Harmston v. City and County of San Francisco

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CLAYTON HARMSTON; GIGI GEORGE; 

JAMES LEWIS; ERIK EVANSON; ERIK

SOLARES; DAVE PARRY; NOAH

MALLINGER; CARLOS MUSTAFICH;

LUIS DEJESUS; JAMES D. AHERNE;

JASON KIRCHNER; REGINALD SCOTT;

GERALD P. LYONS; WENDY HURLEY;

HOLLY STOUMEN; CHRISTINE ARNDT;

SHAREEF NASIR, individuals, No. 09-16562

Plaintiffs,

and  D.C. No.

3:07-cv-01186-SI

ANDREW COHEN, an individual, OPINION

Plaintiff-Appellant,

WAUKEEN Q. MCCOY,

Appellant,

v.

CITY AND COUNTY OF SAN

FRANCISCO; HEATHER FONG,

Defendants-Appellees.



Appeal from the United States District Court

for the Northern District of California

Susan Illston, District Judge, Presiding

Argued and Submitted

June 14, 2010—San Francisco, California

Filed December 10, 2010

19919

19920 COHEN v. SAN FRANCISCO

Before: Mary M. Schroeder and Jay S. Bybee,

Circuit Judges, and Owen J. Panner, District Judge.*

Opinion by Judge Bybee

*The Honorable Owen J. Panner, Senior United States District Judge

for the District of Oregon, sitting by designation.

19922 COHEN v. SAN FRANCISCO

COUNSEL

Waukeen Q. McCoy, Esq., San Francisco, California, for the

plaintiff-appellant.

Lawrence Hecimovich, Deputy City Attorney, San Francisco,

California, for the defendants-appellees.

OPINION

BYBEE, Circuit Judge:

The district court sanctioned police officer Andrew Cohen

and attorney Waukeen Q. McCoy (collectively, “Cohen”) in

2007 for violating the court’s discovery protective order.

After the district court remanded the case to state court in

COHEN v. SAN FRANCISCO 19923

2008, and after the state court entered judgment, Cohen

appealed the district court’s sanctions order in 2009. We are

first asked to decide whether the remand order was a “final”

order for purposes of permitting Cohen to appeal the sanc-

tions order. Concluding that the remand order was final, we

then must determine whether the appeal was timely filed

under Federal Rule of Appellate Procedure 4(a). We conclude

that it was not and that we lack jurisdiction to hear Cohen’s

appeal.

I

Eighteen San Francisco police officers—most of whom

were stationed in Bayview—created a comedy video in 2005.

Finding the video offensive, Police Chief Heather Fong

(“Fong”) disciplined several of the participating police offi-

cers. In August 2006, eighteen of those officers (including co-

appellant Andrew Cohen), represented by co-appellant

McCoy, filed suit in state court, alleging race discrimination,

retaliation, defamation, and intentional infliction of emotional

distress. When the officers subsequently amended their com-

plaint to include federal discrimination claims, CCSF

removed the case to federal court on February 28, 2007.

Fearing public disclosure “of confidential, proprietary, or

private information” during the course of discovery, the par-

ties agreed to a Stipulated Protective Order (“Protective

Order”) on August 20, 2007. The district court later held that

McCoy and Cohen violated the Protective Order when

McCoy provided or showed a copy of the video of Chief

Fong’s deposition to a reporter for ABC News on September

20 or September 21, 2007, even though Fong’s counsel had

designated the deposition as confidential. While McCoy had

objected to designating Fong’s deposition as confidential, he

never pressed this objection to the court. Citing this and three

other examples of Protective Order violations,1 none of which

1

On September 19, 2007, Cohen posted on his website an interview

summary designated confidential by the defendants. On September 27,

19924 COHEN v. SAN FRANCISCO

appellants dispute, the district court held McCoy and Cohen

in contempt. Because the “evidence” of Cohen’s violations

was “clear and convincing,” the court concluded “that sanc-

tions for th[eir] contempt [were] appropriate to compensate

[CCSF] for [their] noncompliance.”

On November 16, 2007, Cohen appealed to this court, argu-

ing that the district court’s order held Cohen in criminal con-

tempt, and that the court should have therefore provided

procedural protections. In an unpublished order, we “con-

clude[d] that the district court found [Cohen] in civil con-

tempt and that the district court imposed monetary sanctions

against [Cohen] to compensate [CCSF] for losses sustained

when [Cohen] violated the district court’s protective order and

to coerce compliance with the district court’s protective order

in the future.” Because Cohen was held in civil contempt, we

concluded, the sanctions order was “not an immediately

appealable order,” and we sua sponte dismissed the appeal.

See 28 U.S.C. § 1291; Bingman v. Ward, 100 F.3d 653, 656

(9th Cir. 1996); Kordich v. Marine Clerks Ass’n, 715 F.2d

1392, 1393 (9th Cir. 1983) (per curiam).

On January 29, 2008, the district court granted in part

Appellants’ Motion for Clarification of the Court’s Contempt

Order. The court made clear “that the sanctions imposed on

Cohen . . . were civil, not criminal,” because “the Court

awarded sanctions to defendants to compensate them for inju-

ries associated with the improper disclosure of Chief Fong’s

deposition,” and because “the Court intended in part to coerce

plaintiffs to comply with the protective order in the future.”

2007, Cohen filed an internal complaint with the San Francisco Police

Department that included an edited version of the video of Fong’s deposi-

tion as evidence. Finally, McCoy filed in the court’s public record confi-

dential excerpts from Fong’s deposition transcript without attempting to

file them under seal.

COHEN v. SAN FRANCISCO 19925

On October 9, 2008, the district court granted Cohen’s

motion to dismiss all federal claims and remand the case to

state court. Citing 28 U.S.C. § 1367(a), and relying on its

“discretion to remand a properly removed case to state court

when no federal claim remains,” the district court concluded

“that the interests of judicial economy, comity and conve-

nience . . . favor[ed] remand to state court for determination

of the state law issues that . . . exclusively control[led] this

case.” On October 16, 2008, the district court issued an

“Amended Clerk’s Notice,” in which the district court clerk

notified the San Francisco Superior Court of the remand and

transmitted the docket materials. On July 1, 2009, the San

Francisco Superior Court entered summary judgment on most

of Cohen’s claims. Cohen filed a notice of appeal to this court

on July 22, 2009.

II

We may not proceed to the merits of this appeal until we

are satisfied that we have jurisdiction. Hawaii v. Office of

Hawaiian Affairs, 129 S. Ct. 1436, 1442 (2009). Whether we

have jurisdiction depends on affirmative answers to two ques-

tions. First, does Cohen’s appeal arise from a “final deci-

sion[ ] of [a] district court[ ] of the United States”? 28 U.S.C.

§ 1291. Second, has Cohen filed a notice of appeal within the

time required by Federal Rule of Appellate Procedure 4(a)?

See Bowles v. Russell, 551 U.S. 205, 209 (2007). If the

answer to either question is no, we must dismiss the appeal

for lack of jurisdiction. We now turn to these questions.

A

[1] Decisions from which a party may appeal under § 1291

come in two varieties. Typically, a “final decision” under

§ 1291 “is . . . one by which a district court disassociates itself

from a case.” Mohawk Indus., Inc. v. Carpenter, 130 S. Ct.

599, 604-05 (2009) (internal quotation marks and alterations

omitted). Jurisdiction under § 1291 may also arise, however,

19926 COHEN v. SAN FRANCISCO

from “a ‘small class’ of collateral rulings.” Id. at 605. “Under

the collateral order exception, an appellate court may exercise

its § 1291 jurisdiction to review a district court order that is

not a final decision.” McElmurry v. U.S. Bank Nat’l Ass’n,

495 F.3d 1136, 1140 (9th Cir. 2007) (citation and internal

quotation marks omitted). See also Cohen v. Beneficial Indus.

Loan Corp., 337 U.S. 541, 546-47 (1949).

[2] Here, Cohen challenges only the district court’s sanc-

tions order. The difficulty for us is whether and how we may

reach the merits of that order. It is law of the case that the

sanctions order was not immediately appealable, which leaves

two other possible orders from which Cohen could be appeal-

ing the sanctions order: (1) the district court’s 2008 remand

order or, as Cohen argues, (2) the California Superior Court’s

summary judgment order. We can dismiss the latter possibil-

ity by quick reference to § 1291, which limits our jurisdiction

to “all final decisions of the district courts of the United

States.” 28 U.S.C. § 1291 (emphasis added). The state court’s

summary judgment order obviously did not arise from a “dis-

trict court[ ] of the United States.” The other possibility is

more intriguing, but requires us to answer two related ques-

tions. First, is a remand order appealable? Second, is a

remand order a “final” rather than a “collateral” order such

that prior non-final orders in the litigation—such as the dis-

trict court’s sanctions order here—may be appealed with it?

The answer to both questions is yes.

1

[3] Under 28 U.S.C. § 1447(d), “[a]n order remanding a

case to the State court from which it was removed is not

reviewable on appeal or otherwise.” Contrary to what appears

to be the most natural reading of this provision, “the Supreme

Court has explained that [§ 1447(d)] does not prohibit review

of all types of remands.” Cal. Dept. of Water Res. v. Powerex

Corp., 533 F.3d 1087, 1091 (9th Cir. 2008). Instead,

§ 1447(d) is limited by § 1447(c), which permits a district

COHEN v. SAN FRANCISCO 19927

court to remand because “the district court lacks subject mat-

ter jurisdiction.” Reading these provisions “in pari materia,”

the Supreme Court has held that “only remands based on

grounds specified in § 1447(c) are immune from review under

§ 1447(d).” Quackenbush v. Allstate Ins. Co., 517 U.S. 706,

711-12 (1996) (citation and internal quotation marks omitted).

In other words, if a district court remands a case to state court

for any reason other than lack of subject matter jurisdiction,

its remand order is appealable under 28 U.S.C. § 1291.

[4] Applying these principles, the Supreme Court recently

held that a district court’s dismissal of all federal claims and

subsequent remand to state court after declining to exercise

supplemental jurisdiction under § 1367(a), is not based on a

“lack of subject matter jurisdiction” for purposes of § 1447(c)

and can be appealed. Carlsbad Tech., Inc. v. HIF Bio, Inc.,

129 S. Ct. 1862, 1867 (2009); see also Powerex, 533 F.3d at

1092-97 (coming to the same conclusion). These principles

leave little doubt that the district court’s remand order here,

in which the court expressly used its discretion under

§ 1367(c)(3) to decline to exercise supplemental jurisdiction,

was an appealable order.

2

[5] That conclusion, however, does not end the inquiry,

because, as mentioned above, Cohen is challenging the sanc-

tions order, not the remand order. We may review the sanc-

tions order as part of Cohen’s appeal from the remand order

only if the district court’s remand order was a final, and not

a collateral, order. Generally, “earlier rulings . . . can be

reviewed” on appeal from final judgment. 15A CHARLES ALAN

WRIGHT eT aL., FEDERAL PRACTICE and PROCEDURE § 3905.1 (2d

ed. 2002) (hereinafter WRIGHT & MILLER); see also United

States v. 191.07 Acres of Land, 482 F.3d 1132, 1135 (9th Cir.

2007) (“In the absence of any indication that [the appellant]

affirmatively waived his rights to a post-judgment appeal of

this issue, his failure to timely pursue an interlocutory appeal

19928 COHEN v. SAN FRANCISCO

did not waive his right to appeal the question of his right to

a jury trial.”); Matter of Kilgus, 811 F.2d 1112, 1115 (7th Cir.

1987) (“An appeal from the final judgment brings up all ante-

cedent issues.”). Although direct authority is sparse on this

point, the same is not true of collateral orders. Cf. Kirkland

v. Legion Ins. Co., 343 F.3d 1135, 1140 (9th Cir. 2003)

(“Orders of civil contempt entered against a party during the

course of a pending civil action are not appealable until final

judgment.”) (emphasis added) (internal quotation marks and

citations omitted). To hold otherwise would allow several

multi-issue appeals during the course of litigation and thereby

flaunt the notion 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.” Mohawk, 130 S. Ct. at 605 (citation and internal

quotation marks omitted). Thus, the district court’s sanctions

order became appealable with the entry of the remand order

if the remand order was final, but not if the remand order was

collateral.

[6] Although Supreme Court precedent and our precedent

have been somewhat less definitive on this point than one

might like, we think the cases stand for the proposition that

when a remand order is not barred from review under

§ 1447(d), it is final for purposes of § 1291. In Quackenbush,

for example, the Supreme Court dealt with the question

whether a district court’s abstention-based remand order was

barred from review under § 1447(d). The Court held that the

remand order was not barred from review and was appealable

on two independent grounds.2 First, the Court explained that

although the remand order did not meet the Court’s “oft-

repeated definition of finality,” 517 U.S. at 713, it was “final”

2

The Court relied heavily on Moses H. Cone Mem’l Hosp. v. Mercury

Constr. Corp., 460 U.S. 1 (1983), in which the Court held that an

abstention-based stay order was appealable under § 1291 both because it

satisfied the test for “finality” and the test for an appealable “collateral

order.” Id. at 10-11.

COHEN v. SAN FRANCISCO 19929

in the sense that it “put[ ] the litigants . . . effectively out of

court,” id. at 714 (citation and internal quotation marks omit-

ted). Phrased another way, the order was final because

“[w]hen a district court remands a case to a state court, the

district court disassociates itself from the case entirely, retain-

ing nothing of the matter on the federal court’s docket.” Id.

In the alternative, the Court held that the remand order was an

appealable collateral order because “it conclusively deter-

mine[d] an issue that [wa]s separate from the merits” and the

issue was “sufficiently important to warrant an immediate

appeal.” Id.

[7] Citing Quackenbush and Moses H. Cone, we relied on

the same two grounds to support our conclusion that a remand

order based on a district court’s refusal to exercise supple-

mental jurisdiction was immediately appealable. Powerex,

533 F.3d at 1096. Like the Supreme Court, we held that the

remand order at issue was appealable on either of two inde-

pendent grounds. We said that the remand order was “final”

because “the district court disassociated itself from the case

entirely, retaining nothing of the matter on the federal court’s

docket.” Id. at 1096 (citation, internal quotation marks, and

alterations omitted). We also held that the remand order

“qualifie[d] as an appealable collateral order under Cohen.”

Id. These cases establish that remand orders are “final” for

purposes of sweeping in prior non-final orders. To the extent

our decision in Powerex left open the question whether

remand orders to state court are final or collateral orders, we

now hold that such remands are final for purposes of § 1291.

As the Supreme Court held in Quackenbush and we held in

Powerex, the district court’s remand order possesses impor-

tant elements of finality, at least with respect to federal court

proceedings, because it put the parties “effectively out of fed-

eral court.” Powerex, 533 F.3d at 1094 (emphasis in original)

(citation and internal quotation marks omitted). The order

may not entirely satisfy the traditional definition of finality.

Quackenbush, 517 U.S. at 712 (“[W]e have held that a deci-

19930 COHEN v. SAN FRANCISCO

sion is ordinarily considered final and appealable under

§ 1291 only if it ‘ends the litigation on the merits and leaves

nothing for the court to do but execute the judgment.’ ”)

(quoting Catlin v. United States, 324 U.S. 229, 233 (1945).

But because the remand order “disassociate[d] [the district

court] from the case entirely,” and surrendered the district

court’s jurisdiction to a state court, it should be considered

final for purposes of allowing a party to appeal prior non-final

federal court orders. See Powerex, 533 F.3d at 1096.

In addition, this interpretation of “final” accords with our

practice of giving “a practical rather than a technical construc-

tion to the finality rule, without sacrificing the considerations

underlying that rule.” Anderson v. Allstate Ins. Co., 630 F.2d

677, 681 (9th Cir. 1980); see also Mohawk, 130 S. Ct. at 605.

As was the case in Allstate, “[t]here is no danger of piecemeal

appeal confronting us if we find jurisdiction here, for nothing

else remains in the federal courts.” 630 F.2d at 681; see also

Mohawk, 130 S. Ct. at 605 (identifying the avoidance of

“piecemeal, prejudgment appeals” as among “the virtues of

the final-judgment rule”).

[8] Perhaps most importantly, it is not clear how else

Cohen (or any other party in this situation) would be able to

secure review of the district court’s order. By all appearances,

a case like this would never again see the federal light of day.

And review on appeal in the state court system would be

“grossly unsatisfactory” as it would “force a state court into

the unfamiliar and dubious enterprise of reviewing a federal

trial court.” WRIGHT & MILLER § 3914.11. In light of existing

case law and these considerations, we hold that the remand

order was “final” for purposes of allowing Cohen to appeal

the sanctions order against him. That there is an order from

which Cohen may appeal the sanctions order against him,

however, says nothing about whether that appeal is timely.

B

[9] Having established that the district court’s remand

order constituted a final order, we now turn to whether Cohen

COHEN v. SAN FRANCISCO 19931

timely appealed from that order. Federal Rule of Appellate

Procedure 4(a)(7) provides that a party must file a “notice of

appeal . . . within 30 days after the judgment or order

appealed from is entered.” We have held that Rule 4(a)’s

timeliness requirement “is both mandatory and jurisdictional.”

United States v. Sanders, 480 F.3d 932, 937 (9th Cir. 2007)

(emphasis omitted). Before 2002, Rule 4(a) stated that “[a]

judgment or order is entered for purposes of this [rule] when

it is entered in compliance with Rules 58 and 79(a) of the

Federal Rules of Civil Procedure.” At the time, Federal Rule

of Civil Procedure 58 required that “[e]very judgment shall be

set forth on a separate document” and that “[a] judgment is

effective only when so set forth and when entered as provided

in Rule 79(a).” Rule 79(a) in turn, required the clerk to enter

each civil action in the docket, including “appearances,

orders, verdicts, and judgments.” In light of Rule 58’s cate-

gorical language at the time, we previously held that in the

event a district court fails to enter a separate document in

accordance with Rule 58 or fails to enter the order “in the

docket” in accordance with Rule 79, the time to appeal for

purposes of Rule 4(a) never begins to run. See McCalden v.

Cal. Library Ass’n, 955 F.2d 1214, 1218 (9th Cir. 1990);

Allah v. Sup. Ct. of Cal., 871 F.2d 887, 890 (9th Cir. 1989).

[10] In 2002, the rules changed. In order to avoid giving

parties “forever to appeal,” and because “[p]otential appellees

and the judicial system need some limit on the time within

which appeals can be brought,” Congress modified the mean-

ing of “entry of judgment” for purposes of determining

whether an appeal was timely filed. Fed. R. App. P. 4 advi-

sory committee’s note. In cases where Rule 58(a) requires a

“separate document,” judgment is now considered entered

“when the earlier of [two] events occurs: [1] the judgment or

order is set forth on a separate document, or [2] 150 days have

run from entry of the judgment or order in the civil docket

under Federal Rule of Civil Procedure 79(a).” Fed. R. App. P.

4(a)(7)(A)(ii). Federal Rule of Civil Procedure 58 made the

same change. Fed. R. Civ. P. 58(c)(2).

19932 COHEN v. SAN FRANCISCO

We applied this new rule in Comedy Club, Inc. v. Improv

West Assocs., 553 F.3d 1277 (9th Cir. 2009). There, we con-

cluded that the district court’s order compelling the parties to

arbitrate some claims and dismissing the remaining claims

was a “final order.” Id. at 1283-84. Although the order was

“final,” we noted that the district court “did not enter judg-

ment on the order to compel arbitration.” Id. at 1284. Because

a separate document had not been filed, we held that the los-

ing party had, under Federal Rule of Appellate Procedure

4(a)(7)(A)(ii), “180 days to appeal the order.” Id. at 1284. The

appeal, which came 287 days after the order, was untimely.

The D.C. and Seventh Circuits have also applied and dis-

cussed this new rule. In Outlaw v. Airtech Air Conditioning

and Heating, Inc., 412 F.3d 156 (D.C. Cir. 2005), the court

observed that the district court’s May 6 order resolved “all

pending claims against all parties,” but noted that the “sepa-

rate document rule” was “ignored.” Id. at 162. Pre-2002, the

court noted, that would allow for an eternal deadline, but the

rules were amended in 2002 “to address the problem that a

failure to comply with the separate document rule meant that

the time to appeal never expired because it never began to

run.” Id. at 163; see also Fed. R. App. P. 4, advisory commit-

tee’s notes (2002 amendments). In light of that change, the

court held, FRAP’s 30-day clock began to run “150 days after

the entry of the May 6 order,” and the appeal was timely. Id.

at 163. And in TDK Elecs. Corp. v. Draiman, 321 F.3d 677

(7th Cir. 2003), the Seventh Circuit commented that, under

the new rule, “once the judge has resolved the case, even if

by an order that does not satisfy the rules, and 150 days have

lapsed, the decision is treated as if final even though formally

defective.” Id. at 679-80 (emphasis in original).3

3

The Advisory Committee originally allowed for the entry of judgment

60 days after an otherwise final order, but extended the deadline to 150

days because although “[a] 60-day period of inactivity is not sufficiently

rare to signal to litigants that the court has entered its last order . . . . 150

days of inactivity is much less common and thus more clearly signals to

litigants that the court is done with their case.” Fed. R. App. P. 4 advisory

committee’s note.

COHEN v. SAN FRANCISCO 19933

[11] “Because Congress decides . . . whether federal courts

can hear cases at all, it can also determine when, and under

what conditions, federal courts can hear them.” Bowles v.

Russell, 551 U.S. 205, 212-13 (2007). Congress has decided

that ensuring finality eventually becomes more important than

strictly enforcing Rule 58’s separate document requirement.

In this case, the balance Congress struck means the end of

Cohen’s appeal. The district court entered its remand order on

October 9, 2008, but failed to enter a separate document con-

taining the judgment. Thus, because the district court’s

remand order constituted a final order, Cohen’s last day to

appeal came 180 days later, on April 17, 2009 (or, if the rele-

vant final order is the Amended Notice of the remand order,

April 25, 2009). Because Cohen’s notice of appeal was filed

on July 22, 2009, it was untimely, and we lack jurisdiction.

III

“If rigorous rules like the one applied today are thought to

be inequitable, Congress may authorize courts to promulgate

rules that excuse compliance with the statutory time limits.”

Bowles, 551 U.S. at 214. For now, we must dismiss Cohen’s

appeal.

DISMISSED.