Metropolitan News-Enterprise


Monday, December 13, 2010


Page 3


Panel: Attorney’s Challenge to Sanctions Order Untimely


By SHERRI M. OKAMOTO, Staff Writer


The Ninth U.S. Circuit Court of Appeals on Friday threw out a San Francisco attorney’s challenge to sanctions a district court imposed against him and his client for leaking to the media a copy of the city police chief’s confidential deposition.

A panel said the sanctions order was appealable as part of the district court’s order directing the underlying case be remanded to the state courts, but concluded the appeal by attorney Waukeen Q. McCoy and Andrew Cohen was untimely.

McCoy represented 18 San Francisco police officers, including Cohen, who sued Chief Heather Fong, the city and the county after being disciplined for their involvement in a series of videotaped skits which they said were intended as satire. Mayor Gavin Newsom, in contrast, described the skits as racist, sexist and homophobic.

The lawsuit was removed to the federal court in 2007 and the parties stipulated to a protective order during the course of discovery. U.S. District Judge Susan Illston of the Northern District of California subsequently found McCoy and Cohen violated the protective order by revealing a video of Fong’s deposition to a reporter, and held both in contempt.

In October 2008, after the officers dismissed all their federal claims, Illston ordered the case remanded to the state court. The San Francisco Superior Court entered summary judgment on most of the officers’ claims in July 2009. McCoy and Cohen then appealed the sanctions order.

Writing for the appellate court, Judge Jay S. Bybee noted that the order itself was not immediately appealable, and he reasoned that the appeal therefore had to have been taken from the district court’s 2008 remand order.

Based on the Supreme Court’s 2009 ruling in Carlsbad Tech., Inc. v. HIF Bio, Inc., 129 S. Ct. 1862, Bybee explained that a district court’s remand order, predicated on the dismissal of all federal claims and its discretionary decision declining to exercise supplemental jurisdiction, is appealable.

He then turned to the issue of whether the remand order qualified as a final judgment because McCoy and Cohen’s challenge was not based on the remand itself, but the earlier contempt order, and because such an antecedent ruling could only be considered on appeal after entry of a final judgment.

The jurist acknowledged the remand order “may not entirely satisfy the traditional definition of finality,” but posited that “it should be considered final for purposes of allowing a party to appeal prior non-final federal court orders” since it effectively disassociated the district court from the case.

But, Bybee remarked, the existence of a final order from which McCoy and Cohen could appeal the sanctions “says nothing about whether that appeal is timely.”

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.”

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, Rule 58 required that “[e]very judgment…be set forth on a separate document.”

In 2002, Congress modified Rule 4(a) so that judgment would be considered entered when it was set forth on a separate document or 150 days after the court clerk entered that civil action in the docket, should that occur first. That change was fatal to McCoy and Cohen’s appeal, Bybee said, because the district court did not enter a separate document containing its remand order, so the window in which an appeal could be filed closed 150 days after the remand was issued, long before McCoy and Cohen initiated their appeal.

Judge Mary M. Schroeder and U.S. District Judge Owen J. Panner of the District of Oregon, sitting by designation, joined Bybee in his decision.

The case is Cohen v. City and County of San Francisco, 09-16562.


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