FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES S. TATE, JR., M.D.,
Plaintiff-Appellant,
v.
UNIVERSITY MEDICAL CENTER OF
SOUTHERN NEVADA; KATHLEEN
SILVER; BRUCE L. WOODBURY; TOM No. 09-16505
COLLINS; CHIP MAXFIELD; D.C. No.
LAWRENCE WEEKLY; CHRIS 2:08-cv-01183-
GIUNCHIGLIANI; SUSAN BRAGER; LDG-GWF
RORY REID; MEDICAL AND DENTAL District of Nevada,
STAFF OF THE UNIVERSITY MEDICAL Las Vegas
CENTER OF SOUTHERN NEVADA;
ORDER
JOHN ELLERTON, M.D.; JOHN
FILDES, M.D.; MARVIN J.
BERNSTEIN, M.D.; BOARD OF
TRUSTEES OF UNIVERSITY MEDICAL
CENTER OF SOUTHERN NEVADA,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Lloyd D. George, Senior District Judge, Presiding
Argued and Submitted
February 9, 2010—San Francisco, California
Filed May 25, 2010
Before: Diarmuid F. O’Scannlain, Stephen S. Trott and
Richard A. Paez, Circuit Judges.
Order;
Concurrence by Judge Paez
7419
7420 TATE v. UNIVERSITY MEDICAL CENTER
COUNSEL
Jacob L. Hafter, Las Vegas, Nevada, filed the briefs and
argued the cause for the plaintiff-appellant. Michael Naethe,
Las Vegas, Nevada, also was on the briefs.
Lisa Wong Lackland, Lewis and Roca LLP, Las Vegas,
Nevada, argued the cause and was on the brief for defendants-
appellees Medical and Dental Staff of UMCSN, John Eller-
ton, M.D., John Fildes, M.D., and Marvin Bernstein, M.D.
Thomas G. Ryan, Lewis and Roca LLP, Las Vegas, Nevada,
filed the brief.
Lynn M. Hansen, Las Vegas, Nevada, filed the brief and
argued the cause for defendants-appellees University Medical
Center of Southern Nevada and Clark County Commissioners.
ORDER
We must decide whether we have jurisdiction to review the
district court’s refusal to enjoin a hospital to reinstate a sur-
geon when he has since lost all of his clinical privileges at the
hospital.
I
James Tate, MD, is a board-certified general surgeon who
was granted clinical privileges at University Medical Center
(“UMC”) by the Medical & Dental Staff of University Medi-
cal Center (“Staff”). UMC and Dr. Tate then entered into a
Trauma Services Agreement, by which UMC employed Dr.
Tate as a surgeon on the trauma on-call schedule. In August,
2008, however, UMC removed Dr. Tate from the trauma on-
call schedule after an altercation between Dr. Tate and a
patient’s family.
TATE v. UNIVERSITY MEDICAL CENTER 7421
Dr. Tate challenged that removal, pleading numerous
causes of action. In particular, Dr. Tate brought a § 1983
claim, alleging that UMC, a county hospital, violated his
Fourteenth Amendment due process right in his clinical privi-
leges. The defendants moved to dismiss Dr. Tate’s suit,
including the § 1983 claim. Dr. Tate opposed that motion. He
also moved for a preliminary injunction reinstating him on the
trauma on-call schedule on the basis of his § 1983 claim.
The district court granted the defendants’ motion to dismiss
the § 1983 claim, holding that Dr. Tate failed to allege the
deprivation of a property interest by defendants acting under
color of state law. The district court, consequently, also
denied Dr. Tate’s motion for a preliminary injunction because
Dr. Tate could not show a likelihood of success on the merits
after the underlying § 1983 claim was dismissed.
Dr. Tate filed an interlocutory appeal of the district court’s
denial of his motion for a preliminary injunction. He also
asked us to exercise pendent appellate jurisdiction over the
district court’s dismissal of the § 1983 claim, on the ground
that it was “inextricably intertwined” with the subject of the
interlocutory appeal. Meredith v. Oregon, 321 F.3d 807, 813
(9th Cir. 2003). While the appeal was pending, however, the
Staff terminated all of Dr. Tate’s clinical privileges because
of his failure to comply with conditions the Staff placed upon
their renewal.1 The defendants then moved to dismiss this
appeal as moot. In their view, we cannot grant effective relief
because Dr. Tate cannot be restored to the trauma on-call
schedule now that he no longer has any clinical privileges at
UMC. We agree.
II
A federal court “does not have jurisdiction to give opinions
upon moot questions.” Am. Rivers v. Nat’l Marine Fisheries
1
Dr. Tate has challenged this action in a separate lawsuit.
7422 TATE v. UNIVERSITY MEDICAL CENTER
Serv., 126 F.3d 1118, 1123 (9th Cir. 1997). A claim “is moot
when the issues presented are no longer live or the parties
lack a legally cognizable interest in the outcome. The basic
question is whether there exists a present controversy as to
which effective relief can be granted.” Outdoor Media Group,
Inc. v. City of Beaumont, 506 F.3d 895, 900 (9th Cir. 2007).
A case may become moot at any stage. Di Giorgio v. Lee, 134
F.3d 971, 974 (9th Cir. 1998).
In this appeal, Dr. Tate seeks reinstatement on the trauma
on-call schedule at UMC, despite no longer having clinical
privileges at the hospital. But Dr. Tate is ineligible to practice
medicine at UMC without clinical privileges. In fact, the
Trauma Services Agreement between Dr. Tate and UMC pro-
vides for its own automatic termination if Dr. Tate no longer
has clinical privileges. If Dr. Tate is ineligible to practice
medicine at UMC, then he cannot be reinstated on the trauma
on-call schedule at the hospital.
Dr. Tate argues that we can enjoin reinstatement because
removal from the trauma on-call schedule is a “de facto” sus-
pension of his clinical privileges, which are a protected prop-
erty interest for due process purposes. In Dr. Tate’s view, his
case is not moot because reinstating him on the on-call sched-
ule would restore his clinical privileges. But that is not true.
An employment arrangement is distinct from clinical privi-
leges: employment is merely one method among many of
exercising clinical privileges at a hospital. E.g., Stears v.
Sheridan County Mem’l Hosp. Bd. of Trs., 491 F.3d 1160,
1162-63 (10th Cir. 2007). Here, Dr. Tate had only an employ-
ment agreement with the hospital to serve as the trauma on-
call surgeon. After termination of that employment, he
remained able to exercise his clinical privileges in other ways,
until they were terminated. Because Dr. Tate’s clinical privi-
leges are distinct from his employment arrangement, reinstat-
ing his employment does not restore his clinical privileges.
We simply cannot restore Dr. Tate’s clinical privileges. The
termination of Dr. Tate’s clinical privileges, therefore, pre-
TATE v. UNIVERSITY MEDICAL CENTER 7423
vents us from reinstating Dr. Tate on the on-call schedule,
despite his argument to the contrary. Since we cannot order
the reinstatement sought by Dr. Tate in his motion for a pre-
liminary injunction, we cannot grant “effective relief” in his
appeal of the denial of that motion.
III
Therefore, this appeal is moot. Our jurisdiction over the
district court’s dismissal of the underlying § 1983 claim was
premised on pendent appellate jurisdiction over matters “inex-
tricably intertwined” with the denial of the preliminary
injunction motion. Since we do not have jurisdiction over the
denial of that motion on account of mootness, we also lack
jurisdiction over the district court’s dismissal of the underly-
ing § 1983 claim.
DISMISSED. The Appellant’s motion for judicial notice is
GRANTED.
PAEZ, Circuit Judge, concurring:
I concur in the dismissal of Dr. Tate’s appeal as moot.
Because the defendants have revoked Dr. Tate’s clinical privi-
leges, and because we lack authority in this suit to restore
those privileges, we cannot direct the district court to reinstate
him on the trauma on-call schedule. Because we therefore
lack the authority to grant any effective relief, this appeal is
moot. See Outdoor Media Group, Inc. v. City of Beaumont,
506 F.3d 895, 900 (9th Cir. 2007).
I write separately, however, because the majority’s order
inappropriately opines on the merits of Dr. Tate’s due process
claim. “It has long been settled that a federal court has no
authority . . . to declare principles or rules of law which can-
not affect the matter in issue in the case before it.” Church of
7424 TATE v. UNIVERSITY MEDICAL CENTER
Scientology v. United States, 506 U.S. 9, 12 (1992) (internal
quotations and citation omitted). Because the majority has
exceeded its constitutional authority by deciding a question
that cannot affect the disposition of this case, I cannot join the
order.
Dr. Tate argues that his removal from the trauma on-call
schedule violated his constitutionally protected property inter-
est in his clinical privileges because the removal effectively
precluded him from exercising those privileges. Although the
majority stops short of explicitly deciding whether Dr. Tate
has a protected interest in his placement on the trauma sched-
ule, the order effectively forecloses his argument on the mer-
its by unnecessarily concluding that his “clinical privileges
are distinct from” his placement on the trauma schedule, and
that Dr. Tate can “exercise his clinical privileges in other
ways.” Order at 7422. These conclusions have absolutely no
bearing on whether Dr. Tate’s appeal is moot and effectively
decide the merits of Dr. Tate’s moot claims.
First, Dr. Tate never made the argument to which my col-
leagues purport to respond when they discuss the relationship
between Dr. Tate’s clinical privileges and his placement on
the trauma schedule. Contrary to the majority’s assertions, Dr.
Tate did not contend that reinstating him on the trauma sched-
ule would restore his clinical privileges. Rather, Dr. Tate
argues that the defendants should not be able to avoid judicial
review of their actions by rendering this appeal moot by
unconstitutionally revoking his clinical privileges. Dr. Tate’s
actual argument on mootness thus does not invite us to con-
sider whether removal from the trauma schedule effectively
deprived Dr. Tate of his protected clinical privileges.
Second, even if Dr. Tate had made the argument that the
majority recites, my colleagues’ conclusion that the removal
from the on-call schedule did not amount to a revocation of
clinical privileges is wholly unnecessary. Regardless of
whether removal from the trauma schedule de facto revoked
TATE v. UNIVERSITY MEDICAL CENTER 7425
Dr. Tate’s clinical privileges, reinstating him to the schedule
would not restore his independently revoked clinical privi-
leges. Without those clinical privileges, Dr. Tate cannot
obtain any relief from this court. The majority’s discussion of
the effect of Dr. Tate’s removal from the trauma schedule is
therefore utterly irrelevant to whether we can grant any effec-
tive relief in this case.
Because the majority has inappropriately opined on ques-
tions that cannot affect our disposition of this appeal, I cannot
join in the order. I would dismiss the appeal as moot because
the independent revocation of Dr. Tate’s clinical privileges
precludes us from granting any effective relief.