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 … .”).