A Lesson in Collateral Order Doctrine Jurisdiction

Some lawyers not well-versed in appellate jurisdiction may find themselves fighting against one of two extremes when it comes to interlocutory decisions: the impulse to appeal everything (appealable or not), or failing to evaluate interlocutory orders for possible exceptions to the “final judgment rule,” figuring “why bother” until a final judgment is entered.  Then there are those in the middle who recognize opportunity in interlocutory orders, and seize it.

Such were the lawyers representing the appellants in Lazy Y Ranch Ltd. v. Behrens, case no. 07-35315 (9th Cir. Sept. 26, 2008).  Lazy Y sued, alleging a violation of equal protection, after its bids for grazing on state land were rejected in favor of other bidders.  The defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim, arguing that the complaint failed to allege a violation of equal protection and, alternatively, that the defendants had qualified immunity.  Their motion to dismiss relied on extrinsic documents.  Lazy Y moved successfully to strike many of those documents, and prevailed against the motion to dismiss.  Defendants appealed from both the order denying the motion to dismiss and the order striking certain exhibits.

Taking up the question of jurisdiction under the collateral order doctrine, the court reasons:

We begin by briefly addressing Lazy Y’s suggestion that we lack appellate jurisdiction over this interlocutory appeal.  Lazy Y argues that (1) Defendants’ attacks on the order denying the motion to dismiss exceed the scope of the “collateral order” doctrine upon which they allege jurisdiction, and (2) the order granting Lazy Y’s motion to strike documents is unappealable under any doctrine. We disagree.

In general, a party is entitled only to a single appeal, to be “deferred until final judgment has been entered.” [Citation.] However, 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.” [Citation.] To be appealable under the collateral order doctrine, a district court decision must (1) be “conclusive,” (2) “resolve important questions completely separate from the merits,” and (3) “render such important questions effectively unreviewable on appeal from final judgment in the underlying action.” [Citation.]

Because qualified immunity is immunity from suit itself and not merely a defense to liability, orders denying qualified immunity may be immediately appealable under the collateral order doctrine, including orders denying a motion to dismiss. [Citation.] Such an order is reviewable to the extent that it raises an issue of law. [Citations.]

Here, contrary to Lazy Y’s suggestion, we do not construe Defendants’ appeal to depend on “their version of the facts.” Rather, Defendants argue that Lazy Y’s allegations of pretext and animus are irrelevant under Equal Protection law, because they have articulated legitimate reasons for rejecting Lazy Y’s bids. In other words, Defendants argue that their articulated purposes end the inquiry and mean that Lazy Y’s claims of actual improper motives fail to establish an Equal Protection violation. They also argue that Lazy Y brings “class of one” claims that are either incognizable or not clearly established in the context of public contracting. These are contentions of law. [Citation.]

Moreover, whether Defendants’ exhibits should have been considered is essentially a legal question, and the order granting the motion to strike was simply part of the Rule 12(b)(6) analysis, as the district court resolved that motion solely to establish the record for the motion to dismiss. [Citation.]

So, appellants got their day in the court of appeals.  Turns out to be for naught, however, as the court affirms.  But at least they had their shot.

The Results of the Shootout at the Amicus Corral

In a case that attracted amicus participation of noteworthy proportions, the California Supreme Court holds that a medical provider has no constitutional defense, based on freedom of religion and freedom of speech, to a claim for sexual orientation discrimination under California’s Unruh Act (Civ. Code, § 51).  The doctor defendants had refused artificial insemination services to a lesbian and contended that they did so for religious reasons.  The Supremes find no such exception under the federal or state constitutions.  The court finds that because the Act is a facially neutral and valid law of general applicability, the incidental infringement on religious liberty that compliance requires cannot sustain a constitutional defense to a sexual orientation discrimination claim.

Don’t Ask, Don’t Tell . . . and Don’t Dismiss

The military’s “Don’t Ask, Don’t Tell” (“DADT”) policy on homosexual service members is put through the wringer in Witt v. Dept. of the Air Force, case no. 06-35644 (9th Cir. May 21, 2008). The Ninth reverses the district court’s Rule 12(b)(6) dismissal of Major Witt’s complaint alleging that her impending discharge on the ground of homosexuality violates substantive due process, procedural due process, and equal protection.

The key to the ruling was the Supreme Court’s decision in Lawrence v. Texas (2003) 539 U.S. 558, On substantive due process, the court determines that Lawrence requires more careful scrutiny of DADT than the Ninth’s previous standard of rational basis review, even though Lawrence itself is silent on the scrutiny the court applied in that case. Absent that statement, the parties each pointed to snippets of the Lawrence opinion to support their view of the appropriate level of review. The Ninth rejects this purely verbal approach:

The parties urge us to pick through Lawrence with a fine-toothed comb and to give credence to the particular turns of phrase used by the Supreme Court that best support their claims. But given the studied limits of the verbal analysis in Lawrence, this approach is not conclusive. Nor does a review of our circuit precedent answer the question; as the Court of Appeals for the Armed Forces stated in Marcum, 68 M.J. at 204, “[a]lthough particular sentences within the Supreme Court’s opinion may be culled in support of the Government’s argument, other sentences may be extracted to support Appellant’s argument.” In these ambiguous circumstances, we analyze Lawrence by considering what the Court actually did, rather than by dissecting isolated pieces of text. In so doing, we conclude that the Supreme Court applied a heightened level of scrutiny in Lawrence.

(Emphasis in original.) Of course, it has to engage in its own verbal analysis of Lawrence to figure it out. But the court also notes that Lawrence relied on cases that applied heightened scrutiny.

The Ninth adopts three of the four factors applied post-Lawrence by the Supreme Court in Sell v. United States (2003) 539 U.S. 166, finding them equally applicable here:

Courts, however, must consider the facts of the individual case in evaluating the Government’s interest . . . . Special circumstances may lessen the importance of that interest. . . .

Second, the court must conclude that involuntary medication will significantly further those concomitant state interests. . . .

Third, the court must conclude that involuntary medication is necessary to further those interests. The court must find that any alternative, less intrusive treatments are unlikely to achieve substantially the same results. . .

Thus, regarding Major Witt’s challenge:

We hold that when the government attempts to intrude upon the personal and private lives of homosexuals, in a manner that implicates the rights identified in Lawrence, the government must advance an important governmental interest, the intrusion must significantly further that interest, and the intrusion must be necessary to further that interest. In other words, or the third factor, a less intrusive means must be unlikely to achieve substantially the government’s interest. [Citation.]


In addition, we hold that this heightened scrutiny analysis is as-applied rather than facial. “This is the preferred course of adjudication since it enables courts to avoid making unnecessarily broad constitutional judgments.” City of Cleburne v. Cleburne Living Ctr. Inc., 473 U.S. 432, 447 (1985). In Cleburne, the Court employed a “type of ‘active’ rational basis review,” Pruitt, 963 F.2d at 1165-66, in requiring the city to justify its zoning ordinance as applied to the specific plaintiffs in that case. And Sell required courts to “consider the facts of the individual case in evaluating the Government’s interest.” 539 U.S. at 180. Under this review, we must determine not whether DADT has some hypothetical, post-hoc rationalization in general, but whether a justification exists for the application of the policy as applied to Major Witt. This approach is necessary to give meaning to the Supreme Court’s conclusion that “liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.” Lawrence, 539 U.S. at 572.

We also conclude that our holding in Beller, 632 F.2d 788, that a predecessor policy to DADT survived heightened scrutiny under the Due Process Clause, is no longer good law.

(Footnote omitted.)

The Ninth thus reverses the dismissal of the substantive and procedural due process claims.

Major Witt doesn’t fare so well on her equal protection claim, in which she claimed homosexuals are treated differently than others who might cause similar discomfort among military members (e.g., child molesters) but who are not subject to automatic discharge. The Ninth holds that Lawrence did not disturb precedent subjecting such claims to rational basis review, so the dismissal stands.

In an opinion concurring in part and dissenting in part, Judge Canby states he would reverse on the equal protection claim as well and apply strict scrutiny to all the claims. His opinion may provide fertile ground for a petition for rehearing or rehearing en banc.

UPDATE (5/21/08): Other coverage around the blawgosphere:

Several related posts by assorted contributors at The Volokh Conspiracy are aggregated here, including a post on the prospects of Supreme Court review. Professor Martin’s post at California Appellate Report also briefly addresses the prospects for Supreme Court review, though his analysis on that point consists mainly of a concluding zinger about the prospects .

A law student’s take, by the pseudonymous Gabriel Malor, includes the observation that the decision is a “Memorial Day gift to John McCain.”

There’s a long post at Polymorphous Perversity, a bawg that bills itself as “legal blog on sexuality and gender.”

Much more to follow, I’m sure.

Reasonableness Governs Accidental Shooting Inquiry

A Glock 23, the external lever safety can clearly be seen behind the trigger.Image via Wikipedia

There’s an important legal point in Torres v. City of Madera, case no. 05-16762 (9th Cir. May 7, 2008). But before I could get to it, I had to get by my amazement at the facts, which are horrifying.

This Section 1983 action was brought by survivors of an arrestee who, while handcuffed and in the rear seat of a patrol car (and screaming and kicking at the back window), was shot and killed by a police officer who mistakenly unholstered and fired her Glock semi-automatic pistol instead of her Taser M26 stun device. The Court of Appeals called her Glock (a Glock is pictured right, though I don’t know if the officer had the same model) and Taser (pictured left) “similarly-sized-and-weighted,” and they were both holstered on her right side, the Glock on her belt and the Taser in a thigh holster. To add to this sad situation, the sequence of events was triggered by nothing more than a loud music complaint.

In this suit alleging a violation of the victim’s Fourth Amendment rights, the officer and the city moved for summary judgment, contending that because a Fourth Amendment seizure can occur only “through means intentionally applied,” and there was no dispute over the fact that the officer thought she was firing the Taser rather than the Glock, the firing of the Glock could not constitute a seizure. The Court of Appeals reverses, noting that the firing of the Glock itself does not constitute the seizure in this case because the victim had already been arrested, handcuffed, and placed in the patrol car. Under the Ninth Circuit’s “continuing seizure” rule, under which an initial seizure continues “throughout the time the arrestee is in the custody of the arresting officers,” the officer’s conduct remained governed by the Fourth Amendment throughout the course of the seizure, and liability requires only that the officer’s conduct was unreasonable, not that she had subjective intent to fire her Glock.

Reference: Accident lawyers around Austin, Tx.

Sufficient Merit to Proceed

When does an appeal or petition have “sufficient merit to proceed” so that a vexatious litigant subject to a pre-filing review order can move forward with it without counsel and without a certification of good faith from the district court? The Ninth realizes in In re Keith Thomas, case no. 01-80091 (9th Cir. Nov. 29, 2007) that it has never quite made it clear:

Because our decisions pursuant to a pre-filing review order are rarely published, we have not yet clarified the standard for determining whether an appeal or petition has sufficient merit to proceed. We take the opportunity to do so now.

The court examines standards in cases of summary affirmance and trial court summary dismissals, then settles on a standard. But the standard is not stated in terms of what makes for sufficient merit. Instead, it is stated in terms of what kind of case lacks sufficient merit, and that test is quite restrictive:

[W]e hold that when we have imposed prefiling requirements, we can preclude an appellant from proceeding with a petition or appeal only when it is clear from the face of the appellant’s pleadings that: (i) the appeal is patently insubstantial or clearly controlled by well settled precedent; or (ii) the facts presented are fanciful or in conflict with facts of which the court may take judicial notice.

I guess this is something lawyers don’t really need to know, since vexatious litigant orders restrain litigation only be self-represented litigants. But I know that non-lawyers stumble across this blog as well, and it’s interesting to see how the Ninth limits access by vexatious litigants.

In this case, Thomas filed 17 appeals or petitions in the Ninth Circuit before the court entered the pre-filing order in 2001, 28 appeals and petitions after the order, and more than 69 separate civil actions in the Eastern District of California alone.

He gets nowhere with this one. Applying the standard it has just announced, the Ninth finds that the appeal lacks sufficient merit to proceed. The appeal is from a magistrate judge’s order recommending dismissal of his lawsuit. The lawsuit? Thomas was suing four district judges “to challenge the judges’ rulings in prior actions filed by [him].”

Why sue the judges instead of appealing? After all, we know the guy has heard of an appeal, having filed 41 appeals or petitions already.

When Good Law Goes Bad

Not generically bad, but bad for you.

The plaintiff in Acosta v. Hill, case no. 05-56575 (9th Cir. Oct. 17, 2007), claimed in her Section 1983 case that the force used by city security guards and police while ejecting from a San Diego stadium violated her civil rights.  Indeed, she claimed she had been subjected to deadly force, and that the trial court erred by giving an instruction on excessive force under a reasonableness standard without giving a separate instruction on deadly force.

She had a shot.  Ninth Circuit precedent at the time of her appeal drew a distinction between instructions for excessive force and instructions for deadly force.

Her bad luck that before her appeal could be heard, the U.S. Supreme Court decided Scott v. Harris, 127 S.Ct. 1769 (2007), which allows the panel to make quick work of Acosta’s claim.  Under Scott, a standard of reasonableness applies to all uses of police force.  There is no difference in standard between excessive force and deadly force.  The jury having found that the officers acted reasonably in their use of force, it doesn’t matter whether the force is alleged to be deadly or merely excessive.

IDEA Rights not Enforceable under Section 1983

In Blanchard v. Morton School District, case no. 06-35388 (9th Cir. Sept. 20, 2007), the Ninth Circuit becomes the fifth federal appellate circuit to hold that rights under the Individuals with Disabilities Education Act (IDEA) are not enforceable by an action under 42 U.S.C. section 1983.  The court acknowledges that two circuits have gone the other way and that the Eighth Circuit has an intra-circuit split on the issue.

The case arose when the mother of a disabled child sued to recover damages for lost earnings and suffering endured during her eventually successful drive to obtain benefits for her son under the IDEA.  The district court granted summary judgment, finding that the mother had no individual rights under the IDEA ad that the IDEA did not contemplate the damages she sought. 

While the appeal was pending, the Supreme Court decided Winkelman ex rel. Winkelman v. Parma City Sch. Dist., (2007) 127 S.Ct. 1994, which held that parents do have individually enforceable substantive rights under the IDEA.  In light of this, the court stated that “[t]he question before us now is whether 42 U.S.C. § 1983 creates a cause of action for money damages under the IDEA for the lost earnings and suffering of a parent pursuing IDEA relief.”

Given that so many circuits have already decided the availability of Section 1983 relief one way or another, I would have thought that the Ninth’s opinion would include an extensive analysis of the issue, comparing the merits of each side and the reasoning of the other circuits.  Instead, in a very short opinion, the Ninth is satisfied to say that:

We are persuaded by the recent thoughtful, well-reasoned opinion of the Third Circuit. See A.W. v. Jersey City Pub. Sch., 486 F.3d 791, 797-803 (3d Cir. 2007) (en banc) (surveying the existing circuit split and analyzing recent Supreme Court precedent on the availability of § 1983 as a remedy for violation of a federal statute).  In A.W., the Third Circuit overruled its prior authority to the contrary and held:     

The IDEA includes a judicial remedy for violations of any right “relating to the identification, evaluation, or educational placement of [a] child, or the provision of a free appropriate public education to such child.” § 1415(b)(6). Given this comprehensive scheme, Congress did not intend § 1983 to be available to remedy violations of the IDEA . . . .     

Id. at 803 (alteration in original). We now join the First, Third, Fourth, and Tenth Circuits and hold that the comprehensive enforcement scheme of the IDEA evidences Congress’ intent to preclude a § 1983 claim for the violation of rights under the IDEA.

Federal Vexatious Litigant Designation not Immediately Appealable

When a party and his attorney are sanctioned as vexatious litigants and ordered not to file additional complaints without court approval, must they immediately appeal from those orders (the “pre-filing orders”) or appeal instead from the subsequent entry of final judgment?  That was the procedural question posed in Molski v. Evergreen Dynasty Corp., 05-56452 (9th Cir., Aug. 31, 2007).  Evergreen moved to dismiss the appeals, contending that Molski and his lawyers’ joint notice of appeal, filed within 30 days of entry of the judgment, was filed more than 30 days after entry of their respective pre-filing orders.

The Ninth says the appeals are timely.  The order against the attorneys is a sanctions order because it was made under the district court’s inherent sanction power.  Since it is well-established (though a relatively recent development) that sanctions orders against attorneys are not immediately appealable, the pre-filing order is not immediately appealable and may be challenged on appeal from the final judgment.

The order against Molski is not immediately appealable either, but that requires a little more analysis.  Although sanctions orders against parties are not generally appealable, the question of whether a vexatious litigant pre-filing order is appealable is a question of first impression. The key is whether the pre-filing order constitutes an appealable collateral order, and the Ninth finds it is not.

No doubt the merits of this case will draw significant attention.  Decision of the Day has a nice write-up about the merits of the decision. DoD begins:

In a decision that will likely make a big splash in the disability rights community, the Ninth Circuit has upheld a district court order declaring a crusader for disabled access to be a vexatious litigation. Plaintiff Jarek Molski travels throughout California visiting restaurants and other public establishments to see if their facilities can accommodate him and his wheelchair. Often they cannot, and Molski sues under the Americans With Disabilities Act, seeking $4000 per day in damages. Many defendants view Molski as a shakedown artist who is just looking for a quick settlement, and jurors often agree.

Go to DoD to read what not to do when filing multiple lawsuits.