 (9th Cir. 2009) (order) (appellate
jurisdiction); Phaneuf
v. Republic of Indonesia,
106 F.3d 302, 309 (9th Cir. 1997) (appellate jurisdiction); Randolph v.
Budget Rent-A-Car, 97 F.3d 319, 323 (9th Cir. 1996) (district court
jurisdiction).
The court of appeals has an obligation to review its
jurisdiction sua sponte. Nicusor-Remus v. Sessions, 902 F.3d 895, 897
(9th Cir. 2018). “Jurisdiction over an
appeal is open to challenge at any time.”
Fiester
v. Turner, 783 F.2d 1474, 1475 (9th Cir. 1986) (order).
The court of appeals is obliged to raise sua sponte
issues concerning a district court’s subject matter jurisdiction. See Animal Legal Def. Fund v. United
States Dep’t of Agric., 933 F.3d 1088, 1092 (9th Cir. 2019). Failure to challenge district court
jurisdiction in district court does not ordinarily constitute waiver. See Hajro v. U.S. Citizenship & Immigration Servs., 811 F.3d 1086, 1099 n.6 (9th Cir. 2016); Attorneys Trust
v. Videotape Computer Prods., Inc., 93 F.3d 593, 594–95 (9th Cir. 1996). A jurisdictional issue may be raised for the
first time on appeal even though it is not of “constitutional magnitude.” Clinton
v. City of New York, 524 U.S. 417, 428 (1998). See also Sentry Select Ins.
Co. v. Royal Ins. Co. of America, 481 F.3d 1208, 1217 (9th Cir. 2007).
·
Federal
government could argue for first time on appeal that federal statute did not
authorize suit by institutional plaintiffs.
See Clinton
v. City of New York,
524 U.S. 417, 428 (1998).
·
“[D]isappointed
plaintiff” could attack subject matter jurisdiction for first time on
appeal. Attorneys
Trust v. Videotape Computer Prods., Inc., 93 F.3d 593, 594–95 (9th Cir.
1996). See also Sentry Select Ins.
Co. v. Royal Ins. Co. of America,
481 F.3d 1208, 1217 (9th Cir. 2007) (plaintiff attacked admiralty
jurisdiction for first time on appeal).
·
Stipulation of
parties did not cure jurisdictional defect.
See Rains
v. Criterion Sys., Inc.,
80 F.3d 339, 342 (9th Cir. 1996).
·
Party to fee
dispute could challenge district court jurisdiction to award fees without
filing cross-appeal. See Yang v. Shalala, 22 F.3d 213, 216
n.4 (9th Cir. 1994).
·
State could raise
Eleventh Amendment immunity for the first time on appeal because it
“sufficiently partakes of the nature of a jurisdictional bar.” Ashker
v. Cal. Dep’t of Corrs., 112 F.3d 392, 393 (9th Cir. 1997).
·
Party could
attack timeliness of motion for a new trial, regardless of whether issue was
raised in the district court. See Dream Games of
Arizona, Inc. v. PC Onsite,
561 F.3d 983, 994 n.6 (9th Cir. 2009).
·
Even though
County asserted subject matter jurisdiction in its removal notice, it could challenge
subject matter jurisdiction on appeal. See
Int’l Union
of Operating Eng’rs v. Cty. of Plumas,
559 F.3d 1041, 1043–44 (9th Cir. 2009).
·
Where plaintiff
failed to object to improper removal and the action is subsequently tried on
the merits, the court of appeals did not scrutinize the propriety of the
initial removal, but instead determined whether or not the district court had
jurisdiction at the time final judgment was entered. See Grubbs
v. Gen. Elec. Credit Corp.,
405 U.S. 699, 702 (1972); Lively
v. Wild Oats Markets, Inc., 456 F.3d 933, 941 (9th Cir. 2006); see
also Morris
v. Princess Cruises, Inc.,
236 F.3d 1061, 1068 (9th Cir. 2001).
But see Kruse
v. Hawaii,
68 F.3d 331, 333–34 (9th Cir. 1995) (examining propriety of initial
removal where party failed to object to removal, but instead of trying the
action on the merits the district court granted partial summary judgment and
remanded the state law claims to state court).
·
Where a
defendant’s pretrial motion to dismiss for lack of personal jurisdiction was
denied, and he failed to raise the issue again in a subsequent trial, the court
of appeals considered only whether plaintiff established a prima facie case for
personal jurisdiction, the standard used by the district court in denying the
pretrial motion to dismiss, not whether plaintiff established personal
jurisdiction by a preponderance of evidence.
See Peterson
v. Highland Music, Inc.,
140 F.3d 1313, 1319 (9th Cir. 1998).
·
If a plaintiff
fails to raise a substantial question of diversity of citizenship in its
pleadings and neglects to contest removal or move for remand, plaintiff may be
precluded from challenging diversity on appeal.
See Albrecht
v. Lund,
845 F.2d 193, 194 (9th Cir. 1988); see also Schnabel v. Lui, 302 F.3d 1023,
1031–32 (9th Cir. 2002) (same). But see United
States v. Ceja-Prado,
333 F.3d 1046, 1050–51 (9th Cir. 2003) (remanding to district court
where there was a serious question as to the factual predicate for subject
matter jurisdiction even though it was not raised below).
·
If a defendant
fails to challenge plaintiff’s standing in district court, and the defect in
standing does not undermine existence of a case or controversy, defendant may
be precluded from challenging standing on appeal. See Sycuan
Band of Mission Indians v. Roache,
54 F.3d 535, 538 (9th Cir. 1995); but see Guggenheim v. City of Goleta, 638 F.3d 1111,
1116 (9th Cir. 2010) (raising the issue of standing although neither
party addressed standing).
·
If neither party
objects to exercise of jurisdiction in district court, court of appeals need
not sua sponte determine whether district court abused its discretion by
proceeding under the Declaratory Judgment Act.
See Gov’t
Employees Ins. Co. v. Dizol,
133 F.3d 1220, 1224 (9th Cir. 1998) (en banc).
·
If neither party
objects to exercise of supplemental jurisdiction in district court, court of
appeals need not sua sponte determine whether district court abused its
discretion in retaining jurisdiction over pendent state law claims. See Acri
v. Varian Assocs., Inc.,
114 F.3d 999, 1000–01 (9th Cir. 1997); see also Diaz v. Davis (In
re Digimarc Corp. Derivative Litig.),
549 F.3d 1223, 1233 n.3 (9th Cir. 2008).
·
If a state
defendant fails to assert Younger abstention and urges the district
court to adjudicate constitutional issues, it may be precluded from arguing the
propriety of abstention on appeal. See
Kleenwell
Biohazard Waste & Gen. Ecology Consultants, Inc. v. Nelson, 48 F.3d 391, 394
& n.3 (9th Cir. 1995) (Younger abstention doctrine raises
jurisprudential, not jurisdictional, considerations).
·
If a defendant
fails to assert a limitations defense in a case “where the language of a
[federal] statute of limitations does not speak of jurisdiction, but erects
only a procedural bar,” he or she may be precluded from raising the issue on
appeal. Cedars-Sinai
Med. Ctr. v. Shalala, 125 F.3d 765, 770 (9th Cir. 1997) (remanding
to district court to determine whether defendant waived statute of limitations
contained in 28 U.S.C. § 2401(a)).
As a general rule, the court of appeals “does not
consider an issue not passed upon below.”
Dodd
v. Hood River Cty., 59 F.3d 852, 863 (9th Cir. 1995) (quotation and
citation omitted); see also Friedman v. AARP, Inc., 855 F.3d 1047, 1057 (9th Cir. 2017) (“Our general
rule is that we do not consider an issue not passed upon below.”); Barrientos v.
1801-1828 Morton LLC, 583 F.3d 1197, 1217 (9th Cir. 2009); United States v.
Patrin,
575 F.2d 708, 712 (9th Cir. 1978) (“It is immaterial whether the issue
was not tried in the district court because it was not raised or because it was
raised but conceded by the party seeking to revive it on appeal.”). Similarly, documents or facts not presented
to the district court are generally not considered by the court of
appeals. See United States v. Elias, 921 F.2d 870,
874 (9th Cir. 1990); see also Huynh
v. Chase Manhattan Bank,
465 F.3d 992, 1000 (9th Cir. 2006) (noting that it is rarely appropriate
for an appellate court to take judicial notice of facts not before the district
court). Moreover, “a plaintiff may not
cure her failure to present the trial court with facts sufficient to establish
the validity of her claim by requesting that this court take judicial notice of
such facts.” Jespersen v. Harrah’s
Operating Co., 444 F.3d 1104, 1110 (9th Cir. 2006) (en banc); see also
Fleischer Studios, Inc. v. A.V.E.L.A., Inc., 654 F.3d 958, 966 (9th Cir.
2011).
In determining whether the district court ruled on an
issue, the court of appeals will look to both the oral and the written
record. See Kayes v. Pac. Lumber Co., 51 F.3d 1449,
1458 (9th Cir. 1995) (concluding district court ruled on issue where
written order indicated issue had been decided orally).
Waiver is generally a rule of discretion not
jurisdiction. See United States v.
Northrop Corp.,
59 F.3d 953, 958 n.2 (9th Cir. 1995); see also Hoffmann v. Pulido,
928 F.3d 1147, 1150 (9th Cir. 2019) (review of new arguments is
discretionary). Therefore, the court of
appeals may consider an issue not considered by the district court, see Self-Realization
Fellowship Church v. Ananda Church of Self-Realization, 59 F.3d 902, 912
(9th Cir. 1995), but it is not required to do so, see Broad v. Sealaska
Corp.,
85 F.3d 422, 430 (9th Cir. 1996).
“Issues” that can be waived include causes of action,
factual assertions, and legal arguments.
See Crawford
v. Lungren,
96 F.3d 380, 389 n.6 (9th Cir. 1996) (causes of action waived); USA Petroleum
Co. v. Atl. Richfield Co., 13 F.3d 1276, 1284 (9th Cir. 1994) (legal
argument waived); Int’l
Union of Bricklayers & Allied Craftsman Local Union v. Martin Jaska, Inc.,
752 F.2d 1401, 1404–05 (9th Cir. 1985) (factual assertion waived).
Although there is no “bright-line” rule, an issue is
generally deemed waived if it is not “raised sufficiently for the trial court
to rule on it.” Whittaker Corp. v. Execuair Corp.,
953 F.2d 510, 515 (9th Cir. 1992).
See also Bracken v. Okura, 869 F.3d 771, 776 n.3 (9th Cir. 2017)
(“To have been properly raised below, the argument must be raised sufficiently
for the trial court to rule on it.”).
“This principle accords to the district court the opportunity to
reconsider its rulings and correct its errors.”
Whittaker
Corp., 953 F.2d at 515. The
rule of waiver applies to procedural as well as substantive objections. See Cabrera
v. Cordis, Corp.,
134 F.3d 1418, 1420 (9th Cir. 1998) (failure to object to evidentiary
procedure at summary judgment hearing constituted waiver). Note that the court “will not consider an
issue waived or forfeited if it has been raised sufficiently for the trial
court to rule on it.” Cornhusker Cas.
Ins. Co. v. Kachman, 553 F.3d 1187, 1192 (9th Cir. 2009) (internal quotation
marks and citation omitted); see also Bracken, 869 F.3d at 776 n.3
(concluding that where argument was raised both in opposition to motion to
dismiss and in motion for reconsideration, it was sufficiently raised and not
waived).
In the following instances, an issue was deemed
inadequately raised, and thus waived:
·
Party did not comply
with district court request for further briefing on issue. See Foti
v. City of Menlo Park,
146 F.3d 629, 637–38 (9th Cir. 1998).
·
Party referred to
statutory waiver provision at summary judgment hearing but did not indicate she
intended to challenge the provision on disparate treatment grounds. See Moreno
Roofing Co. v. Nagle,
99 F.3d 340, 343 (9th Cir. 1996).
·
Party raised issue in
a motion the district court refused to consider because the motion was untimely
and violated local rules, and party failed to appeal order refusing to consider
issue. See Palmer v. IRS, 116 F.3d 1309,
1312–13 (9th Cir. 1997).
·
Plaintiff made a claim
for injunctive relief in complaint but failed to raise the issue in response to
defendant’s motion to dismiss on the grounds of immunity from money damages
effectively abandoned the claim and could not raise it on appeal. See Walsh
v. Nevada Dep’t of Human Resources,
471 F.3d 1033, 1037 (9th Cir. 2006); see also Travelers Prop. Cas. Co. of America v.
Conocophillips Co.,
546 F.3d 1142, 1146 (9th Cir. 2008) (not considering issue party failed
to raise in either complaint or motion for summary judgment).
·
Argument made for the
first time on appeal, and supported by a document that did not appear to be
part of the district court record was waived.
See Solis
v. Matheson,
563 F.3d 425, 437 (9th Cir. 2009).
In the following instances, an issue was deemed
adequately raised, and thus not waived:
·
Party failed to file
opposition to motion for protective order but filed objections to opposing
party’s proposed order before district court entered order. See Kirshner
v. Uniden Corp. of Am.,
842 F.2d 1074, 1079 (9th Cir. 1988).
·
Party made due process
objection to previously agreed-upon time limits before end of jury trial. See Gen.
Signal Corp. v. MCI Telecomms. Corp.,
66 F.3d 1500, 1507 (9th Cir. 1995).
·
Although party did not
substantively address state claim for overtime compensation when the district
court requested additional briefing, the issue was clearly raised and argued
before the district court. See Bothell v. Phase
Metrics, Inc.,
299 F.3d 1120, 1130 (9th Cir. 2002).
·
District court was
sufficiently apprised of the “actually delivered” issues where party argued
against allowing notice sent by certified mail to qualify as “mailed” in
Opposition to Motion for Summary Judgment.
See Cornhusker
Cas. Ins. Co. v. Kachman,
553 F.3d 1187, 1191–92 (9th Cir. 2009).
Even if an issue is raised by the parties, it may be
waived via stipulation or concession. See
Am. Bankers
Mortgage Corp. v. Fed. Home Loan Mortgage Corp., 75 F.3d 1401,
1413 (9th Cir. 1996) (precluding plaintiff from pursuing on appeal a
claim that was dismissed with prejudice by stipulation of the parties as part
of a post-judgment agreement); Slaven
v. Am. Trading Transp. Co.,
146 F.3d 1066, 1069 (9th Cir. 1998) (precluding party who unequivocally
stipulated to settlement from challenging settlement on appeal); Mendoza v. Block, 27 F.3d 1357,
1360 (9th Cir. 1994) (precluding plaintiff from challenging evidentiary
procedure on appeal, even if it would otherwise have been erroneous, because he
unequivocally stated he had no objection to the procedure).
However, the court of appeals has considered an issue
to which the parties stipulated where one of the parties later raised the issue
and the district court addressed it on the merits. See Glaziers
& Glassworkers v. Custom Auto Glass Distrib., 689 F.2d 1339,
1342 n.1 (9th Cir. 1982) (despite parties’ stipulation limiting issues
for trial, court of appeals could consider issue outside stipulation because
plaintiff subsequently raised issue in opposition to motion to dismiss and
district court considered contention on the merits). Additionally, if the stipulated judgment was
entered into with the intent to preserve appeal, then the court may exercise
appellate jurisdiction. See U.A., Local 342
Apprenticeship & Training Trust v. Babcock & Wilcox Constr. Co., Inc., 396 F.3d 1056,
1058 (9th Cir. 2005); see also Hoa
Hong Van v. Barnhart,
483 F.3d 600, 610 n.5 (9th Cir. 2007) (listing exceptions to general
rule of non-appealability when a judgment is entered with a party’s consent);
Continental
Ins. Co. v. Federal Express Corp.,
454 F.3d 951, 954 (9th Cir. 2006).
Moreover, the court of appeals has considered an issue
expressly waived by a pro se litigant prior to appointment of counsel. See Freeman
v. Arpaio,
125 F.3d 732, 735 n.1 (9th Cir. 1997), abrogated on different grounds
as stated in Shakur
v. Schriro,
514 F.3d 878, 885 (9th Cir. 2008).
A state waived its Eleventh Amendment immunity by
consenting to prosecution of a case through trial and by submitting a
declaration expressly waiving any Eleventh Amendment defense in the case. Katz
v. Regents of the Univ. of Cal., 229 F.3d 831, 834–35 (9th Cir. 2000).
The court of appeals will consider an issue raised for
the first time on appeal “under certain narrow circumstances,” where
consideration of the issue will not prejudice the opposing party. Kimes
v. Stone, 84 F.3d 1121, 1126 (9th Cir. 1996) (citation omitted); see
also Carrillo
v. Cty. of Los Angeles, 798 F.3d 1210, 1223 (9th Cir. 2015) (addressing
issue where it was purely one of law, and addressing it would not prejudice the
plaintiffs); Cmty. House, Inc. v. City of Boise, 490 F.3d 1041, 1053
(9th Cir. 2007) (declining to consider a constitutional claim for the
first time on appeal). The court may
exercise its discretion to consider an argument raised for the first time on
appeal “(1) to prevent a miscarriage of justice; (2) when a change in law
raises a new issue while an appeal is pending; and (3) when the issue is purely
one of law.” AlohaCare v. Hawaii, Dep’t of Human
Servs., 572 F.3d 740, 744–45 (9th Cir. 2009) (internal quotation
marks and citation omitted). “However,
[the court] will not reframe an appeal to review what would be (in effect) a
different case than the one the district court decided below.” Id.
(internal quotation marks and citation omitted).
Court of appeals may consider an issue raised for the
first time on appeal “in exceptional circumstances to prevent manifest
injustice.” United States v. One 1978 Piper
Cherokee Aircraft, 91 F.3d 1204, 1209 (9th Cir. 1996) (finding no
manifest injustice in precluding party from raising government’s failure to
give notice of forfeiture proceeding where party had actual notice);
Alexopulos by Alexopulos
v. Riles,
784 F.2d 1408, 1411 (9th Cir. 1986) (finding no manifest injustice where
party provides no reason for failing to raise issue in district court); City of Phoenix
v. Com/Systems, Inc., 706 F.2d 1033, 1038–39 (9th Cir. 1983)
(finding no manifest injustice in precluding party from objecting to admission
of testimony, despite exclusion of document upon which testimony based, where
document in fact admissible); see also Tucson
Woman’s Clinic v. Eden,
379 F.3d 531, 554 (9th Cir. 2004) (exercising discretion to reach claim
raised for first time on appeal to prevent an invasion of privacy rights).
The court of appeals may also consider an issue raised
for the first time on appeal if it “arises while the appeal is pending because
of a change in law.” Gates v.
Deukmejian, 987 F.2d 1392, 1407–08 (9th Cir. 1992) (considering
defendant’s challenge to award of expert witness fees where intervening
decision changed law with regard to compensation for expert witness fees);
see also Townsend
v. Knowles,
562 F.3d 1200, 1204 n.3 (9th Cir. 2009) (considering timeliness of
habeas petition where intervening Supreme Court decision changed controlling
law regarding tolling of the statute of limitations for habeas corpus
petitions), abrogated by Walker v. Martin, 562 U.S. 307
(2011); Beck
v. City of Upland, 527 F.3d 853, 867 (9th Cir. 2008) (considering
issue where new legal standard arose during briefing of appeal). But see USA
Petroleum Co. v. Atl. Richfield Co.,
13 F.3d 1276, 1285–86 (9th Cir. 1994) (denying plaintiff discovery to pursue
a legal theory it had expressly abandoned in the district court, despite an
intervening decision clarifying the theory’s requirements).
A challenge to a contempt finding is not necessarily
waived by failure to raise it in a district court “because the propriety and
even the nature of the contempt sanction can change over time.” Richmark
Corp. v. Timber Falling Consultants, 959 F.2d 1468, 1481 (9th Cir. 1992).
The court of appeals may consider an issue raised for
the first time on appeal “when the issue is purely one of law.” Parks
Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1488 (9th Cir. 1995);
see also Kaass Law v. Wells Fargo Bank, N.A., 799 F.3d 1290, 1293 (9th
Cir. 2015); Carrillo v. Cty. of Los Angeles, 798 F.3d 1210, 1223 (9th
Cir. 2015) (addressing issue where it was purely one of law, and addressing it
would not prejudice the plaintiffs); Self-Realization
Fellowship Church v. Ananda Church of Self-Realization, 59 F.3d 902, 912
(9th Cir. 1995) (court of appeals has discretion to consider purely
legal question raised for first time in motion to reconsider grant of summary
judgment).
However, a purely legal issue will be entertained on
appeal only if “consideration of the issue would not prejudice [the opposing
party’s] ability to present relevant facts that could affect [the]
decision.” Kimes v. Stone, 84 F.3d 1121,
1126 (9th Cir. 1996); see also Lahr
v. Nat’l Transp. Safety Bd.,
569 F.3d 964, 980 (9th Cir. 2009) (declining to consider issue where
doing so would unfairly prejudice the government).
·
Whether vicarious
liability could be imposed under 42
U.S.C. § 1985. See Scott v. Ross, 140 F.3d 1275,
1283–84 (9th Cir. 1998).
·
Whether Supremacy
Clause precluded application of state litigation privilege to bar federal civil
rights claim. See Kimes v. Stone, 84 F.3d 1121,
1126 (9th Cir. 1996).
·
Whether defendants
were entitled to state-action immunity. See
Columbia
Steel Casting Co., Inc. v. Portland Gen. Elec. Co., 111 F.3d 1427,
1443 (9th Cir. 1996).
The court of appeals has declined to consider legal
questions that require further development of the factual record. See Greisen
v. Hanken,
925 F.3d 1097, 1115 (9th Cir. 2019) (declining to consider defense not raised
properly before the district court where the record was undeveloped, because
although the defense was ultimately a legal question, its resolution often
entails factual disputes); A-1 Ambulance Serv., Inc. v. Cty. of Monterey,
90 F.3d 333, 337–39 (9th Cir. 1996) (declining to consider whether a
binding public service contract trumps constitutional ratemaking requirements);
Animal
Prot. Inst. of Am. v. Hodel, 860 F.2d 920, 927 (9th Cir. 1988)
(declining to consider whether practice of permitting animal adopters to use
powers of attorney was improper).
The court also has declined to consider the argument
that dismissal should have been without prejudice where the plaintiff requested
that an order dismissing with prejudice be signed, and issue was not purely
legal because plaintiff gave no indication what facts could be alleged in an
amended complaint to cure the deficiencies.
See Parks
Sch. of Bus., Inc. v. Symington,
51 F.3d 1480, 1488–89 (9th Cir. 1995).
Even if a party fails to raise an
issue in the district court, the court of appeals generally will not deem the
issue waived if the district court actually considered it. See United States v. Williams, 846 F.3d 303, 313 (9th Cir. 2016) (“Our court does not deem an
issue waived if the district court actually considered it.”); Sechrest v. Ignacio, 549 F.3d 789, 810 n.10 (9th Cir.
2008); Cmty.
House, Inc. v. City of Boise, 490 F.3d 1041, 1054 (9th Cir. 2007); Cadillac
Fairview of Cal., Inc. v. United States, 41 F.3d 562, 565 n.3 (9th Cir.
1994); Harrell
v. 20th Century Ins. Co., 934 F.2d 203, 205 & 206 n.1 (9th Cir. 1991)
(issue fully briefed by opposing party and considered by district court may be
raised on appeal).
The court of appeals may consider a legal theory not
reached by the district court as an alternative ground for affirming a
judgment. See Sec. Life Ins. Co. of Am. v. Meyling, 146 F.3d 1184,
1190 (9th Cir. 1998) (stating that court can affirm “on any ground
supported by the record”); see also United
States v. Lemus,
582 F.3d 958, 961 (9th Cir. 2009) (explaining that court can affirm on
any basis supported by the record, even if district court did not consider the
issue).
A party is entitled to present additional citations on
appeal to strengthen a contention made in district court. See Puerta
v. United States,
121 F.3d 1338, 1341 (9th Cir. 1997); Lake
v. Lake,
817 F.2d 1416, 1424 (9th Cir. 1987).
Moreover, the court of appeals is required to consider new legal
authority on appeal from a grant of qualified immunity. See Elder
v. Holloway,
510 U.S. 510, 512 (1994) (holding that court of appeals must consider
“all relevant precedents, not simply those cited to, or discovered by, the
district court”). See also Beck v. City of
Upland,
527 F.3d 853, 861 n.6 (9th Cir. 2008).
By pleading certain facts in district court, a party
may waive the right to allege contrary facts on appeal. See Export
Group v. Reef Indus., Inc.,
54 F.3d 1466, 1470–71 (9th Cir. 1995) (plaintiff could not argue on
appeal that defendant was not entitled to sovereign immunity because it was not
an agency or instrumentality of Mexican government where plaintiff alleged
defendant was an agency or instrumentality in its complaint).
A pleading must provide fair notice to defendant of
each claim asserted. See Yamaguchi v.
United States Dep’t of the Air Force,
109 F.3d 1475, 1481 (9th Cir. 1997).
Thus, the plaintiff waived equal protection and due process claims where
complaint contained a “passing reference” to claims, and arguments were “newly
minted” on appeal. Crawford v.
Lungren, 96 F.3d 380, 389 n.6 (9th Cir. 1996) (“The district court
is not merely a way station through which parties pass by arguing one issue
while holding back a host of others for appeal.”).
Although a pro se litigant’s pleadings are to be
liberally construed, “those pleadings nonetheless must meet some minimum
threshold in providing a defendant with notice of what it is that it allegedly
did wrong.” Brazil v. United States Dep’t of
Navy, 66 F.3d 193, 199 (9th Cir. 1995) (claim for wrongful
termination waived because not raised in pleadings).
Failure to plead certain affirmative defenses
constitutes waiver. See Lowery v. Channel
Commc’ns, Inc. (In re Cellular 101, Inc.), 539 F.3d 1150, 1155 (9th Cir. 2008)
(“Settlement and release is an affirmative defense and is generally waived if
not asserted in the answer to a complaint.”); Singh
v. Gonzales, 499 F.3d 969, 975 (9th Cir. 2007) (deeming defense of
res judicata waived where not raised in district court); Rotec Indus., Inc.
v. Mitsubishi Corp.,
348 F.3d 1116, 1119 (9th Cir. 2003) (holding that claim preclusion was
waived); Clements
v. Airport Auth. of Washoe Cty.,
69 F.3d 321, 328 (9th Cir. 1995) (holding that claim preclusion, but not
issue preclusion, was waived); NW
Acceptance Corp. v. Lynnwood Equip., 841 F.2d 918, 924 (9th Cir. 1987)
(deeming defense of novation waived); see also Kelson v. City of Springfield, 767 F.2d 651,
657 (9th Cir. 1985) (stating that qualified immunity defense is waived
if not pled, but where plaintiff could file amended complaint on remand,
defendant should be able to file answer raising qualified immunity), overruled
on other grounds as recognized by Smith v. City of Fontana, 818 F.2d
1411, 1418 n.9 (9th Cir. 1987), overruled on other grounds by Hodgers-Durgin
v. De La Vina, 199 F.3d 1037 (9th Cir. 1999) (en banc).
“A default judgment must not differ in kind from, or
exceed in amount, what is demanded in the pleadings. Every other final judgment
should grant the relief to which each party is entitled, even if the party has
not demanded that relief in its pleadings.”
Fed.
R. Civ. P. 54(c). Failure to
request specific relief does not constitute waiver of right to recover
relief. See Z Channel, Ltd. v. Home Box Office,
Inc.,
931 F.2d 1338, 1341 (9th Cir. 1991) (although injunctive relief rendered
moot, plaintiff could seek damages for first time on appeal because allegations
in complaint could give rise to damages award).
“For claims
dismissed with prejudice and without leave to amend, [the court] will not
require that they be repled in a subsequent amended complaint to preserve them
for appeal. But for any claims
voluntarily dismissed, [the court] will consider those claims to be waived if
not repled.” Lacey v.
Maricopa Cty., 693 F.3d 896 (9th Cir. 2012) (en banc). See also First
Resort, Inc. v. Herrera, 860 F.3d 1263, 1274 (9th Cir. 2017)
(explaining claim was effectively abandoned when the district court dismissed
it with leave to amend, but the claim was not repled), cert. denied, 138 S. Ct. 2709 (2018); Akhtar
v. Mesa, 698 F.3d 1202, 1209 (9th Cir. 2012) (explaining that
under recent case law, complaint “was not entirely superseded when
the amended complaint was filed, and so could have been considered by the
magistrate judge in considering exhaustion.”).
Failure to raise an argument in opposition to
dismissal may constitute waiver. See G-K Props. v.
Redevelopment Agency of San Jose,
577 F.2d 645, 648 (9th Cir. 1978) (appellant waived argument that it did
not possess certain documents by failing to raise it in opposition to dismissal
for noncompliance with discovery order).
Failure to raise an affirmative defense in a motion to
dismiss does not constitute waiver because the motion to dismiss is not a
responsive pleading. See Morrison v.
Mahoney,
399 F.3d 1042, 1046–47 (9th Cir. 2005); see also Randle v. Crawford, 604 F.3d 1047,
1052 (9th Cir. 2010).
Failure to raise a legal argument in opposition to
summary judgment may constitute waiver. See
Alexopulos by Alexopulos
v. Riles,
784 F.2d 1408, 1411 (9th Cir. 1986) (statute of limitation tolling
argument waived). Legal theories
abandoned at summary judgment stage will not be considered on appeal. See USA
Petroleum Co. v. Atl. Richfield Co.,
13 F.3d 1276, 1284 (9th Cir. 1994) (surveying waiver cases).
Similarly, failure to identify a disputed issue of
material fact at summary judgment may constitute waiver. See Int’l
Union of Bricklayers v. Martin Jaska, Inc., 752 F.2d 1401, 1405 (9th Cir. 1985)
(stating that absent exceptional circumstances “appellants may not upset an
adverse summary judgment by raising an issue of fact on appeal that was not
plainly disclosed as a genuine issue before the trial court”); Taylor v.
Sentry Life Ins. Co., 729 F.2d 652, 655–56 (9th Cir. 1984) (factual
assertions waived).
To preserve a claim that summary judgment is premature
because of outstanding discovery, a party must demonstrate the unavailability
and importance of missing evidence to the district court. See Fed.
R. Civ. P. 56(d); Taylor, 729 F.2d at 656.
Failure to object to use of peremptory challenges “as
soon as possible, preferably before the jury is sworn” may constitute
waiver. Dias
v. Sky Chefs, Inc., 948 F.2d 532, 534–35 (9th Cir. 1991) (objection
waived where not raised until after excluded jurors dismissed, jury sworn,
court recessed, motions in limine argued, and other objections made). But see United
States v. Thompson,
827 F.2d 1254, 1257(9th Cir. 1987) (objection not waived where raised
right after jury was sworn because objection could not have been raised much
earlier and opposing party was not prejudiced).
Failure to object to admission of testimony in
district court may constitute waiver. See
City of
Phoenix v. Com/Systems, Inc.,
706 F.2d 1033, 1038–39 (9th Cir. 1983) (objection to admission of
testimony not preserved by objection to admission of document upon which
testimony based).
Moreover, a party ordinarily must make an offer of
proof in district court to preserve an objection to exclusion of evidence. See Heyne
v. Caruso,
69 F.3d 1475, 1481 (9th Cir. 1995).
However, an offer of proof is not necessary where the district court has
previously declared an entire class of evidence inadmissible. See id.
Failure to raise a legal theory or argument before the
district court may constitute waiver. See
A-1
Ambulance Serv., Inc. v. Cty. of Monterey, 90 F.3d 333, 338–39 (9th Cir. 1996)
(defendant waived contract argument by failing to raise it at trial); Martinez v.
Shinn, 992 F.2d 997, 1001 (9th Cir. 1993) (defendants waived argument
that statute precluded award of backpay and emotional distress damages by
failing to raise it during trial or in motion to amend judgment); Malhiot v. S.
Cal. Retail Clerks Union, 735 F.2d 1133, 1137 (9th Cir. 1984) (due
process argument waived where not raised in pretrial order or at trial).
“A party who objects to an instruction or the failure
to give an instruction must do so on the record, stating distinctly the matter
objected to and the grounds for the objection.”
Fed. R.
Civ. P. 51(c)(1).
An objection to a jury instruction “‘need not be
formal,’” and a party may properly object by submitting a proposed instruction
that is supported by relevant authority, so long as the “proffered language
[is] ‘sufficiently specific to bring into focus the precise nature of the
alleged error.’” Norwood v. Vance,
591 F.3d 1062, 1066 (9th Cir. 2010) (quoting Inv.
Serv. Co. v. Allied Equities Corp., 519 F.2d 508, 510 (9th Cir. 1975)). If a party does not properly object to jury
instructions before the district court, we may only consider “a plain error in
the instructions that … affects substantial rights.” Fed. R. Civ. P. 51(d)(2).
Hunter v. Cty. Of Sacramento, 652 F.3d
1225, 1230 (9th Cir. 2011). See also
Shorter v. Baca, 895 F.3d 1176, 1183 (9th Cir. 2018) (concluding objection
was sufficient where record showed that Shorter objected to the instruction at
trial (albeit on a different ground), and in a motion for new trial, and it was
sufficient to bring into focus the nature of the alleged error).
The court in Hunter,
recognized that prior to 2003, the court adhered to a strict rule that it would
only review objections to jury instructions in a civil case if the party
properly objected. However, in 2003,
“Rule 51 was amended to provide for plain error review when a party fails to
preserve an objection.” C.B. v. City of Sonora, 769 F.3d 1005,
1016 (9th Cir. 2014) (en banc) (recognizing prior case law had been
abrogated by the 2003 amendment); Hunter, 652 F.3d at 1230 n.5. See also Hoard v. Hartman, 904 F.3d 780, 786 (9th Cir. 2018) (reviewing for
plain error where party failed to object to proposed instruction at trial).
The court has found waiver of a challenge to a special
verdict form by failing to raise the challenges until after the jury had
rendered its verdict and was discharged.
See Yeti by Molly,
Ltd. v. Deckers Outdoor Co.,
259 F.3d 1101, 1109–10 (9th Cir. 2001).
A claim of error was preserved where the district
court refused to give an instruction proposed by the defendant who objected to
its omission at the end of the jury charge.
See Larson
v. Neimi,
9 F.3d 1397, 1399 (9th Cir. 1993), superseded
by rule as stated in City of Sonora, 769 F.3d at 1016. Also, where the district court was aware of a
party’s disagreement with an instruction, a proposed alternative instruction
served as an adequate objection. See Gulliford v.
Pierce Cty.,
136 F.3d 1345, 1349 (9th Cir. 1998).
Note that failure to object to a jury instruction does
not preclude a party from challenging sufficiency of the evidence on appeal based
on a legal theory different than that contained in the instruction. See Los
Angeles Land Co. v. Brunswick Corp.,
6 F.3d 1422, 1426 n.2 (9th Cir. 1993) (“[O]n review of a denial of a
[motion for jurisdiction as a matter of law], th[e] court applies the law truly
controlling the case, regardless of the jury instructions.”).
“When the answers [to interrogatories] are consistent
with each other but one or more is inconsistent with the general verdict, the
court may: (A) approve, for entry under Rule 58, an appropriate judgment
according to the answers, notwithstanding the general verdict; (B) direct the
jury to further consider its answers and verdict; or (C) order a new trial.” Fed. R. Civ. P.
49(b)(3).
Ordinarily, a party does not waive an objection to
inconsistencies in the jury’s findings by failing to raise it right away. See Los
Angeles Nut House v. Holiday Hardware Corp., 825 F.2d 1351, 1354–55 (9th Cir.
1987) (citation omitted) (stating that “such a waiver rule is inconsistent
with the language and structure of Rule 49(b)”). However, counsel risks waiver where he or she
does not object after being “invited to consider whether or not to discharge
the jury.” Home Indem. Co. v. Lane Powell Moss
& Miller, 43 F.3d 1322, 1331 (9th Cir. 1995). See also Williams v. Gaye, 895 F.3d
1106, 1130 (9th Cir. 2018) (as amended) (party waived its challenge to any
perceived inconsistencies between the jury’s general verdicts by not objecting
prior to the dismissal of the jury); Flores v. City of Westminster, 873
F.3d 739, 757 (9th Cir. 2017) (party waived any objection to the jury’s
allegedly inconsistent answers when it failed to object before the jury was
discharged), cert. denied sub nom. Hall v. Flores, 138 S. Ct. 1551
(2018).
To preserve an objection to sufficiency of the
evidence, a party must move for judgment as a matter of law at the close of all
the evidence, and if the motion is denied, renew the motion after the
verdict. See Fed. R. Civ. P. 50(b);
Nitco
Holding Corp. v. Boujikian, 491 F.3d 1086, 1089 (9th Cir. 2007)
(party must file a pre-verdict motion pursuant to Fed. R. Civ. P. 50(a) and a
post-verdict motion for judgment as a matter of law to preserve an objection to
sufficiency of the evidence). See
also Williams v. Gaye, 895 F.3d 1106, 1134–35 (9th Cir. 2018) (as amended)
(discussing Nitco).
Accordingly, denial of a motion for directed verdict
is not reviewable absent a subsequent motion for judgment notwithstanding the
verdict. See Nitco, 491 F.3d at 1089. See also Eberle
v. City of Anaheim,
901 F.2d 814, 818 (9th Cir. 1990) (an “ambiguous or inartful request for
a directed verdict” may suffice if it adequately raises the issue of evidence
sufficiency). Conversely, denial of
motion for judgment notwithstanding the verdict is not reviewable absent a
prior motion for directed verdict at the close of all the evidence. See Sloman
v. Tadlock,
21 F.3d 1462, 1473 (9th Cir. 1994); Eberle,
901 F.2d at 818 (if the district court reserves ruling on a motion for
judgment as a matter of law made at the close of plaintiff’s evidence, the
motion is still in effect at the close of all the evidence).
“[A] party procedurally defaults a civil appeal based
on the alleged insufficiency of the evidence to support the verdict if it fails
to file a post‑verdict motion for judgment notwithstanding the verdict,
under Fed.
R. Civ. P. 50(b). [Furthermore,] a procedurally barred sufficiency
challenge is not subject to plain error review but is considered
forfeited.” Nitco, 491 F.3d at 1088.
However, when findings of fact are made in actions
tried without a jury, “[a] party may later question the sufficiency of the
evidence supporting the findings, whether or not the party requested findings,
objected to them, moved to amend them, or moved for partial findings.” Fed.
R. Civ. P. 52(a)(5) (but see “Specificity of Court Findings,” below).
“In an action tried on the facts without a jury or
with an advisory jury, the court must find the facts specially and state its
conclusions of law separately.” Fed. R. Civ. P.
52(a). To preserve an objection
to lack of specificity of the district court’s findings, a party must propose
additional or alternate findings or seek amendment of the findings under Fed. R. Civ. P.
52(b). See Reliance Fin.
Corp. v. Miller,
557 F.2d 674, 681–82 (9th Cir. 1977) (noting that party may nevertheless
attack finding as erroneous).
Fed. R. Civ. P. 52 does not apply to motions. See Fed.
R. Civ. P. 52(a); D’Emanuele
v. Montgomery Ward & Co., 904 F.2d 1379, 1388 (9th Cir. 1990)
(holding that party need not object to lack of findings in order awarding
attorney’s fees to preserve issue for appeal), abrogated on other grounds by
City of
Burlington v. Dague,
505 U.S. 557 (1992).
Under certain circumstances, the court of appeals may
reach issues raised for the first time in a post-trial or post-judgment
filing. See Whittaker Corp. v. Execuair Corp., 953 F.2d 510,
515 (9th Cir. 1992). For example:
·
Appellant adequately
preserved challenge to scope of sanction by raising it in motion to reconsider
contempt order. See id. (observing
that motion to reconsider gave district court clear opportunity to review
validity of its contempt order).
·
Appellant permitted to
advance argument on appeal that it failed to raise in opposition to summary
judgment where district court rejected arguments on the merits in response to
appellant’s motion to vacate the grant of summary judgment. See Cadillac
Fairview of Cal., Inc. v. United States, 41 F.3d 562, 565 n.3 (9th Cir. 1994)
(per curiam).
·
Appellant may be
permitted to advance on appeal an argument first raised in motion to reconsider
grant of summary judgment where it presents purely questions of law. See Self-Realization
Fellowship Church v. Ananda Church of Self-Realization, 59 F.3d 902, 912
(9th Cir. 1995) (appellant argued that district court erroneously
“dissected” trademarks).
On the other hand, the court of appeals did not reach
late-raised issues in the following instances:
·
Appellant not
permitted to pursue due process argument raised for first time in motion to
reconsider summary judgment. See Intercontinental
Travel Mktg., Inc. v. FDIC,
45 F.3d 1278, 1286 (9th Cir. 1995).
·
Appellant not
permitted to present burden shifting argument on appeal where it had been
raised for the first time in a post-trial motion, thereby depriving appellee of
opportunity to meet the proposed burden of proof. See Beech
Aircraft Corp. v. United States,
51 F.3d 834, 841 (9th Cir. 1995).
·
Appellant not
permitted to challenge district court’s consideration of affidavits submitted
with appellee’s post-trial brief where appellant failed to move to strike
affidavits in district court. See Yamashita v.
People of Guam,
59 F.3d 114, 117 (9th Cir. 1995).
·
The failure of a party
to make a timely objection under Fed.
R. Civ. P. 54(d)(1) to a district court’s cost award constitutes waiver
of the right to challenge the cost award.
Walker
v. California, 200 F.3d 624, 626 (9th Cir. 1999) (per curiam). See also Mendiola-Martinez v. Arpaio,
836 F.3d 1239, 1262 (9th Cir. 2016) (“Mendiola-Martinez waived her right to
appellate review of the cost award by neglecting to move for district court
review under Rule 54(d)(1).”).
Parties must object to reference to a magistrate or
special master “at the time the reference is made or within a reasonable time
thereafter.” Spaulding v. Univ. of Wash.,
740 F.2d 686, 695 (9th Cir. 1984), overruled on other grounds by Atonio v. Wards
Cove Packing Co.,
810 F.2d 1477 (9th Cir. 1987) (en banc).
Failure to timely object results in waiver. See Adriana
Int’l Corp. v. Thoeren,
913 F.2d 1406, 1410 (9th Cir. 1990) (deeming objection to special
master’s authority to impose discovery sanctions waived where objection made
after several months of meetings, depositions and hearings with special master
regarding discovery); cf. Burlington
N. R.R. Co. v. Dep’t of Revenue,
934 F.2d 1064, 1069–70 (9th Cir. 1991) (deeming objection 13 days after
reference to special master adequate to preserve issue for appeal where order
of reference issued sua sponte and without notice).
When a magistrate judge submits proposed findings and
recommendations to the district court under 28
U.S.C. § 636(b), a party has fourteen days after being served with
a copy of the proposed findings to serve and file written objections. See 28
U.S.C. § 636(b)(1)(C) (providing that district court review de novo
any matter to which objection is made); see also Minetti v. Port of Seattle, 152 F.3d 1113,
1114 & n.1 (9th Cir. 1998) (per curiam) (discussing applicability of
objection procedure under 28 U.S.C. § 636(b)(1)(C)).
The court of appeals has held that, if a party fails
to timely object to a nondispositive magistrate order before the presiding district
judge, that party forfeits the right to appeal that order. See Simpson
v. Lear Astronics Corp.,
77 F.3d 1170, 1174 & n.1 (9th Cir. 1996) (pro se litigant); see
also Glenbrook
Homeowners Ass’n v. Tahoe Regional Planning Agency, 425 F.3d 611,
619–20 (9th Cir. 2005).
Failure to timely object to a magistrate’s factual
findings constitutes waiver of right to appeal those findings. See Robbins
v. Carey,
481 F.3d 1143, 1146 (9th Cir. 2007); Baxter
v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991); cf. Simpson v. Lear
Astronics Corp.,
77 F.3d 1170, 1174 & n.1 (9th Cir. 1996).
In a line of cases predating Simpson, the court
held that failure to timely object to a magistrate’s legal conclusions did not
constitute waiver of the right to appeal those conclusions. See Britt
v. Simi Valley Unified Sch. Dist.,
708 F.2d 452, 454–55 (9th Cir. 1983) (noting that whether failure to
exhaust administrative remedies precludes a § 1983 suit is a question of
law); FDIC
v. Zook Bros. Constr. Co., 973 F.2d 1448, 1450 n.2 (9th Cir. 1992)
(stating that waiver is particularly inappropriate where “both parties have had
the opportunity fully to address the question”); Baxter v. Sullivan, 923 F.2d
1391, 1394 (9th Cir. 1991); Gonzalez
v. Sullivan, 914 F.2d 1197, 1200 (9th Cir. 1990) (noting that
whether there is substantial evidence is a question of law). But see McCall
v. Andrus,
628 F.2d 1185, 1187 (9th Cir. 1980) (deeming objections to legal
conclusions waived), abrogated other grounds by Miranda v. Anchondo, 684 F.3d 844, 848 & n.3 (9th Cir. 2012)
(as amended) (clarifying “that the broad waiver rule suggested in McCall
is not good law”).
In an attempt to reconcile Britt and McCall,
the court has held that failure to object to a magistrate’s conclusions of law,
in conjunction with failure to raise an issue until the reply brief,
constitutes waiver unless “substantial inequity” would result. Martinez
v. Ylst, 951 F.2d 1153, 1157 & n.4 (9th Cir. 1991) (deeming
objection to legal conclusions waived).
However, note that “the failure to object to a magistrate judge’s
conclusions of law does not automatically waive a challenge on appeal.” Robbins
v. Carey, 481 F.3d 1143, 1146–47 (9th Cir. 2007) (concluding that
pro se habeas petitioner did not waive argument where he failed to raise it in
the district court, but it was raised in opening brief). See
also Miranda
v. Anchondo,
684 F.3d 844, 848 & n.3 (9th Cir. 2012) (as amended) (clarifying “that the broad
waiver rule suggested in McCall is not good law”).
Failure to comply with local rule length limitations
did not constitute waiver where appellant timely filed objections to magistrate
report. See Smith v. Frank, 923 F.2d 139,
142 (9th Cir. 1991) (“Such an interpretation would give the local rule
an impermissible jurisdictional character.”).
Failure to object to a special master’s findings and conclusions
is treated the same way as failure to object to a magistrate’s findings and
conclusions. See Smith v. Frank,
923 F.2d 139, 141 n.1(9th Cir. 1991); see also Stone v. City
& Cty. of San Francisco,
968 F.2d 850, 858 (9th Cir. 1992) (stating that failure to object to
factual findings submitted by special master in progress reports resulted in
waiver of right to challenge findings underlying contempt order on appeal).
Cross-reference: II.C.20 (regarding appeal from
a final judgment entered by a magistrate judge under 28 U.S.C. § 636(c)).
·
Failure to raise
statute of limitations argument in initial 28
U.S.C. § 1292(a)(3) appeal determining rights of certain claimants
precluded raising issue on appeal from summary judgment for remaining
claimants. See Kesselring v. F/T
Arctic Hero,
95 F.3d 23, 24 (9th Cir. 1996) (per curiam) (appellant could not raise
issue in 28 U.S.C. § 1291 appeal following summary judgment).
·
Failure to challenge
district court findings underlying preliminary injunction in interlocutory
appeal precluded challenging findings in later appeal. See Munoz
v. Imperial Cty.,
667 F.2d 811, 817 (9th Cir. 1982).
·
Failure to attack jury
instruction in appeal from verdict in second trial precluded appellant from
challenging that instruction on appeal from verdict in fourth trial, even
though fourth verdict rested in part on the allegedly erroneous
instruction. See Alioto v. Cowles
Commc’ns, Inc.,
623 F.2d 616, 618 (9th Cir. 1980).
An appellate brief must include, among other things,
“[the party’s] contentions and the reasons for them, with citations to the
authorities and parts of the record on which the [party] relies.” Fed.
R. App. P. 28(a)(8)(A). “Issues
raised in a brief which are not supported by argument are deemed
abandoned.” Crime Justice & Am.,
Inc. v. Honea, 876 F.3d 966, 978 (9th Cir. 2017) (internal quotation marks
and citation omitted) (where issues raised in captions in brief were not
supported by argument, they were abandoned).
The court of appeals “will not ordinarily consider
matters on appeal that are not specifically and distinctly argued in
appellant’s opening brief.” Miller v.
Fairchild Indus., Inc., 797 F.2d 727, 738 (9th Cir. 1986); see
also Freedom From Religion Found., Inc. v. Chino Valley Unified Sch. Dist. Bd.
of Educ., 896 F.3d 1132, 1152 (9th Cir. 2018); Crime Justice & Am.,
Inc. v. Honea, 876 F.3d 966, 978 (9th Cir. 2017) (internal quotation marks
and citation omitted) (where issues raised in captions in brief were not
supported by argument, they were abandoned); Dream
Games of Arizona, Inc. v. PC Onsite,
561 F.3d 983, 994–95 (9th Cir. 2009); Friends
of Yosemite Valley v. Kempthorne, 520 F.3d 1024, 1032 (9th Cir. 2008)
(although party appealed interlocutory injunction, it failed to address the
issue in either opening or reply brief, and the court considered it waived).
·
Issue “referred to in
the appellant’s statement of the case but not discussed in the body of the
opening brief.” Martinez-Serrano v. INS, 94
F.3d 1256, 1259 (9th Cir. 1996); see also Ghahremani v. Gonzales, 498 F.3d 993,
997–98 (9th Cir. 2007) (challenge to denial of motion to reconsider
considered waived where it was mentioned only three times in the opening brief,
and each time only in passing).
·
Issue raised in brief
but not supported by argument. See Acosta-Huerta v.
Estelle,
7 F.3d 139, 144 (9th Cir. 1992). See also United States v. Cazares,
788 F.3d 956, 983 (9th Cir. 2015) (“The failure to cite to valid legal
authority waives a claim for appellate review.”).
·
Issue listed among
grounds for appeal, but no argument was advanced in support of reversing
district court’s judgment with respect to that claim. See Cachil
Dehe Band of Wintun Indians of Colusa Indian Community v. California, 547 F.3d 962,
968 n.3 (9th Cir. 2008).
·
Issue supported only
by statement adopting the arguments of unnamed co-defendants who “may raise
this issue.” United States v. Turner, 898
F.2d 705, 712 (9th Cir. 1990).
·
Argument “not
coherently developed” in appellate brief.
United
States v. Kimble, 107 F.3d 712, 715 n.2 (9th Cir. 1997).
·
Issue raised for
the first time in reply brief. See Barnes v. Fed. Aviation Admin., 865 F.3d 1266, 1271 n.3 (9th Cir. 2017); Eberle v. City
of Anaheim, 901 F.2d 814, 818 (9th Cir. 1990); see also Zango, Inc. v.
Kaspersky Lab, Inc.,
568 F.3d 1169, 1177 n.8 (9th Cir. 2009) (noting that amicus curiae
generally cannot raise new arguments on appeal, and arguments not raised in
opening brief are waived).
·
Issue raised for
the first time at oral argument. See McKay v. Ingleson, 558 F.3d 888,
891 n.5 (9th Cir. 2009); Stivers
v. Pierce,
71 F.3d 732, 740 n.5 (9th Cir. 1995); United
States v. Martini, 31 F.3d 781, 782 n.2 (9th Cir. 1994) (per
curiam). See also United
States ex rel. Anita Silingo v. WellPoint, Inc., 904 F.3d
667, 678 n.2 (9th Cir. 2018) (declining to address argument where claim was
abandoned on appeal because it was not clearly and distinctly raised in opening brief).
·
Issue raised for
first time in letter of supplemental authorities under Fed. R. App. P. 28(j). See United
States v. Gomez-Mendez,
486 F.3d 599, 606 n.10 (9th Cir. 2007); United States v. Sterner, 23 F.3d 250, 252
n.3 (9th Cir. 1994) (stating that ordinarily issue would be deemed waived
but in this case court would reach issue to prevent “substantial” inequity
(citation omitted)), overruled on other grounds by United States v. Keys, 95 F.3d 874 (9th
Cir. 1996) (en banc), judgment
vacated by 520
U.S. 1226 (1997).
·
Issue not raised
until petition for redetermination deemed waived. See Wilcox
v. Comm’r,
848 F.2d 1007, 1008 n.2 (9th Cir. 1988) (involving pro se litigant).
The court of appeals generally will consider issues
not adequately raised if: (1) there is “good cause shown,” or “failure to do so
would result in manifest injustice;” (2) the issue is raised in the appellee’s
brief; and (3) failure to properly raise the issue does not prejudice the
opposing party. United States v. Ullah, 976
F.2d 509, 514 (9th Cir. 1992) (citations omitted). See also Freedom From Religion Found., Inc. v. Chino
Valley Unified Sch. Dist. Bd. of Educ., 896 F.3d 1132, 1152 n.22 (9th Cir. 2018) (explaining
circumstances where court could review an issue notwithstanding waiver, but
concluding issue was waived and no exceptions were met).
For example, an issue raised for the first time in a
letter of supplemental authorities under Fed. R. App. 28(j) is ordinarily
deemed waived; however, there is an exception to this rule when failure to
consider an issue first raised in a 28(j) letter would result in “substantial
inequity.” United States v. Gomez-Mendez, 486 F.3d 599, 606 (9th Cir.
2007); United
States v. Sterner, 23 F.3d 250, 252 n.3 (9th Cir. 1994), overruled on
other grounds by United
States v. Keys,
95 F.3d 874 (9th Cir. 1996) (en banc), judgment vacated by 520
U.S. 1226 (1997).
The court has also addressed the issue of
Noerr-Pennington immunity where not specifically argued by appellant, but
addressed in appellee’s brief. See Affordable Housing
Dev. Corp. v. City of Fresno,
433 F.3d 1182, 1193 (9th Cir. 2006) (internal quotation marks and
citations omitted).
Additionally, the court has addressed appellants’ tort
claims where failure to raise the issues in the opening brief did not prejudice
appellee. See Williams v. Gerber Prods. Co., 552 F.3d 934,
940 n.5 (9th Cir. 2008).
Note that an observation in appellee’s brief that
appellant failed to raise an issue does not constitute raising the issue. See Eberle
v. City of Anaheim,
901 F.2d 814, 818 (9th Cir. 1990).
“If the appellant intends to urge on appeal that a
finding or conclusion is unsupported by the evidence or is contrary to the
evidence, the appellant must include in the record a transcript of all evidence
relevant to that finding or conclusion.”
Fed.
R. App. P. 10(b)(2).
When an appellant fails to supply necessary
transcripts of district court proceedings, the court of appeals can dismiss the
appeal or refuse to consider appellant’s argument. See Portland
Feminist Women’s Health Ctr. v. Advocates for Life, 877 F.2d 787,
789–90 (9th Cir. 1989) (declining to consider whether district court
erred in finding appellants acted in concert with named defendant where
appellant failed to provide transcript of contempt hearing). But see In re Her Majesty the Queen in
Right of Canada, 785 F.3d 1273, 1275 (9th Cir. 2015) (per curiam)
(“Although counsel for petitioner was remiss in not obtaining the [sentencing]
transcript, the record and the district court’s written order enable [the
court] to review [the] petition on the merits.”).
Failure to provide a trial transcript has had the
following consequences:
·
Appeal claiming
trial court’s finding and judgment was unsupported by the evidence was
dismissed. See Thomas v. Computax
Corp.,
631 F.2d 139, 143 (9th Cir. 1980) (concluding that pro se appellant’s
claimed inability to pay for transcript did not render transcript
“unavailable”).
·
Appeal raising
mixed issues of law and fact dismissed. See
SW Adm’rs,
Inc. v. Lopez,
781 F.2d 1378, 1379–80 (9th Cir. 1986); see also Syncom Capital
Corp. v. Wade,
924 F.2d 167, 169 (9th Cir. 1991).
·
Contention that
excluded statement was admissible as prior consistent statement rejected. See Bemis
v. Edwards,
45 F.3d 1369, 1375 (9th Cir. 1995).
Explicit abandonment of an issue on appeal renders any
challenge to the district court’s ruling on that issue moot. See United
Transp. Union v. Skinner,
975 F.2d 1421, 1425 (9th Cir. 1992) (appellant’s stated willingness to
adopt and enforce district court’s interpretation of statute in question
rendered challenge to that interpretation moot), abrogated by Bhd. of Locomotive
Eng’rs v. Atchison, Topeka & Santa Fe Ry. Co., 516 U.S. 152
(1996).
Foothill Capital Corp. v. Claire’s Food Mkt., Inc. (In
re Coupon Clearing Serv., Inc.), 113 F.3d 1091, 1097 (9th Cir. 1997); see also Battle Ground
Plaza v. Ray (In re Ray),
624 F.3d 1124, 1130–31 (9th Cir. 2010) (discussing bankruptcy court
jurisdiction); Harris v. Wittman (In re Harris), 590
F.3d 730, 736–37 (9th Cir. 2009) (same).
A district court is exercising its original
jurisdiction unless a bankruptcy court determination was formally appealed to
the district court under 28
U.S.C. § 158(a); where no formal appeal to the district court is
taken, a case is deemed originally decided by the district court even though
the bankruptcy court was also involved. See
Harris v.
McCauley (In re McCauley),
814 F.2d 1350, 1351–52 (9th Cir. 1987); Klenske v. Goo
(In re Manoa Fin. Co.), 781 F.2d 1370, 1371–72 (9th Cir. 1986)
(per curiam). But see Vylene Enters.,
Inc. v. Naugles, Inc. (In re Vylene Enters.), 968 F.2d 887,
891 (9th Cir. 1992) (indicating that nature of bankruptcy
proceeding — i.e., whether it was a core or “otherwise related”
proceeding — dictates whether district court acted in original or appellate
bankruptcy capacity).
The court of
appeals has “authority to hear appeals in bankruptcy cases under three
different jurisdiction-conferring provisions, 28 U.S.C. §§ 1291, 1292, and
158(d)(1).” Gugliuzza v. Fed. Trade
Comm’n (In re Gugliuzza), 852 F.3d 884, 889 (9th Cir. 2017).
The court of appeals has appellate jurisdiction over
“final decisions” of the BAP under 28
U.S.C. § 158(d). See Turner
v. Wells Fargo Bank (In re Turner),
859 F.3d 1145, 1148 (9th Cir. 2017); Gugliuzza v. Fed. Trade Comm’n (In re Gugliuzza), 852 F.3d 884, 891
(9th Cir. 2017) (appellate
jurisdiction under § 158(d)(1) is limited to decisions, judgments, orders,
and decrees that are “final;” the court has no authority under section
158(d)(1) to consider interlocutory orders and decrees); Blausey v. U.S. Trustee, 552 F.3d 1124, 1128 (9th Cir. 2009). The court has
jurisdiction over “final decisions” of the district court acting in its
appellate capacity under 28
U.S.C. § 158(d) and 28
U.S.C. § 1291. See In re Gugliuzza, 852 F.3d at 891 (28 U.S.C. § 158(d) gives the court jurisdiction
specific to bankruptcy decisions of district courts and decisions of
three-judge bankruptcy appellate panels); SS Farms, L.P.
v. Sharp (In re SK
Foods, L.P.), 676 F.3d 798, 802 (9th Cir. 2012) (“Under 28 U.S.C.
§ 158(d)(1), we have appellate jurisdiction over ‘final orders of the
district courts reviewing bankruptcy court decisions.’”); Dye v. Brown (In
re AFI Holding, Inc.),
530 F.3d 832, 836–37 (9th Cir. 2008) (order); Stanley
v. Crossland, Crossland, Chambers, MacArthur & Lastreto (In re Lakeshore
Vill. Resort, Ltd.), 81 F.3d 103, 105
(9th Cir. 1996); cf. Lievsay
v. W. Fin. Sav. Bank (In re Lievsay),
118 F.3d 661, 663 (9th Cir. 1997) (per curiam) (stating that § 1291
is not applicable to appeals from BAP).
The court has jurisdiction to determine whether it has
jurisdiction over a bankruptcy appeal. See Bank of New York Mellon v. Watt, 867 F.3d 1155, 1157 (9th Cir. 2017); Blausey,
552 F.3d at 1128.
“[D]ecisions regarding finality under former section
1293 are controlling in cases arising under new section 158.” King
v. Stanton (In re Stanton), 766 F.2d 1283, 1285 n.3 (9th Cir. 1985)
(order); accord La Grand Steel
Prods. Co. v. Goldberg (In re Poole, McGonigle & Dick, Inc.), 796 F.2d 318,
321 (9th Cir. 1986), amended by 804 F.2d 576 (9th Cir. 1986).
Under § 158(d), the Ninth Circuit takes a
“pragmatic approach” in assessing the finality of intermediate appellate
bankruptcy decisions. Under this
approach, a bankruptcy court order is considered final “‘where it 1) resolves
and seriously affects substantive rights and 2) finally determines the discrete
issue to which it is addressed.’” Dye v. Brown
(In re AFI Holding, Inc.), 530 F.3d 832, 836 (9th Cir. 2008) (order)
(quoting In
re Lewis, 113 F.3d 1040, 1043 (9th Cir. 1997)); see also Ritzen
Grp., Inc. v. Jackson Masonry, LLC, No. 18-938, 2020 WL 201023, at *2 (U.S.
Jan. 14, 2020) (“Orders in bankruptcy cases qualify as ‘final’ when they
definitively dispose of discrete disputes within the overarching bankruptcy
case.”); Gugliuzza v. Fed. Trade Comm’n (In re Gugliuzza), 852 F.3d 884, 894 (9th Cir. 2017); Eden Place v. Perl (In re Perl), 811 F.3d
1120, 1125 (9th Cir. 2016) (“In
bankruptcy cases, though, which typically are appealed (as this one is) under 28 U.S.C.
§ 158(d), a pragmatic approach is warranted; the court uses a more
flexible standard. Orders in bankruptcy
cases may be appealed immediately if they finally dispose of discrete disputes
within the larger case.” (citing Bullard v. Blue Hills Bank, 135 S. Ct.
1686 (2015)) (quotation marks omitted)); Wiersma v. Bank of the West (In re Wiersma), 483 F.3d 933, 939 (9th Cir. 2007); Saxman
v. Educ. Credit Mgmt BJR Corp. (In re Saxman), 325 F.3d 1168, 1171–72 (9th Cir.
2003). “When the district court
(or BAP) affirms or reverses such a decision, [the court of appeals has]
considered it to be final and immediately appealable.” In re
Gugliuzza, 852 F.3d at 894.
When appeal is taken from a BAP or district court
ruling that remands the case for further proceedings, the court applies a
four-part test to determine if it has jurisdiction to review the decision. Id.
The court considers: “(1) the need to avoid piecemeal litigation;
(2) judicial efficiency; (3) the systemic interest in preserving the bankruptcy
court’s role as the finder of fact; and (4) whether delaying review would cause
either party irreparable harm.” Id.
(quoting In re Perl, 811 F.3d 1120, 1126 (9th Cir. 2016)); see also
In re Marino, 949 F.3d at 487; Sahagun v. Landmark Fence Co. (In re Landmark Fence Co., Inc.), 801 F.3d
1099, 1102 (9th Cir. 2015) (noting
“the fluid and sometimes chaotic nature of bankruptcy proceedings necessitates
a degree of jurisdictional flexibility”); United States v. Fowler (In re Fowler), 394 F.3d 1208, 1211 (9th Cir. 2005) (stating that in the Ninth Circuit two distinct tests
have developed for determining finality); Walthall v. United States, 131
F.3d 1289, 1293 (9th Cir. 1997).
Bullard v. Blue Hills Bank, 135 S. Ct.
1686 (2015) “established that under the pragmatic approach to
finality in bankruptcy cases, [the court has] jurisdiction over rulings that
are technically interlocutory because they do not end the bankruptcy case as a
whole, but which do end a discrete proceeding within such cases.” In re Gugliuzza, 852 F.3d at 900 (citing Bullard, 135 S. Ct. at
1692). “Bullard compels the conclusion that rulings in bankruptcy cases
that neither end a case nor a discrete dispute, but rather remand for further
fact-finding on a central issue, are not final for purposes of § 158(d).” In re Gugliuzza, 852 F.3d at 900.
Applying Bullard, the court in
In re Gugliuzza, held that it lacked
jurisdiction over a district court decision reversing summary judgment and
remanding for further fact-finding, because it was not final. In
re Gugliuzza, 852 F.3d at 900.
Gugliuzza v. Fed. Trade Comm’n (In re Gugliuzza), 852 F.3d 884, 889 (9th Cir. 2017).
In assessing the finality of BAP and district court
appellate decisions, the court of appeals has relied on principles of finality
established in civil cases generally under 28
U.S.C. § 1291. See Vylene Enters. v.
Naugles, Inc. (In re Vylene Enters.),
968 F.2d 887, 897 (9th Cir. 1992) (district court order vacating
and remanding to bankruptcy court was not an appealable “collateral order”
within meaning of § 1291); Sambo’s Rests.,
Inc. v. Wheeler (In re Sambo’s Rests., Inc.), 754 F.2d 811, 813 (9th Cir.
1985) (finality of district court decision guided by § 1291
principles); Sulmeyer
v. Karbach Enters. (In re Exennium, Inc.), 715 F.2d 1401, 1402–03 (9th Cir.
1983) (finding jurisdiction over appeal from BAP under practical finality
doctrine of Gillespie
v. United States Steel Corp., 379 U.S. 148, 152–54 (1964)).
“When the district court (or BAP) affirms or reverses
… a decision [that alters the legal relationships of the parties], [the court of
appeals has] considered it to be final and immediately appealable.” Gugliuzza v. Fed. Trade Comm’n (In re
Gugliuzza), 852 F.3d 884, 894 (9th Cir. 2017); see also U.S. Bank v. Vill. at Lakeridge, LLC (In re Vill. at Lakeridge,
LLC), 814 F.3d
993, 998 (9th Cir. 2016) (“When the BAP “affirms or reverses a bankruptcy court’s
final order,” the BAP’s order is also final.”), aff’d sub nom. U.S. Bank
Nat. Ass’n ex rel. CWCapital Asset Mgmt. LLC v. Vill. at Lakeridge, LLC,
138 S. Ct. 960 (2018); N. Slope
Borough v. Barstow (in Re Bankr. Estate of Markair, Inc.), 308 F.3d 1057, 1060 (9th Cir. 2002); Stanley
v. Crossland, Crossland, Chambers, MacArthur & Lastreto (In re Lakeshore
Village Resort, Ltd.),
81 F.3d 103, 105 (9th Cir. 1996) (district court decision); Sambo’s Rests.,
Inc. v. Wheeler (In re Sambo’s Rests., Inc.), 754 F.2d 811,
813–15 (9th Cir. 1985) (BAP decision).
However, BAP and district court decisions that affirm
or reverse interlocutory bankruptcy court orders are not final and
appealable. See Silver Sage
Partners, Ltd. v. City of Desert Hot Springs (In re City of Desert Hot Springs), 339 F.3d 782,
787 (9th Cir. 2003); Lievsay
v. W. Fin. Sav. Bank (In re Lievsay),
118 F.3d 661, 662 (9th Cir. 1997) (per curiam); see also Solidus Networks,
Inc. v. Excel Innovations, Inc. (In re Excel Innovations, Inc.), 502 F.3d 1086,
1092 (9th Cir. 2007); Vylene Enters. v.
Naugles, Inc. (In re Vylene Enters.),
968 F.2d 887, 895 (9th Cir. 1992).
BAP and district court decisions that remand for
further bankruptcy court proceedings present a “more difficult question” as to
finality. See Foothill
Capital Corp. v. Clare’s Food Mkt., Inc. (In re Coupon Clearing Serv., Inc.), 113 F.3d 1091,
1097 (9th Cir. 1997).
Specific types of remand orders are discussed in the subsections that
follow.
In re Gugliuzza, 852 F.3d at 898. The Supreme Court in Bullard adopted the principle that “only decisions that alter the
status quo or fix the parties’ rights and obligations [can] be appealed.” In re Gugliuzza, 852 F.3d at 897. Applying Bullard,
in In re Gugliuzza, the Ninth Circuit
court held it lacked jurisdiction over a district court’s order reversing in
part and remanding to the bankruptcy court for further fact finding on a
central issue. 852 F.3d at 898; see also Sahagun
v. Landmark Fence Co. (In re Landmark Fence Co., Inc.), 801 F.3d 1099,
1103 (9th Cir. 2015) (district court order vacating bankruptcy court’s
decision and remanding for additional fact finding was not an appealable final
order).
“Before Bullard [v. Blue Hills Bank, 135
S. Ct. 1686 (2015)], this Court sometimes exercised jurisdiction over appeals
from district court decisions addressing purely legal questions and remanded to
the bankruptcy court for further fact-finding.”
Bank of New York Mellon v. Watt, 867 F.3d 1155, 1158 (9th Cir.
2017). See, e.g., Bonner Mall Partnership v. U.S. Bancorp
Mortgage Co. (In re Bonner Mall), 2
F.3d 899, 904 (9th Cir. 1993),
abrogation recognized by Gugliuzza v. Fed. Trade Comm’n (In re
Gugliuzza),
852 F.3d 884, 898 (9th Cir. 2017)).
However, “after Bullard, district court orders remanding to
bankruptcy courts for further fact-finding are rarely final appealable orders;
one exception is when the ‘remand order is limited to “‘purely mechanical or
computational’”’ or similarly ‘ministerial tasks.’” Bank of New York Mellon, 867 F.3d at,
1158 (9th Cir. 2017) (quoting In re Gugliuzza, 852 F.3d at 895& 897
and citing Sahagun v. Landmark Fence Co. (In re Landmark Fence Co.), 801
F.3d 1099, 1103 (9th Cir. 2015)).
As explained in In re
Gugliuzza:
·
Where BAP’s decision remanded in part for discovery, the appellant
withdrew its arguments concerning the discovery order to make the BAP’s
decision final and thus reviewable. U.S. Bank v. Vill. at Lakeridge, LLC (In re
Vill. at Lakeridge,
LLC),
814 F.3d 993, 998 n.7 (9th Cir. 2016) (“To make the BAP’s
decision final, U.S. Bank withdrew its arguments concerning the Discovery Order
at oral argument, removing the need for remand.”), aff’d sub nom. U.S. Bank
Nat. Ass’n ex rel. CWCapital Asset Mgmt. LLC v. Vill. at Lakeridge, LLC,
138 S. Ct. 960 (2018).
·
Bankruptcy
court’s order denying confirmation of a debtor’s proposed repayment plan with
leave to amend is not a final order. See Bullard
v. Blue Hills Bank,
135 S. Ct. 1686, 1690 (2015).
·
District court’s
order reversing bankruptcy court’s grant of summary judgment, and remanding for
further fact-finding, was not final, and thus the court of appeals lacked
jurisdiction and dismissed the appeal. See Gugliuzza v. Fed. Trade Comm’n (In re
Gugliuzza),
852 F.3d 884 (9th Cir. 2017).
·
District court
order remanding for determination of certain debtors’ entitlement to damages
and attorney’s fees based on IRS’s alleged violation of automatic stay was not
final order. See Walthall v. United
States,
131 F.3d 1289, 1293 (9th Cir. 1997).
·
District court
order reversing bankruptcy court’s decision on claims by certain debtors was
not final where district court also remanded for bankruptcy court to consider
its jurisdiction over substance of decision, even though appeal might have
obviated need for a remand. See Walthall, 131 F.3d at
1293–94 (citing potential for piecemeal litigation and absence of
irreparable harm).
·
District court’s
reversal of bankruptcy court’s denial of attorney’s fees was not a final order
where district court also remanded for factual determination of whether other
factors may preclude fee award. See Stanley v.
Crossland, Crossland, Chambers, MacArthur & Lastreto (In re Lakeshore Vill.
Resort, Ltd.), 81 F.3d 103,
107–08 (9th Cir. 1996).
·
District court’s
order vacating bankruptcy court’s judgment in adversary proceeding, and
remanding for proposed findings of fact and conclusions of law pursuant to 28 U.S.C.
§ 157(c)(1), was not a final order.
See Vylene Enters. v.
Naugles, Inc. (In re Vylene Enters.),
968 F.2d 887, 894–97 (9th Cir. 1992).
·
BAP’s decision
affirming bankruptcy court’s decision on adversary plaintiff’s claims, but
reversing dismissal of adversary defendant’s counterclaims and remanding for
consideration of the latter, was not a final order. See King
v. Stanton (In re Stanton),
766 F.2d 1283, 1286–88 & n.8 (9th Cir. 1985).
·
BAP’s affirmance
of bankruptcy court’s order subordinating creditor’s lien to homestead
exemptions prior to a forced sale was not final where BAP also vacated and
remanded for additional factfinding regarding a central issue, i.e.,
debtors’ interests in the homestead. See
Dental
Capital Leasing Corp. v. Martinez (In re Martinez), 721 F.2d 262,
264–65 (9th Cir. 1983).
A district court’s order denying permission to appeal
an interlocutory bankruptcy court order is not itself appealable. See Ryther
v. Lumber Prods., Inc. (In re Ryther),
799 F.2d 1412, 1414–15 (9th Cir. 1986); see also Rains v. Flinn
(In re Rains), 428 F.3d 893, 900–01 (9th Cir. 2005).
A district court’s order denying a stay pending appeal
of a bankruptcy court’s order is not final.
See Teleport
Oil Co. v. Sec. Pac. Nat’l Bank (In re Teleport Oil Co.), 759 F.2d 1376,
1377–78 (9th Cir. 1985) (holding that § 158 precludes bankruptcy
appellants from relying on 28 U.S.C. § 1292 for appellate review of a
district court’s denial of a stay of bankruptcy proceedings), impliedly
overruled on related grounds by Conn.
Nat’l Bank v. Germain,
503 U.S. 249, 253–54 (1992) (holding that interlocutory appeals under 28
U.S.C. § 1292 may be taken from decisions of district courts reviewing
bankruptcy courts decisions).
Cross-reference: VI.B.1.c.i (regarding
appealability of district court bankruptcy decisions under 28 U.S.C.
§ 1292).
The jurisdiction of the court of appeals depends in
part on whether the underlying bankruptcy court order was final. See Rains
v. Flinn (In re Rains),
428 F.3d 893, 900–01 (9th Cir. 2005); Universal
Life Church, Inc. v. United States (In re Universal Life Church, Inc.), 128
F.3d 1294, 1300 (9th Cir. 1997); see also Greene v. United States (In re Souza), 795 F.2d 855,
857 (9th Cir. 1986) (stating that the court of appeals’ “jurisdiction
can only be based on a proper exercise of jurisdiction in the court below”)
(internal quotation marks and citation omitted); Christian Life Ctr. Litig. Def.
Comm. v. Silva (In re Christian Life Ctr.), 821 F.2d 1370, 1372–73 (9th
Cir. 1987) (observing that the parties’ and lower appellate court’s
treatment of bankruptcy court orders as interlocutory is not conclusive and
exercising jurisdiction despite prior treatment of bankruptcy court order as
interlocutory).
Three types of bankruptcy court decisions are
appealable to the BAP or district court: (1) “final judgments, orders, and
decrees,” (2) interlocutory orders issued under 11
U.S.C. § 1121(d) increasing or decreasing the time periods within
which a debtor may file and seek approval of a reorganization plan; and (3)
upon leave of the BAP or district court, other interlocutory orders and
decrees. 28
U.S.C. § 158(a) (listing orders appealable to district court); see
also id. § 158(c)(1)
(providing for BAP jurisdiction over same subject matter).
Generally, appeals to the Ninth Circuit first reach
the BAP or district courts under 28
U.S.C. § 158(a)(1), discussed below.
In considering the finality of a bankruptcy court
decision, the focus is on the proceeding immediately before the court rather
than on the overall bankruptcy case. See Ritzen Grp., Inc. v. Jackson Masonry, LLC, No. 18-938, 2020 WL 201023, at *5 (U.S. Jan. 14,
2020); Bullard v. Blue Hills Bank, 575 U.S. 496, 135 S. Ct. 1686, 1692
(2015); Brown
v. Wilshire Credit Corp. (In re Brown), 484 F.3d 1116, 1120 (9th Cir. 2007)
(“A disposition is final if it contains a complete act of adjudication, that
is, a full adjudication of the issues at bar, and clearly evidences the judge’s
intention that it be the court’s final act in the matter.”) (quotations
omitted); Slimick
v. Silva (In re Slimick), 928 F.2d 304, 307 n.1 (9th Cir. 1990)
(“[I]n bankruptcy, a complete act of adjudication need not end the entire case,
but need only end any of the interim disputes from which appeal would
lie.”). The bankruptcy court must intend
that its order be final. See Slimick, 928 F.2d at
307–08.
Orders affecting important property rights are final
where, without an immediate appeal, those with interests in the property might
suffer “irreparable harm.” See Lyons v. Lyons (In
re Lyons),
995 F.2d 923, 924 (9th Cir. 1993) (referring to district court decision
on appeal but necessarily meaning original bankruptcy court order); see also
Burchinal v.
Cent. Wash. Bank (In re Adams Apple, Inc.), 829 F.2d 1484, 1487 (9th Cir. 1987)
(order final because it “disposes of [the] property rights” of individuals); Cannon v.
Hawaii Corp. (In re Hawaii Corp.), 796 F.2d 1139, 1142–43 (9th Cir. 1986)
(determining that district court’s order was final under Forgay-Conrad
rule because it “require[d] the immediate turnover of property and subject[ed]
the party to irreparable harm if the party is forced to wait until the final
outcome of the litigation”).
The following bankruptcy court decisions have been
held final and appealable:
(1) Assumption
of Lease (Approval)
Orders approving the assumption of leases are
final. See Willamette Waterfront, Ltd. v.
Victoria Station Inc. (In re Victoria Station Inc.), 875 F.2d 1380,
1382 (9th Cir. 1989); Caravansary,
Inc. v. Passanisi (In re Caravansary, Inc.), 821 F.2d 1413, 1414 n.1 (9th
Cir. 1987).
(2) Assumption
of Lease (Denial)
Orders denying debtors’ motions to assume leases are
final. See Turgeon v. Victoria Station Inc. (In
re Victoria Station Inc.),
840 F.2d 682, 683–84 (9th Cir. 1988); see also Arizona Appetito’s
Stores, Inc. v. Paradise Vill. Inv. Co. (In re Arizona Appetito’s Stores, Inc.), 893 F.2d 216,
218 (9th Cir. 1990).
Orders granting or denying relief from, or enforcing,
the automatic stay are final. See Benedor Corp. v.
Conejo Enters. (In re Conejo Enters.),
96 F.3d 346, 351 (9th Cir. 1996) (order granting relief); Christensen v.
Tucson Estates, Inc. (In re Tucson Estates, Inc.), 912 F.2d 1162, 1165–66
(9th Cir. 1990) (order reimposing automatic stay as to selected features
of particular state court litigation); Stringer
v. Huet (In re Stringer), 847 F.2d 549, 550 (9th Cir. 1988) (order
denying motion to have state court judgment declared void as an automatic stay
violation).
Orders declaring rent proceeds not to be cash
collateral under 11
U.S.C. § 363(a) are final. See
Wattson Pac.
Ventures v. Valley Fed. Sav. & Loan (In re Safeguard Self-Storage Trust), 2 F.3d 967, 969
(9th Cir. 1993).
Civil contempt orders imprisoning individuals are
final. See Plastiras
v. Idell (In re Sequoia Auto Brokers, Ltd.), 827 F.2d 1281,
1283 (9th Cir. 1987) (noting that affected individual was not a
party to the particular bankruptcy case, although he was a debtor himself, and
that basis of contempt was individual’s invocation of Fifth Amendment), superseded
by statute on other grounds as stated in Caldwell v. United
Capitol Corp. (In re Rainbow Magazine),
77 F.3d 278 (9th Cir. 1996).
Decisions in actions to recover deficiencies following
foreclosures are final. See FDIC v. Jenson (In
re Jenson),
980 F.2d 1254, 1257 (9th Cir. 1992).
(7) Denial of Motion to Dismiss Under 11 U.S.C.
§ 707(b)
(8) Dismissal
of Bankruptcy Petition
Dismissals of bankruptcy petitions are final. See Zolg
v. Kelly (In re Kelly),
841 F.2d 908, 911 (9th Cir. 1988) (Chapter 7 petition); Miyao v. Kuntz
(In re Sweet Transfer & Storage, Inc.), 896 F.2d 1189, 1191 (9th Cir.
1990) (involuntary petition), superseded by rule as stated in Arrowhead Estates
Dev. v. Jarrett,
42 F.3d 1306 (9th Cir. 1994). Cf.
Educ. Credit
Management Corp. v. Coleman (In re Coleman), 539 F.3d 1168, 1168–69 (9th Cir.
2008) (order) (Bankruptcy court’s denial of motion to dismiss was an
interlocutory order).
(9) Dismissal
of Creditor’s Claim
Dismissals of creditors’ claims are final. Dominguez
v. Miller (In re Dominguez), 51 F.3d 1502, 1505–06 (9th Cir. 1995)
(order dismissing creditors’ action seeking declaration of
nondischargeability); Sambo’s Rests.,
Inc. v. Wheeler (In re Sambo’s Rests., Inc.), 754 F.2d 811, 813 (9th Cir.
1985) (order denying motion to amend purported informal proof of
claim); see also Dunkley v. Rega
Props., Ltd. (In re Rega Props., Ltd.),
894 F.2d 1136, 1139 (9th Cir. 1990) (reviewing bankruptcy court’s
determination of measure of damages resulting from rejection of real estate
contract which disposed of creditor’s claim).
Orders regarding homestead exemptions are final. Seror
v. Kahan (In re Kahan), 28 F.3d 79, 80–81 (9th Cir. 1994) (order
sustaining trustee’s objection to debtor’s amended schedule revising claimed
exemption); White
v. White (In re White), 727 F.2d 884, 885–86 (9th Cir. 1984) (order
approving homestead exemption and confirming reorganization plan).
A bankruptcy court’s order denying a claim of
exemption is a final, appealable order. Preblich v.
Battley, 181 F.3d 1048, 1056 (9th Cir. 1999).
(11) Fee
Application (Approval)
Orders on fee applications submitted by debtors’
attorneys are final where attorneys have been discharged and bankruptcy court’s
comments did not leave open possibility that additional fees would be granted,
despite court’s reference to future applications. See Yermakov
v. Fitzsimmons (In re Yermakov),
718 F.2d 1465, 1469 (9th Cir. 1983) (applying former § 1293(b)).
Orders denying fee applications submitted by firms
representing trustees are final. See Stanley v.
Crossland, Crossland, Chambers, MacArthur & Lastreto (In re Lakeshore Vill.
Resort, Ltd.), 81 F.3d 103, 105
(9th Cir. 1996).
Orders that attorneys for debtors disgorge certain
fees, even though disposition of fees not yet decided, are final provided that
debtor’s attorney only challenged the bankruptcy court’s order to disgorge
funds and not how the funds would be disposed.
See Law
Offices of Nicholas A. Franke v. Tiffany (In re Lewis), 113 F.3d 1040,
1043–44 (9th Cir. 1997).
Order granting preliminary injunction staying
arbitration proceedings between two non-bankrupt parties was final. See Solidus Networks,
Inc. v. Excel Innovations, Inc. (In re Excel Innovations), 502 F.3d 1086,
1092–93 (9th Cir. 2007).
Orders authorizing debtors to enter loan contracts
that subordinate claims of other creditors are final. See Burchinal
v. Cent. Wash. Bank (In re Adams Apple, Inc.), 829 F.2d 1484, 1487 (9th Cir. 1987).
Orders for relief are final. See Rubin
v. Belo Broad. Corp. (In re Rubin),
769 F.2d 611, 615 (9th Cir. 1985) (order striking debtor’s answer to
involuntary petition and entering an order for relief); cf. Mason v. Integrity
Ins. Co. (In re Mason),
709 F.2d 1313, 1315–18 (9th Cir. 1983) (denial of motion to vacate order
for relief is final).
Orders establishing priority of liens or subordinating
debts are final. See United States v.
Stone (In re Stone),
6 F.3d 581, 582–83 & n.1 (9th Cir. 1993) (federal tax liens); Christian Life
Ctr. Litig. Def. Comm. v. Silva (In re Christian Life Ctr.), 821 F.2d 1370,
1373 (9th Cir. 1987) (treating as final district court’s appellate decision
that disallowed a claim for administrative expenses and subordinated a claim to
general creditors); La Grand Steel
Prods. Co. v. Goldberg (In re Poole, McGonigle & Dick, Inc.), 796 F.2d
318, 320–21 (9th Cir. 1986) (district court order that subordinated
debts and confirmed a reorganization plan was final), amended by 804 F.2d 576 (9th
Cir. 1986).
(18) Removal of
Bankruptcy Trustee
Orders removing a bankruptcy trustee are final. Dye
v. Brown (In re AFI Holding, Inc.), 530 F.3d 832, 837 (9th Cir. 2008)
(order). However, “[t]he bankruptcy
court’s order denying removal of the trustee is not final[.]” SS Farms, L.P. v. Sharp (In re SK Foods, L.P.), 676 F.3d 798, 802
(9th Cir. 2012). The court
explained that the order “neither resolves nor seriously affects substantive
rights, nor finally determines the discrete issue to which it is addressed,
since the trustee could be removed at a later time.” Id.
(19) Reorganization
Plan (Confirmation)
Orders confirming reorganization plans are final. See Farm
Credit Bank v. Fowler (In re Fowler),
903 F.2d 694, 695 (9th Cir. 1990) (Chapter 12 plan); Pizza of Haw.,
Inc. v. Shakey’s, Inc. (In re Pizza of Haw., Inc.), 761 F.2d 1374, 1378
(9th Cir. 1985); cf. Chinichian
v. Campolongo (In re Chinichian),
784 F.2d 1440, 1444 (9th Cir. 1986) (bankruptcy court’s partial or
tentative confirmation of a reorganization plan not final for res judicata
purposes).
A secured status order is final. See Wiersma
v. Bank of the West (In re Wiersma),
483 F.3d 933, 938–39 (9th Cir. 2007).
See VI.B.1.b.v(c)(17) (Priority of Liens).
(23) Summary
Judgment on All Claims
Summary judgments granted on all claims are
final. See Foothill
Capital Corp. v. Clare’s Food Mkt., Inc. (In re Coupon Clearing Serv., Inc.), 113 F.3d 1091,
1097–98 (9th Cir. 1997); see also Ernst & Young v. Matsumoto (In re
United Ins. Mgmt., Inc.),
14 F.3d 1380, 1383–84 (9th Cir. 1994) (bankruptcy court’s grant of
partial summary judgment was final where court also abstained from deciding
state law claims because the order effectively ended the case in bankruptcy
court).
(24) Summary
Judgment on Less Than All Claims
Certain partial summary judgments are final even
without certification under Fed. R. Bankr. P. 7054 (which incorporates Fed. R. Civ. P.
54(b)). See Century Ctr.
Partners Ltd. v. FDIC (In re Century Ctr. Partners Ltd.), 969 F.2d 835,
838 (9th Cir. 1992) (bankruptcy court’s partial grant of summary
judgment appealable where decided claims were “entirely distinct” from
remaining claims and were “conclusive” in some sense); Fireman’s Fund Ins. Cos. v. Grover
(In re Woodson Co.), 813 F.2d 266, 269–70 (9th Cir. 1987)
(bankruptcy court order granting partial summary judgment concerning permanent
investors’ rights in secured loans was appealable even though claims of
revolving investors’ rights in loans unresolved because order determined rights
of distinct group and cast shadow over further administration of estate). But cf. VI.B.1.b.v.(e) (discussing
applicability of bankruptcy equivalent of Fed.
R. Civ. P. 54(b)).
Orders permitting debtors to designate allocation of
tax payments are final. See United States v.
Technical Knockout Graphics, Inc. (In re Technical Knockout Graphics, Inc.), 833 F.2d 797,
800–01 (9th Cir. 1987).
Orders rejecting challenges to ability of trustees to
proceed by motion (rather than adversary proceeding) to establish right to sell
property in which third parties and debtors both have interests are final. See Lyons
v. Lyons (In re Lyons),
995 F.2d 923, 924 (9th Cir. 1993).
A bankruptcy court order that approved the assignment
of the Chapter 7 trustees’ powers to sue various parties and to avoid certain
transactions was a final, appealable decision, even though the bankruptcy court
retained control over certain monetary matters if the assignee prevailed in the
litigation or avoided the transaction. See
Duckor
Spradling & Metzger v. Baum Trust
(In re P.R.T.C., Inc.), 177 F.3d 774, 780 (9th Cir. 1999).
(27) Vacatur of
Order for Relief (Denial)
Orders denying vacatur of orders for relief are
final. See Mason v. Integrity Ins. Co. (In re
Mason),
709 F.2d 1313, 1315–18 (9th Cir. 1983).
(28) Substantive
Consolidation Order
A bankruptcy court’s order consolidating debtor’s
estate with the nondebtor estates of her closely held corporations is final and
appealable because such an order seriously affects the substantive rights of
the involved parties, and is of the sort that can cause irreparable harm if the
losing party must wait until the bankruptcy court proceedings terminate before
appealing. Bonham v. Compton (In re
Bonham), 229 F.3d 750, 761–62 (9th Cir. 2000).
(29) Order
Converting Bankruptcy Case to Chapter 7
A bankruptcy court’s order converting a case under
another chapter of the Bankruptcy Code, to one under Chapter 7 is final and
appealable. See Rosson v.
Fitzgerald (In re Rosson),
545 F.3d 764, 769–70 (9th Cir. 2008).
The following
bankruptcy court decisions have been held nonfinal and therefore nonappealable
under 28
U.S.C. § 158(a)(1):
Orders appointing counsel for trustees are not
final. See Sec. Pac. Nat’l Bank v. Steinberg (In
re Westwood Shake & Shingle, Inc.), 971 F.2d 387, 389 (9th Cir. 1992)
(noting also that orders involving appointment of counsel are uniformly found
interlocutory even in more flexible bankruptcy context). But cf. Official
Creditors’ Comm. v. Metzger (In re Dominelli), 788 F.2d 584, 585–86 (9th Cir. 1986)
(bankruptcy court’s appointment of attorney for creditors’ committee that
raised possibility debtors’ estates would be liable for attorney’s fees was
sufficiently “ripe for review on appeal”).
Decisions that trustees assumed contracts where
damages from trustee’s defaults remain undetermined are not final. See Elliott v. Four Seasons
Props. (In re Frontier Props., Inc.),
979 F.2d 1358, 1362–63 (9th Cir. 1992).
Orders granting debtors’ motions to cure defaults
under 11
U.S.C. § 1124 are not final.
See Farber v. 405 N.
Bedford Drive Corp. (In re 405 N. Bedford Drive Corp.), 778 F.2d 1374,
1379–80 (9th Cir. 1985).
(4) Disclosure
Statement (Approval)
Orders approving debtors’ disclosure statements are
not final. See Everett v. Perez
(In re Perez),
30 F.3d 1209, 1216–17 (9th Cir. 1994) (appeal must await confirmation of
reorganization plan).
(5) Disclosure
Statement (Rejection)
Orders denying approval of disclosure statements are
not final. See Lievsay v. W. Fin.
Sav. Bank (In re Lievsay),
118 F.3d 661, 662–63 (9th Cir. 1997) (per curiam) (referring to
bankruptcy court’s decision denying approval of a second amended disclosure
statement as the denial of confirmation of a “Chapter 11 plan”).
(6) Dismissal
of Bankruptcy Petition (Denial)
Orders denying motions to dismiss petitions are not
final. See Allen v. Old Nat’l Bank (In re Allen), 896 F.2d 416,
419 (9th Cir. 1990) (per curiam) (order denying debtors’ motion to
dismiss involuntary petitions was not final where no substantial interference
with debtors’ property appeared); Silver
Sage Partners, Ltd. v. City of Desert Hot Springs (In re City of Desert Hot
Springs), 339 F.3d 782, 792 (9th Cir. 2003); Dunkley
v. Rega Props., Ltd. (In re Rega Props., Ltd.), 894 F.2d 1136, 1137–39 (9th
Cir. 1990) (order denying creditor’s motion to dismiss for bad
faith under 11 U.S.C. § 1112 not final); Farber v. 405
N. Bedford Drive Corp. (In re 405 N. Bedford Drive Corp.), 778 F.2d 1374,
1377–79 (9th Cir. 1985) (order denying creditors’ motion to
dismiss not final); see also Educ.
Credit Management Corp. v. Coleman (In re Coleman), 539 F.3d 1168,
1168–69 (9th Cir. 2008) (order) (bankruptcy court’s denial of motion to
dismiss was an interlocutory order; court remanded case to district court for
limited purpose of allowing district court to determine whether to certify the
issue for appeal); Sherman
v. SEC (In re Sherman),
491 F.3d 948, 967 n.24 (9th Cir. 2007).
Orders denying motions to disqualify bankruptcy judges
are not final. See Stewart Enters. v.
Horton (In re Horton), 621 F.2d 968,
970 (9th Cir. 1980) (decided under prior bankruptcy statute); see
also Sec.
Pac. Nat’l Bank v. Steinberg (In re Westwood Shake & Shingle, Inc.), 971 F.2d 387,
389 (9th Cir. 1992) (stating in dictum that orders involving
disqualification of counsel are interlocutory even in bankruptcy context).
Orders granting extensions of time in which to file
proofs of claims based on excusable neglect are not final. See New Life Health
Ctr. Co. v. IRS (In re New Life Health Ctr. Co.), 102 F.3d 428,
428–29 (9th Cir. 1996) (per curiam).
(9) Fee Terms
and Interim Payments
Orders setting out manner in which special counsel to
estates would be paid are not final. See
Four Seas Ctr.,
Ltd. v. Davres, Inc. (In re Four Seas Ctr., Ltd.), 754 F.2d 1416,
1417–19 (9th Cir. 1985) (decided under former bankruptcy
statute); cf. Landmark
Hotel & Casino, Inc. v. Local Joint Executive Bd. (In re Landmark Hotel
& Casino, Inc.),
872 F.2d 857, 860–61 (9th Cir. 1989) (analogizing to cases concerning
appointment of interim trustees and award of interim compensation to find that
orders providing interim relief pending ruling on motions to reject collective
bargaining agreements are not final).
Orders providing interim relief under 11 U.S.C.
§ 1113(e) pending final ruling on debtor-employers’ motions to
reject collective bargaining agreements are not final. See Landmark
Hotel & Casino, Inc. v. Local Joint Executive Bd. (In re Landmark Hotel
& Casino, Inc.),
872 F.2d 857, 860–61 (9th Cir. 1989).
The court’s entry of a minute order granting summary
judgment was not a final order. See Brown v. Wilshire
Credit Corp. (In re Brown),
484 F.3d 1116, 1122–23 (9th Cir. 2007).
(12) Reorganization Plan (Rejection)
Orders denying confirmation of reorganization plans
may not be final. See Bullard v. Blue
Hills Bank,
575 U.S. 496, 135 S. Ct. 1686, 1692 (2015) (holding the bankruptcy court’s
order denying plan confirmation was not a final order entered in a proceeding
because it did not finally dispose of a discrete dispute); Lievsay v. W.
Fin. Sav. Bank (In re Lievsay), 118 F.3d 661, 662–63 (9th Cir. 1997)
(per curiam) (referring to bankruptcy court’s decision denying approval of a
second amended disclosure statement as a denial of confirmation of a “Chapter
11 plan”); cf. Chinichian
v. Campolongo (In re Chinichian),
784 F.2d 1440, 1444 (9th Cir. 1986) (concluding that a partial or
tentative confirmation of a reorganization plan was not final for res judicata
purposes). See also Gugliuzza v. Fed.
Trade Comm’n (In re Gugliuzza), 852 F.3d 884, 892 (9th Cir. 2017)
(discussing Bullard).
(13) Remanding
for Additional Fact-Finding
“[O]rders remanding to bankruptcy courts for further
fact-finding are rarely final appealable orders; one exception is when the
‘remand order is limited to purely mechanical or computational’ or similarly
‘ministerial tasks.’” Bank of New
York Mellon v. Watt, 867 F.3d 1155, 1158 (9th Cir. 2017) (citation omitted)
(holding that district court decision vacating bankruptcy court’s
confirmation of Chapter 13 plan and
remanding to the bankruptcy court was not a final, appealable order). See also Ocwen Loan Servicing, LLC v.
Marino (In re Marino), 949 F.3d 483, 488 (9th Cir. 2020) (dismissing appeal
where the BAP remanded to the bankruptcy court for more factual findings on
punitive damages); Gugliuzza
v. Fed. Trade Comm’n (In re Gugliuzza), 852 F.3d 884, 892 (9th Cir. 2017)
(discussing Bullard); Sahagun v. Landmark Fence Co. (In re Landmark Fence Co., Inc.), 801 F.3d
1099, 1101 (9th Cir. 2015) (“[W]e have
taken a more nuanced and ‘flexible’ approach to assessing the finality of
appeals in bankruptcy cases. However, even this flexible approach is stretched
beyond its breaking point by this appeal from a district court order that
includes a remand to the bankruptcy court with explicit instructions to engage
in ‘further fact-finding.’ We dismiss
the appeal because this order is not final for purposes of appeal.”).
Bankruptcy court decisions can also be rendered final
through certification under Fed.
R. Civ. P. 54(b), which applies to adversary proceedings via Fed. R.
Bankr. P. 7054. See Official
Creditors Comm. v. Tuchinsky (In re Major Dynamics, Inc.), 897 F.2d 433,
435 (9th Cir. 1990) (bankruptcy court certified partial summary judgment for
appeal under Fed. R. Bankr. P. 7054).
The time period for appeal begins to run upon entry of the certification
order. See Lindsay v. Beneficial Reinsurance Co.
(In re Lindsay),
59 F.3d 942, 951 (9th Cir. 1995) (order certified under Rule 54(b) not
subject to review on appeal from final judgment).
Cross-reference: II.A.3 (regarding orders
certified for appeal under Fed.
R. Civ. P. 54(b)).
An interlocutory decision of a district court may be
reviewable by the court of appeals under 28 U.S.C.
§ 1292 regardless of whether the district court exercised original
or appellate bankruptcy jurisdiction. See
Conn. Nat’l
Bank v. Germain,
503 U.S. 249, 253–54 (1992); Bank of New
York Mellon v. Watt, 867 F.3d 1155, 1159 (9th Cir. 2017); Gugliuzza v.
Fed. Trade Comm’n (In re Gugliuzza), 852 F.3d 884, 890 (9th Cir. 2017) (
section “1292, authorizes appellate courts to hear appeals taken from all
interlocutory orders of specified types, …, as well as appeals of interlocutory
orders that are certified by the district court to meet specified criteria, … . This jurisdiction includes the authority to
hear appeals from a district court’s interlocutory orders issued in a
bankruptcy-appellate capacity.”); Vylene Enters. v. Naugles, Inc. (In re
Vylene Enters.), 968 F.2d 887, 890 (9th Cir. 1992) (dictum); see
also Goodson
v. Rowland (In re Pintlar Corp.),
133 F.3d 1141, 1143 (9th Cir. 1998) (court of appeals has jurisdiction
under 28 U.S.C. § 1292(b) following district court’s review of
interlocutory bankruptcy court decision); Postal v. Smith
(In re Marine Distribs., Inc.), 522 F.2d 791, 793–94 (9th Cir. 1975)
(court of appeals had jurisdiction under 28 U.S.C. § 1292(a)(1) to review
district court’s affirmance of preliminary injunction issued by bankruptcy
referee).
Note that interlocutory appeals under 28 U.S.C.
§ 1292(b) are not available from BAP decisions. See Lievsay
v. W. Fin. Sav. Bank (In re Lievsay),
118 F.3d 661, 663 (9th Cir. 1997) (per curiam); Dominguez v. Miller (In re
Dominguez), 51 F.3d 1502, 1506 n.2 (9th Cir. 1995).
Mandamus review is available in
appropriate cases. See Allen v. Old Nat’l
Bank (In re Allen),
896 F.2d 416, 419–20 (9th Cir. 1990) (per curiam) (construing appeal
from nonfinal bankruptcy court order affirmed by district court as petition for
writ of mandamus and denying petition on its merits); Teleport Oil Co. v. Sec. Pac. Nat’l
Bank (In re Teleport Oil Co.), 759 F.2d 1376, 1378 (9th Cir. 1985)
(recognizing that “mandamus jurisdiction is available to review a district
court’s denial of stay in those extraordinary cases where a bankruptcy
appellant in the district court is threatened with irreparable harm and there
are no other means, including the eventual appeal, to protect himself from this
harm,” but denying such relief because appellant had not shown threat of
irreparable harm), impliedly overruled on related grounds by Conn. Nat’l Bank
v. Germain,
503 U.S. 249, 253–54 (1992).
However, a petition for writ of mandamus cannot substitute for a timely
appeal. Ozenne v. Chase Manhattan
Bank (In re Ozenne), 841 F.3d 810, 815 (9th Cir. 2016) (where debtor failed to timely
appeal bankruptcy court’s denial of motion for sanctions for alleged violation
of automatic stay, a petition for writ of mandamus could not substitute for a
timely appeal, and the requirements for issuance of writ of mandamus were not
satisfied).
In cases where a district court exercises its original
bankruptcy jurisdiction (i.e., “sits in bankruptcy”), appeals are
governed solely by 28
U.S.C. § 1291 and are therefore taken directly to the court of
appeals. See Gugliuzza v. Fed. Trade
Comm’n (In re Gugliuzza), 852 F.3d 884, 889 (9th Cir. 2017) (explaining the
court of appeals has “jurisdiction under § 1291 over appeals from rulings
made by a district court when it presides directly over a bankruptcy case.”);
Harris v.
McCauley (In re McCauley),
814 F.2d 1350, 1351 (9th Cir. 1987); see also Benny v. England (In re Benny), 791 F.2d 712,
716–18 (9th Cir. 1986) (stating that appellate jurisdiction not conferred
by 28 U.S.C. § 158(d)).
“The scope of [the court of appeals’] jurisdiction
under § 1291 is the same for all district court rulings. … Regardless of
context, in determining whether the district court decision is final under
§ 1291, [the court asks] whether the decision presented for review ends
the litigation on the merits and leaves nothing for the district court to do
but execute the judgment.” Gugliuzza
v. Fed. Trade Comm’n (In re Gugliuzza), 852 F.3d 884, 890 (9th Cir. 2017)
(internal quotation marks and citations omitted). More liberal standards for “finality” in
appeals arising from bankruptcy courts (see VI.B.1.b.i ) are generally
not applicable in appeals arising from district courts exercising their original
bankruptcy jurisdiction. See Cannon v. Hawaii
Corp. (In re Hawaii Corp.),
796 F.2d 1139, 1141–42 & n.1 (9th Cir. 1986).
Cross-reference: II.A (regarding finality of
district court decisions in civil cases).
Certain exceptions permitting appeals from otherwise
interlocutory decisions by district courts sitting in bankruptcy have been
recognized. See Packerland Packing
Co. v. Griffith Brokerage Co. (In re Kemble), 776 F.2d 802, 805 (9th Cir. 1985)
(noting “special exceptions” to finality requirement of 28 U.S.C. § 1291,
court holds it has jurisdiction to review decision of district court that
granted relief from automatic stay).
The collateral order doctrine and the Forgay-Conrad
rule may permit an appeal from an interlocutory order entered by a district
court sitting in bankruptcy. See Cannon v. Hawaii
Corp. (In re Hawaii Corp.),
796 F.2d 1139, 1142–43 (9th Cir. 1986) (decision of district court
sitting in bankruptcy final under collateral order doctrine and Forgay-Conrad
rule because order required party to turn over property (i.e. shares of
stocks) immediately, and party would suffer irreparable harm if appeal was
unavailable until bankruptcy case concluded).
Cross-reference: II.A.2 (regarding the
collateral order doctrine generally).
The decision of a district court sitting in bankruptcy
to grant relief from an automatic stay is final and appealable. See Packerland
Packing Co. v. Griffith Brokerage Co. (In re Kemble), 776 F.2d 802,
805 (9th Cir. 1985).
Decisions of district courts under 28 U.S.C.
§ 157(d) to withdraw or not to withdraw reference of cases to
bankruptcy courts are not final and therefore not appealable by
themselves. See Abney v. Kissel
Co. (In re Kissel Co.),
105 F.3d 1324, 1325 (9th Cir. 1997) (order) (dismissing appeal of
district court’s denial of motion to withdraw reference); Packerland
Packing Co. v. Griffith Brokerage Co. (In re Kemble), 776 F.2d 802, 805–06
(9th Cir. 1985) (concluding that orders granting withdrawal of reference
are not final); see also Canter
v. Canter (In re Canter),
299 F.3d 1150, 1153 (9th Cir. 2002) (holding that the district court’s
sua sponte withdrawal of reference to the bankruptcy court is unreviewable, but
ultimately treating the appeal as a petition for a writ of mandamus). But cf. Sec.
Farms v. Int’l Bhd. of Teamsters,
124 F.3d 999, 1008 (9th Cir. 1997) (reviewing order withdrawing
reference on appeal from final judgment).
A district court sitting in bankruptcy lacks
jurisdiction to modify or vacate an order that is on appeal. See Bennett v. Gemmill
(In re Combined Metals Reduction Co.),
557 F.2d 179, 200–01 (9th Cir. 1977). Before a district court can entertain a Rule
60(b) motion, the court must indicate its intention to do so, and the movant
must then seek a remand from the court of appeals. See Crateo, Inc. v.
Intermark, Inc. (In re Crateo, Inc.),
536 F.2d 862, 869 (9th Cir. 1976), superseded by rule as
stated in Miller
v. Marriott Int’l, Inc.,
300 F.3d 1061, 1065 (9th Cir. 2002).
The court lacks jurisdiction over an appeal that is
not timely filed. Samson v. Western Capital Partners, LLC (In
re Blixeth), 684 F.3d 865, 869 (9th Cir. 2012). Different rules govern the timeliness of an
appeal from a bankruptcy court decision depending on whether an appeal is (a)
to the Ninth Circuit from a decision of the BAP or a district court exercising
appellate jurisdiction over the bankruptcy court or (b) from the original
bankruptcy court decision to the BAP or district court.
The court’s jurisdiction depends on timely appeals at
both levels of review. See, e.g.,
Saslow v.
Andrew (In re Loretto Winery Ltd.),
898 F.2d 715, 717 (9th Cir. 1990) (stating that timely appeal from the
BAP to court of appeals is a jurisdictional requirement); Greene v.
United States (In re Souza), 795 F.2d 855, 857 (9th Cir. 1986)
(stating that court of appeals lacks jurisdiction over untimely appeal to a
district court from a bankruptcy court’s order).
Under Fed.
R. App. P. 6(b)(1), appeals from either the BAP or the district court
exercising appellate bankruptcy jurisdiction are generally governed by the
Federal Rules of Appellate Procedure. See
Reilly v.
Hussey,
989 F.2d 1074, 1076 (9th Cir. 1993).
Where necessary, references in the appellate rules to “district court”
mean the BAP. See Fed. R. App. P.
6(b)(1)(C).
Cross-reference: III.A (regarding application of
Fed. R. App.
P. 4(a) in civil cases generally); VI.C.1.e (regarding timeliness of
appeals from bankruptcy court to the BAP or district court).
The time period for appeal from either a BAP decision
or a district court appellate decision is 30 days unless the United States or
an officer or agency thereof is a party, in which case it is 60 days. Fed.
R. App. P. 4(a)(1); see, e.g., Saslow
v. Andrew (In re Loretto Winery Ltd.), 898 F.2d 715, 717 (9th Cir. 1990)
(notice of appeal from BAP decision untimely where filed beyond 30-day period
specified in Fed. R. App. P. 4(a)). The
timing of cross-appeals is governed by Fed.
R. App. P. 4(a)(3).
For purposes of Fed. R. App. P. 4(a), the United States
or an officer or agency thereof is a party to a bankruptcy appeal only if it
“is a participant in the particular controversy which led to the appeal,” and
no statute prohibits the government from filing an appeal in the matter. Bennett v.
Gemmill (In re Combined Metals Reduction Co.), 557 F.2d 179, 204 (9th Cir.
1977).
A court-appointed private bankruptcy trustee is not an
officer of the United States for purposes of Fed.
R. App. P. 4(a)(1), and the U.S. Trustee is not a party for purposes of
the 60-day appeal period if the trustee only appears in court to quash improper
service. See Voisenat v. Decker (In re Serrato), 117 F.3d 427,
428–29 (9th Cir. 1997).
Where the United States is a party to one of the
several bankruptcy appeals informally consolidated by the district court, the
60-day period under Fed.
R. App. P. 4(a)(1) applies to all cases.
See Burchinal
v. Cent. Wash. Bank (In re Adams Apple, Inc.), 829 F.2d 1484, 1487 (9th Cir. 1987)
(stating that Fed. R. App. P. 4(a)(3), providing 14 days to file additional
notices of appeal following timely filing of first notice, also applies).
Fed. R. Bankr. P. 8002(a)(5) provides:
(A) A judgment, order, or decree
is entered for purposes of this Rule 8002(a):
(i) when it is entered in the
docket under Rule 5003(a), or
• the judgment, order, or decree
is set out in a separate document; or
• 150 days have run from entry of
the judgment, order, or decree in the docket under Rule 5003(a).
Regarding computation of the deadline for appeal under
Fed. R. App.
P. 26, see III.A.4.
Extensions of time in which to appeal are governed by Fed. R. App. P.
4(a)(5), (6). See Fed. R. App. P.
6(b)(1). Fed. R. Bankr. P.
8002(d) addresses when the bankruptcy court may extend the time to appeal.
Cross-reference: III.D (regarding extensions of
time to appeal under Fed.
R. App. P. 4(a) in civil cases generally); VI.C.1.e.vi (regarding
extensions of time to appeal from bankruptcy court to the BAP or district
court).
The provisions of Fed.
R. App. P. 4(a)(4) regarding tolling the time to appeal do not apply to
appeals from the BAP or the district court acting in an appellate bankruptcy
capacity. See Fed. R. App. P.
6(b)(1)(A). In such appeals, only
the timely filing of a motion for rehearing tolls the time to appeal. See Fed.
R. App. P. 6(b)(2)(A); Fed. R. Bankr. P. 8022; see also Theodore v. Daglas
(In re D.W.G.K. Rests., Inc.),
42 F.3d 568, 569–70 (9th Cir. 1994) (dismissing appeal because untimely
motion for rehearing of decision by district court acting in appellate
bankruptcy capacity did not toll time in which to appeal).
“Unless the time is shortened or extended by order or
local rule, any motion for rehearing by the district court or BAP must be filed
within 14 days after entry of judgment on appeal.” Fed. R. Bankr. P. 8022. However, neither confusion about filing
deadlines nor informal indications from the district court suggesting a
possible extension of time in which to file a motion for rehearing are
sufficient to extend the 14-day limit. See
Theodore v.
Daglas (In re D.W.G.K. Rests., Inc.),
42 F.3d 568, 569–70 (9th Cir. 1994) (applying prior version of rule).
The time to appeal from an order deciding a timely
motion for rehearing runs from entry of the order and is measured under the
usual provisions of Fed.
R. App. P. 4. See Fed. R. App. P.
6(b)(2)(A); see also Fed. R. Bankr. P. 8022.
A notice of appeal filed during the pendency of a
timely motion for rehearing “becomes effective when the order disposing of the
motion for rehearing is entered.” Fed. R. App. P.
6(b)(2)(A)(i). Following entry of
the dispositive order, it is necessary to amend any previously filed notice of
appeal to bring up on appeal any order altering the original decision. See Fed.
R. App. P. 6(b)(2)(A)(ii).
“If the district court did not have jurisdiction to
review the merits, then this court does not have jurisdiction to consider the
merits on appeal.” Greene v.
United States (In re Souza), 795 F.2d 855, 857 (9th Cir. 1986)
(citation omitted). The court of appeals
must consider the jurisdictional issue sua sponte and regardless of whether it
was raised below. See id. at 857
n.1; LaFortune
v. Naval Weapons Ctr. Fed. Credit Union (In re LaFortune), 652 F.2d 842,
844 (9th Cir. 1981).
“The Bankruptcy Code and Federal Rules of Bankruptcy
Procedure require parties to appeal from a final order ‘within 14 days after
entry of the ... order ... being appealed.’”
Ritzen Grp., Inc. v. Jackson Masonry, LLC, No. 18-938, 2020 WL
201023, at *3 (U.S. Jan. 14, 2020) (quoting 28 U.S.C. § 158(c)(2); Fed. Rule
Bankr. P. 8002(a)); Ozenne v. Chase Manhattan Bank (In re Ozenne), 841
F.3d 810, 814 (9th Cir. 2016) (“A party to a bankruptcy proceeding has fourteen
days to appeal a bankruptcy judge’s order.”); accord 28 U.S.C.
§ 158(c)(2); Samson v. Western Capital Partners, LLC (In
re Blixeth), 684 F.3d 865, 869–70 (9th Cir. 2012).
The following cases are based on the prior version of
the rule which provided a 10-day period to file the notice of appeal: Wiersma v. Bank of
the West (In re Wiersma),
483 F.3d 933, 938 (9th Cir. 2007) (reversing BAP’s holding that it
retained jurisdiction over appeal where notice of appeal filed after 10 days); Saunders v.
Band Plus Mortgage Corp. (In re Saunders), 31 F.3d 767, 767 (9th Cir. 1994)
(per curiam) (affirming BAP’s dismissal of appeal filed 12 days after
bankruptcy court entered order); Delaney v.
Alexander (In re Delaney), 29 F.3d 516, 518 (9th Cir. 1994)
(per curiam) (district court lacked jurisdiction over appeal from notice of
appeal filed 13 days after bankruptcy court judgment); cf. Brown v. Wilshire
Credit Corp. (In re Brown), 484 F.3d 1116, 1120–22 (9th Cir. 2007)
(holding minute order not final order; thus, court not deprived of jurisdiction
when notice of appeal filed more than 10 days after minute order).
The calculation of deadlines for filing an appeal is
governed by Fed. R. Bankr. P. 9006. See
United
States v. Schimmels (In re Schimmels),
85 F.3d 416, 420 (9th Cir. 1996).
“A judgment or order is effective when entered under
Rule 5003.” Fed. R. Bankr. P. 9021. In adversary proceedings, Fed. R. Civ. P. 58
applies. See Fed. R. Bankr. P.
7058.
“Judgment means any appealable order.” Fed. R. Bankr. P. 9001(7). Entry of “a short order that clearly
constitutes a final decision,” is sufficient to begin the time period for
appeal. United
States v. Schimmels (In re Schimmels), 85 F.3d 416, 421 (9th Cir. 1996)
(stating that despite the general requirement, a separate judgment is only
necessary to start running the time in which to appeal “where it is uncertain
whether a final judgment has been entered”) (citation omitted); see also Wiersma v. Bank of
the West (In re Wiersma),
483 F.3d 933, 938–39 (9th Cir. 2007) (defining final order); cf. Slimick v. Silva
(In re Slimick),
928 F.2d 304, 307 (9th Cir. 1990) (affirming BAP’s dismissal of appeal
because absence of findings and conclusions did not undermine finality of
bankruptcy court order that “obviously and necessarily” decided claim).
However, even though the time period for appeal does
not begin to run until separate judgment is entered, appellate courts “may rule
on the merits of the appeal without waiting for the bankruptcy court clerk to
enter a separate judgment.” Allustiarte v.
Hauser (In re Allustiarte), 848 F.2d 116, 117 (9th Cir. 1988) (per
curiam).
“A notice of appeal filed after the bankruptcy court
announces a decision or order—but before entry of the judgment, order, or
decree—is treated as filed on the date of and after the entry.” Fed. R. Bankr. P. 8002(a)(2). However, a notice of appeal filed before the
announcement of an appealable order is ineffective to appeal from a subsequent
final order. See Landmark Hotel
& Casino, Inc. v. Local Joint Executive Bd. (In re Landmark Hotel &
Casino, Inc.),
872 F.2d 857, 861–62 (9th Cir. 1989).
See also Fed. R. Bankr. P. 8002(b)(3) (“If a party intends to
challenge an order disposing of any motion listed in subdivision (b)(1)–or the
alteration or amendment of a judgment, order, or decree upon the motion–the
party must file a notice of appeal or an amended notice of appeal. The notice
or amended notice must comply with Rule 8003 or 8004 and be filed within the
time prescribed by this rule, measured from the entry of the order disposing of
the last such remaining motion.”).
Cross-reference: III.D (regarding extension of
time to appeal).
Fed. R. Bankr. P. 8002(b) enumerates specific motions
that toll the time in which to appeal from a bankruptcy court decision. See Fed. R. Bankr. P. 8002(b). Certain other motions have been construed to
toll the time for appeal. See, e.g.,
United
States v. Schimmels (In re Schimmels),
85 F.3d 416, 419 (9th Cir. 1996) (motion for reconsideration); Bigelow v.
Stoltenberg (In re Weston),
41 F.3d 493, 495 (9th Cir. 1995) (motion for reconsideration or
rehearing); Juanarena v.
Nicholson (In re Nicholson), 779 F.2d 514, 515–16 (9th Cir. 1985)
(motion to reconsider bankruptcy court’s decision filed within 10 days of
decision on Rule 60 motion tolled time in which to appeal from latter
decision).
Fed. R. Bankr. P.
8002(b)(1). “If a
party files a notice of appeal after the court announces or enters a judgment,
order, or decree—but before it disposes of any motion listed in subdivision
(b)(1)—the notice becomes effective when the order disposing of the last such
remaining motion is entered.” Fed. R. Bankr. P.
8002(b)(2).
Cross-reference: III (regarding timeliness of
civil appeals generally).
Appeals from “final judgment[s], order[s], or
decree[s]” of district courts exercising original bankruptcy jurisdiction under
28 U.S.C.
§ 1334 are “taken as any other civil appeal under these
rules.” Fed.
R. App. P. 6(a).
Cross-reference: III (regarding timeliness of
civil appeals generally).
Interlocutory rulings of bankruptcy courts usually
merge with, and are reviewable on appeal from, final judgments. See Rains
v. Flinn (In re Rains),
428 F.3d 893, 900–01 (9th Cir. 2005); Sec.
Farms v. Int’l Bhd. of Teamsters, 124 F.3d 999, 1008 (9th Cir. 1997);
see also Elliott v. Four
Seasons Props. (In re Frontier Props., Inc.), 979 F.2d 1358,
1364 (9th Cir. 1992) (failure to appeal interlocutory order will
not preclude challenge to order on appeal from final order).
The Ninth Circuit has reviewed the following
interlocutory orders on appeal from final judgments:
·
District court order approving a settlement, where the party
appealed after court approval of the settlement but before final order was
made, and where final order was made subsequent to the appeal. See Rains
v. Flinn (In re Rains),
428 F.3d 893, 900–01 (9th Cir. 2005).
·
District court order withdrawing reference of case to bankruptcy
court. See Sec. Farms v. Int’l Bhd. of Teamsters, 124 F.3d 999,
1008 (9th Cir. 1997). But cf. Packerland Packing
Co. v. Griffith Brokerage Co. (In re Kemble), 776 F.2d 802, 805–06 (9th Cir. 1985)
(appeal from automatic stay order did not extend to order withdrawing case from
bankruptcy court).
·
Bankruptcy court’s refusal to permit a creditor’s withdrawal of proofs
of claim without prejudice, where creditor subsequently withdrew the claims
with prejudice after bankruptcy court provided creditor with no real
alternative. See Resorts Int’l,
Inc. v. Lowenschuss (In re Lowenschuss), 67 F.3d 1394, 1399 (9th Cir. 1995).
·
District court’s refusal to vacate a writ of attachment obtained
during deficiency action. See FDIC v. Jenson (In
re Jenson),
980 F.2d 1254, 1258 (9th Cir. 1992) (district court order merged with
bankruptcy court’s final judgment rendered after district court referred action
to bankruptcy court).
·
Order providing for “adequate protection” of undersecured
creditor. See Cimarron Investors v. Wyid Props. (In
re Cimarron Investors),
848 F.2d 974, 975–76 (9th Cir. 1988) (appeal order lifting automatic
stay to allow foreclosure where debtor ceased making “adequate protection”
payments to undersecured creditor).
Interlocutory decisions have not merged with final
decisions in the following situations:
·
Court of appeals would not consider issues concerning bank rent
owed by former tenants on an appeal from bankruptcy court’s order lifting a
stay to allow foreclosure sale of property where appellant failed to raise
issue on appeal to district court. See
Nat’l Mass Media
Telecomm. Sys., Inc. v. Stanley (In re Nat’l Mass Media Telecomm. Sys., Inc.), 152 F.3d 1178,
1181 n.4 (9th Cir. 1998).
·
Because an order
imposing sanctions for a violation of the automatic stay is separately
appealable, an untimely appeal from such an order precluded appellate
jurisdiction, notwithstanding jurisdiction to consider prior order permitting
trustee to recover funds that appellant had demanded in violation of automatic
stay. See Cal. State Bd. of Equalization v.
Taxel (In re Del Mission Ltd.),
998 F.2d 756, 758 (9th Cir. 1993).
·
An appeal concerning an involuntary debtor’s “counterclaim”
alleging that bankruptcy petition was filed in bad faith would not bring up on
appeal the prior dismissal of the involuntary petition. See Miyao
v. Kuntz (In re Sweet Transfer & Storage, Inc.), 896 F.2d 1189,
1191 (9th Cir. 1990), superseded by rule as stated in Arrowhead Estates
Dev. v. Jarrett,
42 F.3d 1306 (9th Cir. 1994).
·
A debtor’s appeal under 28
U.S.C. § 1293 (now repealed) of order for relief granted by
district court in involuntary bankruptcy proceeding did not extend to discovery
rulings where court of appeals affirmed order for relief without reference to
subject matter of disputed documents. See
Hayes v. Rewald
(In re Bishop, Baldwin, Rewald, Dillingham & Wong, Inc.), 779 F.2d 471,
476 (9th Cir. 1985).
·
An appeal from an automatic stay order did not extend to an order
withdrawing the case from the bankruptcy court.
See Packerland
Packing Co. v. Griffith Brokerage Co. (In re Kemble), 776 F.2d 802,
805–06 (9th Cir. 1985). But
cf. Sec.
Farms v. Int’l Bhd. of Teamsters,
124 F.3d 999, 1008 (9th Cir. 1997) (reviewing order withdrawing
reference on appeal from summary judgment).
·
Where time to appeal underlying judgments had expired, appeals
from rulings on motion to reconsider or motion for relief from judgment would
not bring up underlying judgments. See
Nat’l Bank
v. Donovan (In re Donovan),
871 F.2d 807, 808 (9th Cir. 1989) (per curiam) (motion to reconsider); First Nat’l
Bank v. Roach (In re Roach), 660 F.2d 1316, 1318 (9th Cir. 1981)
(motion for relief from judgment).
Issues left undecided by the BAP or district court may
not merge into their final decisions. See
Universal
Life Church, Inc. v. United States (In re Universal Life Church, Inc.), 128 F.3d 1294,
1300 (9th Cir. 1997) (dismissing part of appeal because district court
did not rule on issue). But cf. Pizza of Haw.,
Inc. v. Shakey’s, Inc. (In re Pizza of Haw., Inc.), 761 F.2d 1374,
1378 n.8 (9th Cir. 1985) (noting that, in reviewing district
court order vacating plan for reorganization in light of new claim, court of
appeals could also review whether creditor had standing to bring new claim
whether or not bankruptcy court had ruled on the issue).
The requirement that issues first be raised below is
applied more flexibly in non-adversarial bankruptcy appeals, but to be raised
for the first time on appeal, an issue still must not require further factual
development of the record. See Everett v. Perez
(In re Perez),
30 F.3d 1209, 1213–14 & n.4 (9th Cir. 1994); cf. Briggs v. Kent (In
re Prof’l Inv. Props. of Am.),
955 F.2d 623, 625 (9th Cir. 1992) (stating three exceptions to rule that
issues not raised below will not be considered on appeal, and concluding that
new issue could be raised because record was fully developed and issue did not
yet exist below); see also Focus
Media, Inc. v. Nat’l Broadcasting Co., Inc. (In re Focus Media, Inc.), 378 F.3d 916,
924 n.7 (9th Cir. 2004) (issue not articulated before bankruptcy
court and first raised before appellate court was waived).
Even though an appellate court’s review of a
bankruptcy court’s decision is conducted independent of the BAP’s review,
arguments not raised on appeal to the BAP are waived at the appellate
level. Burnett
v. Resurgent Capital Servs. (In re Burnett), 435 F.3d 971, 976–77 (9th Cir.
2006) (explaining that issues not presented to BAP and raised for first
time on appeal were waived unless there were “exceptional circumstances” to
indicate appellate court should exercise discretion to consider the issues); see
also Educ.
Credit Mgmt. Corp. v. Mason (In re Mason), 464 F.3d 878, 882 n.3 (9th Cir.
2006).
Parties may raise issues first raised by the BAP or
district court reviewing a bankruptcy decision.
See Feder
v. Lazar (In re Lazar),
83 F.3d 306, 308 n.7 (9th Cir. 1996); Verco
Indus. v. Spartan Plastics (In re Verco Indus.), 704 F.2d 1134, 1138 (9th
Cir. 1983).
Note, however, that parties have been held to their
position before the district court that a bankruptcy court order was
interlocutory where they later take a contrary position in the court of
appeals. See Ryther v. Lumber Prods., Inc. (In re
Ryther),
799 F.2d 1412, 1414 (9th Cir. 1986).
An order remanding a bankruptcy matter to state court
under 28
U.S.C. § 1447(c), due to a timely-raised defect in removal
procedure or lack of subject matter jurisdiction, is not reviewable by appeal
or otherwise in the court of appeals. See
28 U.S.C.
§ 1447(d); Things
Remembered, Inc. v. Petrarca, 516 U.S. 124, 127–28 (1995); Benedor Corp.
v. Conejo Enters. (In re Conejo Enters.), 96 F.3d 346, 350–51 (9th Cir.
1996). Note that a district court
order remanding “claims to a state court after declining to exercise
supplemental jurisdiction,” is not based on a lack of subject-matter
jurisdiction for purposes of §§ 1447(c) and (d), as would preclude a court
of appeals from reviewing the order. See
Carlsbad
Tech., Inc. v. HIF Bio, Inc.,
556 U.S. 635, 641 (2009).
Cross-reference: II.C.24 (regarding the
nonreviewability of remand orders under 28
U.S.C. § 1447(d) generally).
A decision granting or denying remand under 28 U.S.C.
§ 1452(b) is similarly immune from review. See 28
U.S.C. § 1452(b); Sec.
Farms v. Int’l Bhd. of Teamsters, 124 F.3d 999, 1009 & n.7, 1010 (9th
Cir. 1997) (noting that decision not to remand to state court is not
reviewable except to inquire whether district court has subject matter
jurisdiction); cf. City
& Cty. of San Francisco v. PG&E Corp., 433 F.3d 1115, 1121 (9th Cir. 2006)
(review of the district court’s order denying remand was not precluded by 28 U.S.C.
§ 1447(d), which only applies to cases remanded where there is a defect
in the removal procedure or the district court lacks jurisdiction).
A decision to abstain or not under 28 U.S.C.
§ 1334(c) is not reviewable by the court of appeals, unless it is
pursuant to § 1334(c)(2) (requiring courts to abstain from deciding
certain state law claims). See 28 U.S.C.
§ 1334(d); see also Benedor
Corp. v. Conejo Enters. (In re Conejo Enters.), 96 F.3d 346, 352
(9th Cir. 1996) (even where abstention is mandatory under
§ 1334(c)(2), bankruptcy court order granting relief from automatic stay
and district court order reversing such relief are subject to review).
A decision to stay or dismiss, or not to stay or
dismiss, bankruptcy proceedings under 11
U.S.C. § 305(a) is not subject to review by the court of
appeals. See 11 U.S.C.
§ 305(c); Marsch
v. Marsch (In re Marsch), 36 F.3d 825, 828 n.1 (9th Cir. 1994) (per
curiam) (BAP decision affirming bankruptcy court’s dismissal under 11 U.S.C.
§ 305(a)(1) not reviewable by court of appeals).
Certain entities may not appeal particular decisions
to the court of appeals:
See 11
U.S.C. § 1109(a) (precluding appeals by the Securities and Exchange
Commission in Chapter 11 cases).
See 11
U.S.C. § 1164 (precluding appeals by the Surface Transportation
Board and the Department of Transportation in Chapter 11 cases).
See Fed. R. Bankr. P. 2018(d) (precluding certain appeals
by labor unions).
See 11
U.S.C. § 1164 (precluding appeals by “any State or local commission
having regulatory jurisdiction over the debtor” in Chapter 11 cases).
“[B]ankruptcy litigation … almost always implicates
the interests of persons who are not formally parties to the litigation.” Tilley v.
Vucurevich (In re Pecan Groves), 951 F.2d 242, 245 (9th Cir. 1991). Therefore, in the interest of “[e]fficient
judicial administration,” id.,
standing to appeal is limited as follows:
McClellan
Fed. Credit Union v. Parker (In re Parker), 139 F.3d 668, 670 (9th Cir.
1998) (internal quotations, punctuation, and citations omitted), superseded
by statute on other grounds as stated in Dumont
v. Ford Motor Credit Company (In re Dumont), 581 F.3d 1104 (9th Cir. 2009);
accord Everex
Sys., Inc. v. Cadtrak Corp. (In re CFLC, Inc.), 89 F.3d 673, 675
(9th Cir. 1996).
Even where a party meets the “person aggrieved”
standard, general standing principles may still preclude appeal. See Moneymaker
v. CoBen (In re Eisen),
31 F.3d 1447, 1451 n.2 (9th Cir. 1994) (debtor lacked standing to appeal
where the trustee, not the debtor, was the representative of the estate and was
vested with the debtor’s causes of action, such that the trustee was the only
party with standing to appeal).
Standing to appeal has been found in the following
cases:
·
SEC had standing to bring motion to dismiss for cause because it
had a pecuniary interest as creditor in a portion of the debt. See Sherman
v. Sec. Exchange Comm’n.
(In re Sherman), 491 F.3d 948, 965 (9th Cir. 2007).
·
A credit union
had standing to appeal the bankruptcy court’s denial of a debtor’s
reaffirmation of debt owed to the credit union where the creditor was at risk
of recovering less from the debtor as a result of bankruptcy court’s
order. See McClellan Fed. Credit Union v. Parker
(In re Parker),
139 F.3d 668, 671 (9th Cir. 1998), superseded by statute on other
grounds as stated in Dumont
v. Ford Motor Credit Company (In re Dumont), 581 F.3d 1104 (9th Cir. 2009).
·
A successful
buyer of a substantial portion of the debtor’s assets had standing to appeal
from an order denying the debtor’s motion to assume a license and assign it to
the buyer per terms of sale. See Everex Sys., Inc.
v. Cadtrak Corp. (In re CFLC, Inc.),
89 F.3d 673, 675–76 (9th Cir. 1996) (distinguishing cases in which
unsuccessful bidders for debtor’s assets at bankruptcy sale were held to lack
standing to appeal).
·
A creditor could
appeal the bankruptcy court’s refusal to permit the withdrawal of proofs of
claim without prejudice when the creditor subsequently withdrew the claims with
prejudice after the bankruptcy court provided creditor with no real
alternative. See Resorts Int’l,
Inc. v. Lowenschuss (In re Lowenschuss), 67 F.3d 1394, 1399 (9th Cir. 1995)
(assuming party had standing to appeal).
·
Investors had
standing to appeal an order confirming a reorganization plan that eliminated
the investors’ interests in notes and deeds of trust where trustee failed to
give investors proper notification of consequences of plan. See Brady
v. Andrew (In re Commercial W. Fin. Corp.), 761 F.2d 1329, 1335 (9th Cir. 1985).
·
“[I]n a case
involving competing claims to a limited fund, a claimant has standing to appeal
an order disposing of assets from which the claimant seeks to be paid.” Salomon
v. Logan (In re Int’l Envtl. Dynamics, Inc.), 718 F.2d 322, 326 (9th Cir.
1983).
·
A United States
Trustee has standing to appeal the bankruptcy court’s denial of her motion for
disgorgement of payments previously received by counsel for former
debtor-in-possession, pursuant 11
U.S.C. § 307, which authorizes a United States Trustee to be heard
on any issue in any case or proceeding under Title 11. Stanley
v. McCormick (In re Donovan Corp.), 215 F.3d 929, 930 (9th Cir. 2000).
Lack of standing to appeal has been found in these cases:
·
Neither unsecured
creditors nor lienholders in property had standing to challenge the sale of
estate property on the ground the sale allegedly violated the automatic
stay. See Tilley
v. Vucurevich (In re Pecan Groves),
951 F.2d 242, 245–46 (9th Cir. 1991).
·
The spouse of a
debtor lacked standing to appeal an order appointing special counsel to aid the
trustee in uncovering fraudulent conveyances involving debtor and spouse. See Fondiller v.
Robertson (In re Fondiller), 707 F.2d 441,
443 (9th Cir. 1983) (noting that bankruptcy court order had “no
direct and immediate impact on appellant’s pecuniary interests”— that is, it
did not “diminish her property, increase her burdens, or detrimentally affect
her rights”; instead, “appellant’s only demonstrable interest in the order
[was] as a potential party defendant in an adversary proceeding,” apparently to
recover fraudulent conveyances).
“The party asserting mootness has a heavy burden to
establish that there is no effective relief remaining for a court to
provide.” Pintlar Corp. v. Fid. & Cas.
Co. (In re Pintlar Corp.), 124 F.3d 1310, 1312 (9th Cir. 1997); see
also Palmdale Hills
Prop. v. Lehman Commercial Paper, Inc. (In re Palmdale Prop., LLC), 654 F.3d 868, 874 (9th Cir. 2011); Focus
Media, Inc. v. Nat’l Broad. Co. (In re Focus Media, Inc.), 378 F.3d 916,
923 (9th Cir. 2004).
The court has identified four factors to determine
whether an appeal is equitably moot:
City of Stockton, 909 F.3d at 1263 (citations omitted).
Under 11
U.S.C. § 363(b)(1), “[t]he trustee, after notice and a hearing, may
use, sell, or lease, other than in the ordinary course of business, property of
the estate … .” When the bankruptcy
court authorizes such a transaction, the authorized transaction must be stayed
pending appeal to prevent the appeal from becoming moot upon the good faith
completion of the transaction:
11
U.S.C. § 363(m); see also Pinnacle Restaurant at Big Sky, LLC v. CH SP Acquisitions,
LLP (Matter of Spanish Peaks Holdings II, LLC), 872 F.3d 892, 897 n.4 (9th
Cir. 2017) (quoting 11 U.S.C. § 363(m) and determining case was not moot,
where parties did not ask court to undo the sale, the outcome of the appeal
would not affect the validity of the sale); accord Ewell v. Diebert (In re Ewell), 958 F.2d 276,
282 (9th Cir. 1992) (concluding that, if § 363(m) applies, then
appellate courts cannot grant any effective relief and an appeal becomes moot).
Even apart from § 363(m), a “[f]ailure actually
to stay a foreclosure sale generally renders an appeal regarding that sale
moot.” Nat’l Mass
Media Telecomm. Sys., Inc. v. Stanley (In re Nat’l Mass Media Telecomm. Sys.,
Inc.), 152 F.3d 1178, 1180 (9th Cir. 1998) (in absence of
stay, eventual sale of debtor’s property to a non-party renders the debtor’s
appeal constitutionally moot where debtor seeks only a return of its property).
By its terms, § 363(m) applies not only to orders
authorizing transactions, but also to orders issued under § 363(c)
preventing a trustee from “enter[ing] into transactions, including the sale or
lease of property of the estate, in the ordinary course of business … .” 11
U.S.C. § 363(c). Moreover,
the rule applies whether the order on appeal directly approves a sale or simply
lifts the automatic stay to permit a sale of property. See Onouli-Kona
Land Co. v. Estate of Richards (In re Onouli-Kona Land Co.), 846 F.2d 1170,
1171 (9th Cir. 1988). The rule
also is not limited to sales by a bankruptcy trustee or to real property
transactions. Id. at 1172; see also
Algeran,
Inc. v. Advance Ross Corp.,
759 F.2d 1421, 1423–24 (9th Cir. 1985) (applying § 363(m) to
foreclosure sale of stock).
To determine whether consummation of a transaction was
in good faith so as to moot an appeal under § 363(m), “courts generally
have followed traditional equitable principles in holding that a good faith
purchaser is one who buys ‘in good faith’ and ‘for value,’ “such that lack of
good faith is typically shown through fraud, collusion, and taking grossly
unfair advantage of other bidders. See
Ewell v.
Diebert (In re Ewell),
958 F.2d 276, 281 (9th Cir. 1992).
The good faith requirement will protect parties “who
can advance reasonable legal arguments in support of their actions, even if
their arguments are ultimately deemed unpersuasive,” and good faith is not
defeated where other parties withhold consent that was not required by
bankruptcy law. See Burchinal v. Cent.
Wash. Bank (In re Adams Apple, Inc.),
829 F.2d 1484, 1490 (9th Cir. 1987) (analyzing similar “good faith”
requirement under 11 U.S.C. § 364(e) based on cases decided under
§ 363(m)).
Where the buyers of property at a tax sale all had
notice of the bankruptcy before proceedings in which they sought a tax deed,
the debtor’s failure to obtain a stay pending appeal of bankruptcy court’s
order upholding sale despite violation of automatic stay did not moot appeal
because buyers’ notice of bankruptcy precluded good faith transaction. See Phoenix
Bond & Indem. Co. v. Shamblin (In re Shamblin), 890 F.2d 123,
125 (9th Cir. 1989). But cf.
11 U.S.C.
§ 363(m).
A trustee’s sale of estate property to the trustee’s
former corporate employer, which was owned by the brother of the debtor’s
former husband, was not in bad faith where terms were fair and reasonable. See Ewell
v. Diebert (In re Ewell),
958 F.2d 276, 281 (9th Cir. 1992) (concluding bankruptcy court’s
findings were not clearly erroneous).
Appellant failed to show lack of good faith where sale
was conducted according to “scrupulous[]” application of state law, terms of
auction did not give purchaser a grossly unfair advantage, and purchaser’s
opposition to defendant’s motion to continue hearing confirmation sale “simply
sought to enforce the auction’s original terms.” Onouli-Kona
Land Co. v. Estate of Richards (In re Onouli-Kona Land Co.), 846 F.2d 1170,
1173–74 (9th Cir. 1988).
Early cases suggest that the presence before the court
of appeals of all participants in a property transaction would be sufficient to
prevent mootness. See Crown Life Ins.
Co. v. Springpark Assocs. (In re Springpark Assocs.), 623 F.2d 1377,
1379 (9th Cir. 1980) (concluding that appeal from order lifting
automatic stay and permitting foreclosure sale of property remained alive
because purchaser was a party to the appeal such that “it would not be
impossible for the Court to fashion some sort of relief”).
However, while the presence of the transaction
participants appears to be a necessary condition to prevent mootness in cases
where no stay exists and a transaction has occurred, it probably is not
sufficient. See Onouli-Kona Land
Co. v. Estate of Richards (In re Onouli-Kona Land Co.), 846 F.2d 1170,
1173 (9th Cir. 1988) (reconciling tension in Ninth Circuit cases by
concluding that mootness rule does not apply in cases where “real property is
sold to a creditor who is a party to the appeal, but only when the sale is
subject to [state] statutory rights of redemption”); see also Suter v. Goedert, 504 F.3d 982,
990 (9th Cir. 2007). But cf. SEC v. Am. Capital
Invs., Inc.,
98 F.3d 1133, 1140 (9th Cir. 1996) (non-bankruptcy case suggesting that
issue remains unresolved), abrogated on other grounds by Steel Co. v.
Citizens for a Better Env’t,
523 U.S. 83 (1998).
The need for all transaction participants to be
present on appeal in order to prevent mootness applies even where the good
faith requirement of § 363(m) is not met.
See Casady
v. Bucher (In re Royal Props., Inc.),
621 F.2d 984, 986–87 (9th Cir. 1980) (affirming district court’s
dismissal for mootness).
The mootness rule under § 363(m) is subject to
the following exceptions related to state law rights:
·
Where real
property is sold subject to a statutory right of redemption. See Suter
v. Goedert,
504 F.3d 982, 990 (9th Cir. 2007) (finding no state statutory
right of redemption); Sun
Valley Ranches, Inc. v. Equitable Life Assurance Soc’y of the U.S. (In re Sun
Valley Ranches, Inc.), 823 F.2d 1373, 1374–75 (9th Cir. 1987) (sale
of debtor’s property did not moot appeal despite absence of stay because
purchaser was a party to the appeal and debtor retained a statutory right of
redemption).
·
Where state law
otherwise would permit the transaction to be set aside. See Rosner
v. Worcester (In re Worcester),
811 F.2d 1224, 1228 (9th Cir. 1987) (declining to state what action
might have been stayed, court finds that failure to obtain stay did not moot
appeal where applicable state law still provided means by which court could
grant relief).
See also Mann
v. Alexander Dawson Inc. (In re Mann), 907 F.2d 923, 926–28 (9th Cir. 1990) (reviewing whether foreclosure met either exception,
but finding appeal moot where state law right of redemption had expired before
debtor filed petition and debtor could not invoke any other right under state
law that permitted foreclosure to be set aside).
Filing a lis pendens alone will not prevent a sale of
property from mooting a bankruptcy appeal concerning the property if party
fails to obtain a stay in bankruptcy court.
See Onouli-Kona
Land Co. v. Estate of Richards (In re Onouli-Kona Land Co.), 846 F.2d 1170,
1174 (9th Cir. 1988); Wood v.
Walker-Pinkston Cos. (In re The Brickyard), 735 F.2d 1154, 1158–59 (9th
Cir. 1984), implied overruling recognized by Miyao v. Kuntz
(In re Sweet Transfer & Storage, Inc.), 896 F.3d 1189 (9th Cir. 1990),
superseded by rule as stated in Arrowhead Estates Development Co. v . United
States Trustee (In re Arrowhead Estates Development Co.), 42 F.3d 1306 (9th
Cir. 1995) (as amended).
Another exception may exist where transaction
documents expressly condition the purchaser’s interest on the outcome of a
pending appeal, at least where the purchaser is a party to the appeal. See Taylor v. Lake (In
re CADA Invs., Inc.), 664 F.2d 1158,
1160–61 (9th Cir. 1981) (applying former bankruptcy Rule 805).
At least where the bankruptcy court provides for
possible damages arising from a completed transaction, the possibility of
future litigation concerning the transaction may prevent mootness. See Unsecured
Creditors’ Comm. v. Southmark Corp. (In re Robert L. Helms Constr. & Dev.
Co.), 139 F.3d 702,
704 (9th Cir. 1998) (en banc).
But cf. Spacek v.
Tabatabay (In re Universal Farming Indus.), 873 F.2d 1332,
1333–34 (9th Cir. 1989) (holding that mere possibility of future
litigation concerning value of note and deed of trust not enough to sustain
present controversy over the relative priorities of two notes and deeds of
trust where documents have come into the same ownership).
The fact that appellee was responsible for
transactions does not prevent mootness, at least where appellee was the
bankruptcy trustee acting pursuant to orders authorizing and confirming the
transactions. See Bennett v. Gemmill
(In re Combined Metals Reduction Co.),
557 F.2d 179, 189–90 (9th Cir. 1977).
The fact that a party’s attack on a transaction may be
based on a broad challenge to the bankruptcy proceedings generally is not
enough to sustain a controversy concerning a transaction where no stay has been
obtained. See id. at 190.
The exception to mootness based on events that are
“capable of repetition but … evade review” is not applicable where mootness
resulted from appellant failing to obtain a stay. See id. at 190–91.
A subsequent order reaffirming transaction that, in
the absence of a stay, mooted the initial challenge does not allow challenger
to renew attack on transaction. See Dunlavey v. Ariz.
Title Ins. & Trust Co. (In re Charlton), 708 F.2d 1449, 1455 (9th Cir. 1983)
(applying former bankruptcy Rule 805).
Where the only remedy sought on appeal is the return
of property sold to a non-party, all of appellant’s claims are moot “no matter
how many theories it had in support of its claim for return of the
property.” Nat’l
Mass Media Telecomm. Sys., Inc. v. Stanley (In re Nat’l Mass Media Telecomm.
Sys., Inc.), 152 F.3d 1178, 1181 (9th Cir. 1998).
On the other hand, although a sale of property may
moot portions of an appeal, other portions of the case may remain alive. See Wood v.
Walker-Pinkston Cos. (In re The Brickyard), 735 F.2d 1154,
1158–59 (9th Cir. 1984) (sale of alleged debtor’s principal asset
mooted challenge to sale, but petitioner’s appeal from dismissal of involuntary
petition may not be moot, at least if alleged debtor has other assets), implied
overruling recognized by Miyao v. Kuntz (In re Sweet Transfer & Storage,
Inc.), 896 F.3d 1189 (9th Cir. 1990), superseded by rule as stated in
Arrowhead Estates Development Co. v . United States Trustee (In re Arrowhead
Estates Development Co.), 42 F.3d 1306 (9th Cir. 1995) (as amended); Bennett v.
Gemmill (In re Combined Metals Reduction Co.), 557 F.2d 179, 193–95 (9th
Cir. 1977) (issues unrelated to transactions carried out pursuant
to unstayed court orders may remain alive and, specifically, issues concerning
trustee’s breach of fiduciary duty and a challenge to confirmation of
reorganization plan). But cf. Casady v. Bucher
(In re Royal Props., Inc.),
621 F.2d 984, 987 (9th Cir. 1980) (concluding that where portion of
sales transaction had not been carried out, appeal was still moot as to all
portions because purchasers were not parties to appeal, and “[a] reversal of
part of the order authorizing sale is not possible without affecting the entire
agreement”).
While disposal of property may not moot all issues
relating to the property, it may divest the federal courts of jurisdiction to
hear issues relating to property no longer part of the bankruptcy estate. See Cmty.
Thrift & Loan v. Suchy (In re Suchy), 786 F.2d 900, 901–02 (9th Cir. 1985)
(concluding that, under former bankruptcy rule, absence of stay and foreclosure
on debtors’ property placed property outside bankruptcy estate such that
debtors’ claims for equitable relief and monetary damages based on
misrepresentations in connection with mortgage did not “relate to” the debtors’
bankruptcy, and district court therefore correctly dismissed claims for lack of
subject matter jurisdiction).
Under 11
U.S.C. § 364(b), (c), a trustee may seek authorization to obtain
credit or incur debt in ways that include assigning certain priorities to the
obligation, securing the obligation with liens, and subordinating other
liens. When the bankruptcy court
authorizes such transactions, § 364(e) essentially requires a stay to
appeal the order, much as 11
U.S.C. § 363(m) does. See
Burchinal v.
Cent. Wash. Bank (In re Adams Apple, Inc.), 829 F.2d 1484, 1487–91 (9th Cir.
1987) (finding appeal moot under § 364(e) after looking to cases
decided under § 363(m)); see also Transamerica
Commercial Fin. Corp. v. Citibank, N.A. (In re Sun Runner Marine, Inc.), 945 F.2d 1089,
1095 (9th Cir. 1995) (concluding appeal was not moot under 11 U.S.C.
§ 364(e) in part because appealed order had prospective effect that could
still be reviewed).
On appeal from an order confirming a reorganization
plan, “[f]ailure to obtain a stay, standing alone, is often fatal but not
necessarily so; nor is the ‘substantial culmination’ of a relatively simple
reorganization plan.” Baker &
Drake, Inc. v. Pub. Serv. Comm’n (In re Baker & Drake, Inc.), 35 F.3d
1348, 1351 (9th Cir. 1994).
Whether substantial culmination of a reorganization plan moots an appeal
“turns on what is practical and equitable.”
Id.
at 1352; cf. 11
U.S.C. § 1101(2) (defining “substantial consummation” of
reorganization plan).
An appeal from an order confirming a plan of
arrangement is moot where “property transactions do not stand independently and
apart from the plan of arrangement” and where “the plan of arrangement has been
so far implemented that it is impossible to fashion effective relief.” Trone
v. Roberts Farms, Inc. (In re Roberts Farms, Inc.), 652 F.2d 793, 797–98
(9th Cir. 1981) (applying former bankruptcy rule).
Appeals from reorganization plans have been held not
moot in the following cases:
·
Where debtor
incurred debt without authorization of the bankruptcy court and where
bankruptcy court authorized the debt nunc pro tunc. Sherman
v. Harbin (In re Harbin), 486 F.3d 510, 521 n.9 (9th Cir. 2007).
·
Where only one
transaction had occurred such that plan had not been “substantially
culminated,” and where entities involved in transaction were parties to appeal
such that transaction could be reversed, appeal regarding confirmation of
reorganization plan not moot despite lack of stay. See Arnold
& Baker Farms v. United States (In re Arnold & Baker Farms), 85 F.3d 1415,
1419–20 (9th Cir. 1996).
·
The state’s
appeal from an injunction in bankruptcy case barring enforcement of law prohibiting
cabbies from working as independent contractors was not moot where consequences
of undoing cabbies’ steps toward becoming independent contractors were not
severe enough to render relief impracticable and vacatur of injunction might be
done on a prospective basis. See Baker & Drake,
Inc. v. Pub. Serv. Comm’n (In re Baker & Drake, Inc.), 35 F.3d 1348,
1351–52 (9th Cir. 1994) (stating also that case fell between extremes,
on the one hand involving a reorganization plan that included transactions with
third parties, yet transactions were leases not sales and did not involve
innumerable parties).
·
Because “the plan
still controls the actions of the trustee” and reversal of the confirmation
order might affect the debtor’s status in the bankruptcy proceedings, challenge
to confirmation of reorganization plan remained alive even though “much of the
debtor’s property ha[d] been liquidated, and many of the creditors ha[d] been
paid.” Bennett v.
Gemmill (In re Combined Metals Reduction Co.), 557 F.2d 179, 194–95 (9th
Cir. 1977).
Where a party to an appeal pays a judgment, an appeal
from the judgment will remain a live controversy where the payee is also a
party to the appeal and it would not be inequitable to order return of the
payment. See United
States v. Arkison (In re Cascade Rds., Inc.), 34 F.3d 756,
759–61 (9th Cir. 1994) (concluding that government’s payment of
judgment, despite its appeal seeking to set off judgment against debts owed by
debtor, did not moot appeal because it would not be inequitable to order payee
to return payment where payee, the debtor’s trustee, was a party to the appeal
and was on notice that government would seek to recover payment if it prevailed
on appeal); cf. Bennett. v.
Gemmill (In re Combined Metals Reduction Co.), 557 F.2d 179,
193–94 (9th Cir. 1977) (holding that where appeal concerns a
challenge to the trustee settling a creditor’s claim but settlement has been
implemented and the creditor is not a party to the appeal, the challenge to the
settlement itself is moot).
Similarly, an entity who makes financial arrangements
or pays fees based on a lower court decision does not necessarily moot an
appeal where the entity is a party to the appeal and it would not be
inequitable to order the arrangements undone.
See Spirtos
v. Moreno (In re Spirtos),
992 F.2d 1004, 1006–07 (9th Cir. 1993) (determining that where creditor
failed to obtain stay of bankruptcy court order finding that interests in
pension plans held by debtor’s estate were exempt and debtor subsequently
stripped plans of assets, appeal was not moot because court of appeals could
“order[] Debtor, who is a party to this appeal, to return the money to the
estate,” and such an order would be equitable where “Debtor knew at the time he
received and spent his plan distribution that [the creditor] had appealed the
bankruptcy court’s decision”); Salomon
v. Logan (In re Int’l Envtl. Dynamics, Inc.), 718 F.2d 322, 325–26 (9th
Cir. 1983) (payment of interim attorney’s fees per bankruptcy court
order did not moot appeal where payee was party to the appeal, permitting court
of appeals to order the return of any erroneously distributed funds, and where
it would not be inequitable to hear merits of appeal because payee knew that
bankruptcy court’s order would be challenged).
The availability of unencumbered funds held by an
estate will preclude mootness based on the estate’s alleged inability to pay
certain claims. See St. Angelo v.
Victoria Farms, Inc.,
38 F.3d 1525, 1533 & n.8 (9th Cir. 1994) (concluding appeal was not
moot where trustee’s claim did not depend on distributed amounts and debtor
failed either to produce direct proof that all assets had been disbursed or
showed that trustee could not obtain funds from unencumbered assets or future
earnings, and debtor also failed to show why bankruptcy court could not order
return of erroneously distributed funds), amended 46 F.3d 969 (9th
Cir. 1995); Bear v. Coben
(In re Golden Plan of Cal., Inc.), 829 F.2d 705, 708 (9th Cir. 1986)
(holding that, despite party’s failure to obtain a stay of district court’s
judgment, appeal was not moot due to availability of funds held by the
trustee).
“[W]hether a case or controversy remains after the
dismissal of a bankruptcy case depends on whether the issue being litigated
directly involves the reorganization of the debtor’s estate.” Spacek v.
Tabatabay (In re Universal Farming Indus.), 873 F.2d 1332, 1333 (9th Cir.
1989) (discussing examples of moot and not moot appeals). An appeal becomes moot when during its
pendency the bankruptcy court dismisses an underlying Chapter 13 proceeding
because the debtors failed to comply with its requirements. IRS
v. Pattullo (In re Pattullo), 271 F.3d 898, 901–02 (9th Cir. 2001)
(order). It is not enough to sustain the
case if the issue on appeal simply might relate to future litigation. See Spacek
,
873 F.2d at 1333–34 (stating that possibility that a future case might
be filed concerning the value of a note and deed of trust is not enough to
sustain present controversy over the relative priorities of two notes and deeds
of trust where the documents have come into the same ownership). Under this standard, the appeal in Spacek, 873
F.2d at 1335–36 was held not moot.
The following cases held appeals to be moot:
·
W. Farm Credit
Bank v. Davenport (In re Davenport), 40 F.3d 298, 299 (9th Cir. 1994) (per curiam) (debtor’s dismissal of their Chapter 12
petition mooted creditor’s appeal from confirmation of reorganization plan
where creditor could still obtain review of issue in another case);
·
Cook v.
Fletcher (In re Cook), 730 F.2d 1324, 1326 (9th Cir. 1984) (finding moot an appeal from a district court
decision affirming the forfeiture of property apparently under a sale contract
because appeal arose from Chapter 11 proceedings that were dismissed pending
appeal, appellants failed to appeal from discharge subsequently obtained in
Chapter 7 proceedings that had closed the estate, and appellants failed to
obtain a stay pending appeal);
·
Armel
Laminates, Inc. v. Lomas & Nettleton Co. (Income Prop. Builders, Inc.), 699 F.2d 963, 964 (9th Cir. 1982) (per curiam) (holding that creditor’s appeal from
order lifting automatic stay to permit foreclosure became moot when bankruptcy
court dismissed debtor’s petition and creditor did not appeal the dismissal).
·
Castaic
Partners II, LLC v. Daca-Castaic, LLC (In re Castaic Partners II, LLC), 823 F.3d 966, 968 (9th Cir. 2016) (holding appeal was
constitutionally moot, where the bankruptcy court dismissed the underlying
cases while appeal was pending, and party failed to appeal the orders of
dismissal).
A stay issued by the bankruptcy court after a notice
of appeal has been filed is ineffective where the notice of appeal divested the
bankruptcy court of jurisdiction. See
Burchinal v.
Cent. Wash. Bank (In re Adams Apple, Inc.), 829 F.2d 1484, 1489 (9th Cir. 1987)
(holding that bankruptcy court’s issuance of stay could not prevent mootness
under 11
U.S.C. § 364(e) in part because appeal from order had already been
filed divesting bankruptcy court of jurisdiction).
To prevent mootness, the terms of the stay must cover
the transactions that allegedly mooted an appeal. See Bennett v. Gemmill
(In re Combined Metals Reduction Co.),
557 F.2d 179, 193 (9th Cir. 1977) (noting that where an order
authorizing a sale has been stayed, but a subsequent order authorizing a
different sale of the same property has not been stayed, a sale under the
second order will moot an appeal from the first order).
Any stay that is obtained must remain in place
“pending appeal.” See Ewell v. Diebert
(In re Ewell),
958 F.2d 276, 280 (9th Cir. 1992); cf. Fed. R. Bankr. P. 7062
(limiting applicability of automatic 14-day stay of execution following
bankruptcy court judgment); Fed. R. Bankr. P. 8017 (providing for 14-day stay
following decisions by the BAP or district courts acting in appellate
capacity).
Review of agency decisions by the court of appeals is
initiated by filing a petition for review as provided in Fed. R. App. P.
15(a):
Fed. R. App. P. 15(a) (also covering content of petitions for review, and
providing for joint petitions and applications by agencies for enforcement of
their decisions). Regarding time period
in which to petition for review, see particular statutes authorizing review,
many of which are set out below.
·
Agriculture, Secretary or Department of.
See 28
U.S.C. § 2342(2) (providing for review of all final orders made
under Chapters 9 and 20A of Title 7, except orders issued under 7 U.S.C.
§§ 210(e), 217a & 499g(a)).
Under 7
U.S.C. §§ 194, 1600, and 21
U.S.C. §§ 457(d), 467(c), 607(e) & 1036(b), review is also
available for various other decisions issued by the Secretary. Section 1600 of Title 7 authorizes the
Secretary to petition for enforcement of certain orders pending the outcome of
an appeal. See also Perfectly Fresh
Farms, Inc. v. U.S. Dep’t of Agric., 692 F.3d 960, 966 (9th Cir. 2012)
(jurisdiction to review final order of the Department of Agriculture,
concerning the Perishable Agricultural Commodities Act, under 28 U.S.C.
§ 2342(2)).
·
Atomic Energy Commission.
See Nuclear Regulatory Commission.
·
Attorney General and Department of Justice.
See 21
U.S.C. § 877 (providing for review of certain determinations,
findings, and conclusions made under the Controlled Substances Act).
·
Benefits Review Board.
See Workers’ Compensation, Office of.
·
Bonneville Power Administration.
See 16
U.S.C. § 839f(e)(5) (providing for review of final actions and
decisions of the Administrator or the Pacific Northwest Electric Power and
Conservation Planning Council); see also Federal Energy Regulatory
Commission.
·
Commodity Futures Trading Commission.
See 7
U.S.C. §§ 8, 9, 18(e) (providing for review of reparation orders
and decisions regulating “contract markets”).
·
Consumer Product Safety Commission. See 15
U.S.C. §§ 1262(e)(3), 2060(a) (providing for review of
determinations that a toy is hazardous, and promulgations of consumer product
safety rules).
·
Education, Secretary of Department of. See 20 U.S.C. §§ 1070C-3(b), 1234g
(providing for review of orders respecting funding of various educational
programs).
·
Energy, Secretary or Department of.
See 42
U.S.C. § 10139 (authorizing review of certain storage and disposal
decisions under the Nuclear Waste Policy Act); see also California
Energy Comm’n v. Dep’t of Energy,
585 F.3d 1143, 1147–50 (9th Cir. 2009) (concluding court of appeals had
jurisdiction to review order issued pursuant to 42 U.S.C. § 6306(d)).
·
Endangered Species Committee.
See 16
U.S.C. § 1536(n) (providing for review of committee decisions
regarding exemptions under § 1536(h)).
·
Environmental Protection Agency, Administrator of.
See 7
U.S.C. § 136n(b) (providing for review of certain orders under the
Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”)); 33 U.S.C.
§ 1369(b)(1) (authorizing review of various decisions under Clean
Water Act); 42
U.S.C. § 7607(b)(1) (same, regarding various orders under Clean Air
Act, but limiting review of some to the D.C. Circuit); 42 U.S.C. § 300j-7(a)(2)
(providing for review of certain final actions under the Safe Drinking Water
Act); see also Natural
Resources Defense Council v. South Coast Air Quality Management District, 651 F.3d 1066, 1070 (9th Cir. 2011); Natural
Resources Defense Council v. EPA, 638 F.3d 1183, 1190 (9th Cir. 2011)
(jurisdiction under 42 U.S.C. § 7607(b)(1) to review “adequacy”
determination); United
Farm Workers of America, AFL-CIO v. EPA, 592 F.3d 1080 (9th Cir. 2010)
(EPA decision should have been challenged in court of appeals under
§ 16(b) of FIFRA, not the district court); Les v. Reilly, 968 F.2d 985,
988 (9th Cir. 1992) (finding jurisdiction under 21 U.S.C. § 348(g)(1) to
review EPA decision, although statute only refers to decisions under the
Federal Food, Drug and Cosmetic Act by Secretary of Health and Human Services);
Nevada v.
Watkins, 939 F.2d 710, 712 n.4 (9th Cir. 1991) (finding jurisdiction
under 42
U.S.C. § 2239(b) to review EPA decision, although statute only
refers to certain decisions by the President, the Secretary of Energy, and the
Nuclear Regulatory Commission).
·
Federal Aviation Administration.
See 49
U.S.C. § 46110(a) (authorizing review of orders respecting
Administrator’s aviation safety duties and powers); Tur v. FAA, 4 F.3d 766, 768
(9th Cir. 1993) (recognizing option under former statute of direct
appeal to Ninth Circuit from FAA emergency order revoking certificate, rather
than first appealing to NTSB pursuant to statute now codified at 49 U.S.C.
§ 44709). See also Kashem v. Barr, 941 F.3d 358,
391 (9th Cir. 2019) (holding that § 46110 grants the courts of appeals,
rather than the district courts, exclusive jurisdiction over the substantive
due process challenges to inclusion on the No Fly List). Prior to Kashem, the court held that
that § 46110 did not bar district court review of a No Fly List
order. Arjmand v. U.S. Dep’t of
Homeland Sec., 745 F.3d 1300, 1302 (9th Cir. 2014) (“Section 46110 does
not, however, grant circuit courts jurisdiction to review orders issued by [the
Terrorist Screening Center].”); Latif v.
Holder, 686 F.3d 1122, 1127 (9th Cir. 2012) (explaining that
§ 46110 “does not grant the court of appeals direct and exclusive
jurisdiction over every possible dispute involving TSA” (internal quotation
marks and citation omitted)). Cross-reference: National Transportation
Safety Board.
·
Federal
Communications Commission. See 28 U.S.C.
§ 2342(1) (providing for review of final FCC orders made reviewable
by 47 U.S.C. § 402(a)). See also
Marks v. Crunch San Diego, LLC, 904 F.3d 1041, 1049 (9th Cir. 2018) (“Under
the Hobbs Act, an appellate court ‘has exclusive jurisdiction to enjoin, set
aside, suspend (in whole or in part), or to determine the validity of—(1) all
final orders of the [FCC] made reviewable by [47 U.S.C § 402(a) ],’ 28
U.S.C. § 2342, so long as the appeal is timely, meaning that it was
brought within sixty days from when the FCC releases the final order to the
public[,]”), cert. dismissed, 139 S. Ct. 1289 (2019); N. Cty.
Commc’ns Corp. of Arizona v. Qwest Corp., 824 F.3d 830, 838 n.1 (9th Cir.
2016) (explaining that under the Hobbs Act, the court of appeals lacks
jurisdiction to rule on a collateral attack of an FCC order). But cf. 47 U.S.C. § 402(b)
(providing for exclusive venue in D.C. Circuit as to certain orders).
·
Federal Energy
Regulatory Commission. See 15 U.S.C.
§ 717r(b) (authorizing review of commission orders regulating
natural gas); 16
U.S.C. § 825l(b) (same, as to orders under Federal Power
Act); see also 42
U.S.C. § 7172 (vesting FERC with authority formerly held by Federal
Power Commission to render orders reviewable in court of appeals).
·
Federal Highway
Administration. See Owner-Operators
Indep. Drivers Ass’n of Am. v. Skinner, 931 F.2d 582, 585–90 (9th Cir. 1991)
(holding that statute now codified at 49 U.S.C. § 351 conferred upon court
of appeals exclusive jurisdiction to review agency’s regulations regarding
motor carrier safety).
·
Federal Labor
Relations Authority. See 5 U.S.C.
§ 7123(a) (providing for review of any final order, other than
those made under 5 U.S.C. §§ 7112, 7122); 5
U.S.C. § 7123(b) (authorizing agency to petition for enforcement of
orders).
·
Federal Maritime
Commission. See 28 U.S.C.
§ 2342(3)(B) (providing for review of all rules, regulations, or
final orders issued pursuant to 305, 41304, 41308, or 41309 or chapter 421 or 441 of
title 46.
·
Federal Mine Safety
and Health Review Commission. See 30 U.S.C.
§ 816(a) (authorizing review in court of appeals of various orders
issued by commission).
·
Federal Power
Commission. See Federal
Energy Regulatory Commission.
·
Federal Reserve
System, Board of Governors of. See 12 U.S.C.
§ 1848 (providing for review of orders regulating bank holding
companies).
·
Federal Trade Commission.
See 15
U.S.C. § 45(c) (authorizing review of commission’s cease and desist
orders regarding method of competition, act, or practice).
·
Foreign Trade Zone Board.
See 19
U.S.C. § 81r(c) (providing for review of decisions revoking zone
grants).
·
Health and Human Services, Secretary or Department of.
See 21 U.S.C.§§ 348(g)(1), 355(h), 360b(h), 371(f); 42 U.S.C.
§ 1316(a)(3) (authorizing review of various decisions). But cf., e.g., 42 U.S.C. § 405(g) (challenges
to benefits decisions brought in district court).
·
Housing and Urban Development, Secretary or Department of.
See 42
U.S.C. § 3612(i) (final orders pursuant to Fair Housing Act); see
also 28
U.S.C. § 2342(6) (generally providing for review of all final
orders under 42 U.S.C. § 3612).
·
Interior, Secretary or Department of.
See 43
U.S.C. § 1349(c) (authorizing review of any action to approve,
require modification of, or disapprove exploration plans under Outer Continental
Shelf Lands Act).
·
Interstate Commerce
Commission. See Surface Transportation Board.
·
Justice, Department of.
See Attorney General.
·
Labor, Secretary or Department of.
See 29 U.S.C. § 210(a) (providing for
review of certain wage orders); 49
U.S.C. § 31105(d) (same, as to orders on complaints under
whistleblower statute protecting employees who report commercial motor vehicle
safety violations); 29
C.F.R. § 1980.112 (providing for review of Administrative Review
Board decisions).
·
Merit Systems Protection Board (MSPB). See 5
U.S.C. § 7703 (providing for judicial review of MSPB final orders
or decisions).
The Ninth Circuit has only
recently been granted jurisdiction to review Board decisions. Until 2012, the Federal Circuit had exclusive
jurisdiction over such petitions. However, when Congress amended the
[Whistleblower Protection Act] in 2012, it amended the procedures for judicial
review of Board decisions. Now, 5 U.S.C.
§ 7703(b)(1)(B) provides for judicial review either in “the United
States Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.”
Daniels v.
Merit Sys. Prot. Bd., 832 F.3d 1049, 1054 (9th Cir. 2016). See also
Johnen v. U.S. Merit Sys. Prot. Bd., 882 F.3d 1171, 1174 n.2 (9th Cir.
2018) (noting that for many years the Federal Circuit had sole jurisdiction to
review Board decisions).
·
National Labor
Relations Board. See 29 U.S.C.
§ 160(f) (authorizing review of final Board decisions), 29 U.S.C.
§ 160(e) (authorizing agency to petition for enforcement of
orders). The court of appeals only has
jurisdiction to hear arguments raised before the NLRB, absent extraordinary
circumstances. Pauma v. Nat’l Labor
Relations Bd., 888 F.3d 1066, 1080 (9th Cir. 2018) (internal quotation
marks and citations omitted), cert. denied sub nom. Casino Pauma v. N.L.R.B.,
139 S. Ct. 2614 (2019). “The purpose of
this provision is to ensure that the Board is given the opportunity to bring
its expertise to bear on the issue presented so that [the court] may have the
benefit of the Board’s analysis when reviewing the administrative
determination.” Id. (internal
quotation marks and citation omitted). See also NLRB
v. Legacy Health System,
662 F.3d 1124, 1126 (9th Cir. 2011) (“In the absence of ‘extraordinary
circumstances,’ this court does not have jurisdiction to hear arguments that
were not urged before the Board, pursuant to section 10(e) of the Act, 29 U.S.C.
§ 160(e).”). Note there is no time limit within which the Board
must apply for enforcement of its orders. There is also no time limit for
filing a petition for review from an order of the Board.
·
National
Transportation Safety Board. See 49 U.S.C.
§ 44709(f) (providing for review of decisions in administrative
appeals from Federal Aviation Administration orders affecting certificates).
·
Nuclear Regulatory
Commission. (formerly the Atomic Energy Commission). See 28
U.S.C. § 2342(4) (providing for review of all final orders of the
Atomic Energy Commission made reviewable by 42
U.S.C. § 2239(b), which, in turn, provides for review of orders
issued under that section and others, including licensing orders); 42 U.S.C.
§ 10139 (providing for review of certain storage and disposal
decisions under the Nuclear Waste Policy Act).
·
Occupational Safety and Health Review Commission.
See
29 U.S.C. §§ 655(f) (authorizing review of promulgation of
standards), 660(b) (permitting review of orders enforcing citations, and
authorizing agency to petition for enforcement).
·
Railroad Retirement Board.
See 45
U.S.C. §§ 231g, 355(f) (authorizing review of final Board
decisions).
·
Securities and Exchange Commission.
See 15
U.S.C. §§ 77i, 77vvv, 78y(a)(1), 80a-42, 80b-13 (providing for
review of orders under the Securities Act, the Trust Indenture Act, the
Securities Exchange Act, the Investment Company Act, and the Investment
Advisors Act).
·
Surface Transportation Board (formerly the Interstate
Commerce Commission). See 28 U.S.C.
§ 2342(5) (providing for a review of all rules, regulations, or
final orders of the Surface Transportation Board made reviewable by 28 U.S.C. § 2321). See also Alaska Survival v. Surface
Transp. Bd., 705 F.3d 1073, 1076 (9th Cir. 2013) (jurisdiction under
28 U.S.C. §§ 2321(a), 2342(5), and 2344 to review Surface
Transportation Board’s decision authorizing construction of a new rail line).
·
Transportation, Secretary or Department of.
See 28
U.S.C. § 2342(3)(A) (providing for review of all rules,
regulations, or final orders of the Secretary of Transportation issued pursuant
to section 50501, 50502, 56101–56104, or 57109 of title 46 or pursuant to part
B or C of subtitle IV, subchapter III of chapter 311, chapter 313, or chapter
315 of title 49; 28
U.S.C. § 2342(7) (authorizing review of all final agency actions
described in 49
U.S.C. § 20114(c), which in turn authorizes review of railroad
safety decisions, except to the extent railroad employees are authorized to sue
in district court under 49
U.S.C. § 20104(c)); 49
U.S.C. §§ 30161 (providing for review of orders prescribing motor
vehicle safety standards), 46110(a) (same, as to orders regulating air commerce
and safety). See also Int’l Bhd. of
Teamsters v. U.S. Dep’t of Transportation, 861 F.3d 944, 953 (9th Cir.
2017) (“[T]he Hobbs Act provides for direct appellate review of ‘rules,
regulations, or final orders’ of the Transportation Secretary.” (quoting 28
U.S.C. § 2342(3)(A))); Nuclear
Info. & Resource Serv. v. Dep’t of Transp. Research & Special Programs
Admin., 457 F.3d 956, 959–60 (9th Cir. 2006).
·
Thrift Supervision, Office of.
See 12
U.S.C. § 1818(h)(2) (authorizing review of final orders of
“appropriate federal banking agency” regarding insured status of depository
institutions); see also Keating
v. Office of Thrift Supervision,
45 F.3d 322, 324 (9th Cir. 1995) (exercising jurisdiction under
§ 1818(h)(2) to review decision of Office of Thrift Supervision).
·
Treasury, Secretary or Department of the.
See 27
U.S.C. § 204(h) (providing for review of permit decisions under
Federal Alcohol Administration Act).
·
Workers’ Compensation, Office of.
See 33
U.S.C. § 921(c) (authorizing review of workers’ compensation
decisions of the Benefits Review Board).
See, e.g., Grimm v. Vortex Marine Constr., 921 F.3d 845,
847 (9th Cir. 2019) (“Final orders of the BRB are reviewable by the United
States Courts of Appeals.”); Iopa v. Saltchuk-Young Bros., Ltd., 916
F.3d 1298, 1300 (9th Cir. 2019) (per curiam) (jurisdiction under 33 U.S.C.
§ 921(c) to review BRB decision).
Petitions for review of workers’ compensation orders arising under the
Defense Base Act should be filed directly in the court of appeals in the circuit
where the relevant district director is located, rather than in the circuit
where the ALJ’s office is located. See
Glob. Linguist Sols., LLC v. Abdelmeged, 913 F.3d 921, 922–23 (9th Cir.
2019).
The foregoing statutes generally include venue
provisions providing for filing of petitions in the Ninth Circuit. However, the venue provision for the Hobbs
Administrative Orders Review Act, 28
U.S.C. § 2342, appears in 28
U.S.C. § 2343.
The foregoing statutes also generally specify the time
in which petitions for review must be filed.
However, the timeliness provision for the Hobbs Administrative Orders
Review Act, 28
U.S.C. § 2342, appears in 28
U.S.C. § 2344. Note that
time periods in which to petition for review vary widely.
Under 26
U.S.C. § 7482(a), the courts of appeals other than the Federal
Circuit have exclusive jurisdiction to review Tax Court decisions in actions to
redetermine tax liability. See also Meruelo v. Comm’r, 691 F.3d 1108, 1114
(9th Cir. 2012) (exercising jurisdiction pursuant to 26 U.S.C.
§ 7482(a)(1)). However,
§ 7463(b) precludes appellate jurisdiction over “small tax cases,” i.e.,
disputes involving $50,000 or less. See
Cole v.
Comm’r,
958 F.2d 288, 289 (9th Cir. 1992).
To initiate review of a Tax Court decision, a notice
of appeal is filed in the Tax Court pursuant to Fed.
R. App. P. 13 and Tax Court Rule 190(a).
Generally, venue in appeals from Tax Court decisions
in actions to redetermine tax liability is the circuit that includes the
noncorporate taxpayer’s legal residence.
See 26
U.S.C. § 7482(b)(1)(A).
Proper venue for appeals by corporations is in the circuit where the
corporation’s principal place of business or principal office or agency of the
corporation is located, or, if none of these apply, then the circuit in which
the IRS office to which the disputed tax return was made. See 26
U.S.C. § 7482(b)(1)(B).
The parties may also designate by written stipulation
the circuit in which an appeal may be taken.
See 26
U.S.C. § 7482(b)(2).
Notices of appeal from the Tax Court must be filed
“within 90 days after the decision of the Tax Court is entered.” 26
U.S.C. § 7483. “If a timely
notice of appeal is filed by one party, any other party may take an appeal by
filing a notice of appeal within 120 days after the decision of the Tax Court
is entered.” Id.; see also Fed. R. App. P.
13(a). Timely motions to
reconsider, or to vacate or revise the Tax Court decision will toll the time in
which to appeal. See Fed. R. App. P.
13(a); Tax Court Rules 161, 162; see also Nordvick v. Comm’r, 67 F.3d 1489,
1493–94 (9th Cir. 1995) (holding that a timely motion to reconsider
under Tax Court Rule 161 will terminate the running of the time for appeal).
A notice of appeal from a tax court decision is deemed
filed as of the postmark. See 26
U.S.C. § 7502; Tax Court Rule 22.
“[A]s a general matter, finality coincides with the
termination of the criminal proceedings.”
United States v. Vela, 624 F.3d 1148,
1151 (9th Cir. 2010). Because
jurisdiction is typically limited to final decisions of the district court,
“[i]n criminal cases, … appellate review [is prohibited] until after conviction
and imposition of sentence[,]” unless an exception to the general rule
applies. United States v. McIntosh,
833 F.3d 1163, 1170 (9th Cir. 2016).
This court has noted the Supreme Court’s recognition
that “‘the term final
decision normally refers to a final judgment, such as judgment of guilty, that
terminates a criminal proceeding.’” Vela,
624 F.3d at 1151 (quoting Sell v. United States, 539 U.S. 166, 176
(2003)). “When a criminal
defendant is found guilty, it is unremarkable that there is no final judgment
until the defendant is sentenced; it is only at sentencing that the criminal
action terminates and nothing is left for the court to do but execute the
judgment.” Vela,
624 F.3d at 1151 (internal quotation marks, citation, and alterations
omitted); see also United States v. Montalvo, 581 F.3d 1147, 1150 (9th Cir. 2009); United
States v. Godinez-Ortiz, 563 F.3d 1022, 1026 (9th Cir. 2009); United States v.
Powell,
24 F.3d 28, 31 (9th Cir. 1994) (citation omitted) (“In criminal cases,
as well as civil, the judgment is final for the purposes of appeal when it
terminates the litigation on the merits and leaves nothing to be done but to
enforce by execution what has been determined.” (citation omitted)). The court of appeals generally has
jurisdiction over defendant’s post-sentence appeal under 28 U.S.C.
§ 1291. See, e.g., Montalvo,
581 F.3d at 1149; United
States v. Higuera-Llamos, 574 F.3d 1206, 1208 (9th Cir. 2009).
The court also has appellate jurisdiction to review
proceedings “culminating in a verdict of not guilty by reason of
insanity.” Vela,
624 F.3d at 1151–52 (exercising jurisdiction under 28 U.S.C. § 1291
where defendant was not guilty by reason of insanity).
Notwithstanding that counts remain pending in the
district court, the court of appeals has jurisdiction under the final judgment
rule when a guilty plea to a subset of charges effectively severs the
indictment into two parts. United States
v. King, 257 F.3d 1013, 1020–21 (9th Cir. 2001).
A pretrial order restraining or freezing proceeds from
the sale of property allegedly subject to forfeiture may be appealed under 28 U.S.C.
§ 1292(a)(1). See United States v.
Ripinsky,
20 F.3d 359, 361 (9th Cir. 1994) (order restraining assets); United States
v. Roth, 912 F.2d 1131, 1132–33 (9th Cir. 1990) (order freezing sale
proceeds).
The court of appeals has declined to permit
interlocutory appeal under § 1292(a)(1) from certain orders relating to
grand jury proceedings. See United States v.
Ryan,
402 U.S. 530, 534 (1971) (holding that an order denying a motion to
quash a subpoena was not appealable as an injunction simply because court
“inform[ed] respondent before the event of what efforts the District Court
would consider sufficient attempts to comply with the subpoena”); Fendler v.
United States (In re Federal Grand Jury Investigation of Fendler), 597 F.2d
1314, 1316 (9th Cir. 1979) (holding that an order denying a stay
of grand jury proceedings to permit voir dire was not appealable as an
injunction because a stay would not go to merits of the claim and the order
denying a stay “neither narrowed the range of activity about which appellant
may complain nor restricted the breadth of the relief appellant may obtain”).
Cross-reference: II.B.1.e.iv (regarding appealability
of orders denying motions to quash generally).
28 U.S.C. § 1292(b) does not confer interlocutory appellate jurisdiction
in criminal cases. United States
v. Pace, 201 F.3d 1116, 1118–19 (9th Cir. 2000). “There is no
provision for district court certification of interlocutory criminal appeals
analogous to 28
U.S.C. § 1292(b) regarding interlocutory civil appeals.” United
States v. Russell, 804 F.2d 571, 573 n.3 (9th Cir. 1986). But cf. Valenzuela-Gonzalez
v. United States Dist. Court,
915 F.2d 1276, 1279 (9th Cir. 1990) (noting that defendant could seek
mandamus review in part because district court had not certified order under
§ 1292(b)).
Defendants generally must await final judgment before
appealing. See Midland Asphalt
Corp. v. United States,
489 U.S. 794, 798 (1989) (stating that finality requirement generally
“prohibits appellate review until after conviction and imposition of
sentence”). However, under certain
circumstances, an order may be appealed before final judgment under the
collateral order doctrine. See United States v. Brooks, 750 F.3d
1090, 1095 (9th Cir. 2014) (“[W]e have
jurisdiction to review the district court’s involuntary medication order under
the collateral order doctrine.”); United States v. Beltran Valdez, 663 F.3d 1056, 1057–58
(9th Cir. 2011); United States v. Romero-Ochoa, 554 F.3d 833, 835–36 (9th Cir. 2009); United
States v. Higuera-Guerrero (In re Copley Press, Inc.), 518 F.3d 1022,
1025 (9th Cir. 2008); United
States v. Hitchcock, 992 F.2d 236, 238 (9th Cir. 1993) (per curiam).
To be appealable under the collateral order doctrine,
an order must “‘(1) conclusively determine the disputed question, (2)
resolve an important issue completely separate from the merits of the action,
and (3) be effectively unreviewable on appeal from a final judgment.’” See Romero-Ochoa, 554 F.3d at 836
(quoting Will
v. Hallock, 546 U.S. 345 (2006)); see also Copeland v. Ryan,
852 F.3d 900, 904 (9th Cir. 2017); United
States v. Tillman, 756 F.3d 1144, 1150 (9th Cir. 2014); Higuera-Guerrero, 518 F.3d at 1025;
United
States v. Steel, 626 F.3d 1028,
1030 (9th Cir. 2010); United States
v. Hickey,
367 F.3d 888, 895 (9th Cir. 2004) (“[T]o come under the collateral order
doctrine, an interlocutory appeal must challenge an order that conclusively
determines an important issue completely separate from the merits of the action
that cannot be effectively reviewed on appeal from a final judgment.”).
Under the collateral order doctrine, a ruling is not
completely separate from the merits if it can be reviewed for harmless error
following trial. See United States v.
Hitchcock,
992 F.2d 236, 238 (9th Cir. 1993) (per curiam). A ruling may be effectively unreviewable after
final judgment, however, if it involves “a right not to be tried as opposed to
a right not to be convicted,” and “the right will be ‘lost, probably
irreparably’ if interlocutory appeal is not permitted.” United
States v. Saccoccia, 18 F.3d 795, 800 (9th Cir. 1994); cf. United States v.
MacDonald,
435 U.S. 850, 857 n.6 (1978) (“extraordinary nature” of claim alone not
sufficient to permit immediate appeal).
The collateral order doctrine is interpreted “with the
utmost strictness” in criminal cases. Midland Asphalt
Corp., 489 U.S. at 799 (internal quotation marks omitted); see
also Romero-Ochoa, 554 F.3d at 836;
Higuera-Guerrero, 518 F.3d at 1025;
United
States v. Lewis, 368 F.3d 1102, 1105 (9th Cir. 2004); accord United States v.
Moreno-Green,
881 F.2d 680, 683 (9th Cir. 1989) (per curiam); see also MacDonald, 435 U.S. at
853–54 (“The rule of finality has particular force in criminal
prosecutions because encouragement of delay is fatal to the vindication of the
criminal law.” (internal quotation marks and citation omitted)).
“Pendent appellate jurisdiction refers to the exercise
of jurisdiction over issues that ordinarily may not be reviewed on
interlocutory appeal, but may be reviewed on interlocutory appeal if raised in
conjunction with other issues properly before the court ... [and] if the
rulings were ‘inextricably intertwined’ or if review of the pendent issue was
necessary to ensure meaningful review of the independently reviewable
issue.” Cunningham
v. Gates, 229 F.3d 1271, 1284 (9th Cir. 2000).
United States v. Tillman, 756 F.3d 1144, 1149 (9th
Cir. 2014). “[T]he
exercise of pendent appellate jurisdiction is a rare event.” United States v. Decinces, 808 F.3d 785,
792 (9th Cir. 2015) (concluding that appeal of denial of motion to
dismiss was not inextricably intertwined with the government’s interlocutory
appeal, and declining to exercise pendent appellate jurisdiction, but also not
deciding whether pendent jurisdiction applies in the criminal context).
A valid appeal of a collateral order does not confer
pendent appellate jurisdiction to review nonappealable orders. See United
States v. MacDonald,
435 U.S. 850, 857 n.6 (1978); Abney
v. United States, 431 U.S. 651, 663 (1977); United States v. McKinley, 38
F.3d 428, 431 (9th Cir. 1994); see also United States v. Renzi, 651 F.3d 1012, 1019 (9th Cir. 2011) (although court had jurisdiction to review
one claim under the collateral order doctrine, it did not have jurisdiction to
review claim relating to his motion to suppress); United States v. Garner, 632 F.2d 758,
761 (9th Cir. 1980) (defendant’s claim that government violated its own
“Petite policy” against prosecution of crimes that have been prosecuted
in state court could not be raised on appeal of double jeopardy claim); United States
v. Gutierrez-Zamarano, 23 F.3d 235, 239 (9th Cir. 1994) (defendant’s
claim that he established entrapment as a matter of law at his first trial
could not be raised on appeal with double jeopardy claims). But see United
States v. Sandoval-Lopez,
122 F.3d 797, 799–800 (9th Cir. 1997) (because defendants’ plea
agreement issues involved same facts, same relief, and same concerns as double
jeopardy issues, interlocutory appeal of all issues was permitted).
An order restraining defendant from disposing of
corporate property during pendency of proceedings under RICO indictment, and
requiring defendant to post a performance bond to engage in the ordinary course
of business, is an appealable collateral order.
See United
States v. Spilotro,
680 F.2d 612, 615 (9th Cir. 1982). But see United States v.
Roth,
912 F.2d 1131, 1133 (9th Cir. 1990) (discussing government challenge to Spilotro’s reliance on collateral order
doctrine, but declining to address issue because order restraining assets
appealable under 28 U.S.C. § 1292(a)(1)).
An order denying a motion to compel release of seized
funds subject to civil forfeiture for the purposes of retaining counsel is not
an appealable collateral order. See
United
States v. Consiglio, 866 F.2d 310, 311 (9th Cir. 1989).
At the time of the filing of an appeal from an order
denying motion for return of property, there is appellate jurisdiction because
the order is a final, appealable order; nonetheless, jurisdiction is lost, and
the appeal must be dismissed, whenever an indictment is returned. Bridges
v. United States, 237 F.3d 1039, 1040–41 (9th Cir. 2001).
An order denying a pretrial motion to reduce bail as
excessive under the Eighth Amendment is an appealable collateral order. See
Stack v.
Boyle, 342 U.S. 1, 6 (1951).
To seek review of pretrial bail, defendants should
first move the district court to reduce bail.
See Cohen
v. United States, 283 F.2d 50, 50 (9th Cir. 1960) (per curiam)
(dismissing appeal without prejudice where defendant failed to first move
district court to reduce bail); cf. United
States v. Kolek,
728 F.2d 1280, 1281 (9th Cir. 1984) (order) (court of appeals lacked
jurisdiction over defendant’s request for a reduction of bail pending trial
because court exercises appellate, not original, jurisdiction over prejudgment
bail matters).
Cross-reference: VIII.J.4 (regarding convictions
mooting preconviction bail issues).
Where the federal defendant’s appeal is pending, the
request for bail pending appeal should be presented as a motion rather than an
appeal. See United States v. Zherebchevsky, 849 F.2d 1256,
1256 (9th Cir. 1988) (dismissing as “filed in error” an appeal from
district court order denying bail pending appeal from judgment of conviction
and construing brief filed in bail appeal as motion); see also United States v.
Mett,
41 F.3d 1281, 1281–82 (9th Cir. 1995) (considering motion for bail
pending appeal from district court’s denial of collateral attack under Fed. R.
Crim. P. 33 and 28 U.S.C. § 2255, after district court denied request for
bail).
A defendant need not seek a reduction in the amount of
bail pending appeal set by the district court before applying to the court of
appeals for a reduction. See Fernandez v.
United States,
314 F.2d 289, 290 (9th Cir. 1963) (per curiam).
An order denying bail pending a decision on a
prisoner’s habeas petition is not appealable either as a final judgment or a
collateral order. United States v. McCandless, 841 F.3d 819, 821 (9th
Cir. 2016) (per curiam) (federal prisoner) (“[A] district court’s order denying
bail pending resolution of a habeas petition is not a final decision subject to
review under 28 U.S.C. § 1291 and is not otherwise appealable under the
collateral order doctrine.”); Land
v. Deeds, 878 F.2d 318, 318 (9th Cir. 1989) (per curiam) (state
prisoner).
Extraditees may appeal the denial of bail by way of
habeas corpus. See United States v.
Kirby (In re Requested Extradition of Kirby), 106 F.3d 855,
858 (9th Cir. 1996) (dictum).
An order setting conditions of bail pending a hearing
to determine whether to revoke a convict’s supervised release is appealable
under the collateral order doctrine. See
United
States v. Loya,
23 F.3d 1529, 1530 n.1 (9th Cir. 1994).
Applications for bail pending appeal of an order
revoking probation and imposing an additional term of incarceration may be made
by motion to the court of appeals, at least where the district court has
already denied bail. See United States v.
Bell,
820 F.2d 980, 981 (9th Cir. 1987) (order).
A commitment order entered pursuant to 18 U.S.C.
§ 4241(d) resulting in involuntary commitment and temporary
incarceration is an immediately appealable collateral order. See United
States v. Friedman,
366 F.3d 975, 979–80 (9th Cir. 2004); see also United States v. Kowalczyk, 805 F.3d
847, 856 (9th Cir. 2015) (“We have
jurisdiction to review the district court’s commitment order under 28 U.S.C.
§ 1291 because pretrial commitment orders are final decisions under the
collateral order doctrine.”); United States v. LKAV, 712 F.3d 436, 439
(9th Cir. 2013) (explaining the order was appealable under the
collateral order doctrine, and that it conclusively determined LKAV’s rights
with respect to his pre-adjudication commitment); United States v. Godinez-Ortiz, 563 F.3d 1022, 1027–28 (9th Cir. 2009).
A pre-trial order declaring a death penalty provision
constitutional is not an appealable collateral order. See United
States v. Harper,
729 F.2d 1216, 1220–21 (9th Cir. 1984).
Such an order may be reviewable, however, on a petition for writ of
mandamus. See id. at 1221–24 (noting that
government and defendant agreed that provision was unconstitutional).
An order refusing to schedule a dangerousness hearing
under 18
U.S.C. § 4246 is not an appealable collateral order where either
another district court would conduct the hearing or defendant could seek writ. See United
States v. Ohnick,
803 F.2d 1485, 1487 (9th Cir. 1986); but see United States v. Godinez-Ortiz, 563 F.3d 1022,
1028–29 (9th Cir. 2009) (distinguishing Ohnick).
An order rejecting defendant’s request to submit
financial information under seal or with immunity, and consequently denying
appointment of counsel at public expense, is not an appealable collateral
order. See United States v. Hitchcock, 992 F.2d 236,
238–39 (9th Cir. 1993) (per curiam).
Interlocutory appeals are appropriate for those
discovery requests that seek information to establish a statutory or
constitutional right not to be tried. See
United
States v. Zone,
403 F.3d 1101, 1107 (9th Cir. 2005).
An order granting a government motion to dismiss an
indictment in one jurisdiction following issuance of an indictment in another
jurisdiction is not an appealable collateral order. See Parr
v. United States,
351 U.S. 513, 519 (1956) (order was merely a step towards disposition on
the merits and could be reviewed on appeal from final judgment).
The court of appeals does not have jurisdiction under
the collateral order doctrine to review the district court’s denial of a
defendant’s motion to dismiss the indictment based on the theory that his
prosecution was barred by the McCarran-Ferguson Act because this theory is
reviewable on appeal from a final judgment.
United
States v. Pace, 201 F.3d 1116, 1118–19 (9th Cir. 2000).
An order granting disqualification of defense counsel
is not an appealable collateral order. See
Flanagan v.
United States,
465 U.S. 259, 269 (1984); United
States v. Greger, 657 F.2d 1109, 1112–13 (9th Cir. 1981).
An order refusing to disqualify government counsel is
similarly unappealable. See United States v.
Leyva-Villalobos,
872 F.2d 335, 335 (9th Cir. 1989).
The collateral order doctrine does not permit review
of a district court order disqualifying an attorney from representing multiple
targets of a grand jury investigation. See
Molus v.
United States (In re Grand Jury Investigation), 182 F.3d 668,
671 (9th Cir. 1999).
A pretrial order denying a motion to dismiss an
indictment on double jeopardy grounds is generally an appealable collateral
order. See Abney v. United States, 431 U.S. 651,
659, 662 (1977); United States v. Valenzuela-Arisqueta, 724 F.3d 1290, 1293 n.3 (9th Cir. 2013) (stating a
pretrial order rejecting a claim of double jeopardy may be immediately
appealable under the collateral order doctrine, as long as the double jeopardy
claim is colorable); United
States v. Lopez-Avila, 678 F.3d 955, 961 (9th Cir. 2012); United
States v. Alvarez-Moreno, 657 F.3d 896, 899 (9th Cir. 2011); United States v.
Castillo-Basa,
483 F.3d 890, 895 (9th Cir. 2007) (collateral estoppel); United States
v. Elliot, 463 F.3d 858, 863–64 (9th Cir. 2006); United States v.
Hickey, 367 F.3d 888,
890 (9th Cir. 2004) (order reinstating charges dismissed during trial
pursuant to plea agreement, on grounds that defendants subsequently violated
agreement, immediately appealable); United States v. Stoddard, 111 F.3d
1450, 1452 n.1 (9th Cir. 1997); United
States v. Figueroa-Soto, 938 F.2d 1015, 1016 (9th Cir. 1991) (order
denying motion to dismiss federal indictment arising from facts underlying
prior state conviction immediately appealable).
A claim of double jeopardy is immediately appealable
even though it requires the court of appeals to examine the sufficiency of the
evidence presented at a prior trial. See
Richardson
v. United States,
468 U.S. 317, 322 (1984).
However, an order rejecting a claim of double jeopardy is appealable
only if the claim is at least colorable.
See id.; Valenzuela-Arisqueta,
724 F.3d at 1293 n.3; Lopez-Avila, 678 F.3d at 961; United
States v. Steel,
626 F.3d 1028, 1030 (9th Cir. 2010) (concluding defendant’s claim was
not colorable); United
States v. Bhatia, 545 F.3d 757, 759 (9th Cir. 2008); United States
v. Schemenauer, 394 F.3d 746, 749–50 (9th Cir. 2005); Hickey, 367
F.3d at 892 (no appellate jurisdiction if the double jeopardy claim is
not colorable); United
States v. Guiterrez-Zamarano, 23 F.3d 235, 238 n.4 (9th Cir. 1994); United States
v. Castiglione, 876 F.2d 73, 75 (9th Cir. 1988). Moreover, an order denying a motion to
dismiss on double jeopardy grounds a predicate act, but not an entire count,
from an indictment is not an appealable collateral order. See United
States v. Witten,
965 F.2d 774, 775–76 (9th Cir. 1992).
See also United States v. Decinces, 808 F.3d 785, 793 (9th Cir.
2015) (holding there was no collateral order jurisdiction to review district
court’s order denying defendant’s motion to dismiss a portion of the
indictment, where defendant asserted a double jeopardy claim, because it was
able to be reviewed following judgment).
An order denying a motion to dismiss an indictment on the
ground that a criminal proceeding could result in double punishment is
generally an appealable collateral order.
See United
States v. Chick,
61 F.3d 682, 684–86 (9th Cir. 1995) (rejecting government contention
that claim of multiple punishment should be treated differently than claim of
multiple prosecution for appealability purposes). But cf. United
States v. Washington,
69 F.3d 401, 403–04 & n.1 (9th Cir. 1995) (concluding that where
defendant fails to claim an interest in seized property, forfeiture of that
property in a prior civil action does not constitute punishment, and an appeal
from an order denying a double jeopardy claim on these grounds “will be
frivolous and will not justify interlocutory review”).
However, a double jeopardy claim is not ripe for
review by the district court or the court of appeals where sentence has not yet
been imposed in either of two criminal prosecutions. See United
States v. McKinley,
38 F.3d 428, 429–31 (9th Cir. 1994).
An order denying a motion to dismiss an indictment
based on res judicata or collateral estoppel arising from a prior criminal
proceeding is an appealable collateral order because it implicates double
jeopardy considerations. See United States v.
Bhatia,
545 F.3d 757, 759 (9th Cir. 2008) (res judicata and collateral
estoppel); United
States v. Castillo-Basa,
483 F.3d 890, 895 (9th Cir. 2007) (collateral estoppel); United States
v. Romeo, 114 F.3d 141, 142 (9th Cir. 1997) (collateral estoppel); United States
v. Castiglione, 876 F.2d 73, 75 (9th Cir. 1988) (res judicata); see
also United
States v. Carbullido,
307 F.3d 957, 961 (9th Cir. 2002) (collateral estoppel).
However, an order denying a motion to dismiss an
indictment based on collateral estoppel arising from a prior civil suit is not
an appealable collateral order. See United States v.
Heffner,
85 F.3d 435, 439 (9th Cir. 1996); see also United States v. Sears, Roebuck & Co., 647 F.2d 902,
904 (9th Cir. 1981) (order denying motion to dismiss indictment based on
equitable estoppel not appealable collateral order where evidentiary hearing
would be indistinguishable from trial on merits).
An order denying a motion to dismiss under 18 U.S.C.
§ 5032, which bars “federal proceedings against a juvenile after a
plea has been entered or any evidence taken in any court,” is an appealable
collateral order because it raises “substantially similar considerations as an
appeal on double jeopardy grounds.” United States
v. Juvenile Female, 869 F.2d 458, 460 (9th Cir. 1989) (per curiam).
An order rejecting a claim for violation of the Grand
Jury Clause of the Fifth Amendment is reviewable under the collateral order
doctrine only where the claimed violation implicated the right not to be
tried. See Midland Asphalt Corp. v. United States, 489 U.S. 794,
802 (1989); United
States v. Shah, 878 F.2d 272, 274 (9th Cir. 1989). “Only a defect so fundamental that it causes
the grand jury to no longer be a grand jury, or the indictment no longer to be
an indictment, gives rise to the constitutional right not to be tried.” See Midland
Asphalt Corp.,
489 U.S. at 802.
·
Order denying motion to dismiss indictment for violation of the
grand jury secrecy provisions of Fed.
R. Crim. P. 6. See Midland Asphalt
Corp.,
489 U.S. at 802.
·
Order denying motion to dismiss indictment because grand jury
witness improperly expressed an opinion.
See United
States v. Moreno-Green,
881 F.2d 680, 681 (9th Cir. 1989) (per curiam).
·
Order denying motion to dismiss indictment because the evidence
presented to the grand jury was not adequate and competent, i.e. it was
hearsay evidence. See United States v.
Garner,
632 F.2d 758, 765 (9th Cir. 1980).
·
Order denying motion to dismiss indictment because the grand jury
was “conducted by government lawyers who were improperly appointed.” United
States v. Symms, 960 F.2d 847, 849 (9th Cir. 1992).
Certain claims of constitutional immunity are subject
to immediate appellate review. See Helstoski v.
Meanor,
442 U.S. 500, 506–08 (1979) (order denying defendant’s motion to dismiss
indictment on ground that it was undermined by Speech or Debate Clause
violations); United States v. Renzi, 651 F.3d 1012,
1018–19 (9th Cir. 2011); United
States v. Claiborne, 727 F.2d 842, 844 (9th Cir. 1984) (per curiam)
(order denying defendant federal judge’s motion to dismiss indictment based on
separation of powers principle and various constitutional provisions).
However, an order denying defendant’s motion to
dismiss an indictment on the grounds that he or she was granted transactional
immunity by prosecutors is not an appealable collateral order. See United
States v. Dederich,
825 F.2d 1317, 1321 (9th Cir. 1987) (“The guarantee afforded by the
immunity can be adequately protected by appeal after conviction.”), vacated
on other grounds by United
States v. Benjamin,
879 F.2d 676, 677 (9th Cir. 1989).
An order denying a motion to dismiss an information on
the ground that the charged crimes are “infamous,” so that under the indictment
clause of the Fifth Amendment the government may proceed only by grand jury
indictment, is an appealable collateral order.
See United
States v. Yellow Freight Sys., Inc.,
637 F.2d 1248, 1251 (9th Cir. 1980).
A challenge to the district court’s jurisdiction is
generally not subject to interlocutory review.
See United
States v. Hickey,
580 F.3d 922, 927–28 (9th Cir. 2009) (district court’s ruling that it
had jurisdiction to proceed with pretrial matters was not subject to
interlocutory review); United
States v. Saccoccia, 18 F.3d 795, 800–01 & n.8 (9th Cir. 1994)
(defendant claimed violations of extradition treaty precluded jurisdiction); United States
v. Layton, 645 F.2d 681, 683–84 (9th Cir. 1981) (defendant claimed
district court lacked jurisdiction because charging statute did not have
extraterritorial effect).
An order transferring a juvenile for adult prosecution
is an appealable collateral order. See
United States v. J.J., 704 F.3d 1219, 1221 (9th Cir. 2013) (district
court’s order granting the government’s motion to transfer juvenile proceedings
for adult prosecution under 18 U.S.C. § 5032); United States v. HOS,
696 F.3d 869, 871 (9th Cir. 2012) (reviewing district court decision ordering
case proceed against purported juvenile as an adult); United States v. Juvenile Male,
492 F.3d 1046, 1048 (9th Cir. 2007) (per curiam); United States
v. Lyndell N., 124 F.3d 1170, 1171 (9th Cir. 1997); United States
v. Gerald N., 900 F.2d 189, 190–91 (9th Cir. 1990) (per curiam)
(involving an “interest of justice” determination).
An order denying a juvenile’s right to a speedy trial
is not subject to interlocutory review. See
United
States v. Brandon P.,
387 F.3d 969, 973 (9th Cir. 2004).
A district court’s denial of a defendant prison
guard’s motion to dismiss the charge on the basis that he did not have fair
warning that shooting of prisoner during altercation with fellow inmate was
proscribed conduct under statute was not subject to interlocutory review under
collateral order doctrine. United States
v. Lewis, 368 F.3d 1102, 1105–06 (9th Cir. 2004).
An order reinstating charges dismissed during trial
pursuant to a plea agreement is an appealable collateral order on the grounds
of double jeopardy and breach of plea agreement where the breach claim is
“based on the identical facts and seek[s] the identical relief” as the double
jeopardy claim. United States v. Sandoval-Lopez,
122 F.3d 797, 799–800 (9th Cir. 1997).
However, an order rejecting defendant’s claim that
prosecution breached plea agreement is not an appealable collateral order where
the breach claim is “not strictly based upon the Double Jeopardy Clause.” United
States v. Solano, 605 F.2d 1141, 1142–43 (9th Cir. 1979) (government
allegedly agreed not to prosecute certain offenses in exchange for guilty pleas
as to other offenses).
An order rejecting a plea agreement is not immediately
appealable under the collateral order doctrine.
See United
States v. Samueli,
582 F.3d 988, 992 (9th Cir. 2009).
An order denying a motion to dismiss under the primary
jurisdiction doctrine, and to refer action to administrative agency, is not an
appealable collateral order. See United States v.
Almany,
872 F.2d 924, 925 (9th Cir. 1989).
An order denying motion to dismiss information due to
lack of probable cause determination is not an appealable collateral order
where defendant is not restrained pending trial. See United
States v. Yellow Freight Sys., Inc.,
637 F.2d 1248, 1252–53 (9th Cir. 1980).
An order denying a motion to dismiss an indictment
based on prosecutorial misconduct is not an appealable collateral order. See United
States v. Sherlock,
887 F.2d 971, 972–73 (9th Cir. 1989) (alleged misconduct arose from
presentation of false testimony and failure to present exculpatory evidence
before grand jury); United
States v. Taylor, 881 F.2d 840, 842–44 (9th Cir. 1989) (alleged
misconduct arose from setting a “perjury trap” during grand jury proceedings by
recalling the same witness several times and reasking the same questions); United States
v. Moreno-Green, 881 F.2d 680, 681–84 (9th Cir. 1989) (per curiam)
(alleged misconduct arose from improper presentation of evidence, failure to
present exculpatory evidence, improper reference to defendants’ assertion of
rights, and improper testimony by prosecutor during grand jury proceedings); United States
v. Shah, 878 F.2d 272, 273–75 (9th Cir. 1989) (alleged misconduct
arose from Fifth and Sixth Amendment violations, failure to disclose evidence
impeaching grand jury witnesses, and grand jury secrecy violations); United States
v. Schiff, 874 F.2d 705, 706 (9th Cir. 1989) (alleged misconduct
based on allegation that “the government engaged in ‘privilege harassment’ by
subpoenaing [defendant] to testify before the grand jury knowing she would
invoke her Fifth Amendment privilege”).
An order denying a motion to dismiss an indictment for
vindictive or selective prosecution is not an appealable collateral order. See United
States v. Hollywood Motor Car Co.,
458 U.S. 263, 264–65, 270 (1982) (per curiam) (vindictive prosecution); United States
v. McKinley, 38 F.3d 428, 431 (9th Cir. 1994) (same); see also United States v.
Moreno-Green,
881 F.2d 680, 681 (9th Cir. 1989) (per curiam) (vindictive prosecution
claim arising from government’s presentation of case to grand jury); United States
v. Claiborne, 727 F.2d 842, 849 (9th Cir. 1984) (per curiam)
(vindictive and selective prosecution claims raised by defendant federal
judge); United
States v. Butterworth, 693 F.2d 99, 101 (9th Cir. 1982) (selective
prosecution).
See VIII.A.12 (Double Jeopardy and Selective
Prosecution).
See VIII.A.30 (Suppression of Evidence or Return of
Property).
A district court’s review of a district-wide policy
requiring pretrial detainees to be shackled when making their first appearance
before a magistrate judge is immediately appealable. See United
States v. Howard,
480 F.3d 1005, 1011 (9th Cir. 2007), overruled
on other grounds by United
States v. Sanchez-Gomez,
859 F.3d 649, 655 (9th Cir. 2017) (en banc) (noting no reason to revisit
Howard’s appellate jurisdiction
analysis as it applied to those appeals), vacated and remanded, 138 S.
Ct. 1532 (2018). However, the Supreme
Court in Sanchez-Gomez, held that an action brought by four detainees
challenging the use of full restraints during pretrial proceedings was moot where
three of the detainees entered guilty pleas, and the charges against the fourth
detainee were dismissed. 138 S. Ct.
1532, 1537–42 (2018).
An order denying motion to dismiss an indictment based
on a violation of a defendant’s Sixth Amendment right to a speedy trial is not
an appealable collateral order. See United States v.
MacDonald,
435 U.S. 850, 857, 861 (1978).
An order denying a motion to dismiss an indictment
based on a Speedy Trial Act violation is not an appealable collateral
order. See United States v. Mehrmanesh, 652 F.2d 766,
768–70 (9th Cir. 1981).
An order denying a motion to dismiss for violations of
the Interstate Agreement on Detainers Act is not an appealable collateral
order. See United States v. Cejas, 817 F.2d 595,
596 (9th Cir. 1987); see also United
States v. Ford,
961 F.2d 150, 151 (9th Cir. 1992) (per curiam) (order dismissing first
indictment without prejudice due to violation of speedy trial provision of
Interstate Agreement on Detainers Act not appealable by defendant after he
pleaded guilty to subsequent indictment).
An order denying a motion to dismiss an indictment as
time barred is not an appealable collateral order. See United
States v. Rossman,
940 F.2d 535, 536 (9th Cir. 1991) (per curiam).
An order denying a motion to dismiss an indictment for
failure to state an offense is not an appealable collateral order. See Abney
v. United States,
431 U.S. 651, 663 (1977); see also United
States v. Romero-Ochoa,
554 F.3d 833, 837 n.1 (9th Cir. 2009).
An order denying a motion to suppress evidence is not
an appealable collateral order if criminal proceedings are pending at the time
of the order. See United States v.
Storage Spaces Designated Nos. “8” & “49”, 777 F.2d 1363, 1365 (9th Cir. 1985);
see also United
States v. Carnes,
618 F.2d 68, 70 (9th Cir. 1980) (order denying motion to strike
testimony offered during previous mistrial not immediately appealable).
An order denying a motion for return of property is
also unappealable “unless the motion for return of property is solely for
return of property and is in no way tied to a criminal prosecution in esse
against the movant.” DeMassa v.
Nunez, 747 F.2d 1283, 1286 (9th Cir. 1984) (internal quotation marks
and citation omitted), on rehearing, 770
F.2d 1505 (9th Cir. 1985); see also Andersen
v. United States,
298 F.3d 804, 808 (9th Cir. 2002).
Where no criminal proceedings are pending against the movant, an order
denying the return of property is a final appealable order. See Does I–IV v. United States (In re
Grand Jury Subpoenas Dated December 10, 1987), 926 F.2d 847, 855 (9th Cir. 1991);
United
States v. Martinson, 809 F.2d 1364, 1367 (9th Cir. 1987).
“[I]t is the pendency of the criminal action[] that is
the determining factor, not the form of motion” as either a motion to suppress
or a motion for returning of property. DeMassa,
747 F.2d at 1286.
Criminal proceedings are pending “[w]hen at the time
of ruling there is outstanding a complaint, or a detention or release on bail
following arrest, or an arraignment, information, or indictment.” United
States v. Storage Spaces Designated Nos. “8” & “49”, 777 F.2d 1363,
1365 (9th Cir. 1985) (internal quotation marks and citation omitted); see
also DeMassa
v. Nunez, 747 F.2d 1283, 1287 (9th Cir. 1984) (noting that Ninth
Circuit has adopted a liberal definition of when a criminal proceeding is
pending), on rehearing, 770
F.2d 1505 (9th Cir. 1985).
Criminal proceedings are also pending where a grand
jury investigation is ongoing. See Storage Spaces
Designated Nos. “8” & “49”, 777 F.2d at 1287;
Church of
Scientology v. United States, 591 F.2d 533, 536–37 (9th Cir. 1979); see
also Meier
v. Keller,
521 F.2d 548, 556 (9th Cir. 1975) (presenting made to grand jury at time
of order).
An order transferring a criminal case back to transferor
court after entry of not guilty plea is not an appealable collateral
order. See United States v. French, 787 F.2d 1381,
1383 (9th Cir. 1986).
Generally, the court of appeals has jurisdiction over
a government appeal in a criminal case if the appeal is authorized under 18 U.S.C.
§ 3731 and the order being appealed constitutes a final judgment
under 28
U.S.C. § 1291. See United States v.
Russell,
804 F.2d 571, 573 (9th Cir. 1986); United
States v. Cote, 51 F.3d 178, 180 (9th Cir. 1995); see also United States v. Decinces, 808 F.3d 785,
789 (9th Cir. 2015); United
States v. Woodruff, 50 F.3d 673, 675 (9th Cir. 1995) (internal
quotations and citation omitted); see
also United
States v. Chaudhry,
630 F.3d 875, 879 (9th Cir. 2011) (holding that court of appeals lacked
jurisdiction under § 3731 where district court refused for the time being
to impose a provisional sentence under 18 U.S.C. § 4244). However, note that “despite 28 U.S.C.
§ 1291’s finality
requirement, Section 3731 can, and does, make it lawful for the government to
take certain appeals even though there is no final judgment.” Chaudhry, 630 F.3d at 878; see also Decinces, 808 F.3d at 789.
On its face, 18
U.S.C. § 3731 permits the government to appeal from “a district
court’s order dismissing a criminal prosecution, granting a new trial, or
suppressing evidence, except where such an appeal would violate the double
jeopardy clause, or releasing a charged or convicted defendant.” United
States v. Sweeney, 914 F.2d 1260, 1261–62 (9th Cir. 1990); see also United
States v. Cha,
597 F.3d 995, 999 (9th Cir. 2010) (interlocutory appellate jurisdiction
over district court order suppressing evidence).
However, “government appeals are not restricted to
§ 3731’s specific categories.” Sweeney,
914 F.2d at 1262; United
States v. Edmonson, 792 F.2d 1492, 1496 (9th Cir. 1986); see also
United
States v. Hetrick,
644 F.2d 752, 755 (9th Cir. 1980) (noting that previous decisions
suggesting that government appeals are restricted to the specific categories
listed in § 3731 have been superseded by Supreme Court precedent). Additionally, “Section 3731
can, and does, make it lawful for the government to take certain appeals even
though there is no final judgment.” United States
v. Chaudhry, 630 F.3d 875, 878 (9th Cir. 2011); see also United States
v. Decinces, 808 F.3d 785, 789 (9th Cir. 2015).
Section 3731 is “intended to remove all statutory
barriers to Government appeals and to allow appeals whenever the Constitution
would permit,” so that the relevant inquiry turns on the reach of the Double
Jeopardy Clause. United States v. Martin Linen
Supply Co., 430 U.S. 564, 568 (1977) (internal quotations and
citations omitted); see also United
States v. Stanton,
501 F.3d 1093, 1097–99 (9th Cir. 2007).
“Despite the general application of § 1291’s
finality requirement, § 3731 can, and does, make it lawful for the
government to take certain appeals even though there is no final
judgment.” United States v. Woodruff, 50
F.3d 673, 675 (9th Cir. 1995) (internal quotations and citation
omitted). See also United States
v. Decinces, 808 F.3d 785, 789 (9th Cir. 2015) (explaining that the en banc court in United States v. W.R. Grace, 526 F.3d
499, 505 (9th Cir. 2008) (en banc) recognized the government’s right to
an interlocutory appeal from a district court’s evidentiary hearing, even
though evidentiary rulings are by their very nature nonfinal); United States v. Chaudhry, 630 F.3d 875,
878 (9th Cir. 2011) (quoting Woodruff).
Appeals from interlocutory orders have been permitted
where § 3731 expressly provides for such an appeal. See United
States v. Russell,
804 F.2d 571, 573 (9th Cir. 1986).
An order denying a state’s motion to remand to state
court a removed criminal action is not subject to interlocutory appeal, but may
be reviewed on petition for writ of mandamus.
California
v. Mesa, 813 F.2d 960, 962–64 (9th Cir. 1987) (interlocutory appeal
inappropriate because of delicate issue of federal-state relations, inadequacy
of appeal to vindicate state rights, and need to address “new and important
problems”).
In a criminal action removed to federal court, the
state government is authorized to appeal under 28
U.S.C. § 1291 whenever the state would be authorized to appeal
under state law. See Arizona v.
Manypenny,
451 U.S. 232, 248–50 (1981); see also Arizona
v. Elmer,
21 F.3d 331, 333 n.1 (9th Cir. 1994) (state permitted to appeal pretrial
order suppressing evidence because state law recognized right to appeal); cf.
Guam v.
Okada,
694 F.2d 565, 567 n.3 (9th Cir. 1982) (“[S]ection 3731 does not
authorize appeals by prosecuting entities such as states and territorial
governments.”), amended by 715
F.2d 1347 (9th Cir. 1983).
Under 18
U.S.C. § 3731, the government may appeal from “a decision,
judgment, or order of a district court dismissing an indictment or information
or granting a new trial after verdict or judgment, as to one or more counts,”
as long as the Double Jeopardy Clause would not be offended. 18
U.S.C. § 3731.
The government generally may appeal the pretrial
dismissal of an indictment. See Serfass v. United
States,
420 U.S. 377, 394 (1975); United
States v. Chapman, 524 F.3d 1073, 1080 (9th Cir. 2008); see also United States v.
Schwartz,
785 F.2d 673, 678–79 (9th Cir. 1986) (government could appeal dismissal
of indictment against defendant who, prior to trial, pleaded guilty and was
then granted withdrawal of guilty plea and dismissal of indictment after
co-defendants were acquitted at trial).
The government’s authority to appeal from dismissals
of indictments under § 3731 extends to dismissals without prejudice. See United
States v. Woodruff,
50 F.3d 673, 675 (9th Cir. 1995).
Moreover, the government may appeal the dismissal of less than all
counts in an indictment under § 3731, although the order is not
final. See United States v. Russell, 804 F.2d 571,
573 (9th Cir. 1986).
An order tantamount to dismissal of an indictment is
appealable under § 3731. See United States v.
Cote,
51 F.3d 178, 181 (9th Cir. 1995) (regarding district court’s refusal to
set case for retrial following reversal of convictions); United States
v. Lee, 786 F.2d 951, 955–56 (9th Cir. 1986) (regarding magistrate
judge’s order “remanding” misdemeanor charges for disposition by Air
Force). Cf. United
States v. Chaudhry,
630 F.3d 875, 879 (9th Cir. 2011) (distinguishing Cote and holding that the refusal to impose a provisional sentence
was not a final order, where the order did not end the criminal case).
The government may appeal from an order granting a new
trial following a guilty verdict. See
United
States v. Smith,
832 F.2d 1167, 1168 (9th Cir. 1987); United
States v. Shaffer, 789 F.2d 682, 686 (9th Cir. 1986).
A verdict of acquittal cannot be reviewed without
violating the Double Jeopardy Clause. See
United
States v. Martin Linen Supply Co.,
430 U.S. 564, 571 (1977).
However, a judgment of acquittal entered after a jury
returns a guilty verdict may be appealable under certain circumstances. See United
States v. Bailey,
41 F.3d 413, 415 (9th Cir. 1994) (order appealable under § 1291
although § 3731 does not expressly provide for such appeals).
The Double Jeopardy Clause bars government appeal
where: (1) jeopardy attached prior to the attempted appeal; (2) defendant was
“acquitted;” and (3) reversal on appeal would require further proceedings to
resolve factual issues going to the elements of the offense charged. See United
States v. Martin Linen Supply Co.,
430 U.S. 564, 570–72, 575 (1977); United
States v. Scott, 437 U.S. 82, 101 (1978); see also United States v.
Affinito,
873 F.2d 1261, 1263–64 (9th Cir. 1989) (“The Double Jeopardy Clause bars
further prosecution when the court enters a judgment of acquittal and reversal
[would] necessitate[] a new trial.”).
The government may appeal where jeopardy has not yet
attached. See Serfass v. United States, 420 U.S. 377,
394 (1975). “[J]eopardy attaches
when a jury is empaneled and sworn, or, in a bench trial, when the judge begins
to receive evidence.” United States
v. Martin Linen Supply Co., 430 U.S. 564, 569 (1977).
Ordinarily, jeopardy does not attach at a pretrial
hearing even though evidence is considered.
See Serfass, 420 U.S. at
389–90, 392 (no jeopardy attached even though evidence outside
indictment considered on motion to dismiss where trial would not assist
determination of issue and defendant’s jury request precluded court from
finding defendant guilty); United
States v. Olson, 751 F.2d 1126, 1128 (9th Cir. 1985) (per curiam)
(no jeopardy attached even though a government proffered evidence in opposition
to motion to dismiss because no witnesses were sworn and defendant faced no
risk of being found guilty); United
States v. Choate, 527 F.2d 748, 751 (9th Cir. 1975) (no jeopardy
attached even though district court accepted two factual stipulations prior to
granting motion to dismiss indictment where stipulations were unrelated to
motion and parties understood stipulations would not trigger jeopardy).
However, jeopardy may attach before a formal trial
begins. See United States v. Patrick, 532 F.2d 142,
146 (9th Cir. 1976) (defendant placed in jeopardy where district court
heard defendant’s proffer of evidence and government’s admission regarding a necessity
defense, found the defense available, and concluded defendant was not guilty); United States
v. Hill, 473 F.2d 759, 761 (9th Cir. 1972) (defendants placed in
jeopardy where after receiving evidence on defendants’ pretrial motions to
dismiss, the district court determined that as a matter of law, an element of
the offense was lacking, i.e., the materials were not obscene).
“A defendant is acquitted … when the judge’s ruling,
whatever its label, actually represents a resolution in defendant’s favor,
correct or not, of some or all of the factual elements of the charged
offense.” United States v. Miller, 4 F.3d
792, 794 (9th Cir. 1993) (internal quotation marks and citation
omitted); see also Martinez v. Illinois, 572 U.S. 833, 841 (2014) (per
curiam) (explaining it was immaterial that trial court referred to its action
as a dismissal rather than an acquittal, and that trial court’s action was an
acquittal); accord United
States v. Martin Linen Supply Co.,
430 U.S. 564, 571 (1977).
“[C]ases have defined an acquittal to encompass any ruling that the
prosecution’s proof is insufficient to establish criminal liability for an
offense.” Evans v. Michigan, 568
U.S. 313, 318 (2013); see also Martinez v. Illinois, 572 U.S. 833, 841
(2014) (per curiam).
“[A]ppellate courts perform an independent inquiry to
insure that the district court’s order was a true acquittal as evidenced by a
legal evaluation of the government’s case.”
United
States v. Affinito, 873 F.2d 1261, 1264 (9th Cir. 1989) (internal
quotation marks and citation omitted). But
cf. United
States v. Seley,
957 F.2d 717, 719–20 (9th Cir. 1992) (district court’s order was
“clearly framed as a dismissal” and would not be considered an acquittal where
court had authority to enter an acquittal but did not do so).
A judgment of acquittal due to insufficient evidence
under Fed.
R. Crim. P. 29(c), entered by the district court before a jury returns a
verdict, has the same preclusive effect as a jury verdict of acquittal. See United
States v. Martin Linen Supply Co.,
430 U.S. 564, 570–75 (1977) (noting that appeal is barred only when “it
is plain that the District Court … evaluated the Government’s evidence and
determined that it was legally insufficient to sustain a conviction”); see
also Martinez v. Illinois, 572 U.S. 833, 841 (2014) (per curiam) (jeopardy
attached when after jury was sworn in, and judge acquitted defendant because
prosecution had failed to prove its case); Evans v. Michigan, 568 U.S.
313, 318 (2013); cf. United
States v. Stanton,
501 F.3d 1093, 1099 (9th Cir. 2007) (holding that the government may
appeal where, pursuant to Rule 29, district court either reverses a conviction
entered by a magistrate judge or affirms a magistrate’s judgment of acquittal
after a jury verdict of guilty).
The preclusive effect of a judgment of acquittal is
the same, however, erroneous. See Evans v. Michigan, 568 U.S. 313, 318 (2013); Sanabria v. United States, 437
U.S. 54, 69 (1978); see also Gouveia v. Espinda, 926 F.3d 1102, 1115 (9th Cir. 2019) (verdict of
acquittal cannot be reviewed, on error or otherwise, without putting a
defendant twice in jeopardy); United
States v. Castillo-Basa,
483 F.3d 890, 899–900 (9th Cir. 2007) (“Collateral estoppel applies when
the jury resolves, in a manner adverse to the government, an issue that the
government would be required to prove in order to obtain a … conviction at the
second trial.”); United
States v. Miller,
4 F.3d 792, 794 (9th Cir. 1993). But
cf. United
States v. United States Dist. Court,
858 F.2d 534, 537 (9th Cir. 1988) (prior to acquittal government may be
able to seek writ relief from order that is not immediately appealable, e.g.
order denying government motion to suppress evidence as to proposed criminal
defense).
An acquittal based on an erroneous suppression of evidence
has the same preclusive effect as other acquittals. See Evans v. Michigan, 568 U.S. 313,
318 (2013); Sanabria
v. United States,
437 U.S. 54, 68–69 (1978) (no appeal permitted where district court
excluded certain evidence and then granted pre-verdict judgment of acquittal
based on insufficient evidence); see also United
States v. Ember,
726 F.2d 522, 524–25 (9th Cir. 1984); United
States v. Govro, 833 F.2d 135, 137 (9th Cir. 1987); United States
v. Baptiste, 832 F.2d 1173, 1175 (9th Cir. 1987). But cf. United
States v. Seley,
957 F.2d 717, 719–20 (9th Cir. 1992) (appeal permitted where district
court ruled certain evidence inadmissible at retrial and then dismissed
indictment with prejudice due to insufficient evidence to convict; order was
“clearly framed as a dismissal” even though court had authority to enter an
acquittal).
An acquittal based on stipulated or undisputed facts
has the same preclusive effect as other acquittals. See Finch
v. United States,
433 U.S. 676, 677 (1977) (per curiam) (government could not appeal from
dismissal based on agreed statement of facts); see also United States v.
Sisson,
399 U.S. 267, 286–87 (1970) (portion of opinion in which four justices
joined, three dissented, and two did not participate) (government could not
appeal under former version of § 3731 even though it did not dispute
findings made by the district court following trial).
“[W]here the defendant himself seeks to have [a] trial
terminated without any submission to either judge or jury as to his guilt or
innocence, an appeal by the Government from his successful effort to do so is
not barred.” United States v. Scott, 437
U.S. 82, 101 (1978) (permitting government appeal from a midtrial
dismissal based on prejudicial preindictment delay). Cf. Evans v. Michigan, 568 U.S. 313, 320
(2013) (distinguishing Scott, where the trial court’s “ruling was not a
dismissal on a procedural ground ‘unrelated to factual guilt or innocence,’
like the question of ‘preindictment delay’ in Scott, but rather a
determination that the State had failed to prove its case).
However, the rule in Scott “clearly
contemplates a significant level of participation by the defendant on the
merits.” United
States v. Dahlstrum, 655 F.2d 971, 974–76 (9th Cir. 1981) (although
unclear from record whether judge resolved any factual elements of charged
offenses, government not permitted to appeal from order of acquittal following
court’s investigation of government misconduct where judge initiated
investigation and defendant did not seek to avoid a decision by the trier of
fact); see also United
States v. Govro,
833 F.2d 135, 137 (9th Cir. 1987) (appeal from judgment of acquittal
barred because, although magistrate judge “refused to consider any of the
government’s evidence,” and entered judgment on what was apparently a defense,
termination of the case was sua sponte and not at defendant’s election).
The government has been permitted to appeal an order
of dismissal in the following situations:
·
District court aborted trial after jury impaneled so that
witnesses could consult attorneys before testifying, and then dismissed
information prior to retrial; court “clearly contemplated reprosecution” when
it declared a mistrial and it dismissed the information on double jeopardy
grounds “without further explanation.” United States
v. Jorn, 400 U.S. 470, 478 n.7 (1971) (plurality opinion); but
see United
States v. Chapman, 524 F.3d 1073, 1082 n.3 (9th Cir. 2008) (noting
conflicting Supreme Court precedent).
·
District court “acquitted” defendant “on constitutional grounds
arising from the unavailability of potential material witnesses” before the
government had rested and the record did not “plainly demonstrate that the
district court evaluated the government’s evidence and determined that it was legally
insufficient to sustain a conviction.” United States
v. Gonzales, 617 F.2d 1358, 1362 (9th Cir. 1980) (per curiam).
·
Four months after a hung jury resulted in a mistrial, the district
court granted defendant’s motion to dismiss the indictment before retrial had
commenced. See United States v.
Sanford,
429 U.S. 14, 16 (1976) (per curiam); cf. United States v. Martin Linen Supply
Co.,
430 U.S. 564, 575–76 (1977) (emphasizing that no judgment of acquittal
was entered following mistrial in Sanford).
·
After a hung jury resulted in a partial mistrial, the district
court conducted a written jury poll and dismissed counts on which less than a
majority of jurors had voted to convict, because “there [was] no indication
that the district court resolved any factual issues, or based its holding on
the weight of the evidence.” United States
v. Miller, 4 F.3d 792, 794 (9th Cir. 1993).
·
Dismissal followed mistrial due to prosecutorial misconduct. See United
States v. Jacobs,
855 F.2d 652, 654–55 (9th Cir. 1988) (per curiam) (“When a defendant
moves for a mistrial, double jeopardy attaches only where the prosecutor
intended to ‘goad’ the defendant into making a mistrial motion.”).
·
Order dismissing mistried count was “clearly framed as a
dismissal” and jeopardy had not terminated following first trial. United
States v. Seley, 957 F.2d 717, 719–20 (9th Cir. 1992).
·
Judgment of acquittal was not entered due to insufficient
evidence, but to permit court of appeals to determine impact of intervening
Supreme Court decision on guilty verdicts.
See United
States v. Affinito,
873 F.2d 1261, 1264 (9th Cir. 1989).
Where reversal on appeal would not necessitate further
proceedings to resolve factual issues going to the elements of the charged
offense, appeal is not barred. See United States v.
Martin Linen Supply Co.,
430 U.S. 564, 570–71 (1977).
Thus, where the district court enters a judgment of
acquittal after a finding of guilt by the trier of fact, the government may appeal
because reversal would merely reinstate the finding of guilt. See United
States v. Wilson,
420 U.S. 332, 344–45, 352–53 (1975) (appellate review in such a case
“does not offend the policy against multiple prosecution”). See also Evans v. Michigan, 568 U.S.
313, 330 n.9 (2013) (“If a court grants a motion to acquit after the jury has
convicted, there is no double jeopardy barrier to an appeal by the government
from the court’s acquittal, because reversal would result in reinstatement of
the jury verdict of guilt, not a new trial.”).
Government appeals have been permitted under Wilson
in the following cases: United
States v. Ceccolini, 435 U.S. 268, 270–71 (1978) (after finding
defendant guilty at bench trial, district court granted defendant’s motion to
suppress evidence and to set aside verdict for insufficient evidence); United States
v. Morrison, 429 U.S. 1, 4 (1976) (per curiam) (to same effect); United States v.
Stanton,
501 F.3d 1093, 1098 (9th Cir. 2007) (after magistrate judge found
defendant guilty, district court reversed on insufficiency of evidence
grounds); United
States v. Ching Tang Lo, 447 F.3d 1212, 1220 (9th Cir. 2006) (after
jury found defendant guilty, district court granted judgment of acquittal with
respect to two of five counts); United
States v. Martinez, 122 F.3d 1161, 1163 (9th Cir. 1997) (after jury
found defendant guilty, district court granted judgment of acquittal under Rule
29(c) or, alternatively, a new trial); United
States v. A. Lanoy Alston, D.M.D., P.C., 974 F.2d 1206, 1208 n.4 (9th Cir.
1992) (after jury found defendant guilty, district court granted
judgment of acquittal).
Appeal is not permitted under Wilson unless the
trier of fact has made a formal finding of guilt. See Finch
v. United States,
433 U.S. 676, 677 (1977) (per curiam) (appeal not permitted because no
formal finding of guilt that could be reinstated upon reversal, i.e., no
plea of guilty or nolo contendere, or a verdict or general finding of guilt by
court); see also United
States v. Jenkins,
420 U.S. 358, 367–68 (1975) (no general finding of guilt that could be
reinstated upon “dismissal” of indictment where district court findings of fact
after bench trial did not clearly find against defendant on all necessary
issues), overruled on other grounds by United
States v. Scott,
437 U.S. 82, 101 (1978).
In the absence of a formal finding of guilt, appeal is
not permitted under Wilson even where the case was submitted on
stipulated facts or the government does not dispute facts found by the district
court. See Finch, 433 U.S. at 677
(agreed statements of facts); cf. United
States v. Sisson,
399 U.S. 267, 286–87 (1970) (portion of opinion in which four justices
joined, three dissented, and two did not participate) (factual findings not
disputed).
Where the Double Jeopardy Clause bars a government
appeal, the bar extends to the government’s theories of liability that the
district court removed from the case before the acquittal, at least where the
court did not modify the indictment and the government had agreed that
acquittal referred to the entire count. See
Sanabria v.
United States,
437 U.S. 54, 65–68, 70–72 (1978); United
States v. Schwartz, 785 F.2d 673, 677–78 (9th Cir. 1986).
A bar to appealing one count does not necessarily
extend to other counts. See United States v.
Sharif,
817 F.2d 1375, 1376 (9th Cir. 1987) (where district court found
insufficient evidence of conspiracy after jury hung as to that count, and court
consequently set aside guilty verdicts on three other counts, government could
appeal latter ruling on grounds that former ruling was incorrect even though
acquittal on conspiracy charge itself probably unappealable).
Where the criteria for barring a government appeal
under the Double Jeopardy Clause have already been met, the government may not
avoid the bar by petitioning for a writ of mandamus, at least where defendants
have not waived the double jeopardy defense.
See Fong
Foo v. United States,
369 U.S. 141, 143 (1962) (per curiam); United
States v. Ember, 726 F.2d 522, 525 n.7 (9th Cir. 1984); United States
v. Hill, 473 F.2d 759, 763–64 (9th Cir. 1972).
However, prior to an acquittal the government may be
able to seek writ review of decision related to trial that are not otherwise
immediately appealable. See United States v.
W. R. Grace,
504 F.3d 745, 757–58 (9th Cir. 2007) (reviewing defendants’ proffered
affirmative defense); United
States v. United States Dist. Court,
858 F.2d 534, 537 (9th Cir. 1988) (reviewing pretrial order denying
government motion to exclude certain evidence, and stating that “government’s
claim that the district court has permitted an inappropriate criminal defense
presents a paradigmatic case for mandamus”).
Under 18
U.S.C. § 3731, the government may appeal from:
18 U.S.C. § 3731; see also United
States v. Decinces, 808 F.3d 785, 789 (9th Cir. 2015) (government interlocutory appeal from order
excluding evidence); United
States v. McKoy,
78 F.3d 446, 449 (9th Cir. 1996) (suppression order).
The statute permitting government appeals from
suppression orders is interpreted broadly.
See United
States v. Humphries,
636 F.2d 1172, 1175 (9th Cir. 1980) (stating that the court focuses on
“the effect of the order sought to be appealed”); see also 18 U.S.C.
§ 3731 (“The provisions of this section shall be liberally
construed to effectuate its purposes.”).
·
Pretrial order restricting evidence presentable at trial was
appealable even though order was general and failed to analyze each category of
evidence on which government sought rulings.
See United
States v. Helstoski,
442 U.S. 477, 487 n.6 (1979).
·
Suppression order appealable even though based on Fed. R. Evid.
404(b) grounds rather than on constitutional grounds. See United
States v. Adrian,
978 F.2d 486, 489–90 (9th Cir. 1992), overruled in part on other
grounds by United
States v. W.R. Grace,
526 F.3d 499, 506 (9th Cir. 2008) (en banc).
·
Order that government supply certain information to defendants
appealable where order stated failure to comply would preclude witnesses from
testifying, the government declined to comply, and the district court refused
to issue a suppression order at government’s request. See United
States v. Dominguez-Villa,
954 F.2d 562, 564–65 (9th Cir. 1992).
·
Order granting defendants’ motion to exclude witness from
testifying appealable, although the witness – who just became available – was
not included on the government’s list of witnesses submitted under prior court
order. See United States v. Schwartz, 857 F.2d 655,
657 (9th Cir. 1988).
·
Order quashing subpoena. See
United
States v. Hirsch (In re Grand Jury Subpoena), 803 F.2d 493, 495 (9th Cir. 1986),
corrected by 817 F.2d 64 (9th
Cir. 1987).
·
Order denying government “Motion to Determine the Admissibility of
Evidence” made after district court issued confusing order granting defendant’s
motion to suppress. See United States v.
Humphries,
636 F.2d 1172, 1175–77 (9th Cir. 1980).
·
Order excluding evidence and witness testimony where government
failed to comply with district court orders to disclose such evidence to
defendants, even though Attorney General merely certified the appeal without
providing substantial proof in support of the excluded evidence. See United
States v. W.R. Grace,
526 F.3d 499, 508 (9th Cir. 2008) (en banc).
·
Order granting defendant’s motion in limine to exclude evidence of
insider trading. United States v. Decinces, 808 F.3d 785, 789–90 (9th Cir. 2015).
But cf. United
States v. Barker, 1 F.3d 957, 958–59 (9th Cir. 1993) (questioning whether appellate jurisdiction exists
under 18
U.S.C. § 3731 over an order splitting elements of a crime into two
parts for purposes of trial as the issue “is not truly one of exclusion of
evidence,” and analyzing case as a writ petition), amended by 20
F.3d 365 (9th Cir. 1994).
Where the right to appeal under § 3731 is
contingent upon certification, the certification requirement is met where a
United States Attorney certifies that the appeal is not taken for the purpose
of delay and that the evidence is a substantial proof of a material fact in the
proceeding. See United States v.
W.R. Grace,
526 F.3d 499, 506 (9th Cir. 2008) (en banc); see also United States v.
Weyhrauch,
548 F.3d 1237, 1240 (9th Cir. 2008), vacated
and remanded on other grounds by 561
U.S. 476 (2010). The Attorney
General is also authorized to certify an appeal, in place of a United States
Attorney. Weyhrauch, 548 F.3d at 1241–42.
Certification by a United States Attorney is
sufficient to fulfill the government’s burden of establishing that an appeal
was not filed for the purpose of delay. See
United
States v. W.R. Grace,
526 F.3d 499, 506 (9th Cir. 2008) (en banc).
Certification by a United States Attorney is
sufficient to fulfill the government’s burden of establishing that the evidence
is substantial proof of a material fact.
See United
States v. W.R. Grace,
526 F.3d 499, 506 (9th Cir. 2008) (en banc). Grace overruled prior case law
requiring a showing that “a reasonable trier of fact could find the evidence
persuasive in establishing the proposition for which the government seeks to
admit it.” United States v. Adrian, 978
F.2d 486, 490–91 (9th Cir. 1992), overruled in part by W.R. Grace, 526 F.3d at 506.
The government’s delay in filing the certificate
required under § 3731 does not rise to jurisdictional dimensions. See United
States v. Becker,
929 F.2d 442, 445 (9th Cir. 1991) (government permitted to file
certificate after oral argument on appeal where defendant was not prejudiced
and defendant failed to raise omission until oral argument); United States
v. Eccles, 850 F.2d 1357, 1359 (9th Cir. 1988) (appeal permitted
even though government did not file certificate with district court until after
oral argument on appeal); see also United
States v. Wallace,
213 F.3d 1216, 1219 (9th Cir. 2000) (late filing of a § 3731
certificate does not automatically invalidate it); United States v. Juvenile Male,
241 F.3d 684, 687 (9th Cir. 2001) (“noncompliance with § 3731 is
not a jurisdictional bar to bringing an interlocutory appeal.”); but see
United
States v. W.R. Grace, 526 F.3d 499, 506–07 & n.4 (9th Cir. 2008)
(en banc) (noting that courts retain discretion to impose sanctions for
untimely certificate filing as a means of ensuring defendants are not disadvantaged);
United
States v. McNeil, 484 F.3d 301, 306–10 (9th Cir. 2007) (holding that
sanctions for untimely certificate filing remain within the discretion of the
court, including dismissal of the appeal in extreme circumstances).
Under § 3731, an order suppressing or excluding
evidence is appealable if it is not made after jeopardy attaches and before a
verdict. See 18 U.S.C.
§ 3731.
Thus, following a mistrial the government may appeal
from an order denying a motion to admit evidence at the second trial that was
excluded from the first trial. See United States v.
Layton,
720 F.2d 548, 554 (9th Cir. 1983), overruled on other grounds by United States v.
W.R. Grace,
526 F.3d 499 (9th Cir. 2008) (en banc).
Moreover, the government may appeal from judgments of acquittal entered
after a finding of guilt and subsequent suppression of evidence. See United
States v. Ceccolini,
435 U.S. 268, 270–71 (1978) (after district court found defendant guilty
at bench trial and court subsequently granted defendant’s motions to suppress
evidence and to set aside verdict based on insufficient evidence, government
could appeal decisions on both motions because reversal would merely require
reinstatement of finding of guilt); United
States v. Morrison, 429 U.S. 1, 4 (1976) (per curiam) (to same
effect).
In contrast, the government may not appeal from an
acquittal that is not preceded by a finding of guilt even though the acquittal
may be attributable to an erroneous suppression of evidence. See Sanabria
v. United States,
437 U.S. 54, 68–69 (1978); United
States v. Ember, 726 F.2d 522, 524–25 (9th Cir. 1984).
A defendant may not cross-appeal when the government
appeals a suppression order under § 3731 and, thus, while the court can
consider “any argument advanced by a defendant that provides an alternative
ground upon which to affirm the district court,” it may not consider “any
defense argument seeking suppression of additional evidence which the district
court did not suppress.” United States
v. Becker, 929 F.2d 442, 447 (9th Cir. 1991); accord United States v.
Fort,
472 F.3d 1106, 1121 (9th Cir. 2007); United
States v. Eccles,
850 F.2d 1357, 1361–62 (9th Cir. 1988).
The government’s right to appeal from a sentence
imposed under the Sentencing Guidelines is governed by 18 U.S.C. § 3742(b),
rather than § 3731. See, e.g., United States v. Lindsay, 931 F.3d 852, 856 (9th Cir. 2019) (court had
jurisdiction to review government’s appeal of defendant’s sentence 18 U.S.C.
§ 3742), petition for cert. filed, No. 19-7486 (Jan. 24,
2020). For coverage of jurisdictional
issues pertaining to such appeals, see Office of Staff Attorneys’ Sentencing
Guidelines Outline.
The government may appeal other sentences and related
orders under § 3731. See United States v.
Blue Mountain Bottling Co.,
929 F.2d 526, 527–28 (9th Cir. 1991) (court had jurisdiction under
§ 3731 over government appeal from sentences requiring defendants to make
payments to a fund created by district court for benefit of local substance
abuse organizations); United
States v. Sweeney, 914 F.2d 1260, 1262 (9th Cir. 1990) (district
court had appellate jurisdiction under § 3731 over government’s appeal of
magistrate judge’s order to U.S. Attorney not to report defendants’ convictions
to state authorities); United
States v. Edmonson, 792 F.2d 1492, 1496–97 (9th Cir. 1986)
(government appeal authorized under § 3731 from sentences imposed under
statute different than statute under which defendants were indicted).
The Double Jeopardy Clause generally does not limit
government appeals from sentences. See
United
States v. DiFrancesco,
449 U.S. 117, 132 (1980) (in a case concerning now-repealed statute
providing for government appeals from certain sentences, neither an appeal
itself nor the relief requested was prohibited by the Double Jeopardy Clause); United States
v. Rosales, 516 F.3d 749, 757–58 (9th Cir. 2008) (double jeopardy
does not bar government from appealing sentencing ruling that does not result
in acquittal); Edmonson,
792 F.2d at 1496–97 (double jeopardy did not bar government appeal from
sentence because district court “had no power to convict and sentence
[defendants] for a different crime” than the one charged in the indictment).
The government may appeal from release or detention
orders pursuant to 28
U.S.C. § 1291 and 18
U.S.C. § 3731. See United States v.
Evans,
62 F.3d 1233, 1234–35 (9th Cir. 1995); 18
U.S.C. § 3145(c) (“An appeal from a release or detention order, or
from a decision denying revocation or amendment of such an order, is governed
by the provisions of § 1291 of title 28 and § 3731 of this
title.”). For example, an order granting
bail pending appeal of a decision granting a state prisoner’s habeas petition
is appealable under the collateral order doctrine. See Marino
v. Vasquez,
812 F.2d 499, 507 n.10 (9th Cir. 1987).
An order granting bail pending a hearing under 18 U.S.C. § 3184 to
determine extraditability is “final” within the meaning of 28 U.S.C.
§ 1291. See United States v.
Kirby (In re Requested Extradition of Kirby), 106 F.3d 855,
861 (9th Cir. 1996).
“[G]overnment appeals are not restricted to
§ 3731’s specific categories.” United States
v. Sweeney, 914 F.2d 1260, 1262 (9th Cir. 1990); see also United States
v. Stanton, 501 F.3d 1093, 1097–98 (9th Cir. 2007); United States
v. Ching Tang Lo, 447 F.3d 1212, 1220 (9th Cir. 2006).
Where jurisdiction over a government appeal is
questionable under § 3731, the court of appeals has on occasion proceeded
under its mandamus powers. See, e.g., United
States v. Barker,
1 F.3d 957, 958–59 (9th Cir. 1993) (exercising mandamus powers where
appellate jurisdiction over an order splitting elements of a crime into two
parts for purposes of trial was unclear), amended
by 20
F.3d 365 (9th Cir. 1994).
The government has also been permitted to appeal in
the following instances:
·
Order denying government’s “Motion to Determine the Admissibility
of Evidence” appealable under 18
U.S.C. § 3731 because in effect it was a “decision … suppressing or
excluding evidence.” United States
v. Humphries, 636 F.2d 1172, 1175 (9th Cir. 1980).
·
Ruling that statute’s capital sentencing provisions were
unconstitutional was appealable because § 3731 was intended to remove all
statutory barriers to appeal or, alternatively, appeal could be treated as writ
petition. See United States v. Cheely, 36 F.3d 1439,
1441 (9th Cir. 1994).
·
Order prohibiting U.S. Attorney from reporting defendants’
convictions to state authorities appealable under § 3731. See United
States v. Sweeney,
914 F.2d 1260, 1262 (9th Cir. 1990) (concluding district court had
appellate jurisdiction over magistrate judge order).
·
Order denying extradition appealable because treaty provision
creating defense at issue provided for direct appeal. See United States v.
Smyth (In re Requested Extradition of Smyth), 61 F.3d 711, 713
(9th Cir.), amended by 73
F.3d 887 (9th Cir. 1995).
·
Order quashing subpoena appealable under 18 U.S.C. § 3731. See United
States v. Hirsch (In re Grand Jury Subpoena), 803 F.2d 493, 495 (9th Cir. 1986),
corrected by 817 F.2d 64 (9th
Cir. 1987).
·
Refusal by district court to set case for retrial following
reversal of convictions appealable under § 3731 because tantamount to
dismissal of an indictment. See United States v.
Cote,
51 F.3d 178, 181 (9th Cir. 1995).
·
Pre-trial order staying criminal proceedings was appealable under 28 U.S.C.
§ 1291 because it effectively put the government out of court. See United
States v. Gen. Dynamics Corp.,
828 F.2d 1356, 1360–62 (9th Cir. 1987).
·
Order denying government motion to transfer juvenile for adult
criminal prosecution appealable under collateral order doctrine. See United
States v. Doe,
94 F.3d 532, 535 (9th Cir. 1996).
The government has not been permitted to appeal in the
following instances:
·
Order in criminal case directing government to produce documents
for in camera inspection in response to defendant’s request under Freedom of
Information Act not appealable on interlocutory basis. See United
States v. United States Dist. Court,
717 F.2d 478, 481 (9th Cir. 1983) (granting government’s mandamus
petition). But cf. United States v.
Dominguez-Villa,
954 F.2d 562, 564–65 (9th Cir. 1992) (order directing government to
supply certain information to defendants appealable where order stated
noncompliance would preclude witnesses from testifying, government declined to
comply, and district court refused to issue suppression order requested by
government).
·
Order granting mistrial not appealable because it explicitly
contemplates reprosecution. See United States v.
Jorn,
400 U.S. 470, 476 (1971) (plurality opinion).
Under 18
U.S.C. § 3731, the government may appeal an order quashing a
subpoena. See United States v. Hirsch (In re grand
Jury Subpoenas),
803 F.2d 493, 465 (9th Cir. 1986), corrected by 817 F.2d 64 (9th
Cir. 1987).
Generally, an order denying a motion to quash a
subpoena is not appealable; review must await an adjudication of contempt. See United
States v. Ryan,
402 U.S. 530, 532–33 (1971); Silva
v. United States (In re Grand Jury Subpoena Issued to Bailin), 51 F.3d 203,
205 (9th Cir. 1995).
Under Perlman
v. United States, 247 U.S. 7 (1918), there is a narrow exception
permitting appeals of orders denying motions to quash “where the subpoena is
directed at a third party who cannot be expected to risk a contempt citation in
order to preserve” the right to appeal of the party asserting the
privilege. Silva, 51 F.3d at 205
(internal quotation marks and citation omitted).
Cross-reference: II.C.12.b.ii (regarding the Perlman
exception).
Under 28
U.S.C. § 1826(a), a district court may confine a witness who “in
any proceeding before or ancillary to any court or grand jury of the United
States refuses without just cause shown to comply with an order of the court to
testify or provide other information.” 28 U.S.C.
§ 1826(a).
The court of appeals has jurisdiction over a
confinement order under 28
U.S.C. § 1291 and 28
U.S.C. § 1826. See Trimiew v. United
States (In re Grand Jury Proceedings),
9 F.3d 1389, 1390 (9th Cir. 1993).
At a Kastigar hearing, the government is
required to prove that any evidence it intends to use to prosecute a grand jury
witness has a legitimate source independent of the witness’s compelled grand
jury testimony. See United States v.
Rockwell Int’l Corp. (In re Grand Jury Subpoena), 119 F.3d 750,
751 & n.1 (9th Cir. 1997) (citing Kastigar
v. United States, 406 U.S. 441 (1972)).
“The district court’s decision not to exercise its
supervisory powers over an ongoing grand jury investigation by holding a
pre-indictment Kastigar hearing” is not immediately appealable. Id.
at 755 (distinguishing United States v. Anderson, 79 F.3d
1522 (9th Cir. 1996), where appellant requested post-indictment Kastigar
hearing after grand jury proceedings had concluded).
As a general rule, orders denying defendants’ motion
for disclosure of grand jury materials, made in the course of criminal
proceedings, are not appealable collateral orders. See United
States v. Schiff,
874 F.2d 705, 706 (9th Cir. 1989); United
States v. Almany, 872 F.2d 924, 925–26 (9th Cir. 1989); but see United States v.
Zone,
403 F.3d 1101, 1107 (9th Cir. 2005) (explaining that, where discovery
request seeks to establish right not to be tried, court of appeals may have
jurisdiction).
However, defendants may appeal from orders granting
disclosure motions made by a third party during a criminal case. See United
States v. Fischbach & Moore, Inc.,
776 F.2d 839, 841–42 (9th Cir. 1985).
An order conclusively ruling on a request for
disclosure of grand jury materials made in an independent judicial proceeding
is final and appealable under 28
U.S.C. § 1291. See Wolf v. Oregon
State Bar (In re Barker),
741 F.2d 250, 252 (9th Cir. 1984); Sells, Inc. v.
United States (In re Grand Jury Investigation No. 78-184), 642 F.2d 1184,
1187 (9th Cir. 1981) (order permitting disclosure of grand jury
materials appealable where criminal proceedings had terminated and government’s
civil proceedings against defendants did not begin until nine months after
disclosure order).
Appeals in criminal matters over which magistrate
judges have jurisdiction to enter judgment are taken to the district court, as
provided by 18
U.S.C. § 3402 (appeals from judgment of conviction), § 3742(h)
(appeals from sentence), and Fed.
R. Crim. P. 58(g)(2) (covering both interlocutory appeals and appeals
from convictions and sentences).
Under these provisions, appeals generally may be taken
to the district court if the same decision or order made by a district court
could be appealed to the court of appeals.
See United
States v. Sweeney,
914 F.2d 1260, 1261–62 (9th Cir. 1990).
Both defendants and the government have 14 days from
entry of an appealable decision by a magistrate judge in which to file a notice
of appeal to the district court. See
Fed. R.
Crim. P. 58(g)(2)(A) (interlocutory appeals), (B) (appeals from
conviction or sentence).
Where a criminal appeal from a magistrate judge’s
decision had previously been filed in district court, defendant’s appeals to
Ninth Circuit dismissed. See United States v.
Soolook,
987 F.2d 574, 575 (9th Cir. 1993) (order).
Government appeals from decisions of district courts
reviewing magistrate judges’ decisions in criminal cases are governed by 28 U.S.C.
§ 1291 and 18 U.S.C.
§ 3731. See United States v.
Evans,
62 F.3d 1233, 1235 (9th Cir. 1995) (case in which government sought
review of district court’s reversal of magistrate judge’s pretrial detention
order); United
States v. Lee, 786 F.2d 951, 956 (9th Cir. 1986) (holding that
government could appeal from district court order because it “effectively
foreclosed the government from prosecuting the civilian offenders in federal
court” so as to be analogous to the dismissal of an information appealable
under § 3731; in addition, an appeal lay under § 1291 because the
district court ruling “effectively terminated the district court litigation,
sending the parties out of federal court”).
Appeals by defendants from decisions of district
courts reviewing magistrate judges’ decisions in criminal cases are apparently
governed by 28
U.S.C. § 1291. See United States v.
Evans,
62 F.3d 1233, 1235 (9th Cir. 1995) (dictum that defendants could appeal
district court’s decision reviewing magistrate judge’s pretrial detention
pursuant to 28
U.S.C. § 1291 and 18
U.S.C. § 3731, but latter only provides for government appeals).
Not all appellate decisions of district courts in
criminal cases are appealable to the Ninth Circuit. See United
States v. Atwell,
681 F.2d 593, 594 (9th Cir. 1982) (decision reversing order of
magistrate judge that dismissed indictment for lack of subject matter
jurisdiction not appealable, as no final order existed).
Although an appellate decision of a district court may
envision further proceedings before the magistrate judge, the district court’s
decision could still be appealable under the collateral order doctrine, at
least where the defendant raises a double jeopardy claim. See, e.g., United States v. Szado, 912
F.2d 390, 392–93 (9th Cir. 1990) (court of appeals had jurisdiction to
review order of district court denying defendant’s motion for reconsideration
requesting that, in reversing conviction entered by magistrate based on denial
of right to jury trial, district court reviews evidence for sufficiency to
determine whether retrial would be double jeopardy); see also United States v.
Foumai,
910 F.2d 617, 621 (9th Cir. 1990); United
States v. Govro, 833 F.2d 135, 136 n.2 (9th Cir. 1987); United States
v. Baptiste, 832 F.2d 1173, 1174 n.1 (9th Cir. 1987).
A defense attorney appointed under the Criminal
Justice Act, 18
U.S.C. § 3006A, can appeal under the collateral order doctrine a
decision by the district court declining to consider counsel’s fee application
on the ground that timely submission of the application is a jurisdictional
requirement. See United States v.
Poland (In re Derickson),
640 F.2d 946, 947–48 (9th Cir. 1981) (per curiam); see also United States v.
Ray,
375 F.3d 980, 986 (9th Cir. 2004).
Orders establishing the amount of compensation for
counsel appointed under the Criminal Justice Act are not “final decisions” of a
judicial character as required to be appealable under 28 U.S.C. § 1291. United States
v. Walton (In re Baker), 693 F.2d 925, 926–27 (9th Cir. 1982)
(per curiam) (dismissing defense counsel’s appeal from an order certifying less
than amount of compensation requested); see also In re Smith, 586 F.3d 1169,
1173 (9th Cir. 2009) (order).
However, on appeal from a final conviction, the court
of appeals has jurisdiction to review the effect on a conviction of an
allegedly erroneous denial of the defendant’s request for additional
investigative funds. See United States v.
Fields,
722 F.2d 549, 551 (9th Cir. 1983).
A criminal defendant lacks standing to appeal the
amount of fees paid a defense witness under 28
U.S.C. § 1825 where any effect on defendant’s trial rights is
merely speculative. See United States v.
Viltrakis,
108 F.3d 1159, 1161 (9th Cir. 1997).
The time periods for appeal under Fed. R. App. P.
4(b) are non-jurisdictional and are subject to forfeiture. See United
States v. Sadler,
480 F.3d 932, 934 (9th Cir. 2007); see
also United
States v. Navarro,
800 F.3d 1104, 1109 (9th Cir. 2015) (“Although the requirement of a
timely appeal is not a jurisdictional rule in criminal cases, where the government
properly objects to an untimely filing, we must dismiss the appeal.”). Prior to Sadler, the time periods were
assumed jurisdictional. See, e.g.,
United
States v. Clark, 984 F.2d 319, 320 (9th Cir. 1993) (per curiam)
(defendant’s failure to file notice of appeal within ten days from order
revoking supervised release and imposing additional sentence precluded
appellate jurisdiction). Sadler noted
that two recent Supreme Court decisions effectively abrogated this rule by
distinguishing between jurisdiction-conferring statutes and court-created rules
governing procedure. Sadler, 480
F.3d at 933–34, 940 (citing Eberhart
v. United States, 546 U.S. 12 (2005) (per curiam) and Kontick v. Ryan,
540 U.S. 443 (2004)).
“In a criminal case, a defendant’s notice of appeal
must be filed in the district court within 14 days after the later of (i) the
entry of either the judgment or the order being appealed; or (ii) the filing of
the government’s notice of appeal.” Fed. R. App. P.
4(b)(1)(A). “Where a district
court enters an amended judgment that revises legal rights or obligations, the
period for filing an appeal begins anew.”
United
States v. Doe, 374 F.3d 851, 853–54 (9th Cir. 2004).
The discrepancy under Fed.
R. App. P. 4(b)(1)(A) between the time period for a defendant to appeal
and the time period for the government to appeal does not deny defendants equal
protection. See United States v.
Avendano-Camacho,
786 F.2d 1392, 1394 (9th Cir. 1986).
“When the government is entitled to appeal, its notice
of appeal must be filed in the district court within 30 days after the later
of: (i) judgment or order being appealed; or (ii) the filing of a notice of
appeal by any defendant.” Fed. R. App. P.
4(b)(1)(B). A government appeal
in a criminal case “shall be taken within thirty days after the decision,
judgment or order has been rendered … .”
18
U.S.C. § 3731.
Appeals from orders constituting a “step in the
criminal proceeding” are governed by Fed.
R. App. P. 4(b) unless the proceeding arises from a statute providing
its own procedures and time limits. See
United
States v. Ono,
72 F.3d 101, 102–03 (9th Cir. 1995) (order).
Fed. R. App. P. 4(b) time limits apply in the following instances:
·
District court
order affirming conviction entered by magistrate judge. See United
States v. Mortensen,
860 F.2d 948, 950 (9th Cir. 1988).
·
Order granting or
denying motion to alter sentence. See
United
States v. Ono,
72 F.3d 101, 102 (9th Cir. 1995) (order denying defendant’s motion to
modify sentence under 18 U.S.C. § 3582(c)); United States v. Clark, 984
F.2d 319, 320 (9th Cir. 1993) (per curiam) (order revoking supervised
release and imposing additional sentence); United
States v. Davison, 856 F.2d 1289, 1291 (9th Cir. 1988) (order
denying government motion to convert defendant’s sentence under Youth
Correction Act to adult sentence).
·
Order disposing
of petition for writ of error coram nobis.
See Yasui
v. United States,
772 F.2d 1496, 1499 (9th Cir. 1985), superseded by rule as stated in United States v.
Kwan,
407 F.3d 1005, 1011 n.2 (9th Cir. 2005), abrogated on other grounds by Padilla
v. Kentucky, 559 U.S. 356
(2010).
Fed. R. App. P. 4(b) time limits do not apply in the following instances:
·
Order enforcing
Judicial Recommendation Against Deportation against the INS, even though order
issued in the course of a criminal case.
See United
States v. Yacoubian,
24 F.3d 1, 4–5 (9th Cir. 1994) (Fed. R. App. P. 4(a) time limits apply).
·
Order enjoining
government from filing forfeiture action.
See United
States v. Kismetoglu,
476 F.2d 269, 270 n.1 (9th Cir. 1973) (per curiam) (Fed. R. App. P. 4(a)
time limits apply).
·
Order denying
motion to quash grand jury subpoena. See
Manges v. United
States (In re Grand Jury Proceedings),
745 F.2d 1250, 1251 (9th Cir. 1984) (Fed. R. App. P. 4(a) time
limits apply).
·
Bail decisions in
extradition proceeding under 18
U.S.C. § 3184. See United States v.
Kirby (In re Requested Extradition of Kirby), 106 F.3d 855,
857 n.1 (9th Cir. 1996) (order governed by Fed. R. App. P. 47(b)
because neither civil nor criminal in nature).
Fed. R. App. P. 26(a) sets forth the manner for calculating the deadline
for filing an appeal. See III.A.4
(regarding computation of appeal deadline under Fed.
R. App. P. 26).
A notice of appeal is deemed filed for Fed. R. App. P.
4(b) purposes when it is received by the district court clerk’s
office. See King v. United States, 410 F.2d 1127,
1127 (9th Cir. 1969) (per curiam) (notice of appeal timely where
received by clerk, but not filed, within time period for appeal); see also United States v.
Clay,
925 F.2d 299, 301 (9th Cir. 1991) (clerk’s receipt of facsimile
transmission of notice of appeal constituted “functional equivalent” of
filing), disapproved on other grounds by Gozlon-Peretz v. United
States, 498 U.S. 395 (1991); cf. Smith
v. United States,
425 F.2d 173, 174–75 (9th Cir. 1970) (oral declaration of intent to
appeal does not comply with notice of appeal filing requirements).
A notice of appeal mistakenly filed with the court of
appeals is to be transmitted to the district court for filing on the date it
was received by the court of appeals. See
Brannan v.
United States,
993 F.2d 709, 710 (9th Cir. 1993) (noting that “the equities underlying
the transfer provision of Rule 4(a) also are present in the context of criminal
appeals, especially when the notice of appeal is submitted by a pro se
litigant”). See also United
States v. Withers,
638 F.3d 1055, 1061 (9th Cir. 2011) (holding the court “must construe a pro
se appellant’s notice of appeal as a motion to reopen the time for filing
an appeal when he alleges that he did not receive timely notice of the entry of
the order or judgment from which he seeks to appeal”).
A judgment or order is entered “when it is entered on
the criminal docket.” Fed. R. App. P.
4(b)(6); see also United
States v. Ronne,
414 F.2d 1340, 1342 n.1 (9th Cir. 1969) (time period for appeal under
Fed. R. App. P. 4(b) measured from date judgment entered, not date judgment
filed); United
States v. Thoreen, 653 F.2d 1332, 1337–38 (9th Cir. 1981) (appeal
from order of criminal contempt timely, though noticed 11 days after order
filed, because order entered on civil but not criminal docket).
The district court must intend its order be final for
the time period for appeal to begin to run.
See United
States v. Samango,
607 F.2d 877, 880 (9th Cir. 1979) (time to appeal did not begin to run
upon entry of oral ruling on docket because district court repeatedly expressed
intent to issue written order incorporating and elucidating ruling); see
also United
States v. Burt,
619 F.2d 831, 835 (9th Cir. 1980) (notice of appeal from clerk’s minutes
indicating denial of defendants’ motions to dismiss not effective until
district court rendered final decisions on motions).
A document evincing an intent to appeal may be
construed as a notice of appeal. See Brannan v. United
States,
993 F.2d 709, 710 (9th Cir. 1993) (pro se letter to court of appeals
referring to district court order revoking probation and indicating defendant
sought to “get the sentenced reduced” construed as notice of appeal); see
also United States
v. Johnson,
988 F.2d 941, 943 (9th Cir. 1993) (defendant’s filing of new district
court action to challenge denial of motion to reduce sentence construed as
notice of appeal in 28 U.S.C. § 2255 action).
Cross-reference: IV.B–C (regarding notice of appeal
requirements under Fed.
R. App. P. 3).
“A notice of appeal filed after the court announces a
decision, sentence, or order – but before entry of the judgment or order – is
treated as filed on the date of and after the entry.” Fed.
R. App. P. 4(b)(2); see also Lemke
v. United States,
346 U.S. 325, 326 (1953) (per curiam) (notice of appeal filed after
sentencing but before entry of judgment), superseded
by rule as stated in Manrique
v. United States,
137 S. Ct. 1266 (2017); United
States v. Wade, 841 F.2d 331, 332 (9th Cir. 1988) (per curiam)
(notice of appeal filed after verdict but before sentencing); United States
v. Thoreen, 653 F.2d 1332, 1338 (9th Cir. 1981) (notice of appeal
filed after court’s announcement of order but before entry).
“Upon a finding of excusable neglect or good cause,
the district court may— before or after the time has expired, with or without
motion and notice—extend the time to file a notice of appeal for a period not
to exceed 30 days from the expiration of the time otherwise prescribed in this Rule 4(b).” Fed.
R. App. P. 4(b)(4); see, e.g., United States v. Navarro, 800 F.3d 1104,
1109 (9th Cir. 2015) (good cause found where “delay was due to an
understandable mistake about the unwritten procedures of the specific judge
before whom he was practicing”); United
States v. Mortensen, 860 F.2d 948, 950 (9th Cir. 1988) (court of
appeals had jurisdiction over late-filed appeal where, on remand, district
court found excusable neglect for delay).
A district court lacks power to extend the deadline
for filing an appeal more than 30 days beyond the prescribed time period. See United
States v. Green,
89 F.3d 657, 659–60 (9th Cir. 1996).
A notice of appeal filed more than 30 days after the prescribed time
period for appeal expired must be dismissed only if a party properly asserts
that it be dismissed for untimeliness. See
United
States v. Sadler,
480 F.3d 932, 942 (9th Cir. 2007).
The non-jurisdictional nature of Rule 4(b) does not give courts
discretion in the matter – an untimely appeal must be dismissed if the
untimeliness argument is properly raised.
See id.; see
also United States v. Navarro, 800 F.3d 1104,
1109 (9th Cir. 2015) (“Although the requirement of a timely appeal is
not a jurisdictional rule in criminal cases, where the government properly
objects to an untimely filing, we must dismiss the appeal.”); United States
v. Buzard, 884 F.2d 475, 475–76 (9th Cir. 1989) (appeal dismissed
where notice of appeal filed more than 30 days after expiration of time to
appeal because even if “excusable neglect” existed district court could not
grant extension; district court attempt to circumvent rule by reentering
subject order on later date rejected). Sadler
left unanswered the question whether the cap on extension length permitted
by the district court is subject to forfeiture when an objection is not
properly raised. Sadler, 480 F.3d at 937 n.5.
Where a notice of appeal is filed less than 30 days
after expiration of the time period for appeal under Fed. R. App. P. 4(b), the case
is subject to remand for the limited purpose of determining whether excusable
neglect exists for the late filing. See
United
States v. Ono,
72 F.3d 101, 103 (9th Cir. 1995) (appeal from denial of defendant’s
motion under 18 U.S.C. § 3582(c) to modify term of imprisonment); Brannan v.
United States, 993 F.2d 709, 710 (9th Cir. 1993). But see United States v.
Perez-Silvan, 861 F.3d 935, 938 (9th Cir. 2017) (declining to remand to the
district court for the purpose of determining if failure to file a timely
appeal of district court’s judgment on the supervised release revocation was
excusable where defendant failed to offer arguments in opening brief for why
the district court’s decision was in error, and failed to list that decision as
an issue; as such, even if appeal had been timely, he waived his ability to
contest the revocation of his supervised release).
When a district court extends the time to file a
notice of appeal without referring to either Fed.
R. App. P. 4(b) or the excusable neglect requirement, and the record
does not disclose the reason for an extension, the case may be remanded for an
excusable neglect determination. See United States v.
Sotelo,
907 F.2d 102, 102–03 (9th Cir. 1990); cf. United States v. Stolarz, 547 F.2d 108,
111 (9th Cir. 1976) (acceptance by district court of a notice of appeal
filed outside the usual time in which to appeal does not itself constitute a
grant of additional time in which to appeal).
See III.D for coverage of the excusable neglect standard
set forth in Pioneer
Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 388–97
(1993).
The Pioneer standard has been applied to
criminal appeals under Fed.
R. App. P. 4(b). See Stutson v. United
States,
516 U.S. 193, 194–95 (1996); cf. United
States v. Prairie Pharmacy, Inc.,
921 F.2d 211, 213 (9th Cir. 1990) (court of appeals accords greater deference
to district court finding of excusable neglect in criminal case than in civil
case, and, conversely, reviews more searchingly a finding of no excusable
neglect).
The district court clerk’s failure to mail the parties
a copy of an order, as required by Fed.
R. Crim. P. 49(c), may be considered in determining excusable
neglect. See United States v. Stolarz, 547 F.2d 108,
111 n.2 (9th Cir. 1976). But,
once the 30-day period for granting an extension under Fed. R. App. P. 4(b) has
expired, the clerk’s failure to mail a copy of an order to the parties provides
no basis for granting an extension of the time period for appeal. See United
States v. Green,
89 F.3d 657, 659–61 (9th Cir. 1996) (discussing interrelationship of
Fed. R. Crim. P. 49(c) and Fed. R. App. P. 4(b)); see also United States v.
Buzard,
884 F.2d 475, 475–76 (9th Cir. 1989) (same).
Mistake of counsel does not generally constitute
excusable neglect. See United States v.
Prairie Pharmacy, Inc.,
921 F.2d 211, 213 (9th Cir. 1990) (counsel’s mistaken notion of time in
which to file notice of appeal did not constitute excusable neglect). But see United
States v. Houser,
804 F.2d 565, 569 (9th Cir. 1986) (excusable neglect finding upheld
where counsel failed to file timely notice of appeal, and incarcerated pro se
litigant immediately filed motion for leave to file late notice pro se upon
learning of his counsel’s failure).
The district court did not abuse its discretion in
finding excusable neglect where defendant and attorney attempted to contact one
another regarding whether to file notice of appeal, but communication was
difficult because defendant was moved among three prisons in different states
during the period immediately following entry of judgment. See United
States v. Smith,
60 F.3d 595, 596–97 (9th Cir. 1995).
A motion for reconsideration in a criminal case, as in
a civil case, “renders an otherwise final decision of a district court not
final until it decides the petition for rehearing.” United
States v. Ibarra, 502 U.S. 1, 6 (1991) (citing United States
v. Dieter, 429 U.S. 6 (1976) (per curiam) and United States
v. Healy, 376 U.S. 75 (1964)).
Where a motion for reconsideration is filed within the
prescribed time period for appeal from the original order, the time period for
appeal begins to run upon disposition of the motion for reconsideration. See United
States v. Davison,
856 F.2d 1289, 1291 (9th Cir. 1988) (appeal by government); United States
v. Lefler, 880 F.2d 233, 235 (9th Cir. 1989) (appeal by defendant); see
also Ibarra, 502 U.S. at 7
n.3 (“We … have no occasion to consider whether it is appropriate to
refuse to extend the time to appeal in cases in which successive motions for
reconsideration are submitted.”).
If a defendant timely files a post-judgment tolling
motion, “the notice of appeal from a judgment of conviction must be filed
within 14 days after the entry of the order disposing of the last such
remaining motion, or within 14 days after the entry of the judgment of
conviction, whichever period ends later.”
Fed.
R. App. P. 4(b)(3).
If timely filed, the following motions will toll the
time period for appeal: (1) motion for judgment of acquittal; (2) motion for
arrest of judgment; (3) motion for new trial on grounds other than new
evidence; or (4) motion for new trial based on newly discovered evidence if
motion is made no later than 14 days after the entry of judgment. See Fed.
R. App. P. 4(b)(3); see, e.g., United
States v. Stolarz,
547 F.2d 108, 110 (9th Cir. 1976) (untimely-served pre-sentence motion
for new trial did not toll time period for appeal).
A timely Fed.
R. Crim. P. 35(a) motion for correction of sentence extends the time to
file a notice of appeal from the underlying sentence. See United
States v. Barragan-Mendoza,
174 F.3d 1024, 1026 (9th Cir. 1999).
“A notice of appeal filed after the court announces a
decision, sentence, or order – but before it disposes of [a specified tolling
motion] – becomes effective upon the later of the following: (i) the entry of
the order disposing of the last such remaining motion; or (ii) the entry of the
judgment of conviction.” Fed. R. App. P.
4(b)(3)(B). The notice of appeal,
if otherwise valid, is effective without amendment to appeal from the order
disposing of the tolling motion. See
id; United
States v. Cortes,
895 F.2d 1245, 1246–47 (9th Cir. 1990) (notice of appeal effective even
though filed during pendency of motion for new trial).
Issues not raised before the district court generally
cannot be raised for the first time on appeal.
See United States v. Brugnara, 856 F.3d 1198, 1211 (9th Cir. 2017); United States v.
Robertson,
52 F.3d 789, 791 (9th Cir. 1994); see also United States v.
Valdez-Novoa, 780 F.3d 906, 914 (9th Cir. 2015); Manta v. Chertoff, 518 F.3d 1134,
1144 (9th Cir. 2008); United
States v. Flores-Montano,
424 F.3d 1044, 1047 (9th Cir. 2005).
But see, e.g., United
States v. Odedo,
154 F.3d 937, 939–40 (9th Cir. 1998) (stating that all violations of
Rule 11 are reviewed for harmless error “regardless of whether they were ever
raised before the district court”), overruled by United States v. Vonn, 535 U.S. 55,
58–59 (2002) (reviewing Rule 11 violations for plain error), on
remand to United
States v. Vonn,
294 F.3d 1093, 1093–94 (9th Cir. 2002) (recognizing that Vonn
overruled Odedo). For example,
the government waived its argument that the district court was bound by the
sentencing range provided for in the plea agreement by failing to raise this
issue before the district court. See United
States v. Perez-Corona, 295 F.3d 996, 1000 (9th Cir. 2002); see
also United
States v. Leniear,
574 F.3d 669, 672 n.3 (9th Cir. 2009) (concluding the government waived
the argument that a resentencing motion is a collateral attack barred by a plea
agreement, where it was not argued below).
“A plain error that affects substantial rights may be
considered even though it was not brought to the court’s attention.” Fed.
R. Crim. P. 52(b). The court of
appeals may entertain an objection that was not raised below “when plain error
has occurred or an injustice might otherwise result.” See United
States v. Pimental-Flores,
339 F.3d 959, 967 (9th Cir. 2003).
To permit correction by the court of appeals, there
must be: “(1) error, (2) that is plain and (3) affects ‘substantial rights.’” United States v. Barsumyan, 517 F.3d
1154, 1160 (9th Cir. 2008) (quoting United
States v. Olano, 507 U.S. 725, 732–34 (1993)); see also United States v. Depue, 912 F.3d 1227, 1232 (9th Cir. 2019); United
States v. LaCoste, 821 F.3d 1187, 1190 (9th Cir. 2016); United States
v. Becker, 682 F.3d 1210, 1212
(9th Cir. 2012); United States v.
Hammons,
558 F.3d 1100, 1103 (9th Cir. 2009); United
States v. Gonzalez-Zotelo, 556 F.3d 736, 739 (9th Cir. 2009); Pimental-Flores, 339 F.3d at 967
(explaining the court may reverse under a plain error analysis when “(1) there
was actual error; (2) the error was plain (i.e. “clear” or “obvious”);
and (3) the error affected the defendant’s “substantial rights.”). If all three conditions are met, the court of
appeals has discretion to notice an error not raised before the district court,
but only if the error “seriously affect[s] the fairness, integrity, or public
reputation of judicial proceedings.” Barsumyan,
517 F.3d at 1160 (internal quotation marks and citation omitted); see
also Johnson
v. United States,
520 U.S. 461, 466 (1997) (cautioning against expanding, or creating
exceptions to, the plain error standard); Depue, 912 F.3d at 1232; LaCoste,
821 F.3d at 1190.
Issues may be reviewed for the first time on appeal
where: “(1) there are ‘exceptional circumstances’ why the issue was not raised
in the trial court, (2) the new issues arise while the appeal is pending
because of a change in the law, or (3) the issue presented is purely one of law
and the opposing party will suffer no prejudice as a result of the failure to
raise the issue in the trial court.” United States
v. Robertson, 52 F.3d 789, 791 (9th Cir. 1994); see, e.g.,
United
States v. Flores-Montano, 424 F.3d 1044, 1047 (9th Cir. 2005)
(addressing purely legal question where government would not suffer prejudice
as a result of the failure to raise the issue in the trial court); United States
v. Fonseca-Caro, 114 F.3d 906, 907 n.2 (9th Cir. 1997) (per curiam)
(addressing purely legal question raised for first time on appeal where
opposing party will not suffer prejudice from issue not being raised below
because issue had been fully briefed).
An order from which interlocutory appeal is
permissive, not mandatory, may be reviewed on appeal from a conviction. See United
States v. Gamble,
607 F.2d 820, 822–23 (9th Cir. 1979) (permitting review of order denying
motion to dismiss indictment on double jeopardy grounds); cf. United States v.
Eccles,
850 F.2d 1357, 1362–63 (9th Cir. 1988) (barring defendant’s
interlocutory appeal as untimely did not violate due process because claims
concerning disqualification of government counsel and production of grand jury
transcript could be raised following trial, as could non-harmless prosecutorial
misconduct before grand jury).
The court of appeals has declined to exercise
jurisdiction over a request by corporate defendant to join in co-defendant’s
appeal where, although corporate defendant may be an “aggrieved party,” it did
not participate in pretrial proceedings regarding the government’s motion for order
restraining disposition of property, and did not file a notice of appeal. See United
States v. Spilotro,
680 F.2d 612, 616 (9th Cir. 1982).
Where the same conduct of a defendant resulted in revocation
of supervised release and imposition of additional sentence in two separate
cases, a timely appeal in one case did not bring the other case up on
appeal. See United States v. Clark, 984 F.2d 319,
320 (9th Cir. 1993) (per curiam).
“In general, a defendant who enters into a plea
agreement waives his right to appeal his conviction.” United
States v. Jacobo Castillo, 496 F.3d 947, 954 (9th Cir. 2007) (en
banc). See also United States
v. Brown, 875 F.3d 1235, 1238 (9th Cir. 2017) (“The entry of an
unconditional guilty plea precludes appellate review of most challenges to
pre-plea rulings.”). However, in United
States v. Jacobo Castillo, the court held that it had jurisdiction to
hear an appeal even though the defendant entered a guilty plea waiving his
right to appeal, overruling prior cases.
See Jacobo Castillo, 496 F.3d at 954 (holding the court had
jurisdiction to review the judgment where government failed to raise the plea
or his plea agreement as a bar to the appeal, and instead responded on the
merits). In so holding, the court
explained that a defendant’s waiver is nonjurisdictional and subject to
forfeiture and that a valid guilty plea does not deprive the court of jurisdiction. See
Jacobo Castillo, 496 F.3d at 949–50.
See also United States v. Obak, 884 F.3d 934, 937 (9th Cir. 2018)
(although defendant waived objection as to a defect in venue by entering a
guilty plea, the government waived its ability to rely on defendant’s waiver,
where government responded to merits of defendant’s challenge on appeal, and
did not raise the waiver issue).
“An unconditional plea does not, however, bar
consideration of the merits of all claims arising from pre-plea rulings.” Brown, 875 F.3d at 1238. Jurisdictional claims are not waived by a
guilty plea. See Brown, 875 F.3d
at 1238; United
States v. Caperell, 938 F.2d 975, 977 (9th Cir. 1991). However, such claims can only be based on the
indictment itself and the face of the record.
See United
States v. Broce,
488 U.S. 563, 575–76 (1989) (distinguishing double jeopardy claims that
are waived from those that are based on need for “further proceedings at which
to expand the record with new evidence”).
Compare United
States v. Wong,
62 F.3d 1212, 1215 n.1 (9th Cir. 1995) (double jeopardy claim not waived
because claim could be resolved by looking at indictment and record) and Caperell, 938 F.2d at
977–78 (claim that indictment failed to state an offense not waived
because it could be resolved by examining indictment and relevant statute) with
United
States v. Cortez,
973 F.2d 764, 766–67 (9th Cir. 1992) (assuming selective prosecution is
a “jurisdictional” claim, it was waived because it could not be proven from
either the indictment or the record at the plea stage) and United States v.
Montilla,
870 F.2d 549, 552–53 (9th Cir. 1989) (guilty plea waived claim akin to
vindictive prosecution because allegations could not be proven without an
evidentiary hearing and, on its face, the indictment alleged offenses well
within government’s power to prosecute), amended, 907 F.2d 115 (9th
Cir. 1990).
A valid guilty plea waives the right to appeal from
earlier rulings on the following issues:
·
Claim of denial of assistance of counsel at in camera
hearing. See United States v. Bohn, 956 F.2d 208,
209 (9th Cir. 1992) (per curiam).
·
Challenge to facts established by guilty plea. See United
States v. Mathews,
833 F.2d 161, 163–64 (9th Cir. 1987) (even where facts formed basis for
federal jurisdiction), abrogated on other
grounds by Young
v. Holder,
697 F.3d 976 (9th Cir. 2012) (en banc), abrogated in part by Moncrieffe
v. Holder,
569 U.S. 184 (2013).
·
Claimed violation of right to speedy trial. See United
States v. Bohn,
956 F.2d 208, 209 (9th Cir. 1992) (per curiam) (Speedy Trial Act
violation); United
States v. O’Donnell, 539 F.2d 1233, 1237 (9th Cir. 1976) (Fifth and
Sixth Amendment rights to speedy trial), superseded on other grounds as set
forth in United
States v. Smith,
60 F.3d 595 (9th Cir. 1995).
·
Defense of statute of limitations.
See United
States v. Littlefield,
105 F.3d 527, 528 (9th Cir. 1997) (per curiam).
·
Denial of motion to suppress.
See United
States v. Floyd,
108 F.3d 202, 204 (9th Cir. 1997) (observing that guilty plea was
neither conditional nor invalid), overruled in part by United States v.
Jacobo Castillo,
496 F.3d 947, 949–50 (9th Cir. 2007) (en banc); United States v. Carrasco, 786
F.2d 1452, 1453–54 & n.2 (9th Cir. 1986) (same), overruled in
part by Jacobo
Castillo,
496 F.3d at 949–50 (9th Cir. 2007) (en banc).
·
Claimed violation of Double Jeopardy Clause. See United States v. Zalapa, 509 F.3d
1060, 1063 (9th Cir. 2007); United
States v. Wong,
62 F.3d 1212, 1215 n.1 (9th Cir. 1995); Launius
v. United States, 575 F.2d 770, 771 (9th Cir. 1978) (per curiam); Moroyoqui v.
United States, 570 F.2d 862, 863 (9th Cir. 1977).
·
Challenge to guilty plea itself.
See United
States v. Cortez,
973 F.2d 764, 767 (9th Cir. 1992) (claim that plea was not knowing or
voluntary, and was due to ineffective assistance of counsel, not waived).
·
Claimed violation of the Indictment Clause. See United
States v. Travis,
735 F.2d 1129, 1131 (9th Cir. 1984) (plea of guilty to an information
did not waive right to prosecution by indictment).
·
Claim that charging document is insufficient or fails to state an
offense. See United States v. Caperell, 938 F.2d 975,
977 (9th Cir. 1991); United
States v. Broncheau, 597 F.2d 1260, 1262 n.1 (9th Cir. 1979).
·
Claim that criminal statute is unconstitutional. See United
States v. Sandsness,
988 F.2d 970, 971 (9th Cir. 1993) (claim that criminal statute was vague
and overbroad not waived); see also Class v. United States, 138 S. Ct. 798, 803 (2018)
(holding a guilty plea by itself does not bar a federal criminal defendant from
challenging the constitutionality of the statute of conviction on direct
appeal); United States v. Caperell, 938 F.2d 975, 977 (9th Cir. 1991) (noting that a claim that the
“applicable statute is unconstitutional” is not waived). But see United
States v. Burke,
694 F.2d 632, 634 (9th Cir. 1982) (guilty plea waived vagueness claim
where plea agreement established sufficient facts to preclude vagueness claim).
·
Claim of vindictive prosecution amounting to violation of due
process. See Blackledge v. Perry, 417 U.S. 21, 30
(1974) (observing that claim “went to the very power of the State to
bring the defendant into court”); cf. United
States v. Montilla,
870 F.2d 549, 552–53 (9th Cir. 1989) (finding outrageous conduct defense
waived where resolution would require an evidentiary hearing and, on its face,
the indictment alleged prosecutable offenses), amended, 907 F.2d 115 (9th
Cir. 1990); see also United
States v. Cortez,
973 F.2d 764, 766–67 (9th Cir. 1992) (assuming selective prosecution is
a “jurisdictional” claim, it was waived because it could not be proven from
either the indictment or the record at the plea stage).
A conditional guilty plea under Fed. R. Crim. P.
11(a)(2) permits a defendant to raise on appeal specified claims that
would otherwise be waived by a guilty plea.
See United
States v. Arzate-Nunez,
18 F.3d 730, 737 (9th Cir. 1994) (plea under Rule 11(a)(2) sufficiently
preserved defendant’s due process claim for appeal); see also United States
v. Lustig, 830 F.3d 1075, 1079 (9th Cir. 2016) (“The conditional guilty
plea preserved Lustig’s right to appeal the Fourth Amendment issues related to
his motions to suppress.”). However, a
guilty plea will not be interpreted as conditional where neither the government
nor district court acquiesced in such a plea.
See United
States v. Cortez,
973 F.2d 764, 766 (9th Cir. 1992).
Note Fed. R. Crim. P. 11(a)(2) does not bar a federal criminal defendant
who entered a guilty plea from challenging the constitutionality of the statute
of conviction on direct appeal. See
Class v. United States, 138 S. Ct. 798, 803 (2018).
Under a plea agreement made pursuant to Fed. R. Crim. P.
11(c)(1)(C), the government “agree[s] that a specific sentence or
sentencing range is the appropriate disposition of the case.”
A defendant waives the “right to appeal [the] sentence
as part of [a] negotiated plea agreement if [the] sentence is consistent with
the plea agreement.” United States v.
Hernandez-Castro, 814 F.3d 1044, 1045 (9th Cir. 2016) (internal quotation
marks omitted). When a sentence is
imposed following a guilty plea made pursuant to a Rule 11(c)(1)(C) plea
agreement, a defendant may not appeal the sentence unless it is “greater than
the sentence set forth in [the] agreement,” it was “imposed in violation of the
law,” or it was “imposed as a result of an incorrect application of the
sentencing guidelines.” 18 U.S.C.
§ 3742(a), (c)(1); United
States v. Littlefield, 105 F.3d 527, 527–28 (9th Cir. 1997) (per
curiam). “A defendant is released from
his or her appeal waiver if the government breaches the plea agreement.” Hernandez-Castro, 814 F.3d at 1045.
“A waiver of
appellate rights is enforceable if (1) the language of the waiver encompasses
his right to appeal on the grounds raised, and (2) the waiver is knowingly and
voluntarily made.” United States v. Medina-Carrasco, 815 F.3d 457, 461 (9th Cir. 2016)
(as amended) (internal quotation marks and citation omitted). See also United
States v. Lo,
839 F.3d 777, 795 (9th Cir. 2016) (holding that defendant’s appeal waiver was
knowing and voluntary, that neither the restitution order nor forfeiture order
was illegal, and defendant raised no other exception that would permit
consideration of the appeal ); United States v. Arias-Espinosa, 704 F. 3d 616, 620 (9th Cir. 2012) (holding “that the district
court’s statement that Arias-Espinosa ‘may have a right to appeal’ was
equivocal or ambiguous, rather than being made unequivocally, clearly, and
without qualification, and so [did] not vitiate his explicit waiver of the
right to appeal in his written plea agreement.”); United States v.
Rahman, 642 F.3d 1257, 1259 (9th Cir. 2011); United States v. Cope, 527 F.3d 944, 949 (9th Cir. 2008); see, e.g., United
States v. Lococo, 514 F.3d 860, 866 (9th Cir. 2008) (dismissing
portions of appeal barred by waiver); United States v. Martinez, 143
F.3d 1266, 1270–71 (9th Cir. 1998); United
States v. Blitz,
151 F.3d 1002, 1005, 1006 (9th Cir. 1998) (dismissing appeal where
defendant did not challenge validity of waiver). “However, the government can waive its waiver
argument, explicitly or implicitly.” See
United
States v. Felix,
561 F.3d 1036, 1040 (9th Cir. 2009) (concluding that government waived
its argument that the defendant waived his right to appeal his sentence); see
also United States v. Obak, 884 F.3d 934, 937 (9th Cir. 2018) (although
defendant waived objection as to a defect in venue by entering a guilty plea,
the government waived its ability to rely on defendant’s waiver, where
government responded to merits of defendant’s challenge on appeal, and did not
raise the waiver issue).
If on appeal defendant challenges the validity of an
appeal waiver, the court of appeals must first determine whether the waiver is
valid. See Cope, 527 F.3d at 949. To determine if an appeal waiver is valid,
the court will “look ‘to the circumstances surrounding the signing and entry of
the plea agreement to determine whether the defendant agreed to its terms
knowingly and voluntarily.’” Lo, 839 F.3d at 783–84 (citation
omitted). If the waiver is valid, the
court of appeals next determines the scope of the waiver according to the
language in the plea agreement to see if the appeal has been precluded. See Lo, 839 F.3d at 784;
Cope, 527 F.3d at 949–50.
“‘The scope of a knowing and voluntary waiver is demonstrated by the
express language of the plea agreement.’”
Lo, 839 F.3d at 784 (quoting United States v. Leniear, 574
F.3d 668, 672 (9th Cir. 2009)). If the
waiver is valid and its scope encompasses the appeal, the appeal is dismissed;
if the waiver is invalid, the court reaches the merits. See Cope, 527 F.3d at 949–50; United States v.
Michlin,
34 F.3d 896, 898 (9th Cir. 1994); United
States v. DeSantiago-Martinez,
38 F.3d 394, 395–96 (9th Cir. 1992) (order) (dismissing appeal after
determining waiver was valid), superseded
by rule as stated in United
States v. Lo,
839 F.3d 777, 784 n.1 (9th Cir. 2016).
Certain issues remain appealable despite an otherwise
valid waiver of the right to appeal. See
United State
v. Cope,
527 F.3d 944, 949–50 (9th Cir. 2008); United
States v. Martinez,
143 F.3d 1266, 1269–70 (9th Cir. 1998) (right to conflict-free counsel);
United
States v. Ruelas, 106 F.3d 1416, 1418 (9th Cir. 1996) (sufficiency
of indictment); see also United States v. Schopp, 938 F.3d 1053, 1058 (9th Cir. 2019) (concluding that
appeal challenging the legality of defendant’s sentence was permitted despite
his appeal waiver); United States v. Pollard, 850 F.3d 1038, 1041 (9th
Cir. 2017) (“[E]ven a valid appellate waiver does not prevent courts
from reviewing an illegal sentence, that is, one that exceeds the permissible
statutory penalty for the crime or violates the Constitution.”); United States v.
Baramdyka,
95 F.3d 840, 843–44 (9th Cir. 1996) (dictum noting that claims of racial
disparity in sentencing, sentence in excess of statutory maximum, and breach of
plea agreement survive appeal waivers). But
see United
States v. Petty,
80 F.3d 1384, 1387 (9th Cir. 1996) (holding that double jeopardy claim
was waived where “factual basis for [] claim obviously existed before the
parties’ stipulation”).
Where a defendant challenged the soundness of his plea
allocution pursuant to Fed.
R. Crim. P. 11, which went to the heart of whether his guilty plea — including
his waiver of appeal — was enforceable, this court had jurisdiction to
determine whether the plea was valid in order to determine if an appeal is
permitted. See United States v.
Portillo-Cano,
192 F.3d 1246, 1250 (9th Cir. 1999).
The court of appeals looks to the language of an
appeal waiver to determine its scope. See United States v. Lo, 839 F.3d 777, 785 (9th Cir. 2016); United State v.
Cope, 527 F.3d 944, 949–50 (9th Cir. 2008); United States v. Baramdyka, 95
F.3d 840, 843 (9th Cir. 1996).
Plea agreements, including appeal waivers, are evaluated under contract
law standards. See United States v.
Torres, 828 F.3d 1113, 1124 (9th Cir. 2016) (“Standard principles of
contract law guide our interpretation of the terms of a plea agreement.”); Lo,
839 F.3d at 783; United States v. Odachyan, 749 F.3d 798,
804 (9th Cir. 2014) (“Plea
agreements are interpreted using contract principles.”); United States v. Watson, 582 F.3d 974, 986 (9th Cir. 2009); United
States v. Martinez,
143 F.3d 1266, 1271 (9th Cir. 1998); see also United States v. Petty, 80 F.3d 1384,
1387 (9th Cir. 1996) (court of appeals would treat appeal waiver like
any other contract, and interpret it to carry out the parties’ intention). Ambiguities in waiver provisions are
construed against the government. See
Watson, 582 F.3d at 986;
Cope, 527 F.3d at 951.
A waiver of appellate rights as part of a plea
agreement is not rendered less than knowing and voluntary simply because a
defendant and his attorney may not have recognized the strength of his
potential appellate claims, where the express language of the plea agreement
clearly showed that the waiver was knowing and voluntary and where the plea was
accepted only after a painstaking, bilingual plea colloquy. See United States v. Nguyen,
235 F.3d 1179, 1182 (9th Cir. 2000), abrogation
recognized by United
States v. Rahman, 642 F.3d 1257, 1259 (9th Cir. 2011) (“To the extent that
the discussion of the merits of Nguyen’s motion to withdraw implied that
general appellate waivers do not cover appeals from withdrawal of plea motions,
such implicit dicta has been abrogated by subsequent Ninth Circuit cases which
explicitly held to the contrary.”); see also Lo, 839 F.3d at 783
(explaining the court will enforce a valid waiver even if the claims that could
have been made on appeal absent that waiver appear meritorious).
Waiver of right to appeal on any grounds “as long as
the Court does not impose a period of imprisonment greater than that
recommended by the Government” is effective to waive right to appeal on grounds
of lack of personal jurisdiction. United States
v. Baramdyka, 95 F.3d 840, 843–44 (9th Cir. 1996).
A subparagraph in a plea agreement, providing that a
defendant retained the right to appeal, did not preserve the defendant’s right
to appeal where three prior paragraphs set forth a well-developed waiver, the
provision was clearly boilerplate left in by mistake, and the plea colloquy
indicated a knowing and voluntary waiver.
United States v. Anglin, 215 F.3d 1064, 1066 (9th Cir. 2000), superseded by rule as stated in United States v.
Lo,
839 F.3d 777, 784 n.1 (9th Cir. 2016).
Waiver of “any right to further appeal” is effective
to waive a double jeopardy claim where the factual basis for the claim
“obviously existed before the parties’ stipulation.” United
States v. Petty, 80 F.3d 1384, 1387 (9th Cir. 1996).
Waiver of right to appeal from “sentence” precluded
appeal based on incorrect application of Sentencing Guidelines. See United
States v. Martinez,
143 F.3d 1266, 1271 (9th Cir. 1998); United
States v. Schuman, 127 F.3d 815, 817 (9th Cir. 1997) (per curiam); Frank, 36
F.3d at 904; United
States v. Bolinger, 940 F.2d 478, 479–80 (9th Cir. 1991); see
also United
States v. Khaton,
40 F.3d 309, 311–12 (9th Cir. 1994) (concluding that waiver of the right
to appeal “any sentence within the discretion of the district judge” precluded
appeal disputing district court’s “[f]aithful adherence to [Sentencing
Guidelines’] schema”); United
States v. Michlin, 34 F.3d 896, 901 (9th Cir. 1994) (concluding that
waiver of appeal from “sentence ultimately imposed by the Court, if within the
guideline range as determined by the Court” was effective to waive appeal
claiming “incorrect applications of the Sentencing Guidelines”).
Waiver of right to appeal sentence within a particular
range precluded appeal from sentence at high end of range despite defendant’s
argument that sentence was within range only because of credit for time
served. See United States v. Scolari, 72 F.3d 751, 752
(9th Cir. 1995), abrogated on
other grounds by United States v. Davila, 569 U.S. 597
(2013); United
States v. Navarro-Botello, 912 F.2d 318, 319–20, 322 (9th Cir. 1990).
Waiver in plea agreement of “the right to appeal any
sentence imposed by the district judge” precluded appeal of sentence based on
law that became effective after plea but before sentencing. See United
States v. Johnson,
67 F.3d 200, 202 (9th Cir. 1995).
Waiver of right to appeal “any pretrial issues or any
sentencing issues” precluded appeal contending district court should have held
evidentiary hearing on new, exculpatory evidence entitling defendant to
modification of sentence. See United States v.
Abarca,
985 F.2d 1012, 1013 (9th Cir. 1993).
A waiver of the right to appeal from an “illegal
sentence” precluded an appeal based on the district court’s failure to state
the reasons for the particular sentence it imposed. See United
States v. Vences,
169 F.3d 611, 613 (9th Cir. 1999).
A waiver of the right to appeal “any aspect” of the
sentence encompassed defendant’s right to appeal the condition of supervised
release. See United States v. Watson, 582 F.3d 974,
986–87 (9th Cir. 2009).
(1) Deviation
from Sentencing Guidelines “Schema”
Waiver of right to appeal “any sentence within the
discretion of the district judge” did not preclude appeal based on “[o]bviously
improper deviations” from “schema” of Sentencing Guidelines. See United
States v. Khaton,
40 F.3d 309, 311 (9th Cir. 1994) (but appeal disputing district court’s
“[f]aithful adherence to [Sentencing Guidelines] schema,” precluded).
(2) Incorrect
Application of Sentencing Guidelines
Waiver of right to appeal any sentence “within the
Sentencing Guidelines range which the district judge determined to be
applicable in [defendant’s] case,” did not preclude appeal from upward
departure. See United States v.
Haggard,
41 F.3d 1320, 1325 (9th Cir. 1994).
Waiver of “any right to further appeal” ineffective to
waive claim that district court failed at resentencing to verify defendant had
reviewed presentence reports with attorney, where remarks of prosecutor
suggested that waiver had limits, error was substantial and unforeseeable and
arose only after the stipulation. See
United
States v. Petty,
80 F.3d 1384, 1387 (9th Cir. 1996).
(4) Restitution
Order Imposed at Sentencing
Waiver of “right to appeal any sentence … within the
statutory minimum specified above” was ineffective to waive defendant’s right
to appeal restitution order. United States
v. Zink, 107 F.3d 716, 717–18 (9th Cir. 1997).
Waiver of right to appeal “sentence,” defined in terms
of calculations under Sentencing Guidelines, did not preclude appeal of
restitution order, which is calculated under a separate, statutory
standard. United States v. Catherine, 55
F.3d 1462, 1464–65 (9th Cir. 1995).
A waiver of the “right to appeal all matters
pertaining to this case and any sentence imposed” did not bar the defendant’s
claim that money forfeited by the defendant should be set off against
restitution, when the defendant claimed that the restitution was imposed in
violation of the Victim and Witness Protection Act. United
States v. Johnston, 199 F.3d 1015, 1022–23 (9th Cir. 1999).
A waiver of the right to appeal a restitution order is
not knowing and voluntary when the plea agreement is ambiguous regarding the
amount of restitution. United States
v. Phillips, 174 F.3d 1074, 1076 (9th Cir. 1999); see also United
States v. Tsosie,
639 F.3d 1213, 1218 (9th Cir. 2011) (“Because the plea
agreement did not set forth the amount of restitution Tsosie would be ordered
to pay, or a reasonable and fairly accurate estimate thereof, Tsosie lacked
sufficient notice to waive his right to appeal the restitution award.”
(internal quotation marks and citation omitted)). However, the
court has found waiver of the right to appeal a restitution order knowing and
voluntary where the agreement shows that it provided sufficient information
from which the defendant could derive an accurate estimate of the restitution
amount. See United States v. Lo,
839 F.3d 777, 787 (9th Cir. 2016).
Waiver of “any right to appeal the imposition of
sentence” did not preclude appeal from denial of motion to withdraw guilty
plea. United
States v. Frank, 36 F.3d 898, 904 (9th Cir. 1994).
A government appeal from an order clarifying or
expanding a previous discovery order may suffice to bring both orders up for
review. See United States v. Dominquez-Villa, 954 F.2d 562,
565 (9th Cir. 1992) (appeal from second order permitted where first
order did not specify that noncompliance would result in suppression of
evidence); United
States v. Humphries, 636 F.2d 1172, 1175–77 (9th Cir. 1980) (appeal
from second order permitted where scope of initial suppression order unclear,
and government presented different evidence in hearing on second motion).
A mistake in designating the order being appealed
“does not bar an appeal if the intent to appeal a specific judgment can be
inferred and the appellee is not prejudiced or misled by the mistake.” United
States v. Adrian, 978 F.2d 486, 489 (9th Cir. 1992) (citations
omitted) (appeal from denial of motion to stay encompassed subsequent order
dismissing action without prejudice to permit appeal), overruled in part on
other grounds by United
States v. W.R. Grace,
526 F.3d 499, 506 (9th Cir. 2008) (en banc).
Where a defendant claims on interlocutory appeal a
right not to be tried, the district court ordinarily loses jurisdiction to
proceed from the time the notice of appeal is filed until the appeal is
resolved. See United States v.
Claiborne, 727 F.2d 842, 850–51 (9th Cir. 1984) (per curiam) (finding
district court’s decision to hear pre-trial motions after valid interlocutory
appeal had been taken was harmless error but suggesting that orders be
reentered); see also United
States v. Hickey,
580 F.3d 922, 926–27 (9th Cir. 2009); United
States v. Powell,
24 F.3d 28, 31 (9th Cir. 1994) (stating in dictum that the “divesture
rule is clearly applicable in a case where the defendant claims a right not to
be tried at all”).
The district court is not deprived of jurisdiction to
proceed with trial where on interlocutory appeal the defendant does not raise a
right not to be tried. See United States v.
Ray,
731 F.2d 1361, 1369 (9th Cir. 1984) (appeal of order denying motion to
modify restraining order freezing assets).
The divestiture of jurisdiction rule does not apply
where defendant appeals from denial of a motion the district court finds in
writing to be frivolous, even though the motion asserts a right not to be
tried. See United States v. LaMere, 951 F.2d 1106,
1108–09 (9th Cir. 1991) (per curiam).
The district court is not deprived of jurisdiction to
proceed where appeal is taken from an order that is not subject to
interlocutory appeal. See United States v.
Ray,
731 F.2d 1361, 1369 (9th Cir. 1984) (appeal alleging vindictive
prosecution); United
States v. Garner, 663 F.2d 834, 837–38 (9th Cir. 1981) (appeal from
order denying pretrial motion to dismiss indictment for grand jury
irregularities); see also United
States v. Burt,
619 F.2d 831, 835 (9th Cir. 1980) (appeal from clerk’s minutes noting
ruling on motions, where district court did not intend rulings to be final).
The government’s appeal under 18 U.S.C. § 3731 from a
pretrial order suppressing evidence does not deprive the district court of
jurisdiction to dismiss the indictment for failure to prosecute. See United
States v. Gatto,
763 F.2d 1040, 1049–50 (9th Cir. 1985); see also United States v.
Emens,
565 F.2d 1142, 1144 (9th Cir. 1977) (in appropriate cases, district
court has power to dismiss indictment while interlocutory appeal is pending).
An appeal from a final judgment divests the district
court of jurisdiction to enter a second sentencing order, and the court of
appeals lacks jurisdiction to review the second order. See United
States v. Najjor,
255 F.3d 979, 983 (9th Cir. 2001).
Ordinarily, an appeal from conviction on certain counts
severed from an indictment will not divest the district court of jurisdiction
to try and sentence defendant on the remaining counts. See United
States v. Powell,
24 F.3d 28, 30–32 (9th Cir. 1994) (district court retained jurisdiction
over remaining counts where sentence imposed as to all tried counts and lack of
common issues eliminated potential for confusion or waste of resources).
Generally, the pendency of an appeal does not deprive
the district court of jurisdiction to rule on new trial motions under Fed. R. Crim. P.
33. See United States v.
Arnpriester,
37 F.3d 466, 467 (9th Cir. 1994) (motion based on newly discovered
evidence of judicial bias); see also United
States v. Cronic,
466 U.S. 648, 667 n.42 (1984) (motion based on ineffective assistance of
counsel).
If the district court is inclined to grant a motion
for new trial, however, it must first obtain a remand of the case. See Fed.
R. Crim. P. 33 (“If an appeal is pending, the court may not grant a
motion for a new trial until the appellate court remands the case.”); Cronic, 466
U.S. at 667 n.42 (1984) (noting that district court could either deny
motion on merits or certify intent to grant motion so that court of appeals
could entertain motion to remand).
The filing of a post-sentence notice of appeal divests
the district court of jurisdiction to enter findings of fact under Fed. R. Crim. P.
32(i)(3). See United States v.
Edwards,
800 F.2d 878, 883–84 (9th Cir. 1986) (“Rule 32(c)(3)(D) [currently Rule
32(i)(3)] clearly contemplates that the determinations regarding disputed
factual material will be made prior to sentencing.”). Note that since Edwards, Rule 32 has
been amended.
The filing of a notice of appeal divests the district
court of jurisdiction to correct an invalid sentence under Fed. R. Crim. P.
35(a). See United States v.
Ortega-Lopez,
988 F.2d 70, 72 (9th Cir. 1993) (district courts are to correct
sentences invalidated on appeal only upon remand of the case). However, the filing of a notice of appeal
does not divest the district court of jurisdiction to correct a sentence within
14 days of imposition for clear error under Fed.
R. Crim. P. 35(a). See Fed. R. App. P.
4(b).
Generally, “a district court should not entertain a
habeas corpus petition while there is an appeal pending in this court or in the
Supreme Court.” United States v. Deeb, 944 F.2d
545, 548 (9th Cir. 1991) (affirming denial of § 2255 motion without
prejudice in part because, while motion sought a new trial and defendant only
challenged sentence on direct appeal, district court was not informed that
direct appeal did not involve a challenge to the conviction); accord Feldman v. Henman, 815 F.2d 1318,
1321 (9th Cir. 1987) (district court had no authority to entertain
federal prisoner’s habeas corpus petition filed under 28 U.S.C. § 2241 where
prisoner’s petition for certiorari on direct appeal from conviction was still
pending before Supreme Court).
However, “[t]he District Court may entertain a
collateral motion during the pendency of a district appeal if ‘extraordinary
circumstances’ outweigh the considerations of administrative convenience and
judicial economy.” United States
v. Taylor, 648 F.2d 565, 572 (9th Cir. 1981) (finding that district
court erred in dismissing coram nobis motion while direct appeal pending where
“collateral claim casts … a dark shadow on a pivotal aspect of the direct
appeal and, at the same time, implicates the fundamental fairness of the trial
and propriety of the government’s actions”); see also Jack v. United
States,
435 F.2d 317, 318 (9th Cir. 1970) (per curiam) (noting that only under
the “most unusual circumstances” is a defendant in a federal criminal prosecution
entitled to have a direct appeal and a § 2255 proceeding considered
simultaneously, but evaluating appeal on merits despite lack of such
circumstances).
Cross-reference: II.D (regarding mandamus petitions generally).
The court of appeals has jurisdiction under 28 U.S.C.
§ 1651 to issue a writ of mandamus in any case for which it would
have power to entertain an appeal at some of the proceedings. See United
States v. Tillman,
756 F.3d 1144, 1150 (9th Cir. 2014); United
States v. Barker,
1 F.3d 957, 959 (9th Cir. 1993), amended, 20 F.3d 365 (9th Cir. 1994); California v.
Mesa, 813 F.2d 960, 962 (9th Cir. 1987).
“Mandamus is
a drastic and extraordinary remedy reserved for really extraordinary
causes.” United States
v. Tillman, 756 F.3d 1144, 1150 (9th Cir. 2014) (internal
quotation marks and citation omitted). Generally, the standards applied in civil cases also
apply in criminal cases where a party petitions for writ relief. See United
States v. W.R. Grace,
504 F.3d 745, 757 (9th Cir. 2007) (listing five factors); Portillo v. United
States Dist. Court,
15 F.3d 819, 822 (9th Cir. 1994) (per curiam) (reiterating Bauman
factors in reviewing defendant’s petition); United
States v. Barker, 1 F.3d 957, 959 (9th Cir. 1993) (same, in
reviewing government petition), amended
by 20
F.3d 365 (9th Cir. 1994). “The
writ of mandamus is one of the most potent weapons in the judicial
arsenal.” Ozenne v. Chase Manhattan
Bank (In re Ozenne), 841 F.3d 810, 815 (9th Cir. 2016) (internal
quotation marks and citations omitted).
Mandamus is traditionally used only “to confine an
inferior court to a lawful exercise of its prescribed jurisdiction or to compel
it to exercise its authority when it is its duty to do so.” Will
v. United States, 389 U.S. 90, 95 (1967) (internal quotation marks
citation omitted); Barker, 1 F.3d at 959;
Valenzuela-Gonzalez
v. United States Dist. Court, 915 F.2d 1276, 1278 (9th Cir. 1990).
The policy against piecemeal review, which underlies
the final judgment rule and makes writ relief exceptional, “applies with
particular force in criminal proceedings due to the disruption interlocutory
review may engender.” Oregonian
Publ’g. Co. v. United
States Dist. Court,
920 F.2d 1462, 1464 (9th Cir. 1990); see also Will, 389 U.S. at 96 (observing
that the “general policy against piecemeal appeals takes on added weight in
criminal cases, where the defendant is entitled to a speedy resolution of the
charges against him”).
To issue a writ, the court of appeals must be “firmly
convinced that the district court has erred,” and that the petitioner’s right
to the writ is “clear and indisputable.”
Valenzuela-Gonzalez,
915 F.2d at 1279 (internal quotation marks and citation omitted); see
also United
States v. Romero-Ochoa,
554 F.3d 833, 839 (9th Cir. 2009); Morgan
v. United States Dist. Ct., 506 F.3d 705, 712 (9th Cir. 2007); Barker, 1 F.3d at 959.
A writ will not issue where appellate review is
available. See United States v.
Dominguez-Villa,
954 F.2d 562, 564 (9th Cir. 1992) (rejecting government’s request for
mandamus because appellate jurisdiction existed under 18 U.S.C.
§ 3731); see also United States v.
Higuera-Guerrero (In re Copley Press, Inc.), 518 F.3d 1022,
1025–26 (9th Cir. 2008) (treating the government’s petition for a
writ of mandamus as an appeal under 28 U.S.C. § 1291). But cf. Barker, 1 F.3d at 958–59
(exercising mandamus powers where appellate jurisdiction over government appeal
was unclear).
Defendants’
writ petitions have presented the following issues:
Government
writ petitions have presented the following issues:
Under certain
circumstances, the following events may moot a criminal appeal:
See Office of Staff Attorneys’ Sentencing Guidelines Outline.
ii. Additional Sentences Imposed on
Revocation of Probation
8. DEATH OF
DEFENDANT (Abatement Doctrine)
Standing is jurisdictional and cannot be waived. See Virginia House of Delegates v.
Bethune-Hill, 139 S. Ct. 1945, 1951 (2019) (“As a jurisdictional
requirement, standing to litigate cannot be waived or forfeited.”); United States
v. Hays, 515 U.S. 737, 742 (1995).
The doctrine of standing encompasses both constitutional requirements
and prudential considerations. See Valley Forge
Christian College v. Americans United for Separation of Church & State,
Inc.,
454 U.S. 464, 471 (1982); Sahni
v. American Diversified Partners, 83 F.3d 1054, 1057 (9th Cir. 1996). The person asserting the claim has the burden
of establishing standing. See Colwell v. Dep’t
of Health and Human Servs.,
558 F.3d 1112, 1121 (9th Cir. 2009).
The same principles of standing that apply in district
court apply in the court of appeals. See
Wolford v.
Gaekle (In re First Capital Holdings Corp. Fin. Prods. Sec. Litig.), 33 F.3d 29, 30
(9th Cir. 1994).
At an “irreducible minimum,” Article III requires
that: (1) the party invoking federal jurisdiction have suffered some actual or
threatened injury; (2) the injury be fairly traceable to the challenged
conduct; and (3) a favorable decision would likely redress or prevent the
injury. See Virginia House of Delegates v. Bethune-Hill, 139 S. Ct. 1945, 1950 (2019) (“The three elements of
standing, … , are (1) a concrete and particularized injury, that (2) is fairly
traceable to the challenged conduct, and (3) is likely to be redressed by a
favorable decision.”); Valley
Forge Christian College v. Americans United for Separation of Church &
State, Inc.,
454 U.S. 464, 472 (1982); Hajro v. U.S. Citizenship & Immigration Servs., 811 F.3d 1086, 1102 (9th Cir. 2016); Ctr. for
Biological Diversity v. U.S. Fish & Wildlife Serv., 807 F.3d 1031, 1043
(9th Cir. 2015); Cantrell v. City of Long Beach, 241 F.3d 674, 679 (9th
Cir. 2001); Sahni v. American Diversified Partners, 83 F.3d 1054, 1057
(9th Cir. 1996); see also United States v.
City of Arcata,
629 F.3d 986, 989 (9th Cir. 2010) (concluding “injury in fact”
requirement was met).
The prudential limitations on federal court
jurisdiction dictate that: (1) a party must assert his or her own legal rights
and interests, not those of others; (2) the courts will not adjudicate
“generalized grievances” (i.e. “abstract questions of wide public
significance”); and (3) a party’s claims must fall within “the zone of
interests to be protected or regulated by the statute or constitutional
guarantee in question.” See Valley Forge
Christian College v. Americans United for Separation of Church & State,
Inc.,
454 U.S. 464, 474–75 (1982) (citations omitted); see also Stormans, Inc. v.
Selecky,
586 F.3d 1109, 1122 (9th Cir. 2009).
“[W]hen standing is questioned by a court or an opposing party, the
litigant invoking the court’s jurisdiction must do more than simply allege a
nonobvious harm. … To cross the standing threshold, the litigant must explain
how the elements essential to standing are met.” Virginia House of Delegates v.
Bethune-Hill, 139 S. Ct. 1945, 1951 (2019) (citing Wittman v.
Personhuballah, 136 S. Ct. 1732, 1736–37 (2016)).
As a general rule, a person has standing to appeal if:
(1) he or she was a party to the action at the time judgment was entered, and
(2) he or she is aggrieved by the decision being challenged on appeal. See Hoover
v. Switlik Parachute Co.,
663 F.2d 964, 966 (9th Cir. 1981).
Cross-reference: II.C.19 (regarding the appealability of orders denying
motions to intervene).
“An intervenor, whether by right or by permission,
normally has the right to appeal an adverse final judgment.” Stringfellow
v. Concerned Neighbors In Action, 480 U.S. 370, 375–76 (1987)
(citations omitted). In fact, an
intervenor has the right to appeal even absent an appeal by the party on whose
side he or she intervened as long as the intervenor satisfies the general
requirements for standing; injury in fact, causation and redressability. See Virginia House of Delegates v.
Bethune-Hill, 139 S. Ct. 1945, 1951 (2019) (“[T]o appeal a decision that
the primary party does not challenge, an intervenor must independently
demonstrate standing.”); Wittman v. Personhuballah, 136 S. Ct. 1732,
1736 (2016) (“an intervenor cannot step into the shoes of the original party …
unless the intervenor independently fulfills the requirements of Article III”);
Idaho
Farm Bureau Fed’n v. Babbitt, 58 F.3d 1392, 1398–99 (9th Cir. 1995)
(intervention as of right); Didrickson
v. United States Dep’t of the Interior, 982 F.2d 1332, 1337–38 (9th Cir.
1992) (permissive intervention); see also Am. Games, Inc. v. Trade Products,
Inc.,
142 F.3d 1164, 1166–67 (9th Cir. 1998) (permitting intervenor to appeal
from district court order vacating judgment after controversy between original
parties was mooted by effective merger of the two companies).
Alternatively, a person may be permitted to intervene
solely for purposes of appeal following entry of judgment if he or she acts
promptly and satisfies the traditional standing criteria. See United
States ex rel. McGough v. Covington Techs. Co., 967 F.2d 1391,
1395 (9th Cir. 1992); Yniguez
v. Arizona, 939 F.2d 727, 731 (9th Cir. 1991).
A non-named class member who objects in a timely
manner to the approval of a class action settlement at the fairness hearing has
the power to bring an appeal without first intervening. See Devlin
v. Scardelletti,
536 U.S. 1, 9–10 (2002); cf. Employers-Teamsters
Local Nos. 175 & 505 Pension Trust Fund v. Anchor Capital Advisors, 498 F.3d 920,
925 (9th Cir. 2007) (non-parties who could have intervened and had
notice of ongoing, uncertified, purported class-action proceedings, but who
failed to intervene, lacked standing to appeal lead plaintiff settlement).
Cross-reference: II.D.4.f (regarding petitions for writ of mandamus by
nonparties such as media organizers); see also United States v. Mindel, 80 F.3d 394, 398 (9th Cir. 1996) (declining to recognize nonparty standing to seek writ of
mandamus outside First Amendment context).
A nonparty may have standing to appeal if: (1) he or
she “participated in the district court proceedings even though not a party,
and; (2) the equities of the case weigh in favor of hearing the appeal.” Keith
v. Volpe, 118 F.3d 1386, 1391 (9th Cir. 1997) (citation omitted); see
also United States ex rel. Alexander Volkhoff, LLC v. Janssen Pharmaceutica N.V.,
945 F.3d 1237, 1242 (9th Cir. 2020) (concluding that Volkhoff’s participation
in the district court proceedings could not serve as the basis for a right to
appeal where its activity in the case all but ceased with the filing of the
first amended complaint). But see Marino v. Ortiz, 484 U.S. 301,
304 (1988) (per curiam) (“[T]he better practice is for … a nonparty to
seek intervention for purposes of appeal … .”).
“[T]he equities supporting a nonparty’s right to
appeal … are especially significant where [a party] has haled the nonparty into
the proceeding against his will, and then has attempted to thwart the
nonparty’s right to appeal by arguing that he lacks standing.” Keith,
118 F.3d at 1391 (citations omitted).
In Legal Voice v. Stormans Inc., 738 F.3d
1178, 1183–84 (9th Cir. 2013), the court
held that “a non-party may appeal an interlocutory order within thirty days
after entry of final judgment to the same extent that a party may appeal such
an order.” Id.
(concluding that a non-party could appeal interlocutory orders denying costs
and sanctions, after entry of final judgment to the same extent a party can
appeal such an order).
The following nonparties were deemed to have standing
to appeal:
·
Nonparty developer had
standing to appeal injunction prohibiting state officials from issuing him a
permit because he filed a brief and argued orally in response to an order to
show cause, and the equities favored standing.
See id. at 1391
& n.7 (distinguishing Marino
v. Ortiz, 484 U.S. 301 (1988)).
·
Nonparty country had
standing to appeal injunction prohibiting estate and its aiders and abettors
from disbursing assets because it was identified in the injunction as an
aider/abettor, and it faced the choice of complying with the injunction or
risking contempt proceedings. See Hilao v. Estate of
Marcos (In re Estate of Ferdinand Marcos Human Rights Litig.), 94 F.3d 539, 544
(9th Cir. 1996).
·
Nonparty bondholders
had standing to appeal settlement of securities action that barred bondholders
from suing settling defendants for losses incurred due to bond default. See Class
Plaintiffs v. City of Seattle,
955 F.2d 1268, 1277 (9th Cir. 1992) (“[A] non-party who is enjoined or
otherwise directly aggrieved by a judgment has standing to appeal the judgment
without having intervened in the district court.”) (citation omitted).
·
Nonparty IRS had
standing to appeal order exonerating bail bond because it responded to order to
show cause by “vigorously disputing” extent of appellee’s interest in bail bond
and it would be unjust to preclude appeal by IRS from order directly addressing
validity of its levy on a bail bond. See
United
States v. Badger,
930 F.2d 754, 756 (9th Cir. 1991).
·
Nonparty employees had
standing to appeal district court order denying their request to participate in
settlement of discrimination suit against employer, and approving the consent
decree, because district court considered and rejected their claims on the
merits and consent decree purports to bar them from future litigation. See EEOC
v. Pan Am. World Airways, Inc.,
897 F.2d 1499, 1504 (9th Cir. 1990) (“[I]t would be a cruel irony to bar
an appeal from an order denying permission to participate in litigation for the
very reason that the would-be appellants did not participate below.”).
·
Nonparty, who was
named in original complaint but not in amended complaint, and who objected to
district court’s exercise of jurisdiction over him, had standing to appeal
judgment entered against him. See Hal Roach Studios,
Inc. v. Richard Feiner & Co.,
896 F.2d 1542, 1546–47 (9th Cir. 1990) (“If the record discloses that
the district court lacked jurisdiction over the party, the appellate court has
jurisdiction on appeal to correct the error.”) (citation omitted).
·
Nonparty stockholder
had standing to appeal disgorgement order entered against corporation he
partially owned following judgment of fraud in SEC-initiated receivership
action because he was haled into court against his will, was treated as a party
by the district court, and would have been entitled to intervene as of right under
Fed. R. Civ.
P. 24(a). See SEC v. Wencke, 783 F.2d 829,
834–35 (9th Cir. 1986).
·
Nonparty United States
Marshal had standing to appeal stipulated dismissal order awarding him a
commission substantially lower than the amount he requested for his participation
in a foreclosure action because he filed papers and argued orally in district
court and he had no other avenue for appellate review. See Bank
of Am. v. M/V Executive,
797 F.2d 772, 774 (9th Cir. 1986) (per curiam).
·
An investor who was
not a party before the district court in an action initiated by the Commodity
Futures Trading Commission had standing to challenge the method of
apportionment of disgorged funds, where the investor had participated in the
proceedings to the fullest extent possible by writing to the receiver and the
district court, filing a timely formal objection to the plan, and appearing pro
se at the hearing. Commodity
Futures Trading Comm’n v. Topworth Int’l, 205 F.3d 1107, 1113–14 (9th Cir.
1999).
·
Nonparty whose motions
for fees or sanctions were denied could appeal the district court’s orders
denying the motions within 30 days after entry of the final judgment to the
same extent a party may appeal such an order.
Legal Voice v. Stormans Inc., 738 F.3d
1178, 1183–84 (9th Cir. 2013).
The following nonparties were deemed not to have
standing to appeal:
·
Nonparty police
officers did not have standing to appeal a consent decree settling a
discrimination suit against the police department, despite having presented
their objections to the district court, because they failed to move to
intervene as an initial matter or for purposes of appeal. See Marino
v. Ortiz,
484 U.S. 301, 303–04 (1988) (per curiam) (rather than recognizing
exceptions to the rule that only parties can appeal adverse judgments, “we
think the better practice is for … a non-party to seek intervention for
purposes of appeal,” denial of which is appealable).
·
Legislators who
intervened as defendants in their official capacities did not have standing to
appeal in their individual capacities after losing their posts. See Karcher
v. May,
484 U.S. 72, 78 (1987) (citation omitted) (stating that acts performed
by a single person in different capacities are generally treated as acts of
different “legal personages”).
·
State did not have standing
to appeal declaratory judgment against state officials because it failed to
move to intervene in the district court, thereby avoiding risk of contempt for
violating judgment or of waiving eleventh amendment immunity. See Washoe
Tribe of Nev. & Cal. v. Greenley,
674 F.2d 816, 818–19 (9th Cir. 1982).
·
Crime victims lacked
standing to challenge on appeal the modification of a restitution order, even
where the order originally incorporated a settlement agreement between the
victims and defendant. See United States v.
Mindel,
80 F.3d 394, 396–98 (9th Cir. 1996) (concluding that crime victims also
lacked standing to petition for writ of mandamus).
·
A journalist lacked
standing to proceed as a “next friend” for a death row prisoner scheduled for
execution because he failed to show that the prisoner had a mental disease,
disorder, or defect that substantially affected his capacity to make a rational
choice concerning continuing or abandoning further proceedings. See Massie
v. Woodford,
244 F.3d 1192, 1198–99 (9th Cir. 2001) (per curiam); see also Dennis ex rel.
Butko v. Budge,
378 F.3d 880, 894 (9th Cir. 2004) (lawyer lacked next friend standing
where prisoner’s capacity to decide to forgo appeals was not substantially
affected by mental illness); Coalition
of Clergy, Lawyers, and Professors v. Bush, 310 F.3d 1153 (9th Cir. 2002)
(coalition lacked next friend standing to file petition on behalf of Guantanamo
Bay detainees).
·
Republic of
Philippines did not have appellate standing to challenge district court order
where it was not prejudiced by orders, was not a party to the settlement
agreement, was not bound by the settlement agreement, and where the settlement
agreement required the Republic to do nothing.
Additionally, there were no exceptional circumstances to justify
non-party appellate standing. See Hilao v. Estate of
Marcos,
393 F.3d 987, 992–93 (9th Cir. 2004).
A person has standing to appeal only if he or she is
aggrieved by the challenged order. See
United
States v. Good Samaritan Church,
29 F.3d 487, 488 (9th Cir. 1994); Native
Village of Tyonek v. Puckett, 957 F.2d 631, 633 (9th Cir. 1992). A person is aggrieved by a district court
order if it poses a threat of “particularized injury” leading to a “personal
stake” in the outcome of the appeal. See
Didrickson
v. United States Dep’t of the Interior, 982 F.2d 1332, 1338 (9th Cir. 1992)
(party) (citations omitted); EEOC
v. Pan Am. World Airways, Inc., 897 F.2d 1499, 1504 (9th Cir. 1990)
(non-party). See also Lamps Plus,
Inc. v. Varela, 139 S. Ct. 1407, 1414 (2019) (employer had standing to
appeal where it sought an order compelling individual arbitration, but got an
order rejecting that relief and instead compelling arbitration on a classwide
basis; the Court held that the employer’s interest in avoiding those
consequence gave it the “necessary personal stake in the appeal” required).
Ordinarily, a person may only appeal to protect his or
her own interests, not those of a co-litigant, even though the outcome of the
appeal may have some effect on him or her.
See Taxel
v. Electronic Sports Research (In re Cinematronics, Inc.), 916 F.2d 1444,
1448 (9th Cir. 1990). For
example, the state lacked standing to appeal a district court ruling it claimed
would establish law of the case as to its compensation claim where the court of
appeals decided co-defendant’s § 1292(b) appeal on alternate grounds. See United
States v. 5.96 Acres of Land,
593 F.2d 884, 887 (9th Cir. 1979) (state was “unaffected” by appeal and
could further develop factual record and legal arguments in district court if
necessary).
However, an order denying in part a motion to
intervene as of right may be appealed by the would-be intervenor even though he
or she is not aggrieved by the final judgment itself because he or she could
not appeal the order prior to entry of final judgment. See Churchill
Cty. v. Babbitt,
150 F.3d 1072, 1082 (9th Cir. 1998), amended and superseded by 158 F.3d 491 (9th
Cir. 1998).
Cross-reference: II.C.19 (regarding appealability of orders denying
motions to intervene).
The court has held that a member of a plaintiff class
had no standing to appeal portion of settlement awarding attorney’s fees to class
counsel because she asserted no economic or noneconomic injury. See Wolford
v. Gaekle (In re First Capital Holdings Corp. Fin. Prods. Sec. Litig.), 33 F.3d 29, 30
(9th Cir. 1994) (“Simply being a member of a class is not enough to
establish standing.”). It has also been
held that potential, nonparty members of an uncertified plaintiff class in a
class-action lawsuit lacked standing to appeal district court’s decision
granting lead plaintiff’s motion to voluntarily dismiss, where the potential,
nonparty members had notice and failed to intervene. See Employers-Teamsters
Local Nos. 175 & 505 Pension Trust Fund v. Anchor Capital Advisors, 498 F.3d 920,
925 (9th Cir. 2007). To retain a personal
stake, a class representative “‘cannot release any and all interest he or she
may have had in class representation through a private settlement
agreement.’” Sanford
v. MemberWorks, Inc., 625 F.3d 550, 556 (9th Cir. 2010) (quoting Narouz v. Charter Comms., LLC, 591 F.3d
1261, 1264 (9th Cir. 2010)).
An attorney lacks standing to appeal an order
disqualifying him from representing a client because the purported injury, if
any, is to client’s interest in choosing counsel, not to counsel’s
interests. See United States v.
Chesnoff (In re Grand Jury Subpoena Issued to Chesnoff), 62 F.3d 1144,
1145–46 (9th Cir. 1995).
Further, a district court’s refusal to allow an attorney to appear pro
hac vice does not provide sufficient injury to confer standing. See United
States v. Ensign,
491 F.3d 1109, 1115–16 (9th Cir. 2007).
Conversely, a client lacks standing to appeal a
sanctions order against his attorney because, at most, the client has only an
indirect financial stake in outcome of appeal.
See Estate
of Bishop v. Bechtel Power Corp.,
905 F.2d 1272, 1276 (9th Cir. 1990) (noting that “[a]n indirect
financial stake in another party’s claims is insufficient to create standing on
appeal”) (citation omitted); but see Detabali
v. St. Luke’s Hospital,
482 F.3d 1199, 1204 (9th Cir. 2007) (standing based on amended Fed. R.
App. P. 3(c) where it was clear on face of notice to appeal that attorney
intended to appeal); Retail
Flooring Dealers of Am., Inc. v. Beaulieu of Am., LLC, 339 F.3d 1146,
1149 n.4 (9th Cir. 2003) (same).
A party generally does not have standing to appeal a
judgment in his or her favor because the party is not aggrieved. See United States v. Windsor,
570 U.S. 744, 759 (2013); United
States v. Good Samaritan Church,
29 F.3d 487, 488–89 (9th Cir. 1994) (prevailing defendants lacked
standing to challenge adverse alter ego determination that did not appear in,
and was not necessary to, the judgment of dismissal); Bernstein v. GTE Directories Corp.,
827 F.2d 480, 482 (9th Cir. 1987) (losing plaintiffs lacked standing to
challenge district court’s finding that contract was adhesive on appeal from
partial summary judgment for defendants because that aspect of the judgment was
resolved in plaintiffs’ favor). However,
“[i]n an appropriate case, appeal may be permitted ... at the behest of the
party who has prevailed on the merits, so long as that party retains a stake in
the appeal satisfying the requirements of Art. III.” Windsor, 570 U.S.
at 744 (quoting Deposit Guaranty Nat. Bank v. Roper, 445 U.S. 326,
333–34 (1980)).
A prevailing party may have standing to appeal an
adverse collateral ruling if the ruling appears in the judgment itself. See Good
Samaritan Church,
29 F.3d at 488 (rule that only an aggrieved party may appeal from a
judgment is a matter of federal appellate practice, not constitutional
standing). In such a case, the court of
appeals may review the ruling for purposes of directing reformation of the
decree. See id.
The court has held that a prevailing party aggrieved
by the district court’s decision enjoining its operations, had standing to
appeal the decision, even though the district court subsequently dismissed the
suit against the defendant as moot, where the district court knew at time it
issued the injunction that the cause was moot.
EPIC,
Inc. v. Pacific Lumber Co., 257 F.3d 1071, 1077 (9th Cir. 2001).
“[A] plaintiff cannot appeal the propriety of a
remittitur order to which he has agreed.”
Donovan
v. Penn Shipping Co., 429 U.S. 648, 649 (1977) (per curiam)
(citations omitted); see also Seymour
v. Summa Vista Cinema, Inc.,
809 F.2d 1385, 1387–88 (9th Cir. 1987), amended by 817
F.2d 609 (9th Cir. 1987).
Although a party is precluded from attacking a
remittitur order to which he or she consented, the party may challenge other
aspects of the judgment. See Denholm v.
Houghton Mifflin Co.,
912 F.2d 357, 359–60 (9th Cir. 1990).
“[V]oluntary dismissals with prejudice that produce an
adverse final judgment may be appealed.” Ward v. Apple Inc., 791 F.3d
1041, 1045 (9th Cir. 2015) (citing example cases). However, a voluntary dismissal with prejudice
is generally not appealable where it is entered unconditionally pursuant to a
settlement agreement. See Seidman v. City of
Beverly Hills,
785 F.2d 1447, 1448 (9th Cir. 1986) (order). Moreover, a voluntary dismissal without
prejudice is generally not appealable because it is not adverse to the
appellant’s interests. See Concha v. London, 62 F.3d 1493,
1507 (9th Cir. 1995) (“[P]laintiff is free to seek an adjudication of
the same issue at another time in the same or another forum.”); see also Romoland Sch.
Dist. v. Inland Empire Energy Center, LLC, 548 F.3d 738, 748 (9th Cir.
2008).
“[W]hen a party that has suffered an adverse partial
judgment subsequently dismisses remaining claims without prejudice with the
approval of the district court, and the record reveals no evidence of intent to
manipulate … appellate jurisdiction, the judgment entered after the district
court grants the motion to dismiss is final and appealable under 28 U.S.C.
§ 1291.” James v. Price Stern Sloan, Inc., 283
F.3d 1064, 1070 (9th Cir. 2002); see also Romoland Sch. Dist., 548 F.3d at 748.
An order adjudicating certain claims and voluntarily
dismissing remaining claims with prejudice is appealable because the plaintiff
does not have the option of later pursuing the dismissed claims. See Concha, 62 F.3d at
1507–08; Dannenberg
v. Software Toolworks, Inc., 16 F.3d 1073, 1076–77 (9th Cir. 1994); see
also Romoland
Sch. Dist.,
548 F.3d at 748.
A claim is moot if it has lost its character as a
present, live controversy. See Flint v. Dennison, 488 F.3d 816,
823 (9th Cir. 2007). A federal
court does not have jurisdiction to give opinions upon moot questions or
abstract propositions, or to declare principles or rules of law that cannot
affect the matter in issue in the case before it. Am.
Rivers v. Nat’l Marine Fisheries Serv., 126 F.3d 1118, 1123 (9th Cir. 1997)
(internal quotation marks and citations omitted); accord Cammermeyer v.
Perry,
97 F.3d 1235, 1237 (9th Cir. 1996) (“[T]he Article III case or
controversy requirement denies federal courts the power to decide questions
that cannot affect the rights of litigants in the case before them … . federal
courts may resolve only real and substantial controversies admitting of
specific relief … .”) (internal quotation marks, brackets, and citations
omitted).
Because mootness is a jurisdictional issue, federal
courts must consider the question independent of the parties’ argument. See Cammermeyer,
97 F.3d at 1237 n.3. A federal
court has an obligation to consider mootness sua sponte. See NASD
Dispute Resolution, Inc. v. Judicial Council, 488 F.3d 1065, 1068 (9th Cir. 2007).
“A claim is moot when the issues presented are no
longer live or the parties lack a legally cognizable interest in the
outcome. The basic question is whether
there exists a present controversy as to which effective relief can be
granted.” Village of Gambell v. Babbitt,
999 F.2d 403, 406 (9th Cir. 1993) (internal quotation marks and
citations omitted); Bayer v. Neiman Marcus Grp., Inc., 861 F.3d 853, 862
(9th Cir. 2017) (explaining an action becomes moot only when it is impossible
for a court to grant any effectual relief whatever to the prevailing party); Wildwest
Inst. v. Kurth, 855 F.3d 995, 1002 (9th Cir. 2017) (“A claim is moot if it
has lost its character as a present, live controversy. If an event occurs that prevents the court
from granting effective relief, the claim is moot and must be dismissed.” (citation
omitted)); accord Norman-Bloodsaw
v. Lawrence Berkeley Lab.,
135 F.3d 1260, 1274 (9th Cir. 1997); United
States v. Tanoue, 94 F.3d 1342, 1344 (9th Cir. 1996) (“[A]n appeal
must be dismissed as moot if an event occurs while the appeal is pending that
makes it impossible for the appellate court to grant any effective relief
whatever to the prevailing party.” (internal quotation marks and citations
omitted)); see also Edmo v. Corizon, Inc., 935 F.3d 757, 782 (9th Cir.
2019) (per curiam) (an appeal is moot when events change such that the appellate
court can no longer grant any effectual relief to the prevailing party); Serv. Employees Int’l Union v. Nat’l Union
of Healthcare Workers, 598 F.3d 1061, 1067 (9th Cir. 2010); City of Colton
v. American Promotional Events, Inc.-West, 614 F.3d 998, 1005–06 (9th Cir. 2010) (concluding the appeal was not moot); United States v.
Strong,
489 F.3d 1055, 1059–60 (9th Cir. 2007); cf. Council of Ins.
Agents & Brokers v. Molasky-Arman, 522 F.3d 925, 933–34 (9th Cir. 2008)
(explaining that superseding events that mitigate against injury do not moot
case where there remains “present effects that are legally significant.”
(internal quotation marks and citation omitted)).
Where the parties’ stipulated voluntary dismissal of
an action removed to district court, the court held it did not moot the action
when the purpose of the dismissal was not to settle the case, but to permit the
parties immediately to appeal the district court’s denial of a motion to remand
the action, and the appellate court could order effective relief. Oregon
Bureau of Labor and Indus. v. U.S. West Comms., Inc., 288 F.3d 414, 417
(9th Cir. 2002).
In deciding whether an appeal is moot because
effective relief cannot be granted, “[t]he question is not whether the precise
relief sought at the time the application for an injunction was filed is still
available … [but] whether there can be any effective relief.” Jerron
West, Inc. v. California State Bd. of Equalization, 129 F.3d 1334, 1336
(9th Cir. 1997) (internal quotation marks and citation omitted); see
also See also
Bayer v. Neiman Marcus Grp., Inc., 861 F.3d
853, 862 (9th Cir. 2017) (looking at available remedies, and whether the
requested remedy constitutes equitable relief); Nat. Res. Def. Council v. Cty. of Los Angeles, 840 F.3d 1098, 1103 (9th Cir. 2016) (indicating the
relevant inquiry is whether effective relief could be provided); Feldman v.
Bomar, 518 F.3d 637, 642 (9th Cir. 2008).
Any relief that might be effective must also be
authorized by law. See Arizonans for
Official English v. Arizona,
520 U.S. 43, 69 (1997) (for damages claim to sustain a controversy,
damages must be available as a remedy for the cause of action).
In considering whether any effective remedy is
available, the court of appeals focuses on the particular injuries alleged by
the party seeking relief. See Nome Eskimo
Community v. Babbit,
67 F.3d 813, 815–16 (9th Cir. 1995) (in finding case moot based on
government’s discontinued effort to lease mineral rights in sea floor, court
noted that plaintiffs did not seek to quiet title in the sea floor, did not sue
for alleged trespasses, and sought no relief relating to their alleged fishing
rights); Village
of Gambell v. Babbitt, 999 F.2d 403, 406–07 (9th Cir. 1993) (same); Headwaters,
Inc. v. Bureau of Land Mgmt., 893 F.2d 1012, 1014–15 (9th Cir. 1989)
(concluding that lawsuit seeking to enjoin logging was moot after trees
involved were logged).
Thus, the availability of effective relief as to one
claim will not sustain a controversy as to another. See Cammermeyer
v. Perry,
97 F.3d 1235, 1238 (9th Cir. 1996) (existence of a claim for attorney’s
fees did not resuscitate an otherwise moot controversy).
“A case
becomes moot only when it is impossible for a court to grant any effectual
relief whatever to the prevailing party.”’ Knox
v. Serv. Emps. Int’l Union, Local 1000, [567 U.S. 298, 307] (2012).” Chen v. Allstate Ins. Co., 819 F.3d
1136, 1145 (9th Cir. 2016) (internal quotation marks and citation
omitted). See also Bayer v. Neiman
Marcus Grp., Inc., 861 F.3d 853, 862 (9th Cir. 2017).
The court of appeals is not required to dismiss an
appeal concerning moot claims for injunctive and declaratory relief where the
district court could award damages notwithstanding plaintiff’s failure to plead
damages as a remedy. See Z Channel Ltd. v.
Home Box Office, Inc.,
931 F.2d 1338, 1341 (9th Cir. 1991); see also Outdoor Media Group, Inc. v. City of
Beaumont,
506 F.3d 895, 902 (9th Cir. 2007); McQuillion
v. Schwarzenegger,
369 F.3d 1091, 1095–96 (9th Cir. 2004).
A claim for money damages, “if at all plausible, ensure a live
controversy.” Mission Prod. Holdings,
Inc. v. Tempnology, LLC, 139 S. Ct. 1652, 1660 (2019).
Even nominal damages are sufficient to prevent
dismissal for mootness. Bayer v. Neiman Marcus Grp., Inc., 861 F.3d 853,
868 (9th Cir. 2017) (“A live claim for nominal damages will prevent dismissal
for mootness.” (internal quotation marks and citation omitted); Jacobs v. Clark
Cty. Sch. Dist., 526 F.3d 419, 425–26 (9th Cir. 2008). However, “a claim for nominal damages,
extracted late in the day from [plaintiff’s] general prayer for relief and
asserted solely to avoid otherwise certain mootness, [bears] close
inspection.” Arizonans for Official English v.
Arizona, 520 U.S. 43, 69 (1997); see also Bayer, 861 F.3d at
869 (“When invoked to avoid mootness, a claim for nominal damages not
explicitly stated in the complaint bears close inspection to ensure it does not
fail as a matter of law.”).
Even when the underlying action is no longer pending
and plaintiff’s claims for prospective relief are moot, the possibility of
entitlement to nominal damages can create a continuing live controversy. Bernhardt
v. Cty. of Los Angeles, 279 F.3d 862, 872 (9th Cir. 2002).
“Speculative contingencies” are insufficient to
sustain an otherwise moot controversy. See
Dufresne v.
Veneman,
114 F.3d 952, 955 (9th Cir. 1997) (per curiam) (in case where claims for
injunctive relief against aerial pesticide spraying were mooted by eradication
of insect and likely use of other means to fight future infestation, the
possibility of future spraying was insufficient to sustain controversy); Mayfield v.
Dalton, 109 F.3d 1423, 1425 (9th Cir. 1997) (where members of
military had challenged constitutionality of military program to collect and
store tissue samples, case became moot upon members’ separation from military
because, although they might be required to return to active duty in an
emergency, such a “speculative contingency” was insufficient to sustain
controversy).
Speculation that a case will become moot does not moot
the case. See Negrete v. Allianz Life Ins. Co., 523 F.3d 1091,
1097–98 (9th Cir. 2008) (concluding that possibility that district court
will withdraw complained-of order does not moot the case). Also, where a reasonable likelihood remains
that the parties will contest the same issues in a subsequent proceeding, a
controversy will not be moot. See Western Oil &
Gas Ass’n v. Sonoma Cty.,
905 F.2d 1287, 1290–91 (9th Cir. 1990) (adopting Third Circuit’s “reasonable
likelihood” standard and holding that appeal concerning offshore oil and gas
development was not mooted by moratorium on leasing activities).
“[A]n actual controversy must be extant at all stages
of review, not merely at the time the complaint is filed.” Bain v. California Teachers Ass’n, 891
F.3d 1206, 1211 (9th Cir. 2018) (citation omitted); see also All. for the
Wild Rockies v. Savage, 897 F.3d 1025, 1031 (9th Cir. 2018) (“Under Article
III of the Constitution, a live controversy [must] persist throughout all
stages of the litigation.” (internal quotation marks and citation omitted)); Di Giorgio v.
Lee (In re Di Giorgio), 134 F.3d 971, 974 (9th Cir. 1998) (“To
qualify for adjudication in federal court, an actual controversy must be extant
at all stages of review, not merely at the time the complaint is filed.”
(internal quotation marks and citations omitted)); cf. Flint v. Dennison, 488 F.3d 816,
824–25 (9th Cir. 2007) (explaining that while a student’s graduation
generally moots a case demanding declaratory or injunctive relief from a school
policy, the case is not moot where the graduated student’s records contain
negative information derived from the allegedly improper school policies and regulations).
“If an event occurs during the pendency of the appeal
that renders the case moot, [the court] lack[s] jurisdiction.” Ctr.
for Biological Diversity v. Lohn, 511 F.3d 960, 963 (9th Cir. 2007);
see also United
States v. Brandau, 578 F.3d 1064 (9th Cir. 2009) (where activities
sought to be enjoined already have occurred, and appellate court cannot undo
what has been done, action is moot).
“Whenever an action loses its character as a present live controversy
during the course of litigation, federal courts are required to dismiss the
action as moot.” Di Giorgio, 134 F.3d at 974
(internal quotation marks and citations omitted).
“There is an exception to
mootness, however, for situations that are capable of repetition, yet evading
review.” United
States v. Brandau, 578 F.3d 1064, 1067 (9th Cir. 2009) (internal
quotation marks and citation omitted) (remand was warranted to determine
mootness); see also Hamamoto v. Ige, 881 F.3d 719, 722 (9th Cir. 2018) (per
curiam) (“An exception exists, however, for controversies that are capable of
repetition, yet evading review.” (internal quotation marks and citation
omitted)); Protectmarriage.com-Yes on 8 v. Bowen, 752 F.3d 827,
836 (9th Cir. 2014). The “exception applies only in exceptional situations, where (1) the
challenged action [is] in its duration too short to be fully litigated prior to
cessation or expiration, and (2) there [is] a reasonable expectation that the
same complaining party [will] be subject to the same action again.” Kingdomware
Techs., Inc. v. United States, 136 S. Ct. 1969, 1976 (2016) (internal
quotation marks and citation omitted). See
also Moore v. Urquhart, 899 F.3d
1094, 1100 (9th Cir. 2018), cert. denied sub nom. Johanknecht v. Moore,
139 S. Ct. 2615 (2019); Wildwest Inst. v. Kurth, 855 F.3d 995,
1002–03 (9th Cir. 2017) (setting forth criteria); Protectmarriage.com-Yes
on 8, 752 F.3d at 836 (same); Cammermeyer
v. Perry, 97 F.3d 1235, 1238 (9th Cir. 1996) (same); accord Am. Rivers v.
Nat’l Marine Fisheries Serv.,
126 F.3d 1118, 1124 (9th Cir. 1997) (reiterating criteria and noting
that exception is “limited to extraordinary cases”).
Events that can be stayed pending appeal do not evade
review; thus, the “capable of repetition” exception does not apply when
mootness results from an appellant’s failure to obtain a stay. See Kasza
v. Browner,
133 F.3d 1159, 1174 (9th Cir. 1998) (where EPA sought and received
presidential exemption from statutory disclosure requirements, agency’s appeal
from order requiring disclosure was moot, as agency could have sought stay of
district court order but did not); Bunker Ltd.
P’ship v. United States (In re Bunker Ltd. P’ship), 820 F.2d 308, 311 (9th
Cir. 1987) (“[A] party may not profit from the ‘capable of repetition,
yet evading review’ exception to mootness, where through his own failure to
seek and obtain a stay he has prevented an appellate court from reviewing the
trial court’s decision.”).
City of Los Angeles v. Barr, 929 F.3d 1163, 1172 (9th Cir. 2019) (appeal not moot
under the capable of repetition, yet evading review exception); Moore v.
Urquhart, 899 F.3d 1094, 1100–01 (9th Cir. 2018) (holding that former
tenants’ action challenging constitutionality of procedures set forth in
Washington’s Residential Landlord-Tenant Act for obtaining writ of restitution
fell within scope of “capable of repetition, yet evading review” exception to
mootness doctrine), cert. denied sub nom. Johanknecht v. Moore, 139 S.
Ct. 2615 (2019); Wildwest Inst. v. Kurth, 855 F.3d 995, 1002–03 (9th
Cir. 2017) (concluding case was capable of repetition yet evading review, and
thus not moot); Los Angeles Unified Sch. Dist. v. Garcia, 669 F.3d 956,958 n.1 (9th Cir. 2012) (order); Hunt v. Imperial
Merchant Servs., Inc., 560 F.3d 1137, 1142 (9th Cir. 2009) (assuming that even if the court had discretion to
dismiss the case as “anticipatorily moot,” the court declined to do so because
the issue was one that often arises in district courts but typically evades
appellate review); Sherman
v. United States Parole Comm’n, 502 F.3d 869, 872–73 (9th Cir. 2007)
(habeas petition to review detention on a parole violator warrant not moot
despite issuance of revocation order because it was “capable of repetition yet
evading review”); Demery
v. Arpaio,
378 F.3d 1020 (9th Cir. 2004) (appeal from grant of preliminary
injunction not mooted, even though challenged website through which images of
pretrial detainees were distributed had been terminated where sheriff intended
to and was likely to find another webhost willing to display the images); Sacramento
City Unified Sch. Dist. Bd. of Educ. v. Rachel H. by & through Holland, 14 F.3d 1398,
1403 (9th Cir. 1994) (challenge to school placement under Individuals
with Disabilities Education Act is not moot where school year does not provide
enough time for judicial review and issues affecting child’s education were
likely to arise again between parties); Greenpeace
Action v. Franklin, 14 F.3d 1324, 1329–30 (9th Cir. 1992) (challenged
regulation was in effect less than one year, major issue presented was likely
to recur in future, future regulation would be based on same biological opinion
as supported previous regulation, continuing public interest existed in
controversy, and expiration of challenged regulation could not have been
enjoined); Johansen
ex rel. NLRB v. San Diego Cty. Dist. Council of Carpenters of United Bhd. of
Carpenters and Joiners of Am., AFL-CIO, 745 F.2d 1289, 1292–93 (9th Cir.
1984) (per curiam) (dispute concerning 10-day injunction in labor
dispute was too short in duration to be fully litigated prior to cessation, and
the parties to the dispute would continue to face each other across the
bargaining table).
United States v. Sanchez-Gomez, 138 S. Ct. 1532, 1540–41 (2018) (claims by two of
the detainees, whose guilty pleas arose from illegal entry into United States,
were not saved from mootness under the exception for cases that are capable of
repetition, yet evading review); Hamamoto v. Ige, 881 F.3d 719, 723 (9th
Cir. 2018) (holding that the “capable of repetition, yet evading review”
exception to mootness did not apply); Protectmarriage.com-Yes
on 8 v. Bowen, 752 F.3d 827, 836 (9th Cir. 2014) (appellant’s request for injunctive relief did not
fall within the mootness exception for cases that are capable of repetition,
yet evading review ); Tur v. YouTube, Inc., 562 F.3d 1212, 1214 n.2 (9th Cir. 2009) (no allegation that same complaining party would be
subject to same action again); Serena
v. Mock, 547 F.3d 1051, 1054 n.1 (9th Cir. 2008) (no reasonable
expectation that appellants would be subjected to same action again); Ctr. for
Biological Diversity v. Lohn, 511 F.3d 960, 965–66 (9th Cir. 2007)
(challenge to agency policy mooted where agency adopted change in agency
decision demanded in complaint); Unabom Trial
Media Coalition v. United States Dist. Court, 183 F.3d 949, 953 (9th Cir.
1999) (Media’s petition for mandamus that challenged district court
order closing some pretrial proceedings in prosecution of defendant charged
with bombings was moot once requested information had been released, where
media did not show that there was reasonable expectation that it would be excluded
again in a case presenting essentially same factual circumstances, or that its
injury was so intrinsically limited in duration that it could not be fully
litigated in federal court.); Ramsey v. Kantor, 96 F.3d 434, 445–46 (9th
Cir. 1996) (challenge to agency action moot where, although certain
elements of agencies’ future fish harvest calculations remained the same as
past challenged calculations, other elements would be different); Mitchell v.
Dupnik, 75 F.3d 517, 528 (9th Cir. 1996) (after denial of
plaintiff’s requests for post-conviction relief, there was no longer any reason
to believe he would be returned to the jail against which he sought an
injunction regarding its library access policy); Shoshone-Bannock Tribes v. Fish
& Game Comm’n, Idaho, 42 F.3d 1278, 1282–83 (9th Cir. 1994)
(although duration of state agency’s order barring all fishing during one
fishing season was too short to be fully litigated before its expiration,
“[t]he circumstances of each year’s salmon run are different, and the necessary
conservation measures will change with them” and there was no absence of legal
standards by which to guide parties in future conflicts such that exception to
mootness doctrine would not apply); Native
Village of Noatak v. Blatchford, 38 F.3d 1505, 1510 (9th Cir. 1994)
(concluding that, where challenged statute was repealed, case was moot because
plaintiff asserted only a “theoretical possibilit[y]” that injury would recur
and plaintiff made no showing that injury was “of such inherently limited duration
that it is likely always to become moot prior to review”), overruled by Bd.
of Trustees of Glazing Health & Welfare Tr. v. Chambers, 941 F.3d 1195
(9th Cir. 2019) (en banc).
“[V]oluntary cessation of a challenged practice does
not deprive a federal court of its power to determine the legality of the
practice.” United States v. Brandau, 578 F.3d 1064,
1068 (9th Cir. 2009) (internal quotation marks and citation omitted)
(remand warranted to determine mootness).
A defendant’s voluntary cessation of offending conduct will moot a case
where “(1) subsequent events have made it absolutely clear that the allegedly
wrongful behavior cannot reasonably be expected to recur, and (2) interim
relief or events have completely and irrevocably eradicated the effects of the
alleged violation.” Norman-Bloodsaw
v. Lawrence Berkeley Lab., 135 F.3d 1260, 1274 (9th Cir. 1997)
(internal quotation marks, brackets, and citations omitted).
A defendant’s cessation of offensive conduct “must
have arisen because of the litigation” in order to prevent the case from being
moot. Sze
v. INS, 153 F.3d 1005, 1008 (9th Cir. 1998) (citation omitted), overruled
in part on other grounds by United
States v. Hovsepian,
359 F.3d 1144, 1161 n.13 (9th Cir. 2004) (en banc). Where plaintiffs show no more than a
correlation, and not causation, between the litigation and cessation, the case
is moot. See Sze, 153 F.3d at 1008. The defendant has the burden of showing that
voluntary cessation moots a case. See
Lozano v.
AT&T Wireless Servs.,
504 F.3d 718, 732–33 (9th Cir. 2007); see also Nat. Res. Def. Council
v. Cty. of Los Angeles, 840 F.3d 1098, 1104 (9th Cir. 2016) (reversing
where district court applied the wrong standard and impermissible shifted the
evidentiary burden to the plaintiff’s).
See, e.g., Fikre v. Fed. Bureau of Investigation, 904 F.3d 1033, 1039 (9th Cir. 2018) (holding that
voluntary cessation doctrine applied to airline passenger’s action alleging
that placement of his name on the “No Fly List” violated his due process rights; although government announced that
airline passenger’s name had been removed from the “No Fly List,” government
did not meet its burden, and
therefore, the claims were not moot); Rosemere
Neighborhood Ass’n v. EPA,
581 F.3d 1169, 1174–75 (9th Cir. 2009) (agency actions to moot cases by
acting begged for an exception to the ordinary rules of mootness); EEOC v. Fed.
Express Corp., 558 F.3d
842, 847 (9th Cir. 2009) (no assurance given that employer would not
challenge another administrative subpoena stemming from subject charge); Lozano v.
AT&T Wireless Servs., 504 F.3d 718, 733 (9th Cir. 2007)
(defendant could not satisfy burden of showing that wrongful behavior could not
reasonably be expected to recur); Porter
v. Bowen, 496 F.3d 1009, 1016 (9th Cir. 2007) (defendant state
prosecutor’s letter to state legislature was insufficient to show a voluntary
cessation); Friends of the
Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 169 (2000)
(A Clean Water Act citizen suit seeking injunctive relief did not automatically
become moot once the company came into substantial compliance with a permit
because a defendant’s voluntary cessation of a challenged practice ordinarily
does not deprive a federal court of its power to determine the legality of the
practice.); Norman-Bloodsaw v. Lawrence Berkeley Lab., 135 F.3d 1260,
1274–75 (9th Cir. 1997) (defendants’ discontinuation of challenged
medical testing failed to establish that plaintiffs’ claims for injunctive and
declaratory relief were moot where defendants did not contend that they will
never again conduct the tests, and defendants retained prior test results that
could be ordered expunged).
See, e.g., Am.
Diabetes Ass’n v. United States Dep’t of the Army, 938 F.3d 1147, 1154 (9th
Cir. 2019) (holding defendants satisfied their burden of clearly showing they
cannot reasonably be expected to reinstitute the Old Policy’s blanket ban, and
thus the Association’s challenge to that policy, as well as the injuries
incurred thereunder, were moot); Pub. Utils. Comm’n v. Fed. Energy Regulatory Comm’n, 100 F.3d 1451, 1460 (9th Cir. 1996) (voluntary cessation exception to mootness did not
apply, and case concerning agency’s issuance of certificate was moot, where
applicant refused the certificate based on economic and business considerations
and not because of pending litigation and, further, it was the respondent in
the appeal and the federal agency had no control over the applicant’s decision
to refuse the certificate); Oregon
Natural Resources Council, Inc. v. Grossarth, 979 F.2d 1377, 1379 (9th Cir.
1992) (where government agency is forced to take action as a result of
administrative proceedings, the doctrine governing voluntary cessation of
offending conduct does not apply).
See, e.g., Nat’l Ass’n
of Mfrs. v. Dep’t of Def., 138 S. Ct. 617, 627 n.5
(2018) (noting that challenge to rule promulgated by Environmental Protection
Agency and Army Corps of Engineers was not rendered moot when the President
issued Executive Order directing the agencies to propose rule rescinding or
revising such clarifying rule, and agencies responded to that direction by issuing
a proposed rule, because the clarifying rule remained on the books and the
parties retained a concrete interest in the outcome of the litigation, and it
was possible for a court to grant effectual relief to the prevailing party);
Maldonado v.
Morales, 556 F.3d 1037, 1042–43 (9th Cir. 2009) (while change in law rendered portions of appeal
moot, certain claims remained live controversies); Jacobus v. Alaska, 338 F.3d
1095 (9th Cir. 2003) (concluding that Alaska Legislature’s repeal of two
out of three provisions of a challenged law in response to the district court’s
judgment of unconstitutionality did not render moot the plaintiff’s challenge
to the provisions since plaintiffs would likely experience prosecution and
civil penalties for past violations of repealed provisions), overruled by
Bd. of Trustees of Glazing Health & Welfare Tr. v. Chambers, 941 F.3d
1195 (9th Cir. 2019) (en banc); Kescoli
v. Babbitt, 101 F.3d 1304, 1308–09 (9th Cir. 1996) (concluding that
challenge to condition in mining permit was not mooted by expiration of permit
where a renewal permit retained the challenged condition without material
modification); United
Parcel Serv., Inc. v. California Pub. Utils. Comm’n, 77 F.3d 1178, 1181–82
(9th Cir. 1996) (concluding that carrier’s challenge to state
rate-setting decision was not moot despite enactment of statute deregulating
industry because state agency continued to assert that carrier was liable for
refunds for past overcharging); Pub.
Serv. Co. v. Shoshone-Bannock Tribes, 30 F.3d 1203, 1205–06 (9th Cir. 1994)
(concluding that amendment to challenged ordinance did not moot appeal where
controversy over whether ordinance preempted by federal law continued); Pacific
Northwest Venison Producers v. Smitch, 20 F.3d 1008, 1011 (9th Cir. 1994)
(concluding that except as to one regulated species, challenge to emergency
regulations was not mooted by adoption of permanent regulations that were
“essentially the same”); Farmers
Union Cent. Exch., Inc. v. Thomas, 881 F.2d 757, 759–60 (9th Cir. 1989)
(concluding that appeal was not moot where agency terminated regulatory program
because agency could still subject appellant to enforcement proceedings).
See, e.g., Bd. of Trustees of Glazing Health & Welfare Tr. v.
Chambers, 941 F.3d 1195, 1199 (9th Cir. 2019) (en banc)
(holding appeal was moot because the Nevada legislature repealed S.B. 223 and
replaced it with S.B. 338, without reenacting the challenged provisions, and
there was no evidence in the record indicating a reasonable expectation that
the Nevada legislature was likely to enact the same or substantially similar
legislation in the future); Am. Diabetes Ass’n v. United States Dep’t of the
Army, 938 F.3d 1147, 1154 (9th Cir. 2019) (United States Army’s revision of regulation and revocation of command
memorandum rendered case moot); Rocky
Mountain Farmers Union v. Corey,
913 F.3d 940, 949 (9th Cir. 2019) (holding that plaintiffs’ claims arising from
2011 and 2012 versions of the low carbon fuel standard (“LCFS”) were mooted
because the laws challenged were no longer in effect, plaintiffs’ obligations
under them had been discharged, and it was not possible for the court to grant
any effectual relief, where the 2011 and 2012 versions of the LCFS had been
repealed); Stratman v. Leisnoi, Inc., 545 F.3d 1161, 1167 (9th Cir. 2008) (Congressional actions rendered moot a challenge to
village’s certification); Consejo
De Desarrollo Economico De Mexicali, A.C. v. United States, 482 F.3d 1157,
1168–74 (9th Cir. 2007) (intervening legislature mooted plaintiff’s case
against government canal-lining project); Students for a
Conservative America v. Greenwood, 378 F.3d 1129,
1131 (9th Cir. 2004) (Section 1983 action was rendered moot when
university officials revised code removing provisions which state university
students had challenged, and committed not to reenact them unless there was a
change in federal law.); Smith v. Univ. of Wash. Law Sch., 233 F.3d
1188, 1193 (9th Cir. 2000) (Claims for declaratory and injunctive relief
with respect to a state law school’s use of race as a criterion in its
admissions policy were moot, and class for such relief was properly
decertified, once state initiative measure was passed that directed that “in
operation of … public education” the state was prohibited from discriminating
or offering preferential treatment to “any individual or group on the basis of
race, sex, color, ethnicity, or national origin.”); Cook Inlet Treaty Tribes v. Shalala,
166 F.3d 986, 990 (9th Cir. 1999) (Alaska Native Villages’ appeal from
the district court’s decision upholding government’s award of health services
compact to Alaska Native Regional Corporation without the villages’ approval
was moot in view of a statute, enacted while an appeal was pending, that
provided that the Corporation was authorized to enter contracts or funding
agreements without submission of authorizing resolutions from the villages,
when the villages sought only prospective relief.); Cammermeyer v. Perry,
97 F.3d 1235, 1237–38 (9th Cir. 1996) (statutory and regulatory changes
were sufficient to moot constitutional challenge to military policy concerning
homosexuality); Bullfrog
Films, Inc. v. Wick, 959 F.2d 778, 781 (9th Cir. 1992) (challenge to
implementing regulations mooted by change in underlying legislation); Nevada v.
Watkins, 943 F.2d 1080, 1083–87 (9th Cir. 1991) (case seeking review
of environmental assessment was moot where subsequent legislation mandated
outcome of environmental assessment).
To determine “whether a request for declaratory relief
has become moot, basically the question in each case is whether the facts
alleged, under all the circumstances, show that there is a substantial
controversy between parties having adverse legal interests, of sufficient
immediacy and reality to warrant the issuance of a declaratory judgment.” Kasza
v. Browner, 133 F.3d 1159, 1172 (9th Cir. 1998) (internal quotation
marks, brackets, and citations omitted); see also Shoshone-Bannock Tribes v. Fish &
Game Comm’n Idaho,
42 F.3d 1278, 1281 (9th Cir. 1994) (stating that a party retains a
legally cognizable interest in obtaining declaratory relief against government
authorities “only when the challenged government activity is not contingent,
has not evaporated or disappeared, and, by its continuing and brooding
presence, casts what may well be a substantial adverse effect on the interests
of the petitioning party”) (internal punctuation modified and citations
omitted).
Cross-reference: VI.F.2 (regarding mootness in bankruptcy cases).
See, e.g., Goodwin v. United
States, 935 F.2d 1061, 1063–64 (9th Cir. 1991) (in case outside of bankruptcy context, sale of
property did not moot appeal where properly filed lis pendens would give effect
to court’s judgment under applicable state law).
An action by homeowners challenging a low-income
housing project under the National Historic Preservation Act and the National
Environmental Protection Act was not moot as to claims against the government,
though the project was complete, as changes could still be made to alleviate
any adverse effects. Tyler v. Cuomo,
236 F.3d 1124, 1137 (9th Cir. 2000).
An action challenging a decision of Federal Highway
Administration to exclude categorically a two-stage highway interchange project
from review under the National Environmental Policy Act was not moot, even
though first stage of project was complete and new interchange was carrying
traffic; because the second stage had not begun, and the court’s remedial
powers included remanding for additional environmental review and ordering interchange
closed or taken down. West v. Sec’y
of Dep’t of Transp., 206 F.3d 920, 924–26 (9th Cir. 2000).
See, e.g., Di Giorgio v. Lee (In re Di
Giorgio), 134 F.3d 971, 974 (9th Cir. 1998) (where debtors surrendered possession of property prior
to hearing at which they sought to enjoin enforcement of a lessor’s writ of
possession, the trial court erred by not dismissing their action as moot); Village of
Gambell v. Babbitt, 999 F.2d 403, 406–07 (9th Cir. 1993) (where oil
companies had relinquished lease tracts that had composed challenged government
sale of leases, action was moot); Fultz
v. Rose, 833 F.2d 1380, 1380 (9th Cir. 1987) (order) (appeal moot
where property at issue sold to third party in compliance with district court
order); Holloway
v. United States, 789 F.2d 1372, 1373–74 (9th Cir. 1986) (appeal
from order allowing sale of property to satisfy taxes moot in absence of stay).
In a civil in rem forfeiture action brought by the
government, an appellate court is not divested of jurisdiction by the
prevailing party’s transfer of the res from the district. See Republic
Nat’l Bank v. United States,
506 U.S. 80, 88–89 (1992) (opinion for the Court by Blackmun, J.); see
also Barnes v. Sea Hawaii Rafting, LLC, 889 F.3d 517, 531 (9th Cir. 2018); United
States v. $493,850.00 in United
States Currency,
518 F.3d 1159, 1164 (9th Cir. 2008).
“There is one exception to this rule, where the release of the property
would render the judgment ‘useless’ because the thing could neither be
delivered to the libellants, nor restored to the claimants.” $493,850.00 in United States
Currency,
518 F.3d at 1164 (internal quotation marks and citation omitted).
The Ninth Circuit has applied this rule in both in rem
and quasi in rem admiralty cases. See
Edlin v. M/V
Truthseeker,
69 F.3d 392, 393 (9th Cir. 1995) (per curiam) (fact that stay of
execution had been vacated and vessel sold pursuant to mandate of court of
appeals did not divest court of jurisdiction to consider a post-judgment
request for certain costs on appeal in in rem forfeiture action); J. Lauritzen
A/S v. Dashwood Shipping, Ltd., 65 F.3d 139, 141–42 (9th Cir. 1995)
(district court order vacating attachment of vessel in quasi in rem proceeding
did not divest appellate jurisdiction over appeal from order dismissing
action); Stevedoring
Servs. of Am. v. Ancora Transp., N.V., 59 F.3d 879, 882–83 (9th Cir. 1995)
(district court’s release of funds garnished in a quasi in rem maritime action
did not deprive it of jurisdiction over the res).
In government forfeiture cases, a transfer to the U.S.
Treasury of funds derived from the sale of a res that is the subject of the
action does not moot the case, as statutory authorization exists for an
appropriation of funds in the event the party claiming entitlement to the funds
prevails. See Republic Nat’l Bank, 506 U.S. at
95–96.
Preliminary injunction appeals are usually mooted by
district court decisions on claims for permanent injunctions. See Hilao v. Estate of
Marcos (In re Estate of Marcos Human Rights Litig.), 94 F.3d 539, 544
(9th Cir. 1996) (“Where a permanent injunction has been granted that
supersedes the original preliminary injunction, the interlocutory preliminary
order is properly dismissed.”) (internal quotation marks, brackets, and
citation omitted).
Similarly, dismissal of certain of plaintiff’s claims
while an appeal regarding a preliminary injunction is pending will moot issues
on appeal regarding the dismissed claims.
See ACF
Indus. Inc. v. California State Bd. of Equalization, 42 F.3d 1286,
1291 (9th Cir. 1994).
Compliance with administrative summons and subpoenas
does not moot challenges to the requests, as courts can still order the
material to be returned or destroyed. See
Church of
Scientology v. United States,
506 U.S. 9, 12–13 (1992) (compliance with IRS summons enforcement order
does not render appeal moot where court could still fashion some form of
meaningful relief, such as ordering return of summoned material); United States
v. Tanoue, 94 F.3d 1342, 1344 (9th Cir. 1996) (concluding that
defendant’s compliance with IRS summons seeking handwriting exemplar did not
moot appeal from order enforcing summons because “meaningful relief is
available in the form of an order directing the government to return the
summoned materials and to destroy any copies in the government’s possession”).
Where a class action has previously been certified,
mootness of the class representative’s claims will not necessarily moot
case. See Doe by & through Brockhuis v.
Arizona Dep’t of Educ.,
111 F.3d 678, 679 n.1, 680 (9th Cir. 1997) (plaintiff’s claim for
injunctive relief was not mooted by relief provided to him where he could
fairly represent a certified class that raised colorable claims) (citing Sosna v. Iowa,
419 U.S. 393, 401–02 (1975)).
Where the class has not previously been certified,
assessment of the mootness issue begins with whether or not the district court
denied class certification. See Sze v. INS, 153 F.3d 1005,
1009–10 (9th Cir. 1998) (where merits of plaintiff’s claim become moot
on appeal after district court denies class certification, court of appeals
must consider nature of plaintiff’s personal stake in class certification claim
in deciding whether to dismiss case as moot; where class certification has not
yet been considered by district court, court of appeals should consider whether
the class appears to be “so transitory that a failure to rule may mean that a
class will never be assembled” or whether other putative class members relied
on plaintiff’s asserted representation of the class) (internal quotation marks
and citations omitted), overruled in part on other grounds by United States v.
Hovsepian,
359 F.3d 1144, 1161 n.13 (9th Cir. 2004) (en banc); see also Alaska v. Suburban
Propane Gas Corp.,
123 F.3d 1317, 1321 (9th Cir. 1997) (assessing suitability of putative
class member to appeal denial of class certification following original named
plaintiffs’ settlement of lawsuit).
In seeking to sustain a potential class action in
which the putative class representative’s claims have become moot, it is
important that the class identify other possible representatives. See Mayfield
v. Dalton,
109 F.3d 1423, 1427 (9th Cir. 1997) (where claims of putative class
representatives had become moot during their appeal, issue regarding district
court’s denial of class certification would not sustain controversy where
appellants failed to show there were others who could represent an appropriate
class). If no class is properly
certified, and the claims of all named plaintiffs are satisfied, the case is
moot. See Employers-Teamsters Local Nos. 175
& 505 Pension Trust Fund v. Anchor Capital Advisors, 498 F.3d 920,
924 (9th Cir. 2007).
A district court’s decision on the merits does not
moot an appeal from a prior order denying intervention, at least where the
district court had not yet entered judgment and where reversal of the order
denying intervention would give the potential intervenor standing to appeal
district court’s decision on merits. See
League of
United Latin Am. Citizens v. Wilson,
131 F.3d 1297, 1301 n.1 (9th Cir. 1997); see also United States v.
Sprint Commc’ns, Inc., 855 F.3d 985, 989 (9th Cir. 2017) (“In [some]
circumstances, …, an intervention controversy can remain live even after final
judgment is entered in the underlying case.”).
“[I]n some situations, the entry of final judgment in
a case moots a putative-intervenor’s appeal from the denial of his motion to
intervene.” Sprint Commc’ns, Inc.,
855 F.3d at 989; see also Siskiyou Reg’l Educ. Project v. United States
Forest Serv., 565 F.3d 545, 558 (9th Cir. 2009) (concluding that appeal of district court’s denial of
motion to intervene on the merits was moot where there was no need for any
further district court proceedings).
An insurer’s appeal of denial of declaratory relief
will be mooted by settlement, or at least an unconditional settlement, of
underlying lawsuits that led to the initial request for relief. Cont’l
Cas. Co. v. Fibreboard Corp., 4 F.3d 777, 779 (9th Cir. 1993).
A final determination on the merits moots an appeal
from an order directing the insurer to advance the costs of an insured’s
defense incurred during a lawsuit allegedly covered by a liability policy —
even where the insurer may have a separate claim against the insured for
reimbursement of such costs. See Am. Cas. Co. v.
Baker,
22 F.3d 880, 895–96 (9th Cir. 1994).
An action in which an environmental organization
sought to prevent the National Park Service (NPS) from killing feral pigs on
Santa Cruz Island was mooted when the NPS actually killed all the feral pigs on
the island. The court could provide no
remedy to the environmental organization. Feldman
v. Bomar,
518 F.3d 637, 643–44 (9th Cir. 2008) (distinguishing case from
situations where court could nonetheless remedy the alleged harm).
An action in which an environmental organization
challenged the National Marine Fisheries Service’s policy for determining
endangered species was mooted when the agency placed the species at issue on
the endangered species list. Ctr. for
Biological Diversity v. Lohn, 511 F.3d 960, 966 (9th Cir. 2007).
An action in which an environmental organization
sought to compel the Fish and Wildlife Service to make determinations as to
whether certain species should be listed as endangered was not rendered moot
when the Service made several such determinations where (1) the environmental
organizations had been parties in several other actions in which the Service
failed to meet listing determination deadlines until after litigation began,
(2) the organizations had other pending petitions, and (3) the Service
continued to interpret the Endangered Species Act to allow it to delay action
indefinitely. Biodiversity Legal Found. v.
Badgley, 309 F.3d 1166, 1174–75 (9th Cir. 2002).
In Grand Canyon Trust v. United States Bureau
of Reclamation, 691 F.3d 1008 (9th Cir. 2012), the court explained
that the “issuance of a superseding [Biological Opinion] moots issues on appeal
relating to the preceding” Biological Opinion.
Id. at 1017.
Defendants face a particularly heavy burden in
establishing mootness in environmental cases, and the completion of the action
challenged is insufficient to render the case nonjusticiable. Cantrell
v. City of Long Beach, 241 F.3d 674, 678 (9th Cir. 2001); but see
Feldman, 518 F.3d at
642–43 (concluding that there was no remediable harm where the National
Park Service had already killed all the feral pigs on Santa Cruz Island).
Events that moot claims for prospective relief do not
necessarily moot claims for retrospective relief. See Glickman
v. Wileman Bros. & Elliot, Inc.,
521 U.S. 457, 462 n.5 (1997) (claim seeking refund of past assessments
made for generic advertising sustained challenge to regulations imposing past
assessments, although claims regarding future assessments were mooted by
discontinuation of assessments).
Conversely, an appeal regarding claims for prospective
relief may survive the settlement of damages claims. Nava
v. City of Dublin, 121 F.3d 453, 455 (9th Cir. 1997) (stating that
although settlement of damages claims may moot appeal regarding declaratory
relief, it will not moot appeal of injunction that calls for continuing
supervision of defendant by district court because “[t]he injunction must be
obeyed until it is stayed, dissolved, or reversed, even it if is erroneously
issued”) (citation omitted), overruled by Hodgers-Durgin
v. De La Vina,
199 F.3d 1037 (9th Cir. 1999) (en banc) (standing to seek damages does
not alone serve as a basis for standing to seek equitable relief).
Claims for declaratory relief may survive mooted
claims for injunctive relief. See American Tunaboat
Ass’n v. Brown,
67 F.3d 1404, 1407–08 (9th Cir. 1995) (appeal of denial of preliminary
injunction mooted where proposed injunction was directed at conduct during a
time period that had since passed; however, request for declaratory relief not
moot where district court’s decision would affect future conduct).
“[C]laims for attorneys’ fees ancillary to the case
survive independently under the court’s equitable jurisdiction, and may be
heard even though the underlying case has become moot.” Cammermeyer
v. Perry, 97 F.3d 1235, 1238 (9th Cir. 1996) (internal quotation
marks and citations omitted); see also Ctr.
for Biological Diversity v. Marina Point Dev. Co., 566 F.3d 794,
806 (9th Cir. 2009) (mootness alone does not preclude an award of
attorney’s fees, but court will not “delve into the details” of the resolution
of a controversy to decide the ancillary question of fees); Martinez v. Wilson, 32 F.3d 1415,
1422 n.8 (9th Cir. 1994) (observing that mootness on appeal “does not
alter the plaintiff’s status as a prevailing party provided the plaintiff
achieved that status before the case was rendered moot” (citation
omitted)). “However, ‘[t]he existence of
an attorneys’ fees claim ... does not resuscitate an otherwise moot controversy.’”
M.M. v. Lafayette Sch. Dist., 767 F.3d 842, 857 (9th Cir. 2014) (as
amended) (quoting Cammermeyer, 97 F.3d at 1238).
“It is the duty of counsel to bring to the federal
tribunal’s attention, without delay, facts that may raise a question of
mootness,” regardless of the view of opposing counsel. Arizonans
for Official English v. Arizona, 520 U.S. 43, 68 n.23 (1997)
(internal quotation marks and citation omitted); Lowery v. Channel Commc’ns, Inc.
(In re Cellular 101, Inc.), 539 F.3d 1150, 1154 (9th Cir. 2008). See also Khrapunov v. Prosyankin, 931
F.3d 922, 928–29 (9th Cir. 2019) (Callahan, J. concurring in part) (“[N]ot only
is it appropriate for a party to present such extra-record evidence, counsel
are duty-bound ‘to bring to the federal tribunal’s attention, ‘without delay,’
facts that may raise a question of mootness.’” (quoting Arizonans for
Official English, 520 U.S. at 68 n.23)).
“If a party to an appeal suggests that the controversy
has, since the rendering of judgment below, become moot, that party bears the
burden of coming forward with the subsequent events that have produced that
alleged result.” Cardinal Chem. Co. v. Morton Int’l,
Inc., 508 U.S. 83, 98 (1993) (citation omitted).
“[T]he burden of demonstrating mootness is ‘heavy’ and
must be carried by the party claiming that the case is moot.” Porter
v. Bowen, 496 F.3d 1009, 1017 (9th Cir. 2007); see also Fikre v.
Fed. Bureau of Investigation, 904 F.3d 1033, 1037 (9th Cir. 2018)
(explaining that a party asserting mootness has the heavy burden of persuading
the court that the challenged conduct cannot reasonably be expected to start up
again); Ctr. for Biological Diversity v. Exp.-Imp. Bank of the United States,
894 F.3d 1005, 1011 (9th Cir. 2018) (“Defendants bear a ‘heavy burden’ to
establish mootness at the appellate stage.”).
“The party asserting mootness has a heavy burden to establish that there
is no effective relief remaining for a court to provide.” Pintlar
Corp. v. Fidelity & Cas. Co. (In re Pintlar Corp.), 124 F.3d 1310, 1312
(9th Cir. 1997) (citation omitted); see also Palmdale Hills
Property, LLC v. Lehman Commercial Paper (In re Palmdale Hills Prop., LLC),
654 F.3d 868, 874 (9th Cir. 2011) (stating burden was not met); accord Norman-Bloodsaw v.
Lawrence Berkeley Lab.,
135 F.3d 1260, 1274 (9th Cir. 1997) (burden of demonstrating mootness is
a heavy one); Focus
Media, Inc. v. Nat’l Broad. Co., 378 F.3d 916, 923 (9th Cir. 2004)
(same).
Where an appeal becomes moot “through happenstance –
circumstances not attributable to the parties – or … the unilateral action of
the party who prevailed in the lower court,” the court of appeals should
“vacate the judgment below and remand with a direction to dismiss.” Arizonans
for Official English v. Arizona, 520 U.S. 43, 71 (1997) (internal
quotation marks and citations omitted); see Anderson
v. Green,
513 U.S. 557, 560 (1995) (per curiam) (vacating court of appeals’
judgment and remanding for vacatur of district court’s judgment and dismissal
of case where party seeking relief from judgment did not voluntarily cause the
case to become nonjusticiable); see also All. For the Wild Rockies, 897
F.3d at 1032 (“When mootness is not caused by actions of the party seeking
vacatur, we typically will vacate the district court’s order.”); NASD Dispute
Resolution, Inc. v. Judicial Council, 488 F.3d 1065, 1070 (9th Cir. 2007)
(mootness by happenstance provides reason to vacate the judgment below); Mayfield v.
Dalton, 109 F.3d 1423, 1427 (9th Cir. 1997) (where appellants
challenging military policy were separated from military, they did not
voluntarily moot the appeal and the usual rule of vacatur and dismissal would
apply).
Where an appeal becomes moot due to the appellant’s
voluntary action (such as settlement or his or her failure to take steps to
preserve the controversy), the court of appeals should not vacate the lower
court’s judgment. See U.S. Bancorp Mortgage Co. v. Bonner Mall
Partnership,
513 U.S. 18, 29 (1994) (holding that mootness by reason of settlement
does not justify vacatur, but noting that it may be proper for the court of
appeals to order vacatur when mootness is produced by settlement under
“exceptional circumstances”); Public
Utils. Comm’n v. Federal Energy Regulatory Comm’n, 100 F.3d 1451,
1461 (9th Cir. 1996) (stating that exceptions to automatic vacatur exist
when “the party seeking appellate relief fails to protect itself or is the
cause of subsequent mootness”); Dunlavey
v. Arizona Title Ins. & Trust Co. (In re Charlton), 708 F.2d 1449,
1454–55 (9th Cir. 1983) (stating that party who fails to obtain a stay
pending appeal of an order authorizing sale of property is not entitled to have
the order vacated based on mootness); see also Cammermeyer v. Perry, 97 F.3d 1235,
1239 (9th Cir. 1996) (stating that the principal factor courts consider
in deciding whether to vacate a lower court’s judgment is “whether the party
seeking relief from the judgment below caused the mootness by voluntary
action”) (internal quotation marks and citation omitted).
Under these circumstances, the Ninth Circuit will
remand for a determination by the district court whether vacatur is
appropriate. See Cammermeyer, 97 F.3d at 1239
(court of appeals would not vacate lower court’s judgment where appellants had
rendered case moot by conceding correctness of district court’s decision, but
case would be remanded to district court to determine whether vacatur was
appropriate); Mancinelli
v. International Bus. Machs. Corp., 95 F.3d 799, 799 (9th Cir. 1996)
(order) (vacating court of appeals decision following settlement and remanding
case to district court for determination whether vacatur of district court
judgment was appropriate). See also All. For the Wild Rockies, 897 F.3d
at 1032 (“When mootness is caused by the party seeking vacatur, then we
typically will remand to the district court to allow it to balance the equities
and determine whether it should vacate its own order).