FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NATIONAL ABORTION FEDERATION, No. 17-16622
Plaintiff-Appellee,
D.C. No.
v. 3:15-cv-03522-
WHO
CENTER FOR MEDICAL PROGRESS;
BIOMAX PROCUREMENT SERVICES,
LLC; DAVID DALEIDEN, AKA
Robert Daoud Sarkis; TROY
NEWMAN,
Defendants,
and
STEVE COOLEY; BRENTFORD J.
FERREIRA,
Respondents-Appellants.
2 NAF V. CMP
NATIONAL ABORTION FEDERATION, No. 17-16862
Plaintiff-Appellee,
D.C. No.
v. 3:15-cv-03522-
WHO
CENTER FOR MEDICAL PROGRESS;
DAVID DALEIDEN, AKA Robert
Daoud Sarkis, OPINION
Defendants-Appellants,
and
BIOMAX PROCUREMENT SERVICES,
LLC; TROY NEWMAN,
Defendants.
Appeals from the United States District Court
for the Northern District of California
William Horsley Orrick, District Judge, Presiding
Argued and Submitted September 14, 2018
San Francisco, California
Filed June 5, 2019
Before: Johnnie B. Rawlinson, Paul J. Watford,
and Michelle T. Friedland, Circuit Judges.
Opinion by Judge Watford
NAF V. CMP 3
SUMMARY *
Contempt / Appellate Jurisdiction
The panel dismissed for lack of jurisdiction consolidated
appeals from a district court order holding two sets of
appellants in civil contempt for violating the court’s
preliminary injunction.
The panel held that defendants held in contempt could
not obtain immediate appellate review because no final
judgment had been entered, and the district court did not
hold them in criminal contempt.
As to non-parties held in contempt, a civil contempt
sanction imposed against them would ordinarily be deemed
a final judgment subject to immediate appeal. Here, the non-
parties could not immediately appeal because there was a
substantial congruence of interests between them and the
defendants.
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
4 NAF V. CMP
COUNSEL
Sarah E. Pitlyk (argued), Peter Breen, and Thomas Brejcha,
Thomas More Society, Chicago, Illinois; Catherine W.
Short, Life Legal Defense Foundation, Ojai, California;
Matthew F. Heffron, Thomas More Society c/o Brown &
Brown, LLC, Omaha, Nebraska; Jeffrey M. Trissell, Paul J.
Jonna, and Charles S. LiMandri, Freedom of Conscience
Defense Fund, Rancho Santa Fe, California; for Defendants-
Appellants.
Matthew J. Geragos (argued), Geragos Law Group, Los
Angeles, California, for Respondents-Appellants.
Derek F. Foran (argued), R. Benjamin Nelson, Nicholas A.
Roethlisberger, and Christopher L. Robinson, Morrison &
Foerster LLP, San Francisco, California; Sophia M. Brill,
and Marc A. Hearron, Morrison & Foerster LLP,
Washington, D.C.; for Plaintiff-Appellee.
OPINION
WATFORD, Circuit Judge:
These are consolidated appeals from a district court order
holding two sets of appellants in civil contempt for violating
the court’s preliminary injunction. We conclude that we lack
jurisdiction over both appeals.
The appeals arise out of the same set of facts. David
Daleiden attended the annual meetings of the National
Abortion Federation (NAF) in 2014 and 2015, allegedly
under false pretenses. While there, he and agents of his
organization, the Center for Medical Progress (CMP),
surreptitiously recorded their interactions with attendees.
NAF V. CMP 5
Daleiden and CMP subsequently published edited versions
of those recordings in violation of a contractual agreement
with NAF. NAF contends the edited recordings inaccurately
portrayed its members as participants in the unlawful sale of
fetal remains. As a consequence of these recordings being
made public, NAF alleges, its member facilities became the
targets of increased harassment, including death threats.
Shortly after publication of the recordings, NAF filed a
civil action against Daleiden and CMP in federal district
court. NAF asked the court to issue a preliminary injunction
prohibiting Daleiden and CMP from, among other things,
publishing any of the recordings made at NAF’s annual
meetings. The district court granted the requested relief. As
relevant here, the preliminary injunction enjoins Daleiden
and CMP from “publishing or otherwise disclosing to any
third party any video, audio, photographic, or other
recordings taken, or any confidential information learned, at
any NAF annual meetings.”
Two months after entry of the preliminary injunction, the
California Attorney General executed a search warrant at
Daleiden’s home as part of the State’s criminal investigation
into his activities. Daleiden retained attorneys Steve Cooley
and Brentford Ferreira of Steve Cooley & Associates to
represent him in the anticipated criminal proceedings. The
State eventually charged Daleiden with unlawfully
recording confidential communications in a 15-count
criminal complaint. See Cal. Penal Code § 632(a).
During the course of Cooley’s and Ferreira’s
representation of Daleiden, recordings covered by the
preliminary injunction (which we will refer to collectively as
the “prohibited recordings”) were made available for public
viewing on the website of Steve Cooley & Associates. A
webpage announcing the firm’s representation of Daleiden
6 NAF V. CMP
prominently featured a three-minute-long “preview” video
of edited footage from the prohibited recordings. The
webpage also provided a link to a playlist of videos
consisting of edited footage from the prohibited recordings
that CMP had uploaded to YouTube; anyone who clicked on
the link could freely view the videos. And finally, the
webpage provided a link to one of the firm’s court filings in
Daleiden’s criminal case, which in turn included a link to
another of CMP’s playlists on YouTube, this one containing
hundreds of videos of raw footage from the prohibited
recordings.
The videos disclosed through the Steve Cooley &
Associates website received widespread media coverage,
both through traditional and online media channels. NAF
quickly brought the publication of the videos to the district
court’s attention, and the court ordered their immediate
removal from both the website and YouTube. NAF
presented evidence that Daleiden, CMP, Cooley, and
Ferreira violated the terms of the preliminary injunction and
asked the court to hold them in contempt. In response, the
court issued an order to show cause as to why all four parties
should not be held in civil contempt.
The court conducted a contempt hearing at which
Daleiden, Cooley, and Ferreira appeared. Each of them
refused to answer any of the court’s questions about how the
prohibited recordings wound up being accessible for public
viewing through the website of Steve Cooley & Associates.
As the basis for refusing to answer, each of them asserted
either the attorney-client privilege or work-product
protection.
In a detailed written order, the district court held
Daleiden, CMP, Cooley, and Ferreira in civil contempt. The
court found by clear and convincing evidence that all four
NAF V. CMP 7
parties had worked in concert to violate the terms of the
preliminary injunction. As to Daleiden and CMP, the court
determined that Daleiden had edited the videos and uploaded
them to CMP’s YouTube page. As to Cooley and Ferreira,
the court concluded that they had disseminated the
prohibited recordings on Daleiden’s behalf. The court also
found that Cooley and Ferreira were bound by the
preliminary injunction because they knew of its existence
and scope—indeed, the firm’s webpage specifically referred
to the injunction and what it prohibits.
Following additional briefing and evidence, the court
issued a separate order setting the amount of civil contempt
sanctions. The court held Daleiden, CMP, Cooley, and
Ferreira jointly and severally liable to NAF for
approximately $195,000. The award compensated NAF for
security costs, personnel costs, and attorney’s fees, which
the district court found were incurred by NAF as a direct
result of the violation of the preliminary injunction.
Both sets of parties—Daleiden and CMP on the one
hand, Cooley and Ferreira on the other—filed separate
appeals from the district court’s orders imposing civil
contempt sanctions. NAF argues that we lack jurisdiction to
hear either appeal, given that final judgment has not yet been
entered in the underlying civil action. We agree and
accordingly dismiss both appeals.
The analysis with respect to Daleiden and CMP is
straightforward, so we will start with them. As parties to the
underlying action, Daleiden and CMP could obtain
immediate appellate review of the district court’s contempt
order only if the court had held them in criminal contempt.
See Bingman v. Ward, 100 F.3d 653, 655 (9th Cir. 1996). If
the court instead held them in civil contempt, as it purported
to do, Daleiden and CMP would need to wait until entry of
8 NAF V. CMP
final judgment in the underlying action to obtain appellate
review of the orders. See Fox v. Capital Co., 299 U.S. 105,
107 (1936); Bingman, 100 F.3d at 655. Although the label
the district court affixes to sanctions is not dispositive, see
United Mine Workers v. Bagwell, 512 U.S. 821, 828 (1994),
the contempt sanctions imposed here are plainly civil in
nature. The sanctions were made payable to NAF, not the
court, and they compensate NAF only for the expenses it
incurred as a direct result of Daleiden’s and CMP’s
sanctionable conduct. See Koninklijke Philips Electronics,
N.V. v. KXD Technology, Inc., 539 F.3d 1039, 1042 (9th Cir.
2008); Lasar v. Ford Motor Co., 399 F.3d 1101, 1111 (9th
Cir. 2005). The fact that the sanctions are immediately
payable does not render the court’s order appealable on an
interlocutory basis. See Philips, 539 F.3d at 1045–46.
Daleiden and CMP contend that the sanctions must be
deemed criminal in nature because the district court stated
that it was imposing the sanctions in part to deter future
violations of the preliminary injunction. That contention is
misguided for two reasons. First, deterrence is one of the
purposes served by compensatory and punitive awards alike,
so the district court’s statement does not aid in classifying
the sanction as civil or criminal. See Bingman, 100 F.3d at
656. And second, we determine the civil or criminal nature
of a contempt sanction not by focusing on the court’s
subjective intentions, but instead by examining “the
character of the relief itself.” Bagwell, 512 U.S. at 828
(internal quotation marks omitted). Here, as noted, the relief
awarded to NAF is purely compensatory in nature; no aspect
of the award is punitive. That renders the sanctions civil
rather than criminal, even if one of the purposes of the award
was to deter future wrongdoing.
NAF V. CMP 9
The jurisdictional analysis as to Cooley and Ferreira is a
little more complicated, but the end result is the same.
Because Cooley and Ferreira are not parties to the
underlying action, a civil contempt sanction imposed against
them would ordinarily be deemed a final judgment subject
to immediate appeal under 28 U.S.C. § 1291. See Portland
Feminist Women’s Health Center v. Advocates for Life, Inc.,
877 F.2d 787, 789 (9th Cir. 1989). But when there is a
“substantial congruence of interests” between the sanctioned
non-party and a party to the action, the non-party may not
immediately appeal. In re Coordinated Pretrial
Proceedings in Petroleum Products Antitrust Litigation,
747 F.2d 1303, 1305 (9th Cir. 1984). The non-party must
wait until entry of final judgment to obtain review, just like
a party to the action would. The purpose of this rule is “to
avoid piecemeal review and its attendant delay.” Id. As we
put it in Kordich v. Marine Clerks Association, 715 F.2d
1392 (9th Cir. 1983) (per curiam), “[w]e see no reason to
permit indirectly through the attorney’s appeal what the
client could not achieve directly on its own: immediate
review of interlocutory orders imposing liability for fees and
costs.” Id. at 1393.
The only question, then, is whether there is a sufficiently
strong congruence of interests between the parties (Daleiden
and CMP) and the non-parties (Cooley and Ferreira) to
preclude the latter from obtaining immediate review. Such
a congruence of interests will generally exist when the
liability of both a party to the action and the non-party arises
from the same course of conduct, particularly if liability has
been imposed on them jointly and severally. See id.
Allowing the non-party to seek immediate review could
require an appellate court to resolve the same set of issues
twice: first during the non-party’s interlocutory appeal, and
again when the party to the action is able to appeal from the
10 NAF V. CMP
final judgment. The judiciary’s interest in conserving
limited resources weighs heavily in favor of postponing
appellate review until after final judgment, at which point
challenges to the sanctioned parties’ liability can be resolved
together in one fell swoop. 1
The interests of Cooley and Ferreira are substantially
congruent with those of Daleiden and CMP. The district
court found that Daleiden and CMP acted in concert with
Cooley and Ferreira to violate the preliminary injunction, so
the liability of all of them arises out of the same course of
conduct. In addition, the court imposed joint and several
liability, so Cooley and Ferreira are attacking the same
award imposed against Daleiden and CMP on largely the
same grounds. In these circumstances, Cooley and Ferreira
must wait until after entry of final judgment to obtain review
of the contempt sanctions imposed against them, just as
Daleiden and CMP are required to do. See Hill, 102 F.3d
at 424–25; Kordich, 715 F.2d at 1393.
Cooley and Ferreira contend that our past cases
dismissing appeals by non-party attorneys held in contempt
are distinguishable because they involved attorneys who
represented a party in the underlying action. Here, of course,
Cooley and Ferreira represent Daleiden in the related state-
1
We have carved out one exception to this general rule, applicable
when a non-party is ordered to pay sanctions immediately to a party who
is likely insolvent. See Riverhead Savings Bank v. National Mortgage
Equity Corp., 893 F.2d 1109, 1113–14 (9th Cir. 1990). In that scenario,
the sanctions award is effectively unreviewable on appeal from the final
judgment, because the non-party would likely not be able to get the
money it paid returned even if it were successful on appeal. Hill v.
MacMillan/McGraw-Hill School Co., 102 F.3d 422, 424 (9th Cir. 1996).
This narrow exception, which is based on the collateral order doctrine,
does not apply here.
NAF V. CMP 11
court criminal case, not in the civil action that gave rise to
the preliminary injunction. Nothing turns on that distinction,
though. The purpose of the substantial congruence rule is to
avoid duplicative appeals, and that harm would occur
whether or not the attorney found in contempt represents a
party in the underlying action. See Cunningham v. Hamilton
County, 527 U.S. 198, 209 (1999).
We dismiss these consolidated appeals for lack of
jurisdiction. As a consequence of that ruling, we also lack
jurisdiction to rule on Daleiden and CMP’s motion
requesting reassignment to a different district judge on
remand. Finally, we DENY Daleiden and CMP’s motion for
judicial notice because the materials brought to our attention
do not bear on our jurisdiction to hear these appeals. See
Santa Monica Nativity Scenes Committee v. City of Santa
Monica, 784 F.3d 1286, 1298 n.6 (9th Cir. 2015).
DISMISSED.