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.