United States v. El Dorado County

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA , No. 11-17134

Plaintiff-Appellant,

D.C. No.

v. 2:01-cv-01520-

MCE-GGH

EL DORADO COUNTY , California and

CITY OF SOUTH LAKE TAHOE,

Defendants-Appellees. OPINION

Appeal from the United States District Court

for the Eastern District of California

Morrison C. England, Jr., Chief District Judge, Presiding

Argued and Submitted

October 16, 2012—San Francisco, California

Filed January 11, 2013

Before: J. Clifford Wallace and Carlos T. Bea,

Circuit Judges, and Jane A. Restani, Judge.*

Opinion by Judge Wallace

*

The Honorable Jane A. Restani, Judge for the U.S. Court of

International Trade, sitting by designation.

2 UNITED STATES V . EL DORADO COUNTY

SUMMARY**

Jurisdiction / Final Order

The panel dismissed for lack of jurisdiction, due to lack

of a final appealable order, an appeal from the district court’s

order suspending a consent decree between the federal

government and El Dorado County, pending further hearings.

The panel held that if a district court order deals with a

consent decree that has injunctive effects, an appeal from it

should be analyzed under the requirements set out in Carson

v. Am. Brands, Inc., 450 U.S. 79 (1981). The panel held that

the federal government failed to satisfy the Carson factors,

and concluded that the court lacked jurisdiction at this time to

review the district court’s order.

COUNSEL

Karl J. Fingerhood, Andrew J. Doyle, Maggie B. Smith

(argued), United States Department of Justice, Environmental

and Natural Resources Division, Washington D.C., for

Plaintiff-Appellant.

Thomas M. Bruen (argued), Erik A. Reinertson, Law Offices

of Thomas M. Bruen, P.C., Walnut Creek, California, for

Defendant-Appellee.

**

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

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

UNITED STATES V . EL DORADO COUNTY 3

OPINION

WALLACE, Circuit Judge:

The United States of America (government) entered into

a consent decree with El Dorado County (County) concerning

the clean up of an abandoned landfill located near Lake

Tahoe in California. The County shortly thereafter moved to

modify the decree, and the district court suspended the decree

pending further hearings. The government appealed. The

County later moved to dismiss for lack of jurisdiction,

arguing that the order was not appealable because it is

nonfinal. We have jurisdiction to determine our own

jurisdiction, Special Invs., Inc. v. Aero Air, Inc., 360 F.3d

989, 992 (9th Cir. 2004), and we dismiss the appeal.

I.

The County and the government have a long history with

respect to the landfill. Much of the detail is irrelevant to our

jurisdiction decision and we will therefore only recount the

facts relevant to our determination.

The United States Forest Service (Forest Service) gave

the County a permit to operate a landfill on Forest Service

land from 1955 through 1971, after which the landfill was

closed. In 1996, toxic chemicals were discovered in the

groundwater near the landfill. After several rounds of

investigation, planning, and negotiation, the Forest Service

and the County entered into a consent decree under which the

County would be obligated to implement a remedial plan

developed by the Forest Service. Soon after beginning

implementation, the County discovered alleged defects in the

plan and moved to modify the consent decree.

4 UNITED STATES V . EL DORADO COUNTY

The district court held that (1) the plan contained

significant errors; (2) as a result, the implementation costs

would be substantially increased; and (3) the government

must pay those costs. The district court therefore “suspended”

the consent decree “pending further order” and directed that

an evidentiary hearing would be held to determine the extent

of the government’s liability for the increased costs.

II.

The government argues that we have jurisdiction because

(1) the order is a modification of an injunction and therefore

falls within 28 U.S.C. § 1292(a)(1); and (2) even if it does not

fall under section 1292(a)(1) by its own terms, the order is

immediately appealable because it satisfies the extra

requirements set out in Carson v. Am. Brands, Inc., 450 U.S.

79 (1981). To solve the issue presented, we analyze the

relationship between Carson and section 1292(a)(1) in the

context of consent decrees.

The text of section 1292(a)(1) allows for interlocutory

appeal only of orders “granting, continuing, modifying,

refusing or dissolving injunctions, or refusing to dissolve or

modify injunctions.” “Carson . . . expanded the scope of

appeals that can be taken under section 1292(a)(1), but in

doing so imposed an additional requirement on appeals that

do not fall directly within the meaning of the statute.” Shee

Atika v. Sealaska Corp., 39 F.3d 247, 249 (9th Cir. 1994). To

satisfy those added requirements, the appealing party must

show that the order (1) has “the practical effect of the grant or

denial of an injunction”; (2) has “serious, perhaps irreparable

consequences”; and (3) can be “effectively challenged only

by immediate appeal.” Thompson v. Enomoto, 815 F.2d 1323,

1326–27 (9th Cir. 1987).

UNITED STATES V . EL DORADO COUNTY 5

Orders dealing with consent decrees do not fall directly

within the language of 1292(a)(1): they are not orders

granting, denying, or modifying injunctions by their own

terms. However, such orders may have the same practical

effect as an injunction, and therefore they demand application

of Carson’s special rules. Thus, a court reviewing an

interlocutory order involving a consent decree should apply

Carson, not just section 1292(a)(1) alone, to determine

jurisdiction. Carson and our cases construing Carson make

this relationship clear.

Carson itself dealt specifically with a request for approval

of a consent decree with injunctive properties. 450 U.S. at

83–84. The implication is therefore that consent decrees do

not fit comfortably under section 1292(a)(1) on interlocutory

appeal. Thus, even though a “consent decree is an

injunction,” Gates v. Shinn, 98 F.3d 463, 468 (9th Cir. 1996),

it is nonetheless subject to additional rules on interlocutory

appeal.

This understanding of Carson is confirmed by our

discussion of the case in Shee Atika:

In Carson, the Supreme Court considered whether

section 1292(a)(1) permitted appeal from an order

denying the parties’ joint motion for approval of a

consent decree that contained an injunction as one of

its provisions. Because the order did not, on its face,

deny an injunction, an appeal from the order did not

fall precisely within the language of section

1292(a)(1). The Court nevertheless permitted the

appeal.

6 UNITED STATES V . EL DORADO COUNTY

39 F.3d at 249 (emphasis added) (citation omitted). We thus

reinforced the implication from Carson that orders involving

consent decrees do not fall directly under section 1292.

The proposition is further supported in Thompson, in

which we applied Carson to determine whether an

interlocutory order appointing a monitor to oversee a

preexisting injunctive consent decree between prisoners and

their prison was immediately appealable. Thompson, 815 F.2d

at 1326–27. See also Sierra Club, Inc. v. Elec. Controls

Design, Inc., 909 F.2d 1350, 1353 (9th Cir. 1990) (order

denying injunctive consent decree is subject to Carson);

EEOC v. Pan Am. World Airways, Inc., 796 F.2d 314, 316

(9th Cir. 1986) (same). These cases make clear that the

correct approach is to apply Carson when presented with an

interlocutory appeal from an order that deals with an

injunctive consent decree.

III.

The government seeks to avoid Carson by relying on our

decision in Hook v. Arizona, 120 F.3d 921 (9th Cir. 1997).

Much like Thompson, Hook reviewed a district court’s order

appointing a special master to oversee implementation of a

preexisting consent decree between prisoners and their prison.

Id. at 925–26. Hook characterized the appointment as part of

a larger order modifying the consent decree. Id. at 926.

Without discussion or citation of any authority, Hook stated

that “[t]he modification order clearly is appealable under

28 U.S.C. § 1292(a)(1).” Id. Hook did not mention Carson or

our cases that apply it.

It is true that while Carson and most of our cases

considered the denial of a consent decree, Hook dealt with a

UNITED STATES V . EL DORADO COUNTY 7

modification. The question is whether that difference

establishes a proper distinction. We conclude that it does not.

First, Thompson, applying Carson, considered whether an

interlocutory order appointing a monitor to oversee a consent

decree was immediately appealable as “an order ‘granting,

modifying, refusing, or dissolving’ the consent decree.”

815 F.2d at 1326 (quoting Carson, 450 U.S. at 84). We have

therefore already clearly recognized that orders modifying

consent decrees should be reviewed under Carson. See also

Heartwood, Inc. v. U.S. Forest Serv., 316 F.3d 694, 699 (7th

Cir. 2003) (applying Carson to an order vacating a previously

established consent decree). See also United States v.

Colorado, 937 F.2d 505, 507–08 (10th Cir. 1991) (applying

Carson to an order denying modification of a consent decree).

Second, application of Carson’s special rules should not

hinge on what an order does to a consent decree with

injunctive aspects: whether it grants, denies, or modifies. The

animating principle of Carson is that consent decrees

sometimes have the same practical effect as injunctions and

can therefore be treated as such on interlocutory appeal if

certain additional requirements are satisfied. 450 U.S. at 83

(“Although the District Court’s order declining to enter the

proposed consent decree did not in terms refus[e] an

injunctio[n], it nonetheless had the practical effect of doing

so”) (internal quotation marks omitted). Thus, just as the

modification of an injunction is appealable, the modification

of an injunctive consent decree is appealable, but only when

the Carson requirements are satisfied. Accordingly, it is

difficult to understand why Hook did not expressly apply

Carson. Nevertheless, it is clear that based upon Carson and

our subsequent cases, Carson applies here. Therefore, we

8 UNITED STATES V . EL DORADO COUNTY

disagree with the government’s contention that Hook

provides jurisdiction in this appeal.

We are mindful that our reasoning in some ways depends

on labels, and that “[i]n determining the appealability of an

interlocutory order under 28 U.S.C. § 1292(a)(1), we look to

its substantial effect rather than its terminology.” Turtle

Island Restoration Network v. U.S. Dep’t of Commerce,

672 F.3d 1160, 1165 (9th Cir. 2012) (internal quotation marks

omitted). However, Carson was designed for precisely the

situation where an order is injunctive in effect as opposed to

on its face. Thus, if the order deals with a consent decree that

has injunctive effects, an appeal from it should be analyzed

under Carson.

IV.

Applying Carson, we hold that the government has not

satisfied its burden. We recognize that the order suspends, as

opposed to permanently cancels, the consent decree. Whether

this “incomplete” modification qualifies as having the same

practical effect as a denial of an injunction is an issue we

need not decide, however, because the government has not

succeeded on the other Carson factors.

The government has not shown that it will suffer serious,

perhaps irreparable harm if we do not review the district

court’s order now. The government argues that if the order

freeing the County from its obligations is allowed to stand

even temporarily, further damage to the landfill site is a

serious possibility. However, at worst, the government must

pay for the clean up activities itself and then be reimbursed.

This kind of harm does not qualify.

UNITED STATES V . EL DORADO COUNTY 9

Mere injuries, however substantial, in terms

of money, time and energy necessarily

expended . . . are not enough. The possibility

that adequate compensatory or other

corrective relief will be available at a later

date, in the ordinary course of litigation,

weighs heavily against a claim of irreparable

harm.

L.A. Mem’l Coliseum Comm’n v. Nat’l Football League,

634 F.2d 1197, 1202 (9th Cir. 1980) (internal quotation marks

omitted).

Nor has the government shown that the order can only be

challenged by immediate appeal. Once the district court has

held its evidentiary hearing and enters the final judgment, the

government can appeal the same legal issues. The

government argues that the order can only be appealed now

because the project will fail if the County is not required to

continue clean up. This is merely a repetition of the

government’s harm arguments, and fails for the same reason.

As stated before, at worst, the government must pay for the

clean up itself and then be reimbursed. That situation has no

impact on the reviewability of the underlying legal issue.

Because the government has failed to satisfy the Carson

factors, we do not have jurisdiction at this time. The motion

to dismiss is therefore granted.

APPEAL DISMISSED.