Harmston v. City and County of San Francisco
627 F.3d 1273
9th Cir.2010Background
- Eighteen SF police officers created a comedy video; Chief Fong disciplined several participants.
- Officers, including Cohen, filed state court suit for race discrimination, retaliation, defamation, and IIED; case was removed to federal court on Feb. 28, 2007.
- District court held Cohen and McCoy violated a Protective Order by disclosing or showing the video to ABC News; sanctions were civil, monetary, and intended to compensate CCSF and coerce future compliance.
- Cohen appealed in 2007 arguing criminal contempt protections; the appeal was sua sponte dismissed as the sanctions were civil contempt.
- District court clarified in 2008 that sanctions were civil; remanded the case to state court on Oct. 9, 2008.
- State court granted summary judgment on most claims on July 1, 2009; Cohen filed a notice of appeal on July 22, 2009.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the remand order was a final, not collateral, order for §1291 purposes. | Cohen argues remand was appealable as final. | Defendants contend remand is appealable as final collateral remand. | Remand was final for §1291 purposes; allowed appeal of sanctions. |
| Whether Cohen’s appeal was timely under FRAP 4(a). | Cohen should have timely appeal from remand. | Remand lacked a separate judgment document; 180-day rule applies. | Appeal untimely; §1291 jurisdiction lacking. |
Key Cases Cited
- Quackenbush v. Allstate Ins. Co., 517 U.S. 706 (1996) (remand not barred; finality or collateral grounds available for review)
- Powerex Corp. v. Reliant Med. Prods., 533 F.3d 1096 (9th Cir. 2008) (remand orders can be final and reviewable when not barred by 1447(d))
- Carlsbad Tech., Inc. v. HIF Bio, Inc., 129 S. Ct. 1862 (2009) (abstention-based remand reviewable; can be appealed as final)
- Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1 (1983) (established collateral order principle precept)
- Mohawk Indus., Inc. v. Carpenter, 130 S. Ct. 599 (2009) (finality in context of remand and collateral questions)
- Comedy Club, Inc. v. Improv West Assocs., 553 F.3d 1277 (9th Cir. 2009) (final order; 180-day timing under FRAP 4(a)(7) if no separate document)
- Outlaw v. Airtech Air Conditioning and Heating, Inc., 412 F.3d 156 (D.C. Cir. 2005) (discussion of 4(a) timing under 2002 amendments)
- TDK Elecs. Corp. v. Draiman, 321 F.3d 677 (7th Cir. 2003) (commentary on post-remand finality principles)
- Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949) (collateral order concept as review path)