926 F.3d 534
9th Cir.2019Background
- David Daleiden and his nonprofit (Center for Medical Progress, CMP) covertly recorded interactions at National Abortion Federation (NAF) annual meetings in 2014–2015 and later published edited videos purporting to show unlawful conduct.
- NAF sued and obtained a preliminary injunction forbidding Daleiden, CMP, and related persons from publishing recordings or confidential information from NAF meetings.
- California criminal investigators later executed a search of Daleiden’s home; Daleiden retained attorneys Steve Cooley and Brentford Ferreira for the criminal matter.
- Recordings covered by the injunction appeared on the Steve Cooley & Associates website (including a preview and links to CMP YouTube playlists), and were widely disseminated in the media.
- The district court found Daleiden, CMP, Cooley, and Ferreira jointly and severally in civil contempt for violating the injunction, ordered removal of the materials, and awarded approximately $195,000 in compensatory sanctions to NAF.
- All four appealed the contempt orders; the Ninth Circuit held it lacked jurisdiction and dismissed the consolidated appeals.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether contempt orders were appealable now | NAF: appeals premature because final judgment in underlying civil action not entered | Daleiden/CMP: contempt civil, so must wait; Cooley/Ferreira: as nonparties they can appeal immediately | Dismissed: no jurisdiction to hear appeals now |
| Civil vs. criminal characterization of sanctions | NAF: sanctions enforce injunction and compensate harms | Daleiden/CMP: sanctions are criminal because court mentioned deterrence | Court: sanctions are civil—compensatory payable to NAF—deterrence alone doesn’t make them criminal |
| Whether non-party attorneys (Cooley/Ferreira) may immediately appeal contempt | NAF: non-party appellate rights limited when interests congruent with a party | Cooley/Ferreira: they are nonparties in civil case (only represent client in related criminal case) and thus can appeal | Court: substantial congruence of interests exists; joint-and-several liability requires waiting for final judgment |
| Whether any exception (e.g., collateral-order/insolvency) allows immediate appeal | Cooley/Ferreira: implied that prior precedents allow attorney appeals | Defendants: exception for insolvent payee not present | Court: narrow insolvency exception inapplicable; no other basis for interlocutory appeal |
Key Cases Cited
- Bingman v. Ward, 100 F.3d 653 (9th Cir. 1996) (distinguishes immediate appeals of civil vs criminal contempt)
- Fox v. Capital Co., 299 U.S. 105 (Sup. Ct.) (final judgment rule for appeals)
- United Mine Workers v. Bagwell, 512 U.S. 821 (Sup. Ct.) (character of contempt relief controls classification)
- Koninklijke Philips Electronics, N.V. v. KXD Technology, Inc., 539 F.3d 1039 (9th Cir.) (compensatory sanctions payable to party indicate civil nature)
- Lasar v. Ford Motor Co., 399 F.3d 1101 (9th Cir.) (analysis of compensatory contempt sanctions)
- Portland Feminist Women’s Health Ctr. v. Advocates for Life, Inc., 877 F.2d 787 (9th Cir.) (nonparty contempt orders normally appealable)
- In re Coordinated Pretrial Proceedings in Petroleum Prods. Antitrust Litig., 747 F.2d 1303 (9th Cir.) (substantial congruence rule to avoid piecemeal appeals)
- Kordich v. Marine Clerks Ass’n, 715 F.2d 1392 (9th Cir.) (joint-and-several liability supports postponing nonparty appeals)
- Riverhead Sav. Bank v. Nat’l Mortgage Equity Corp., 893 F.2d 1109 (9th Cir.) (narrow insolvency exception for immediate appeal)
- Hill v. MacMillan/McGraw-Hill School Co., 102 F.3d 422 (9th Cir.) (applicability of substantial congruence rule)
- Cunningham v. Hamilton County, 527 U.S. 198 (Sup. Ct.) (avoiding duplicative appeals)
- Santa Monica Nativity Scenes Comm. v. City of Santa Monica, 784 F.3d 1286 (9th Cir.) (standard for judicial notice in jurisdictional inquiries)