Lena Childs v. San Diego Family Housing LLC

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LENA CHILDS, an individual; No. 20-56049

DONALD CHILDS, an individual; T.

CHILDS, a minor by and through her D.C. No.

guardian ad litem, Lena Childs; A. 3:19-cv-02329-

CHILDS, a minor by and through her JM-MDD

guardian ad litem, Lena Childs,

Plaintiffs-Appellees,

OPINION

v.

SAN DIEGO FAMILY HOUSING LLC, a

California Limited Liability

Corporation; LINCOLN MILITARY

PROPERTY MANAGEMENT, LP, a

Delaware Limited Partnership,

Defendants-Appellants,

and

INDEPTH CORPORATION, a California

Corporation; DOES, 1 through 25

inclusive,

Defendants.

2 CHILDS V. SAN DIEGO FAMILY HOUSING LLC

Appeal from the United States District Court

for the Southern District of California

Jeffrey T. Miller, District Judge, Presiding

Argued and Submitted August 31, 2021

Pasadena, California

Filed January 14, 2022

Before: Sandra S. Ikuta, Mark J. Bennett, and

Ryan D. Nelson, Circuit Judges.

Opinion by Judge Ikuta

SUMMARY*

Appellate Jurisdiction

The panel dismissed, for lack of appellate jurisdiction,

defendants’ appeal from the district court’s order denying

their claim of derivative sovereign immunity in a tort suit

concerning military housing.

The panel held that the district court’s order was not

immediately appealable under the collateral order doctrine,

under which an order that does not terminate the litigation is

nonetheless treated as final if it (1) conclusively determines

the disputed question, (2) resolves an important issue

completely separate from the merits of the action, and (3) is

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

CHILDS V. SAN DIEGO FAMILY HOUSING LLC 3

effectively unreviewable on appeal from a final judgment.

Joining the Fifth Circuit, the panel held that the first two

prongs were satisfied, but the denial of derivative sovereign

immunity was not effectively unreviewable on appeal from a

final judgment because denying an immediate appeal would

not imperil a substantial public interest. The panel held that

the public interest underlying derivative sovereign immunity

is extending the federal government’s immunity from

liability, in narrow circumstances, to government agents

carrying out the federal government’s directions, and this

interest could be vindicated after trial. The panel concluded

that Campbell-Ewald Co. v. Gomez, 577 U.S. 153 (2016), did

not undercut Ninth Circuit case law holding that federal

sovereign immunity and government contractor immunity

protect defendants from liability, rather than providing

immunity from suit.

COUNSEL

Don Willenburg (argued), Gordon & Rees Scully

Mansukhani LLP, Oakland, California; Kristin N. Reyna

Dehart and Matthew P. Nugent, Gordon & Rees Scully

Mansukhani LLP, San Diego, California; for Defendants-

Appellants.

Martin Nebrida Buchanan (argued), Law Offices of Martin N.

Buchanan, San Diego, California; Robert J. Fitzpatrick,

Fitzpatrick Law APC, San Diego, California, for Plaintiffs-

Appellees.

4 CHILDS V. SAN DIEGO FAMILY HOUSING LLC

Daniel Winik (argued) and H. Thomas Byron III, Appellate

Staff; Randy S. Grossman, Acting United States Attorney;

Brian M. Boynton, Acting Assistant Attorney General;

United States Department of Justice, Civil Division,

Washington, D.C.; for Amicus Curiae United States of

America.

OPINION

IKUTA, Circuit Judge:

In this appeal, defendants claim they have derivative

sovereign immunity under Yearsley v. W.A. Ross

Construction Co., 309 U.S. 18 (1940), and therefore the

district court should have granted their motion to dismiss.

We hold that a district court order denying a claim of

derivative sovereign immunity is not immediately appealable

under the collateral order doctrine, see Cohen v. Beneficial

Indus. Loan Corp., 337 U.S. 541, 546 (1949), and therefore

dismiss the appeal for lack of appellate jurisdiction.

I

Donald Childs and his family leased a house in military

family housing at Naval Amphibious Base Coronado near

San Diego while Childs was on active duty in the Navy. The

military housing was owned by San Diego Family Housing,

LLC, (SDFH), a public-private venture created by statute, in

which the United States Navy is a minority LLC member.

SDFH contracted with Lincoln Military Property

Management, L.P., (Lincoln) to provide property

management services.

CHILDS V. SAN DIEGO FAMILY HOUSING LLC 5

Soon after moving in, the Childs family reported a series

of water-intrusion and mold problems in their home to SDFH

and Lincoln. SDFH, Lincoln, and InDepth, a mold

remediation company retained by Lincoln, were unable to

resolve the problem to the Childs family’s satisfaction. The

Childs family brought suit in California state court alleging

negligence and other state tort claims. SDFH and Lincoln

removed the case to federal court based on federal enclave

jurisdiction and other theories.

Once in federal court, SDFH and Lincoln moved to

dismiss the complaint for lack of subject-matter jurisdiction.1

SDFH and Lincoln asserted they were government

contractors acting at the direction of the federal government,

and therefore had derivative sovereign immunity. See

Yearsley, 309 U.S. at 22. The Childs family opposed the

motion. So did the United States, which filed a statement of

interest in the case with the permission of the district court.

The district court held that SDFH and Lincoln were not

entitled to derivative sovereign immunity under Yearsley and

denied the motion to dismiss. SDFH and Lincoln appealed

the order. The court entered a partial stay of proceedings

pending resolution of the appeal.

1

Rule 12(b)(1) of the Federal Rules of Civil Procedure provides:

“Every defense to a claim for relief in any pleading must be asserted in the

responsive pleading if one is required. But a party may assert the

following defenses by motion: (1) lack of subject-matter jurisdiction.”

Fed. R. Civ. P. 12(b)(1).

6 CHILDS V. SAN DIEGO FAMILY HOUSING LLC

II

The question before us is whether we have appellate

jurisdiction under 28 U.S.C. § 1291 to hear the appeal of the

dismissal order. “[W]e have jurisdiction to determine

whether we have jurisdiction to hear the case.” Atl. Nat’l Tr.

LLC v. Mt. Hawley Ins. Co., 621 F.3d 931, 933 (9th Cir.

2010) (quoting Aguon-Schulte v. Guam Election Comm’n,

469 F.3d 1236, 1239 (9th Cir. 2006)).

A

We “have jurisdiction of appeals from all final decisions

of the district courts of the United States.” 28 U.S.C. § 1291.

This means “that a party may not take an appeal under this

section until there has been a decision by the District Court

that ends the litigation on the merits and leaves nothing for

the court to do but execute the judgment.” Firestone Tire &

Rubber Co. v. Risjord, 449 U.S. 368, 373 (1981) (cleaned up).

Under the Supreme Court’s collateral order doctrine,

however, the term “final decisions” in § 1291 also includes “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.” Digit. Equip. Corp. v.

Desktop Direct, Inc., 511 U.S. 863, 867 (1994) (cleaned up).

The Supreme Court has emphasized that this doctrine is

narrow, because otherwise the doctrine could “overpower the

substantial finality interests § 1291 is meant to further,”

including judicial efficiency. Will v. Hallock, 546 U.S. 345,

350 (2006).

To fall within the narrow class of orders satisfying the

Supreme Court’s collateral order doctrine, an order must

(1) “conclusively determine the disputed question,”

CHILDS V. SAN DIEGO FAMILY HOUSING LLC 7

(2) “resolve an important issue completely separate from the

merits of the action,” and (3) “be effectively unreviewable on

appeal from a final judgment.” Id. at 349 (quoting P.R.

Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S.

139, 144 (1993)).2 When the Court determines that a type of

order is immediately appealable, that ruling is applicable to

all orders in that category. Van Cauwenberghe v. Biard,

486 U.S. 517, 529 (1988) (“In fashioning a rule of

appealability under § 1291, however, we look to categories of

cases, not to particular injustices.”); see also Carroll v.

United States, 354 U.S. 394, 405 (1957) (“Appeal rights

cannot depend on the facts of a particular case.”).

Some categories of orders denying dismissal on the

ground of immunity from suit are immediately appealable

under the collateral order doctrine. This includes orders

denying motions to dismiss on the grounds of absolute

immunity, Nixon v. Fitzgerald, 457 U.S. 731, 742–43 (1982);

qualified immunity, Mitchell v. Forsyth, 472 U.S. 511, 530

(1985); a state’s Eleventh Amendment immunity, P.R.

Aqueduct, 506 U.S. at 144–45; and rights under the Double

Jeopardy Clause, Abney v. United States, 431 U.S. 651, 660

(1977).

Despite its rulings in this line of cases, the Supreme Court

has declined to derive a rule that the denial of any type of

immunity from suit is immediately appealable. Hallock,

546 U.S. at 351. Such a rule would go too far, the Supreme

Court held, because “collateral order appeal would be a

matter of right whenever the Government lost a motion to

dismiss under the Tort Claims Act, or a federal officer lost

2

Because these three conditions were first set forth in Cohen,

337 U.S. at 546, this test is often referred to as the Cohen test.

8 CHILDS V. SAN DIEGO FAMILY HOUSING LLC

one on a Bivens action,” and “§ 1291 would fade out

whenever the Government or an official lost an early round.”

Id. at 353–54; see also Digit. Equip. Corp., 511 U.S. at 873

(explaining that the focus on a “right not to stand trial” is

misplaced because “virtually every right that could be

enforced appropriately by pretrial dismissal might loosely be

described as conferring a ‘right not to stand trial’”).

Therefore, Hallock held that the third prong of the collateral

order doctrine is satisfied only if denying an immediate

appeal and requiring the defendant to stand trial would

“imperil a substantial public interest,” such as “honoring the

separation of powers, preserving the efficiency of government

and the initiative of its officials, respecting a State’s dignitary

interests, and mitigating the government’s advantage over the

individual.” Id. at 352–53.

B

Here, the order denying the motion to dismiss the Childs’

complaint was not one that “ends the litigation on the merits,”

and the district court did not certify its order for interlocutory

review under 28 U.S.C. § 1292(b). Therefore, we have

appellate jurisdiction over this order only if it qualifies as a

final order under the collateral order doctrine.

The parties do not dispute that the first two prongs of the

collateral order doctrine are satisfied: the order in this case

conclusively determined the disputed question as to whether

the defendants were entitled to derivative sovereign immunity

under Yearsley, and that decision resolved an important issue

separate from the merits of the action. Therefore, we

consider the question whether the denial of derivative

sovereign immunity is “effectively unreviewable” on appeal

from a final judgment because such a denial would “imperil

CHILDS V. SAN DIEGO FAMILY HOUSING LLC 9

a substantial public interest” that meets the requirements in

Hallock. 546 U.S. at 353.

To make this determination, we begin by identifying the

public interest in Yearsley. In Yearsley, plaintiffs sought

damages from a company whose construction of dikes in the

Missouri River “washed away” part of the plaintiffs’ land.

309 U.S. at 19. Because the company’s work “was all

authorized and directed by the Government of the United

States for the purpose of improving the navigation of this

navigable river,” and the government would be responsible

for providing the plaintiffs just compensation if the action

constituted a taking, Yearsley held “there is no ground for

holding [the government’s] agent liable who is simply acting

under the authority thus validly conferred.” Id. at 20–22. We

later held that the derivative sovereign immunity established

by Yearsley “is limited to cases in which a contractor ‘had no

discretion in the design process and completely followed

government specifications,’” and does not extend to “military

contractors exercising a discretionary governmental

function.” Cabalce v. Thomas E. Blanchard & Assocs., Inc.,

797 F.3d 720, 732 (9th Cir. 2015) (citing In re Hanford

Nuclear Rsrv. Litig., 534 F.3d 986, 1001 (9th Cir. 2008)).

Based on these precedents, the public interest underlying

derivative sovereign immunity is extending the federal

government’s immunity from liability, in narrow

circumstances, to government agents carrying out the federal

government’s directions.

Having identified the public interest at stake, we next turn

to the question whether this public interest is a substantial one

that meets the standard in Hallock. Our inquiry is guided by

cases considering analogous claims of immunity. Although

we have not directly considered the applicability of the

10 CHILDS V. SAN DIEGO FAMILY HOUSING LLC

collateral order doctrine to the denial of claims of derivative

sovereign immunity under Yearsley, we have previously held

that the collateral order doctrine does not apply to orders

denying assertions of sovereign immunity of the federal

sovereign itself, see State of Alaska v. United States, 64 F.3d

1352, 1355 (9th Cir. 1995), or orders denying assertions of

the government contractor defense, Rodriguez v. Lockheed

Martin Corp., 627 F.3d 1259, 1262 (9th Cir. 2010). Because

both of these categories of claims are based on the sovereign

immunity of the federal government, much like derivative

sovereign immunity under Yearsley, we are guided by their

analysis of whether the interest at issue meets the third prong

of the collateral order doctrine.3

In Alaska, we held that Congress has carved “such broad

exceptions” out of federal sovereign immunity by statute that

the United States effectively surrendered its right to be free

from suit in its own courts. 64 F.3d at 1356 & n.7 (citing

Pullman Constr. Indus., Inc. v. United States, 23 F.3d 1166,

1169 (7th Cir. 1994)). Therefore, “federal sovereign

immunity is not best characterized as a ‘right not to stand trial

altogether,’” but is “more accurately considered a right to

prevail at trial, i.e., a defense to payment of damages.” Id.

at 1355. We explained that the public interest in reviewing

the denial of federal sovereign immunity is not “weightier

than the societal interests advanced by the ordinary operation

of final judgment principles,” because the only hardship

3

Indeed, the government contractor defense and derivative sovereign

immunity both derived from Yearsley. See In re Hanford Nuclear Rsrv.

Litig., 534 F.3d at 1001 (holding that the Supreme Court “planted the

seeds of the government contractor defense” in Yearsley, before

expanding the doctrine in Boyle v. United Technologies Corp., 487 U.S.

500 (1988)).

CHILDS V. SAN DIEGO FAMILY HOUSING LLC 11

imposed by postponing review is “the need to prepare for

trials.” Id. at 1356 (quoting Digit. Equip. Corp., 511 U.S.

at 879). We therefore concluded that “[t]he interest served

by federal sovereign immunity (the United States’ freedom

from paying damages without Congressional consent) may be

served equally well if review follows a final judgment on the

merits,” and therefore an order denying federal sovereign

immunity is not an immediately appealable collateral order.

Id. at 1355.

Like derivative sovereign immunity, the government

contractor defense “shields contractors from tort liability in

state or federal actions where plaintiffs allege they sustained

injuries as a result of exposure to defective products or

equipment manufactured or supplied under a government

contract.” Rodriguez, 627 F.3d at 1265. Rodriguez held that

the government contractor defense provided “only a corollary

financial benefit flowing from the government’s sovereign

immunity.” Id. at 1266. Therefore, an order denying the

government contractor defense could be reviewed effectively

after final judgment and was not immediately appealable. Id.

Our conclusion in Alaska that the interest served by

federal sovereign immunity (i.e., giving the government a

defense to payment of damages) “may be served equally well

if review follows a final judgment on the merits,” 64 F.3d

at 1355, is applicable to parties claiming derivative sovereign

immunity under Yearsley, see 309 U.S. at 19–20. And our

reasoning in Rodriguez that the interest served by the

government contractor immunity (i.e., giving contractors a

shield from financial liability) can be vindicated after trial,

see 627 F.3d at 1266, is also applicable to parties claiming

derivative sovereign immunity. Therefore, the reasoning of

Alaska and Rodriguez compels the conclusion that it would

12 CHILDS V. SAN DIEGO FAMILY HOUSING LLC

not “imperil a substantial public interest,” Hallock, 546 U.S.

at 353, to require a government contractor with derivative

sovereign immunity under Yearsley to stand trial. To the

contrary, immediate appellate review of such an order would

be “simply abbreviating litigation troublesome to

Government employees,” which the Supreme Court has held

is an insufficient basis to apply the collateral order doctrine.

Id.; see also Alaska, 64 F.3d at 1356.

Because the denial of derivative sovereign immunity

under Yearsley is effectively reviewable after trial, the third

prong of the collateral order doctrine is not satisfied.

Therefore, we hold that the denial of a motion to dismiss on

the ground of derivative sovereign immunity under Yearsley

is not immediately appealable under the collateral order

doctrine. In reaching this conclusion, we join the Fifth

Circuit’s well-reasoned conclusion that the denial of

derivative sovereign immunity under Yearsley is not

immediately appealable. Martin v. Halliburton, 618 F.3d

476, 485 & n.14 (5th Cir. 2010).

SDFH and Lincoln argue that our reasoning in Alaska and

Rodriguez has been undercut by the Supreme Court’s

decision in Campbell-Ewald Co. v. Gomez, 577 U.S. 153

(2016). In Campbell, the Supreme Court considered whether

a federal contractor who violated the Telephone Consumer

Protection Act by sending text messages to individuals who

had not agreed to receive them could claim derivative

sovereign immunity under Yearsley. See id. at 156. In the

course of holding that a party is not entitled to derivative

sovereign immunity if it violates both federal law and the

Government’s explicit instructions, the Court in passing

framed the question presented as whether a contractor was

“immune from suit” under Yearsley. Id. at 166. According

CHILDS V. SAN DIEGO FAMILY HOUSING LLC 13

to the defendants, this passing reference overrules the

reasoning in Alaska and Rodriguez that federal sovereign

immunity and government contractor immunity protected

defendants from liability, not immunity from suit.

We disagree. The few brief references in Campbell-

Ewald—which merely restates the Supreme Court’s

longstanding classification of federal sovereign immunity as

immunity from suit, see, e.g., FDIC v. Meyer, 510 U.S. 471,

475 (1994)—have not “undercut the theory or reasoning

underlying” Alaska and Rodriguez “in such a way that the

cases are clearly irreconcilable,” Miller v. Gammie, 335 F.3d

889, 900 (9th Cir. 2003) (en banc). Unlike Campbell-Ewald,

which considered the scope of a government contractor’s

immunity, Alaska and Rodriguez analyzed whether the

interests at stake when a district court denies a motion to

dismiss based on a claim of federal sovereign immunity or

the government contractor defense are important enough to

merit an immediate appeal. This is exactly the inquiry

required by Hallock. Campbell-Ewald’s passing comments

do not impact our conclusions in Alaska and Rodriguez that

the interest in avoiding a judgment of damages is

insufficiently weighty to satisfy the third prong of the

collateral order doctrine. “[I]t is not mere avoidance of a

trial, but avoidance of a trial that would imperil a substantial

public interest, that counts when asking whether an order is

‘effectively’ unreviewable if review is to be left until later.”

Hallock, 546 U.S. at 353 (emphasis added) (quoting Coopers

& Lybrand v. Livesay, 437 U.S. 463, 468 (1978)).4

4

Because the third prong of the collateral order doctrine requires

consideration of whether being forced to stand trial would imperil a

substantial public interest, Hallock, 546 U.S. at 353, SDFH’s and

Lincoln’s reliance on Cunningham v. General Dynamics Information

14 CHILDS V. SAN DIEGO FAMILY HOUSING LLC

III

The district court’s order was not an immediately

appealable collateral order, and SDFH and Lincoln fail to

identify any other statutory basis that permits us to exercise

jurisdiction to hear the appeal. Therefore, we lack appellate

jurisdiction under 28 U.S.C. § 1291. See Cohen, 337 U.S.

at 545–47.

DISMISSED.

Technology, Inc., 888 F.3d 640, 649–51 (4th Cir. 2018), is misplaced.

Although Cunningham stated that derivative sovereign immunity under

Yearsley provides immunity from suit, it did not address the distinct

question whether an order denying derivative sovereign immunity would

imperil a substantial public interest. For the same reason, SDFH and

Lincoln’s attempt to analogize derivative sovereign immunity to qualified

immunity fails, because the denial of qualified immunity would impact the

substantial public interest in inducing “officials to show reasonable

initiative when the relevant law is not ‘clearly established.’” Hallock,

546 U.S. at 353 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).

By contrast, the denial of derivative sovereign immunity does not imperil

any similarly substantial public interest. See supra at 12.