I. INTRODUCTION

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.

II. STATUTORY BASES FOR CIVIL APPEALS

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).

A. APPEALS FROM FINAL DECISIONS (28 U.S.C. § 1291)

1. FINAL DECISIONS

a. Generally

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)).

i. Need to Consider Finality

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).

ii. Policy Behind Final Judgment Rule

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.”).

b. Determining Finality

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”).

i. District Court Intent

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).

ii. Adjudication of all Claims

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).

(a) Precise Damages Undetermined

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).

(b) Implicit Rejection of Claim or Motion

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).

(c) Apparent Attempt to Dispose of All Claims

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).

(d) Discrepancy between Order and Judgment

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).

(e) Scope of Underlying Action

Finality depends in part on the scope of the underlying action:

(1) Consolidated Actions

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).

c. Manufacturing Finality

“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).

d. “Pragmatic” or “Practical” Finality Doctrine

i. Parameters of Doctrine

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).

ii. Applications

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).

2. COLLATERAL ORDER DOCTRINE

a. Generally

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).

b. Requirements of Collateral Order Doctrine

“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.”).

c. Appealability of Specific Orders under Collateral Order Doctrine

i. Abstention Orders

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).

ii. Orders Denying Immunity

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).

iii. Disqualification of Counsel

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).

iv. Fed. R. Civ. P. 11 Sanctions

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).

v. Other Orders

(a) Appealable Collateral Orders

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).

(b) Orders Not Appealable as Collateral Orders

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).

3. ORDERS CERTIFIED UNDER FED. R. CIV. P. 54(b)

a. Generally

“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).

i. District Court Determinations

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).

ii. Appellate Court Review

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.

b. Contents of Certification Order

i. “No Just Reason for Delay”

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).

ii. Reference to Fed. R. Civ. P. 54(b)

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).

iii. “Specific Findings” Supporting Certification

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).

c. Propriety of Certification

i. Appellate Review Required

“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).

ii. Standard of Review

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).

B. APPEALS FROM INTERLOCUTORY DECISIONS (28 U.S.C. § 1292)

1. INTERLOCUTORY INJUNCTIVE ORDERS (28 U.S.C. § 1292(a)(1))

a. Generally

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).

b. Order Granting or Denying an Injunction

i. Explicit Grant or Denial or Injunction

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)).

ii. Implicit Grant or Denial of Injunction

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).

(a) Practical Effect of Order

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).

(b) Potential for Serious or Irreparable Harm

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).

(c) Effective Challenge Not Possible after Final Judgment

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).

c. Orders Modifying, Continuing, or Dissolving Injunction

i. Order Modifying Injunction

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).

ii. Order Continuing Injunction

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).

iii. Order Dissolving Injunction

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).

iv. Order Denying Modification or Dissolution of 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).

d. Examples of Orders Appealable under 28 U.S.C. § 1292(a)(1)

The following interlocutory orders are appealable under 28 U.S.C. § 1292(a)(1):

i. Order Granting Permanent Injunction

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).

ii. Order Denying Entry of Consent Decree

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).

iii. Order Granting Injunction Despite Lack of Motion for Interim Relief

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).

iv. Order Requiring Submission of Remedial Plan

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).

v. Certain Orders Affecting Assets

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).

vi. Order Denying Relief in Mandamus Action

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).

vii. Order Staying Extradition

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).

viii. Order Denying Stay of Immigration Removal Order

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).

ix. Order Disapproving Class Settlement

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).

e. Examples of Orders Not Appealable under 28 U.S.C. § 1292(a)(1)

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):

i. Order Denying Motion to Abstain

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).

ii. Order Denying Motion for Stay

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).

iii. Order Granting England Reservation of Jurisdiction

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)).

iv. Order Denying Motion to Quash

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).

v. Order Granting Conditional Permissive Intervention

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).

vi. Certain Orders Affecting Assets

Cross-reference: II.C.5 (regarding the appealability of assets orders generally).

vii. Order Remanding to Federal Agency

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).

viii. Order Denying Summary Judgment Due to Factual Disputes

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).

ix. Order Denying Entry of Consent Decree Not Appealable by Party Against Whom Injunction Sought

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).

x. Case Management Order

“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.

xi. Order to Clarify Scope of Injunction

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).

xii. Orders Relating to Discovery

“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.

f. Temporary Restraining Order

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.

i. Order Tantamount to Denial of Preliminary Injunction

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).

ii. Orders Effectively Deciding Merits of Case

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).

g. Mootness

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).

2. INTERLOCUTORY RECEIVERSHIP ORDERS (28 U.S.C. § 1292(a)(2))

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).

3. INTERLOCUTORY ADMIRALTY ORDERS (§ 1292(a)(3))

a. Generally

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).

b. Appealable Admiralty Orders

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).

c. Nonappealable Admiralty Orders

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.

4. INTERLOCUTORY PERMISSIVE APPEALS (28 U.S.C. § 1292(b))

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”).

a. Procedure for Appeal under 28 U.S.C. § 1292(b)

i. District Court Certification under § 1292(b)

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).

ii. Timely Petition from Order Certified under § 1292(b)

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).

iii. Appellate Court Permission to Appeal under § 1292(b)

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).

iv. Stay Pending Appeal from Certified Order

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).

b. Standards for Evaluating § 1292(b) Certification Order

“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.”).

i. Order Raises Controlling Question of Law

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.

ii. Difference of Opinion Exists as to Controlling Question

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.

iii. Immediate Appeal Would Materially Advance Litigation

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).

c. Examples of Orders Reviewed under 28 U.S.C. § 1292(b)

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).

d. Examples of Orders Not Reviewed under 28 U.S.C § 1292(b)

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).

5. PENDENT APPELLATE JURISDICTION

“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).

C. APPEALABILITY OF SPECIFIC ORDERS

1. ADMIRALTY

See II.B.3.

2. AGENCY

See VII.

3. APPOINTMENT OF COUNSEL

5. ASSETS (Liens, Attachments, etc.)

a. Orders Restraining Assets

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.

b. Orders Releasing Assets

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”).

For example, the following interlocutory orders releasing assets are immediately appealable under the collateral order doctrine:

· 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).

6. ATTORNEY’S FEES

a. Interim Attorney’s Fees Order

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).

For example, the following orders granting or denying interim attorney’s fees are not immediately appealable:

· 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.

b. Post-Judgment Attorney’s Fees Order

An order granting or denying a post-judgment motion for attorney’s fees is generally an appealable final order. See II.C.21.c.i (Post-Judgment Orders).

7. BANKRUPTCY

See VI.

8. CLASS ACTIONS

a. Interlocutory Appeal from Class Certification Order

“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).

“A decision to grant a motion to strike class allegations, which is the ‘functional equivalent of denying a motion to certify a case as a class action,’ is not a final judgment.” Bates v. Bankers Life & Cas. Co., 848 F.3d 1236, 1238 (9th Cir. 2017) (per curiam).

There are only two procedural avenues for appealing an order striking class allegations made under Federal Rule of Civil Procedure 23: (1) asking the district court to certify an order for interlocutory review pursuant to 28 U.S.C. § 1292(b); or (2) filing a petition for permission to appeal pursuant to Federal Rule of Civil Procedure 23(f).

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).”).

i. Fed. R. Civ. P. 23

A court of appeals may permit an appeal from an order granting or denying class-action certification under this rule, but not from an order under Rule 23(e)(1). A party must file a petition for permission to appeal with the circuit clerk within 14 days after the order is entered, or within 45 days after the order is entered if any party is the United States, a United States agency, or a United States officer or employee sued for an act or omission occurring in connection with duties performed on the United States’ behalf. An appeal 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). “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.

ii. Decisions Predating Fed. R. Civ. P. 23(f)

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).

b. Review of Class Certification Order After Final Judgment

Cross-reference: V.A.1 (regarding decisions that are reviewable on appeal from final judgment under the merger doctrine).

i. Final Order Adjudicating Individual Claim

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).

ii. Dismissal Following Settlement of Individual Claim

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).

iii. Dismissal for Failure to Prosecute Individual Claim

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).

iv. Underlying Judgment Reversed on Appeal

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).

c. Appeal from Orders Allocating Cost of Notifying Class Members

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).

9. CONSOLIDATED ACTIONS

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)).

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.A.3 (regarding orders certified under Fed. R. Civ. P. 54(b)) and III.C (regarding premature notices of appeal).

10. CONTEMPT AND SANCTIONS

The appealability of a contempt or sanctions order depends on whether the order is issued: (1) in the course of an underlying district court proceeding, see II.C.10.a; (2) after final judgment in an underlying district court proceeding, see II.C.10.b; or (3) as the final judgment in an enforcement or contempt proceeding, see II.C.10.c.

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).

a. Appealability of Contempt or Sanctions Order Issued in the Course of an Underlying District Court Proceeding

The appealability of a contempt or sanctions order issued in the course of an underlying district court proceeding depends on whether the order issued against: (1) a party, see II.C.10.a.i; (2) a nonparty, see II.C.10.a.ii; or (3) a party and nonparty jointly, see II.C.10.a.iii.

i. Contempt or Sanctions Order Against Party

The appealability of a contempt or sanctions order issued against a party to ongoing proceedings depends on whether the order is civil or criminal, see below.

(a) Appealability of Civil v. Criminal 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.

The fact that sanctions that are plainly civil in nature, are immediately payable do not render the court’s order appealable on an interlocutory basis. See Nat’l Abortion Fed’n, 926 F.3d at 538.

(b) Criminal Contempt Defined

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).

(c) Civil Contempt Defined

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).

(d) Sanctions Order against Party

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).

“The fact that … sanctions [that are civil in nature] are immediately payable does not render the court’s order appealable on an interlocutory basis.” 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).

ii. Contempt or Sanctions Order against Nonparty

(a) Generally

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).

However, “when there is a ‘substantial congruence of interests’ between the sanctioned non-party and a party to the action, the non-party may not immediately appeal.” Nat’l Abortion Fed’n, 926 F.3d at 538. Rather, the “non-party must wait until entry of final judgment to obtain review, just like a party to the action would.” Id. The court has “carved out one exception to this general rule, applicable when a non-party is ordered to pay sanctions immediately to a party who is likely insolvent. … In that scenario, the sanctions award is effectively unreviewable on appeal from the final judgment, because the non-party would likely not be able to get the money it paid returned even if it were successful on appeal.” Id. at 539 n.1.

(b) Contempt or Sanctions Order against Nonparty Witness

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).

(c) Contempt or Sanctions Order against Nonparty Attorney

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).

Cross-reference: II.C.10.a.iii (regarding a contempt or sanctions order issued against an attorney and client jointly, rather than solely against the attorney).

(d) Contempt or Sanctions Order against Nonparty Journalist

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).

iii. Contempt or Sanctions Order against Party and Nonparty Jointly

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.”).

Cross-reference: II.C.10.a.ii (regarding the appealability of an order entered against the attorney only rather than the attorney and client jointly).

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.

iv. Denial of Motion for Contempt or Sanctions

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)).

Cross-reference: V.A.2.c (regarding orders reviewed on appeal from an interlocutory injunctive order).

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).

b. Appealability of Contempt or Sanctions Order Issued After Final Judgment in an Underlying District Court Proceeding

i. Post-Judgment Contempt or Sanctions Order Generally

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).

ii. Post-Judgment Continuing Contempt Order

“[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).

iii. Order Denying Motion to Vacate Contempt Order

“[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)).

c. Appealability of Contempt or Sanctions Order Issued As Final Judgment in Enforcement or Contempt Proceeding

Where a contempt order disposes of the only matter before the district court, the contempt order is appealable as a final judgment.

i. Contempt Order as Final Judgment in Enforcement

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).

ii. Contempt Order as Final Judgment in Contempt Proceeding

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.”).

11. DEFAULT

a. Motion for Default Judgment Granted

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).

b. Motion for Default Judgment Denied

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).

c. Motion to Set Aside Default Judgment Granted

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).

d. Motion to Set Aside Default Judgment Denied

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).

12. DISCOVERY ORDERS AND SUBPOENAS

Cross-reference: II.C.12.a (regarding an appeal by a person who is a party to an underlying district court proceeding); II.C.12.b (regarding an appeal by a person not a party to an underlying district court proceeding); II.C.12.c (regarding an appeal by a person who is a party to a proceeding limited to enforcement or discovery).

a. Appeal by a Person Who is a Party to an Underlying District Court Proceeding

A party to an underlying district court proceeding can appeal an adverse discovery ruling before entry of final judgment only where: (1) the party defies the order and is cited for criminal contempt, see II.C.12.a.i, or (2) an order protecting a nonparty from discovery is issued by a court outside the circuit in which the district court proceedings are ongoing, see II.C.12.a.ii.

Regarding the appealability of a discovery order entered following final judgment in the underlying action, see II.C.12.a.iv.

i. Order Compelling Discovery

(a) Discovery Order Issued against Party

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).

(b) Discovery Order Issued against Nonparty

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.

ii. Protective Order

(a) Order Protecting Party from Discovery

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).

(b) Order Protecting Nonparty from Discovery

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).

iii. Pretrial Order to Contribute to Discovery Fund

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).

iv. Post-Judgment Discovery Orders

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.”).

b. Appeal by Person Not a Party to An Underlying District Court Proceeding

A person not a party to an underlying district court proceeding generally cannot appeal a discovery order or subpoena without first defying the order and being cited for contempt. See II.C.12.b.i. However, a nonparty can appeal without a contempt citation where: (1) the order or subpoena in question directs a third party to produce material in which the person appealing claims an interest, and (2) the third party cannot be expected to risk contempt on the appealing person’s behalf. See II.C.12.b.ii.

Regarding the appealability of an order denying a motion to compel, see II.C.12.b.iii.

i. General Rule: Target of Order Compelling Discovery Cannot Appeal Until Contempt Citation Issues

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).

ii. Exceptions Permitting Appeal Absent Contempt Citation

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”).

(a) Discovery Order or Subpoena Directed against Third Party (Perlman Exception)

“The Perlman rule has been formulated as providing a right of immediate appeal by a party aggrieved by a district court discovery order whenever the order requires a third party to produce evidence or documents and that third party cannot be expected to go into contempt merely to create a final appealable order.” In re Nat’l Mortg. Equity Corp. Mortgage Pool Certificates Litig., 857 F.2d 1238, 1240 (9th Cir. 1988).

In re Optical Disk Drive Antitrust Litig., 801 F.3d 1072, 1076 (9th Cir. 2015). “[T]he Perlman doctrine has been applied to situations … where a third party … must rely on another third party … to protect his interests in the discovery process.” Id. at 1076.

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

The following orders denying motions to quash subpoenas directing third parties (such as attorneys) to reveal information were appealable under the Perlman exception because the third parties could not be expected to risk a contempt citation:

· 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 nonparty’s motion to quash subpoena in civil antitrust lawsuit, for secret tape recordings made by the FBI related to a criminal antitrust investigation. In re Optical Disk Drive Antitrust Litig., 801 F.3d 1072, 1076 (9th Cir. 2015).

· 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

The following orders denying motions to quash subpoenas directing third parties to reveal privileged information were not appealable under the Perlman exception because the third party could be expected to risk a contempt citation to protect the information.

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).

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.

(b) Order Directed against Head of State

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).

iii. Appeal from Order Denying Motion to Compel

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).

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

Cross-reference: II.C.10.c.i (regarding the appealability of contempt orders issued as final judgments in enforcement proceedings).

ii. Discovery Order Issued as Final Judgment in Discovery Proceeding

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).

13. DISMISSAL

a. Dismissal Denied

i. Generally

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).

For example, orders denying motions to dismiss on the following grounds are not immediately appealable:

· 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).

ii. Denial of Immunity

An order denying a motion to dismiss on immunity grounds may be appealable as a collateral order. See II.C.17 (Immunity); II.A.2 (Collateral Order Doctrine).

b. Dismissal Granted

i. Generally

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.

ii. Dismissal of Complaint v. Dismissal of Action

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).

iii. Leave to Amend Complaint

(a) Leave to Amend Expressly Granted

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).

(b) Leave to Amend Expressly Denied

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).

(c) Leave to Amend Not Expressly Granted or Denied

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).

iv. Involuntary Dismissal

(a) Dismissal with Prejudice

A dismissal with prejudice is a final appealable order. See Al-Torki v. Kaempen, 78 F.3d 1381, 1384–85 (9th Cir. 1996).

(b) Dismissal without Prejudice

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).

(c) Dismissal for Failure to Prosecute

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).

v. Voluntary Dismissal without Prejudice

(a) Appealability of Voluntary Dismissal Order

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).

“[A]ppeal is permitted from a voluntary dismissal which imposes a condition that creates sufficient prejudice in a legal sense.” Campbell v. City of Los Angeles, 903 F.3d 1090, 1107 (9th Cir. 2018) (internal quotation marks and citation omitted).

Cross-reference: IX.A (regarding requirements for standing to appeal).

(b) Impact of Voluntary Dismissal of Unresolved Claims on Appealability of Order Adjudicating Certain Claims

Whether an order adjudicating certain claims is appealable after remaining claims are voluntarily dismissed without prejudice depends on which party voluntarily dismissed the remaining claims.

(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.”).

vi. Voluntary Dismissal with Prejudice

“[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). See also Rodriguez v. Taco Bell Corp., 896 F.3d 952, 955–56 (9th Cir. 2018) (concluding there was jurisdiction to review district court order granting partial summary judgment to defendant, where plaintiff voluntarily dismissed remaining claim with prejudice, creating a valid final judgment for purposes of 28 U.S.C. § 1291); Concha v. London, 62 F.3d 1493, 1507–09 (9th Cir. 1995) (recognizing that a voluntary dismissal with prejudice of all remaining claims results in an appealable final judgment permitting review of all earlier orders).

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).

vii. Dismissal Subject to Condition or Modification

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”).

viii. Dismissal of Fewer Than All Claims

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).

However, an order dismissing an action as to all served defendants, so that only unserved defendants remain, may be final and appealable if the validity of attempted service is not still at issue. See Patchick v. Kensington Publ’g Corp., 743 F.2d 675, 677 (9th Cir. 1984) (per curiam) (holding order not appealable because service issue not resolved).

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).

14. DISQUALIFICATION

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).

a. Disqualification of Counsel

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).

b. Disqualification of District Judge

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).

15. IN FORMA PAUPERIS STATUS

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).

Cross-reference: II.C.3 (regarding appointment of counsel); II.C.22 (regarding pre-filing review orders); IV.B.2 (regarding construing a motion to proceed in forma pauperis as a notice of appeal).

16. IMMIGRATION

See Office of Staff Attorneys’ Immigration Outline.

17. IMMUNITY

a. Generally

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).

Cross-reference: II.C.17.g.ii (regarding whether a determination in a qualified immunity case is legal or factual); II.A.2 (regarding the requirements of the collateral order doctrine, generally).

b. Absolute Presidential or Legislative Immunity

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).

c. State Sovereign Immunity

“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”).

d. Foreign Sovereign Immunity

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).

e. Federal Sovereign Immunity

An order denying a motion to dismiss based on federal sovereign immunity is not an appealable collateral order. See Alaska v. United States, 64 F.3d 1352, 1355 (9th Cir. 1995) (citations omitted) (observing that denial can be effectively vindicated following final judgment because federal sovereign immunity is “a right not to be subject to a binding judgment” rather than “a right not to stand trial altogether”).

f. Military Service Immunity (Feres doctrine)

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).

g. Qualified Immunity of Government Employees

i. Order Denying Dismissal or Summary Judgment

“[P]retrial orders denying qualified immunity generally fall within the collateral order doctrine.” Plumhoff v. Rickard, 572 U.S. 765, 772 (2014).; see also Foster v. City of Indio, 908 F.3d 1204, 1209 (9th Cir. 2018) (per curiam).

“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).

ii. Only Legal Determinations Subject to Review

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)).

(a) Legal Determinations Defined

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).

(b) Factual Determination Defined

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).

iii. Successive Appeals from Orders Denying Immunity

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).

h. Municipal Liability

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).

There is, however, one caveat to this rule. When a municipal defendant’s motion for summary judgment is “inextricably intertwined” with issues presented in the individual officers’ qualified immunity appeal, this court may exercise pendent party appellate jurisdiction. See Huskey v. City of San Jose, 204 F.3d 893, 903–05 (9th Cir. 2000). In this context, the “inextricably intertwined” concept is a narrow one.

Horton by Horton, 915 F.3d at 603. See also Huskey v. City of San Jose, 204 F.3d 893, 903–04 (9th Cir. 2000) (court of appeals exercised pendent party jurisdiction over city’s appeal from denial of its motion for summary judgment because the city’s motion was inextricably intertwined with issues presented in officials’ appeal).

i. Immunity from Service (“Specialty Doctrine”)

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).

j. Settlement Agreement (Contractual Immunity)

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).

k. Absolute Judicial Immunity

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).

l. Absolute Political Immunity

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).

m. Absolute Witness Immunity

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).

n. Tribal Sovereign Immunity

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).

18. INJUNCTION

See II.B.1 (Interlocutory Injunctive Orders).

19. INTERVENTION

Certain orders denying leave to intervene under Rule 24 are final and appealable because they terminate the litigation as to the putative intervenor. See IX.A.2.a.i (regarding an intervenor’s standing to appeal).

a. Intervention as of Right

i. Order Denying Intervention Altogether

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).

ii. Order Denying Intervention in Part

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).

b. Permissive Intervention

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).

c. Must Appeal Denial of Intervention Immediately

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).

20. MAGISTRATE JUDGE DECISIONS (28 U.S.C. § 636(c))

a. Final Judgment by Magistrate Appealed Directly to Court of Appeals

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).

b. No Appellate Jurisdiction if Magistrate Lacked Authority

“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).

c. Parties’ Consent to Entry of Final Judgment by Magistrate

“[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)).

21. POST-JUDGMENT ORDERS

a. Post-Judgment Orders Generally Final

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).

b. Separate Notice of Appeal Generally Required

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.”).

Cross-reference: III.F.2 (regarding notice of appeal from post- judgment tolling motions), III.F.3 (regarding notice of appeal from non-tolling post-judgment motions).

c. Appealability of Specific Post-Judgment Orders

i. Post-Judgment Order Granting or Denying Attorney’s Fees

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).

ii. Post-Judgment Order Granting or Denying Costs

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).

iii. Post-Judgment Order Granting or Denying New Trial

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).

iv. Post-Judgment Orders Related to Discovery

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).

Cross-reference: II.C.12.a.iv (regarding discovery-related orders issued after entry of judgment in underlying proceeding).

v. Post-Judgment Contempt Orders

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).

Cross-reference: II.C.10.b (regarding contempt or sanctions order entered after final judgment in underlying action).

vi. Orders Granting or Denying Fed. R. Civ. P. 60(b) Relief

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).

vii. Other Post-Judgment Orders

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).

22. PRE-FILING REVIEW ORDER

“[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.C.3 (regarding appointment of counsel); II.C.15 (regarding in forma pauperis status).

23. RECEIVERSHIP

Cross-reference: II.B.2 (Interlocutory Receivership Orders).

24. REMAND

Cross-reference: II.C.24.a (regarding orders remanding to state court); II.C.24.b (regarding orders remanding to federal agencies); II.C.24.c (regarding orders denying petitions for removal from state court); II.C.24.d (regarding orders denying motions to remand to state court).

a. Order Remanding to State Court

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).

Cross-reference: II.C.24.a.i (regarding remand due to defect in removal procedure); II.C.24.a.ii (regarding remand due to lack of subject matter jurisdiction); II.C.24.a.iii (regarding remand for reasons other than lack of subject matter jurisdiction or defect in removal procedure).

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).

i. Remand Due to Defect in Removal Procedure

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).

ii. Remand Due to Lack of Subject Matter Jurisdiction

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).

iii. Remand for Reasons Other than Lack of Subject Matter Jurisdiction or Defect in Removal Procedure

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).

The following orders (remanding to state court for reasons other than lack of subject matter jurisdiction or a defect in removal procedure) were deemed reviewable on the jurisdictional basis specified in each case:

· 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).

b. Order Remanding to Federal Agency

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.

i. Remand to Federal Agency on Factual Grounds

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.”).

ii. Remand to Federal Agency on Legal Grounds

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).

c. Order Denying Petition for Removal from State Court

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).

d. Order Denying Motion to Remand to State Court

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)).

25. SANCTIONS

See II.C.10 (Contempt and Sanctions).

26. STAYS

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”).

a. Stay Granted

i. Abstention-Based Stays

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).

Cross-reference: II.C.13 (regarding abstention-based dismissals); II.C.24 (regarding abstention-based remands).

ii. Other Stays

The following orders, granting stays on grounds other than abstention, are appealable on the grounds stated:

· 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).

b. Stay Denied

The following orders denying stays are not immediately appealable because they do not satisfy the collateral order doctrine:

· 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).

27. SUMMARY JUDGMENT

a. Order Denying Summary Judgment

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.

The court of appeals generally does not review the denial of a summary judgment motion after a full trial on the merits. See Williams v. Gaye, 895 F.3d 1106, 1121–22 (9th Cir. 2018) (as amended). In the past, the court has carved out an exception to the general rule, concluding that the court may review denials of summary judgment where the district court made an error of law that if not made, would have required the district court to grant the motion. See Williams, 895 F.3d at 1122; Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236, 1243 (9th Cir. 2014). However, the court noted in Williams v. Gaye, that the Supreme Court’s decision in Ortiz v. Jordan, 562 U.S. 180 (2011), “calls into question the continuing viability of [the] exception.” Williams, 895 F.3d at 1122 (noting that although the exception was used in Escriba, which post-dated Ortiz, Escriba does not reference the Supreme Court’s Ortiz decision).

b. Order Granting Partial Summary Judgment

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 … .”).

28. TAKING

“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.

29. TAX

See VII.C (Tax Court Decisions).

30. TRANSFER

a. Transfer from District Court to District Court

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).

b. Transfer from District Court to Court of Appeals

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).

D. PETITION FOR WRIT OF MANDAMUS

1. GENERALLY

“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).

2. BAUMAN FACTORS

The court of appeals considers the presence or absence of the following five factors in evaluating a petition for writ of mandamus:

(1) The party seeking the writ has no other adequate means, such as a direct appeal, to attain the relief he or she desires. (2) The petitioner will be damaged or prejudiced in a way not correctable on appeal. (This guideline is closely related to the first.) (3) The district court’s order is clearly erroneous as a matter of law. (4) The district court’s order is an oft-repeated error, or manifests a persistent disregard of the federal rules. (5) The district court’s order raises new and important problems, or issues of law of first impressions.

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. Alternative Relief Unavailable

“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).

b. Possibility of Irreparable Damage or Prejudice

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”).

c. Clear Error by District Court

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”).

d. Potential for Error to Recur

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”).

e. Important Question of First Impression

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).

3. NOTICE OF APPEAL CONSTRUED AS PETITION FOR WRIT OF MANDAMUS

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).

a. Appeal Construed as Petition for Writ of Mandamus

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).

An appeal has been construed as a petition for a writ of mandamus in an admiralty case where all five Bauman factors supported mandamus relief. See Barnes v. Sea Hawaii Rafting, LLC, 889 F.3d 517, 535–43 (9th Cir. 2018).

b. Appeal Not Construed as Petition for Writ of Mandamus

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).

4. AVAILABILITY OF MANDAMUS RELIEF FROM SPECIFIC ORDERS

a. Class Certification Orders

i. Fed. R. Civ. P. 23

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).

ii. Decisions Predating Fed. R. Civ. P. 23(f)

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).

b. Contempt Orders

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).

Cross-reference: II.C.10 (regarding the appealability of civil contempt orders against parties to ongoing district court proceedings).

c. Discovery Orders

i. Mandamus Relief Available

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).

In Williams-Sonoma, Inc. v. United States Dist. Court. (In re Williams-Sonoma, Inc.), 947 F.3d 535, 538–40 (9th Cir. 2020), the court granted the petition for writ of mandamus and vacated the district court’s pre-class-certification discovery order, where the balance of factors weighed in favor of granting the writ. Id. (granting petition where factors one through three weighed in favor of granting the petition, even though factors four and five did not).

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).

ii. Mandamus Relief Not Available

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).

d. Disqualification Orders

i. Disqualification of Judge

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).

ii. Disqualification of Counsel

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).

Cross-reference: II.C.14 (regarding the appealability of orders disqualifying or declining to disqualify judge or counsel).

e. Jury Demand Orders

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).

f. Media Access Orders

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).

g. Remand Orders

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).

i. Mandamus Relief Available

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).

ii. Mandamus Relief Not Available

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).

h. Transfer 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).

However, in Bozic v. United States Dist. Court (In re Bozic), 888 F.3d 1048, 1051 (9th Cir. 2018), the court held that although it was clear error to transfer the action, issuance of the writ would have no practical impact on the case in its current procedural posture, and any injury was purely speculative. As such, the court held the extraordinary remedy of mandamus was unwarranted. Id.

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).

i. Other Orders

i. Mandamus Relief Available

A petition for writ of mandamus is an available avenue for relief from the following types of 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).

ii. Mandamus Relief Not Available

A petition for writ of mandamus is not an available avenue for relief from the following types of orders:

· 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).

Cross-reference: II.C.12.b.ii (regarding the appealability of orders denying motions to quash grand jury subpoenas).

· 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).

· Order compelling third parties to arbitrate. See In re Boon Glob. Ltd., 923 F.3d 643, 654 (9th Cir. 2019) (“Because the district court’s finding of jurisdiction over the Third Parties could possibly prove correct, the highly deferential clear error standard is not satisfied, and mandamus relief is improper.”).

· Order denying motion to dismiss on the pleadings. See In re United States, 884 F.3d 830, 834–38 (9th Cir. 2018). In In re United States, the court held that mandamus relief requiring the district court to dismiss action was not warranted, where the Bauman factors were not satisfied, and the issues raised by defendants were better addressed through the ordinary course of litigation. See also In re United States, 895 F.3d 1101, 1106 (9th Cir. 2018) (per curiam) (denying second petition for writ of mandamus where the government asked court of appeals to direct the district court to dismiss a case seeking environmental remedies or in the alternative to stay all discovery and trial; the Bauman factors were not satisfied, the government’s fear of burdensome discovery did not warrant mandamus relief in the absence of a single specific order, and government failed to establish prejudice that was not correctable in a future appeal).

III. TIMELINESS

A. TIME PERIOD FOR APPEAL

1. TIMELINESS OF NOTICE OF APPEAL

“[A]n appeal filing deadline prescribed by statute will be regarded as ‘jurisdictional,’ meaning that late filing of the appeal notice necessitates dismissal of the appeal.” Hamer v. Neighborhood Hous. Servs. of Chicago, 138 S. Ct. 13, 16 (2017); see also Bowles v. Russell, 551 U.S. 205, 209–13 (2007). However, “a time limit prescribed only in a court-made rule, … , is not jurisdictional; it is, instead, a mandatory claim-processing rule subject to forfeiture if not properly raised by the appellee.” Hamer, 138 S. Ct. at 16; Bowles, 551 U.S. at 209–13. See also Demaree v. Pederson, 887 F.3d 870, 876 (9th Cir. 2018) (per curiam) (explaining that prior circuit case law holding that all timeliness issues in notices of appeal were jurisdictional was irreconcilable with the Supreme Court’s decision in Hamer).

2. DEADLINE FOR FILING NOTICE OF APPEAL

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).

3. WHETHER UNITED STATES IS A PARTY

a. Liberal Construction of Fed. R. App. P. 4(a)

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).

b. Determining Party Status

i. Federal Official as Defendant

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).

ii. United States as Nominal Plaintiff

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).

Cross-reference: VI.C.1.b.ii (regarding when the United States is considered a party to a bankruptcy proceeding).

iii. United States Dismissed Prior to Appeal

“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).

iv. United States as Party in Bifurcated Proceedings

“[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).

v. United States as Party to Consolidated Action

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)).

vi. Foreign Government Not Treated Like United States

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.”).

vii. United States Not a Party to Attorney Discipline Proceeding

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).

c. Defining Agency

i. Relevant Factors

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;

· Extent to which persons other than the federal government have a proprietary interest in the agency;

· Whether entity is referred to as an agency in other federal statutes;

· Whether entity is treated as an arm of the federal government for other purposes, such as amenability to suit under the Federal Tort Claims Act.

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).

ii. Factors Applied

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).

“[T]he FDIC is a ‘United States agency’ for purposes of Rule 4, even when acting as a receiver.” Waldron, Tr. for Venture Fin. Grp., Inc., 935 F.3d at 848.

4. COMPUTATION OF TIME TO FILE NOTICE OF APPEAL

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).

a. Days Counted in Determining Deadline for Filing Notice 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).

b. Date Notice of Appeal Deemed “Filed”

i. Generally

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).

ii. Pro Se Prisoners

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).

5. APPLICABILITY OF FED. R. APP. P. 4(a) TIME LIMITS

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.

a. Fed. R. App. P. 4(a) Time Limits Applicable

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).

b. Fed. R. App. P. 4(a) Time Limits Not Applicable

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).

6. CROSS-APPEALS

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).

B. ENTRY OF JUDGMENT

1. GENERALLY

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).

[J]udgment is entered at the following times: (1) if a separate document is not required, when the judgment is entered in the civil docket under Rule 79(a); or (2) if a separate document is required, when the judgment is entered in the civil docket under Rule 79(a) and the earlier of these events occurs: (A) it is set out in a separate document; or (B) 150 days have run from the entry in the civil docket.

Fed. R. Civ. P. 58(c).

2. 150-DAY RULE

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).

If more than 150 days pass before the clerk, for whatever reason, issues a judgment on a separate document, the 30 days in which to file a notice of appeal, will be deemed to have been running from the end of the 150-day period. See Orr v. Plumb, 884 F.3d 923, 930 (9th Cir. 2018). “[I]f, after filing a final disposition, a court files a more formal judgment, the latter does not constitute a second final disposition or extend the appeal period.” Id. (internal quotation marks and citations omitted).

a. Application of the 150-Day Rule

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).

· Because Rule 58’s separate document requirement applies to § 2255 proceedings, final judgment was entered as of 150 days after the district court denied the § 2255 motion where it failed to file a separate document entering judgment, and the notice of appeal filed during those 150 days was timely. Kingsbury v. United States, 900 F.3d 1147, 1151 (9th Cir. 2018) (per curiam).

· Where “the district court never entered a separate judgment, Rule 58(c)’s alternative provision for entry of judgment kicked in after 150 days.” Orr v. Plumb, 884 F.3d 923, 925 (9th Cir. 2018). Because “Plumb didn’t file his notice of appeal until more than 30 days thereafter” his appeal of the special verdict [was] untimely, and the court lacked jurisdiction to consider it. Id.

· Where the district court’s judgment was deemed entered 150 days after its order dismissing the Amended Complaint, the notice of appeal that was filed nearly two months later was untimely. Havensight Capital LLC v. Nike, Inc., 891 F.3d 1167, 1173–74 (9th Cir. 2018). The court held that the premature filing of a post-judgment motion did not extend the otherwise applicable appeal period. Id. at 1173.

3. SEPARATE DOCUMENT REQUIREMENT

Every judgment and amended judgment must be set out in a separate document, but a separate document is not required for an order disposing of a motion:

(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

(5) for relief under Rule 60.

Fed. R. Civ. P. 58(a).

“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 failure to set forth a judgment or order on a separate document when required by Federal Rule of Civil Procedure 58(a)(1) does not affect the validity of an appeal from that judgment or order.” Fed. R. App. P. 4(a)(7)(B); see also Whitaker, 486 F.3d at 579.

a. Document Distinct from Memorandum

“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.

i. Fed. R. Civ. P. 58 Requirements Not Satisfied

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 order denying petitioner’s § 2255 motion was not a separate document within the meaning of Rule 58 because it contained substantial discussion of the law and facts. Kingsbury v. United States, 900 F.3d 1147, 1149 n.2 (9th Cir. 2018) (per curiam).

· Clerk’s verdict did not meet the requirements of Rule 58(b)(2), which requires the district court to approve the form of the judgment, where the district judge did not sign the judgment. Orr v. Plumb, 884 F.3d 923, 931 (9th Cir. 2018).

ii. Fed. R. Civ. P. 58 Requirements Satisfied

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).

b. Lack of Opinion or Memorandum

“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).

c. Minute Orders

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.

d. Lack of Separate Judgment Does Not Render Appeal Premature

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).

i. Waiver of Separate Document Requirement

When the parties treat a fully dispositive summary judgment order as if it were a final judgment, the separate document requirement in Rule 58 can be waived. See Orr v. Plumb, 884 F.3d 923, 931 (9th Cir. 2018); Whitaker v. Garcetti, 486 F.3d 572, 579–80 (9th Cir. 2007); Casey v. Albertson’s Inc., 362 F.3d 1254, 1259 (9th Cir. 2004).

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).

ii. Objection by Appellee to Lack of Separate Judgment

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.

4. MANNER OF ENTERING JUDGMENT

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).

5. JUDGMENT SIGNED BY CLERK

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).

6. NOTICE OF ENTRY OF JUDGMENT

“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)).

C. PREMATURE NOTICE OF APPEAL

1. GENERALLY

“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).

2. NOTICE FILED BEFORE ENTRY OF JUDGMENT

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).

In Manrique v. United States, the Supreme Court held that where a single notice of appeal was filed between the initial judgment and the amended judgment, it was not sufficient to invoke review of the later determined restitution amount, at least where the government objected to the defendant’s failure to file a notice of appeal following the amended judgment. 137 S. Ct. at 1270.

Cross-reference: III.B (regarding what constitutes entry of judgment).

a. Premature Notice Effective

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).

· Premature notice of appeal was effective as to the summary judgment order, but ineffective as to the scope of permanent injunction where the scope of the permanent injunction was not apparent until after the notice of appeal was filed. Hajro v. U.S. Citizenship & Immigration Servs., 811 F.3d 1086, 1097–98 (9th Cir. 2016).

b. Premature Notice Not Effective

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:

· Where a single notice of appeal was filed between the initial judgment and the amended judgment, it was not sufficient to invoke review of the later determined restitution amount, at least where the government objected to the defendant’s failure to file a notice of appeal following the amended judgment. Manrique v. United States, 137 S. Ct. 1266, 1270 (2017).

· Although premature notice of appeal was effective as to the summary judgment order, it was ineffective as to the scope of permanent injunction where the scope of the permanent injunction was not apparent until after the notice of appeal was filed. Hajro v. U.S. Citizenship & Immigration Servs., 811 F.3d 1086, 1097–98 (9th Cir. 2016).

· 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).

3. REMAINING CLAIMS FINALIZED AFTER NOTICE OF APPEAL

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. Compare Rule 54(b) Certification

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)).

b. Premature Notice of Appeal Cured

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).

c. Premature Notice of Appeal Not Cured

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.

D. EXTENDING OR REOPENING OF TIME TO APPEAL

1. GENERALLY

“Under Federal Rule of Appellate Procedure 4(a) and 28 U.S.C. § 2107(a), a notice of appeal must be filed within thirty days of the entry of the judgment or underlying order from which the appeal is taken.” Hanson v. Shubert, 968 F.3d 1014, 1017 (9th Cir. 2020). The court may not extend the time to file a notice of appeal except as authorized in Rule 4 . Fed. R. App. P. 26(b)(1); Evans v. Synopsys, Inc., 34 F.4th 762, 771 (9th Cir. 2022) (“Section 2107 and Rule 4—the appellate rule that implements that statute—provide a mechanism to extend the time to file a notice of appeal.”); see also 28 U.S.C. § 2107(c) (“The district court may, upon motion filed not later than 30 days after the expiration of the time otherwise set for bringing appeal, extend the time for appeal upon a showing of excusable neglect or good cause.”).

The district court has limited authority under Fed. R. App. P. 4(a)(5) to extend the time for filing an appeal and Fed. R. App. P. 4(a)(6) to reopen the time to file an appeal. Additionally, “[Fed. R. Civ. P.] 60(b) permits the district court to vacate and reenter judgment to restore the right to appeal in limited circumstances [that fall outside of the lack-of-notice context].” Washington v. Ryan, 833 F.3d 1087, 1091 (9th Cir. 2016) (en banc).

Cross-reference: III.E (regarding the circumstances under which the court of appeals may hear a late-filed appeal); III.F.2 (regarding the effect of a timely post-judgment tolling motion on the time period for appeal).

2. EXTENSION OF TIME TO FILE A NOTICE OF APPEAL UNDER FED. R. APP. P. 4(a)(5)

“The appellate rules make clear that [Fed. R. App. P.] 4 provides the only mechanism by which a litigant may request and a court may grant an extension of time to file a notice of appeal.” Evans v. Synopsys, Inc., 34 F.4th 762, 771 (9th Cir. 2022) (emphasis in original) (citing Fed. R. App. P. 26(b)). The rule prescribes a deadline by which a party must move for an extension to file a notice of appeal, Fed. R. App. P. 4(a)(5)(A), as well as a limit on the length of time a district court may extend the deadline if it grants the motion, Fed. R. App. P. 4(a)(5)(C). See Evans, 34 F.4th at 772–73 (discussing Fed. R. App. P. 4(a)(5)).

Fed. R. App. P. 4(a)(5)(A) states that “[t]he 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.” The time limit for filing a motion for extension of time is jurisdictional because it is expressly stated in 28 U.S.C. § 2107(c). See 28 U.S.C. § 2107(c) (“The district court may, upon motion filed not later than 30 days after the expiration of the time otherwise set for bringing appeal, extend the time for appeal upon a showing of excusable neglect or good cause.”); Hamer v. Neighborhood Hous. Servs. of Chicago, 583 U.S. 17, 19 (2017) (stating an appeal filing deadline prescribed by statute will be regarded as jurisdictional).

While Fed. R. App. P. 4(a)(5)(A) sets forth the deadline for filing a motion to extend the time to file a notice of appeal, Fed. R. App. P. 4(a)(5)(C) prescribes a limit on the length of extension that can be granted. Rule 4(a)(5)(C) provides that “[n]o extension … 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.” The Supreme Court has held that the limit on the length of the extension of time to file a notice of appeal prescribed in Rule 4(a)(5)(C) is a not a jurisdictional claim-processing rule because the limit appears nowhere in the statute. Hamer, 583 U.S. at 27 (“Because Rule 4(a)(5)(C), not § 2107, limits the length of the extension granted here, the time prescription is not jurisdictional.”).

a. Timeliness of Motion for Extension

“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). The requirement that a motion for extension of time to file a notice of appeal be filed within thirty days of the original deadline is jurisdictional. Alaska Limestone Corp. v. Hodel, 799 F.2d 1409, 1411 (9th Cir. 1986) (per curiam); see also U.S. ex rel. Haight v. Cath. Healthcare W., 602 F.3d 949, 955 (9th Cir. 2010) (explaining that the requirement of a timely motion for an extension of time under Rule 4(a)(5) is a jurisdictional one created by statute); Vahan v. Shalala, 30 F.3d 102, 103 (9th Cir. 1994) (per curiam) (holding district court has no authority to extend time for appeal if motion for extension not timely filed).

b. Form of Motion for Extension

i. Formal Motion Required

A “formal motion” is required under Fed. R. App. P. 4(a)(5). See Evans v. Synopsys, Inc., 34 F.4th 762, 773–74 (9th Cir. 2022) (concluding that intervenor’s motion to intervene and emergency motion for a stay did not meet the requirements of Rule 4(a)(5)); 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 Rule 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); Pettibone v. Cupp, 666 F.2d 333, 335 (9th Cir. 1981) (recognizing that 1979 amendment to rule “was intended to require a formal motion, as opposed to the less formal procedure under the Rule prior to amendment.”). Note the court has “not … decided whether the rule that a party must make a formal motion explicitly requesting an extension of time to appeal is a jurisdictional requirement contained in § 2107(c) or a mandatory claim-processing rule contained only in Rule 4(a)(5). Evans, 34 F.4th at 774 (declining to resolve the question because whether or not the requirement of a formal Rule 4(a)(5) motion was jurisdictional, it was a claim-processing rule that was properly invoked).

ii. When Notice Required

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, 571–72 (9th Cir. 1988).

c. Standard for Granting Motion for Extension

Parties may be entitled to an extension to file a notice of appeal under Fed. R. App. P. 4(a)(5) if they show excusable neglect or good cause. See Washington v. Ryan, 833 F.3d 1087, 1093 (9th Cir. 2016) (en banc).

The court of appeals reviews for abuse of discretion a district court’s order granting a motion to extend the time to file a notice of appeal. See Moore v. Trader Joe’s Co., 4 F.4th 874, 880 n.6 (9th Cir. 2021) (concluding the district court did not abuse its discretion in granting Plaintiffs’ motion to extend the time to file the notice of appeal); Mendez v. Knowles, 556 F.3d 757, 764 (9th Cir. 2009) (stating the district court’s grant of a motion for an extension of time will be affirmed unless the appellate court is left with a definite and firm conviction the lower court committed a clear error of judgment after weighing the relevant factors); Pincay v. Andrews, 389 F.3d 853, 858 (9th Cir. 2004) (en banc) (same).

i. Excusable Neglect

To evaluate whether neglect is excusable under Fed. R. App. P. 4(a)(5), the court applies the standard established by the Supreme Court in Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. Partnership, 507 U.S. 380 (1993) (bankruptcy case). See Stutson v. United States, 516 U.S. 193, 195 (1996) (per curiam) (recognizing the Ninth Circuit had held the Pioneer standard applies in Rule 4 cases); Los Altos El Granada Invs. v. City of Capitola, 583 F.3d 674, 683 (9th Cir. 2009).

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 Invs., 583 F.3d at 683; 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) (recognizing Pioneer is applicable to Rule 4(a)(5)). See also Iopa v. Saltchuk-Young Bros., Ltd., 916 F.3d 1298, 1301 (9th Cir. 2019) (per curiam) (recognizing the Pioneer factors are used to analyze “excusable neglect” in various contexts).

“[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)); 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 a 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. 60(b)).

ii. Good Cause

“Good cause is a non-rigorous standard that has been construed broadly across procedural and statutory contexts.” United States v. Navarro, 800 F.3d 1104, 1109–10 (9th Cir. 2015) (internal quotation marks and citation omitted) (criminal case where the district court did not abuse its discretion in finding good cause for late filing of notice of appeal).

Although Rule 4(a)(5) does not distinguish between motions filed before and after the expiration of the initial time to appeal, in Oregon v. Champion Int’l Corp., the court determined that the less stringent “good cause” standard was “applicable only where a motion [was] filed before the extension of the thirty-day period.” 680 F.2d 1300, 1301 (9th Cir. 1982) (per curiam) (relying on advisory committee notes to 1979 amendment to Fed. R. App. P. 4(a)(5)). In 2002, the rule was amended to clarify that the district court may grant a motion to extend the time to appeal if the movant shows either excusable neglect or good cause, regardless of whether the motion is brought before or during the 30 days after the expiration of the initial time to appeal.” 20 Moore’s Federal Practice - Civil § 304.14 (2024). See also Fed. R. App. P. 4(a)(5) advisory committee notes to 2002 amendment (explaining that Rule 4(a)(5)(A)(ii) was amended to correct this misunderstanding and that a motion for an extension may be granted if the movant shows either excusable neglect or good cause, regardless of whether the motion is filed before or during the 30 days following the expiration of the original deadline).

d. Length of Extension

“No extension under … 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).

Fed. R. App. P. 4(a)(5)(C)’s limitation on the length of an extension is not jurisdictional, but rather a claim-processing rule that may be waived or forfeited. See Hamer v. Neighborhood Hous. Servs. of Chicago, 583 U.S. 17, 22–27 (2017).

e. Appealability of Extension Order

An order granting or denying a motion for extension of time to file a notice of 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).

3. REOPENING THE TIME TO FILE AN APPEAL UNDER FED. R. APP. P. 4(a)(6)

The district court may reopen the time to file an appeal for 14 days after the date its order to reopen is entered only if:

(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

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. Timeliness of Motion to Reopen Time to Appeal

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 Fed. R. App. P. 4(a)(6) advisory committee notes to 1991 amendment.

b. Form of Motion to Reopen Time to Appeal

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).

c. Standard for Granting Motion to Reopen Time to Appeal

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).

i. Entitlement to Notice of Entry of Judgment

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).

ii. Failure to Receive Notice of Entry of Judgment

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 a motion to reopen the time to file an appeal under Fed. R. App. P. 4(a)(6) should be granted).

iii. Absence of Prejudice to Any Party

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 Fed. R. App. P. 4(a)(6) advisory committee notes to 1991 amendment (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.”).

d. Length of Reopening

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); see also 28 U.S.C. § 2107(c).

e. Appealability of District Court’s Grant or Denial of Fed. R. App. P. 4(A)(6) Motion

An order granting or denying a motion to reopen the time to file an appeal is an appealable final decision. See Arai v. Am. Bryce Ranches Inc., 316 F.3d 1066, 1068 (9th Cir. 2003) (reviewing district court’s denial of motion to reopen the time to file an appeal); Nguyen v. Sw. Leasing & Rental Inc., 282 F.3d 1061, 1064 (9th Cir. 2002) (reviewing district court’s grant of relief under Fed. R. App. P. 4(a)(6)).

4. RESTORING RIGHT TO APPEAL IN LIMITED CIRCUMSTANCES UNDER FED. R. CIV. P. 60(b)

“Rule 60(b) permits the district court to vacate and reenter judgment to restore the right to appeal in limited circumstances.” Washington v. Ryan, 833 F.3d 1087, 1091 (9th Cir. 2016) (en banc). “Rule 60(b) relief [may be used to restore the right to appeal in] extraordinary cases outside of the lack-of-notice context.” Id. at 1094 (recognizing that the ability to vacate and reenter judgment pursuant to Rule 60(b) is consistent with the jurisdictional nature of Rule 4(a)’s deadlines). See also Mackey v. Hoffman, 682 F.3d 1247, 1253 (9th Cir. 2012) (holding that a district court may grant relief from judgment under Fed. R. Civ. P. 60(b)(6) if his attorney’s abandonment caused the failure to timely file a notice of appeal).

Fed. R. App. P. 4(a)(6) precludes the use of Fed. R. Civ. P. 60(b)(6) to cure problems of lack of notice. See In re Stein, 197 F.3d 421, 425 (9th Cir. 2000) (agreeing with the Eighth Circuit’s analysis in Zimmer St. Louis, Inc. v. Zimmer Co., 32 F.3d 357, 360–61 (8th Cir. 1994) and holding that Rule 60(b) is not available to restore appeal rights in lack-of-notice cases). See also 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. Timeliness of Fed. R. Civ. P. 60(b) Motion

For the resetting effect of Fed. R. App. P. 4 to apply to a Fed. R. Civ. P. 60(b) motion, the motion must be filed within the time allowed for filing a motion under Fed. R. Civ. P. 59 . Note that the resetting effect of Rule 4 does not apply to all Rule 60(b) motions, but only to Rule 60(b) motions filed within 28 days (the time allowed for filing a Rule 59 motion). Compare Fed. R. Civ. P. Rule 60 (“A motion under Rule 60(b) must be made within a reasonable time [and] no more than a year after the entry of the judgment or order or the date of the proceeding.”), with Fed. R. App. P. 4(a)(4)(A)(vi) (specifying that a Rule 60 motion must be filed within the time allowed by Rule 59). See also Fed. R. App. P. 4(a)(4)(A)(vi) advisory committee’s note to 2023 amendment (explaining “Rule 4 does not give resetting effect to all Civil Rule 60(b) motions that are filed within the time allowed by the Civil Rules, but only to those Civil Rule 60(b) motions that are filed within 28 days of the entry of judgment.”).

b. Factors Considered in Evaluating a Rule 60(b) Motion

In exceptional cases outside of the lack-of-notice context, Fed. R. Civ. P. 60(b) authorizes district courts to vacate and reenter judgments to reset the time to appeal. See Washington v. Ryan, 833 F.3d 1087, 1092, 1094 (9th Cir. 2016) (en banc) (“Rule 60(b) may be used, sparingly, to restore the right to appeal in extraordinary cases when parties rely on grounds other than lack of notice.”). “Rule 60(b) is not available to restore appeal rights in lack-of-notice cases.” Id. at 1093. See also In re Stein, 197 F.3d 421, 426 (9th Cir. 1999) (explaining that case law allowing Rule 60(b) relief to retrigger appeal rights was rendered “obsolete and inapplicable” to lack-of-notice cases “by the 1991 addition of Rule 4(a)(6)”).

“Rule 60(b)(1) authorizes relief from judgment for “mistake, inadvertence, surprise, or excusable neglect.” Washington, 833 F.3d at 1098. A Rule 60(b)(1) motion must satisfy the four-factor test established in Pioneer v. Brunswick Assocs. Ltd., 507 U.S. 380, 392 (1993). See Washington, 833 F.3d at 1098. “The test considers: (1) the danger of prejudice to the non-moving party; (2) the length of the filing delay and its potential impact on the proceedings; (3) the reason for the filing delay; and (4) whether the moving party acted in good faith.” Id. The court also considers whether the parties show diligence before invoking Rule 60(b)(1), as well as all relevant circumstances surrounding the failure to make a timely appeal. Id.

“Rule 60(b)(6) authorizes the district court to grant relief from judgment for any other reason that justifies relief.” Washington, 833 F.3d at 1099. To justify relief under Rule 60(b)(6), a party must demonstrate external “‘extraordinary circumstances’ suggesting that the party is faultless in the delay.” Washington, 833 F.3d at 1099 (quoting Pioneer, 507 U.S. at 393).

In Washington v. Ryan, the court held that relief from judgment under Rule 60(b)(1) was warranted where the state inmate filed his notice of appeal one day late, there was no indication of bad faith, and the state did not argue it would be prejudiced if the appeal was heard on the merits. 833 F.3d at 1097–99 (concluding that Washington’s case was in the narrow band of cases for which relief from judgment was appropriate). The court further determined that in the alternative, Washington was entitled to relief under Rule 60(b)(6), where external circumstances prevented him from discovering that his appeal was late, and from seeking an extension of time before Rule 4(a)(5)’s grace period expired. Washington, 833 F.3d at 1099.