Jimmy McCLENDON, a/k/a Billy McClendon; Harold Lund; Peter Sumatkaku; David Michael Bauer; Carl Ray Lopez; Bruce David Morawe; Thomas Young; Ruthie Duran; Deborah Lavera; Janelle Roybal; Danette Difiori; Maria Sisneros; Larry Green; Bartel Haley; Michael Cote; Joe Ray Herrera; Josie Kriena; Debbie Lucero; David Shawkin; Marc A. Gillette; George Chavez; Eliseo Baca; Clint Barras; Francisco Melendez; Samual Herrod; Vincent Padilla; Carl Duckworth; Joseph W. Anderson; Paul Johnson; Fred Mall; Hector Lopez; Ricky Rose; Herbert King, Sr.; James Parks; Michael A. Johnson; Johnny Vallejos; Joe Newberry; Darryl Craft; Albert Willy; William P. Jimmy; Augustine Tapia; Richard A. Smith; Robert Lovato; Roy Whatley; Marty Begay; Martin Valdivia; Tallie Thomas; Augustine Jackson; Donald Hall; Carl Sur; Steve Esquibel; Lonnie Whatley; James Saiz; Bryon Zamora; Allen M. Sawyer; Patrick Benny Romero; Richard C. Kopecky; Phillip Shumate; Nelson Romero; Steve Johnson; Bennie F. Garcia; Louie Chavez; Brian Salazar; Richard Gallegos; Larry Stroud; James Burks; Brad Fischer; Amihon Baca; Jeff Dillow; Pete McQueen; Manuel Martinez; Arnold Anthony Maestas; John Hewatt, Plaintiffs-Appellees, and E.M.; R.L.; W.A.; D.J.; P.S.; N.W., Plaintiff-Intervenors-Appellees, v. CITY OF ALBUQUERQUE; Martin Chavez, Mayor of Albuquerque; County of Bernalillo; Michael Sisneros, Director of Bernalillo County Detention Center, in his official capacity, Defendants, and Bernalillo County Board of Commissioners; Ron Torres, Warden, Bernalillo County Metropolitan Detention Center, Defendants-Appellants.
No. 09-2095
United States Court of Appeals, Tenth Circuit
Jan. 12, 2011
630 F.3d 1288
Before LUCERO and GORSUCH, Circuit Judges, and ARGUELLO *, District Judge.
* Honorable Christine M. Arguello, District Court Judge, District of Colorado, sitting by designation.
There is greater merit to the argument that the district court failed to make the specific findings required by Dunnigan and Hawthorne. But Defendant did not raise the issue below, and nothing in the record suggests that the district court prevented him from raising it. Therefore we review only for plain error; to obtain relief Defendant must establish “(1) error, (2) that is plain, which (3) affects substantial rights, and which (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings.” United States v. Uscanga-Mora, 562 F.3d 1289, 1295 (10th Cir. 2009). Defendant fails on the third prong. He has not established that he was prejudiced by any inadequacy in the district court‘s explanation for its imposition of the obstruction-of-justice enhancement. On the contrary, in light of the clear evidence of perjury, it would be surprising if his sentence would be any different if we reversed and remanded for resentencing. See id.; United States v. Aptt, 354 F.3d 1269, 1287 (10th Cir. 2004) (remand for resentencing on plain-error review was not justified despite trial court‘s failure to find specifically who defendant supervised, because “[h]ad [defendant] timely objected to the alleged flaw in the district court‘s reasoning, the district court easily could have named specific participants in the fraud and money laundering that [defendant] supervised“).
III. CONCLUSION
We AFFIRM the judgment of the district court.
Jeffrey L. Baker, The Baker Law Firm (Renni Zifferblatt, The Baker Law Firm, and Marcus J. Rael, Jr., Robles, Rael & Anaya, P.C., with him on the briefs), Albuquerque, NM, for Defendants-Appellants.
Nancy L. Simmons, Law Offices of Nancy L. Simmons, P.C. (Zachary A. Ives and Molly Schmidt-Nowara, Freedman, Boyd, Hollander, Goldberg, Ives & Duncan P.A., and Peter Cubra and Lisa Y. Schatz-Vance, with her on the briefs), Albuquerque, NM, for Plaintiffs-Appellees.
This is the latest installment in a long running class action lawsuit about conditions inside Albuquerque‘s jails. In this iteration of the case, we must answer only a single question: Does an order withdrawing approval of a class action settlement agreement qualify as a “final decision” subject to appeal under
While the history of this dispute is long and complex, for purposes of this appeal a thumbnail sketch will do. In 1995, the plaintiffs sued the City of Albuquerque, Bernalillo County, and various individuals involved in operating the Bernalillo County Detention Center (“BCDC“). The plaintiffs sought to represent a class of “all prisoners who are presently, or will be confined in the” BCDC. Compl. ¶ 1. Soon, other members of the class intervened to form a sub-class seeking to represent “persons with mental and/or developmental disabilities who are now, or in the future will be, detained at” BCDC. Aplt.App. at 341. The plaintiffs alleged that the conditions at BCDC were constitutionally deficient due, in large part, to overcrowding.
Eventually, after the class and subclass sought and received certification, the parties negotiated a pair of settlement agreements—one for the class and another for the sub-class—which the court approved in 1997 and over which it retained continuing jurisdiction. The parties operated under these agreements until 2003 when the County built a new jail, the Metropolitan Detention Center (“MDC“), and transferred all the prisoners from BCDC to MDC. But this transfer only prompted a new dispute. The plaintiffs argued that the 1997 settlement agreements should, in effect, transfer with all of the County‘s prisoners to the new MDC and govern the defendants’ conduct there. For their part, the County and the other defendants opposed extending the agreements to MDC. After much wrangling, the parties eventually reached a new pair of settlement agreements that superseded the 1997 deals. By their express terms, the new agreements governed conditions only at MDC. Pursuant to
The 2005 agreements soon ran into trouble of their own. After moving all its prisoners from BCDC to MDC, the County signed an Inter-Governmental Agreement (“IGA“) with the federal government that allowed federal detainees to be housed at BCDC. Under the terms of the IGA, the County bore certain contractual responsibilities concerning the care and treatment of federal detainees. At the same time, however, the County wasn‘t required to operate BCDC but was allowed instead to contract out operational obligations to a private company, Cornell Corporation. According to the plaintiffs, however, the County misrepresented this arrangement to them by suggesting that Cornell alone bore contractual duties to the federal government. And it was only because of this alleged misrepresentation, the plaintiffs say, that they agreed to restrict the coverage of the 2005 settlement agreements to the MDC facility rather than to insist on a deal that continued to address the treatment of prisoners in the BCDC facility.
After the plaintiffs claimed they learned the true nature of the County‘s role in the IGA, they brought the issue to the district court‘s attention. Many motions and responses and arguments followed, all of which culminated in the district court‘s March 31, 2009 order finding that the County had misrepresented to the plaintiffs its IGA interactions with the federal government. Based on this finding, the district court withdrew its
The defendants now seek to appeal the district court‘s March 31, 2009 order. In their appeal, the defendants raise a host of arguments for reversal, including a contention that the district court judge should have recused herself before issuing the March 31, 2009 order and so allowed another judge to consider the plaintiffs’ complaint that they had been misled. But before the defendants can get to any of that, they bear the burden of establishing this court‘s authority to hear their appeal. This burden, the defendants say, they can carry for a variety of reasons: the March 31, 2009 order they seek to challenge came after a final judgment; the order is appealable under the collateral order doctrine; and the order implicates the jurisdictional authority of the district court. We address each of these theories in turn.
A
The courts of appeals are creations of Congress and the boundaries of their jurisdiction are staked by statute. When it comes to when federal appellate courts may take a case, Congress has said that we may usually hear appeals only from “final decisions of the district courts of the United States.”
Undergirding the final decision rule is Congress‘s implicit judgment that the district judge is best positioned to bear primary responsibility for policing the tactics and maneuvers of the litigants in ongoing litigation—and that the district judge can better exercise this responsibility if appellate courts do not regularly intervene and second-guess the district judge‘s rulings before he or she has reached a final decision on a particular matter. Better to wait until the district judge has made up his or her mind than to intervene when things remain in flux and the district court could still reverse course and provide the very relief a complaining party might seek to achieve in an appeal. See Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 436 (1985); United States v. Wampler, 624 F.3d 1330, 1334-35 (10th Cir. 2010).
The defendants say their appeal satisfies the final decision rule because the district court‘s 1997 order (and perhaps its 2005 order) approving the parties’ settlement agreements were final judgments for purposes of
This is mistaken. While the defendants are correct that a final judgment is the paradigmatic “final decision” appealable under
Fact is, every post-judgment decision must be assessed on its own terms to determine whether it is a final decision amenable to appeal. The plain language of
The nature of the defendants’ appeal in this case illustrates as much. Before this court, the defendants seek to challenge only the March 31, 2009 order, not the 1997 or 2005 orders that, they contend, constitute final judgments.1 The defendants’ arguments before us thus aren‘t aimed at attacking any final judgment. Just the opposite, in fact: the defendants seek the benefit of those putative final judgments, challenging only the March 31, 2009 order that effectively undid them. So it is that, when assessing our authority to hear this appeal, our focus naturally turns, as it must, to the district court order that the defendants’ appeal seeks to attack, not other orders the appeal doesn‘t seek to upset.
Properly framed, then, this appeal raises the question whether an order withdrawing a settlement approval is an appealable final decision. And the answer to that question must be no. A district court‘s order in these circumstances doesn‘t “disassociate” the court from the case; it doesn‘t “end the litigation on the merits.” Just the opposite: the order ensures litigation on the merits will continue in the district court. If the 1997 and 2005 orders approving the parties’ settlement agreements amounted to final judgments, the March 31, 2009 order was their antithesis, obliterating any finality the case might have once enjoyed, “vacat[ing] [the] judgment and set[ting] the stage for further trial court proceedings.” 15B Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Fed. Prac. & Proc. § 3916, p. 367 (2d ed. 1992) (“Wright & Miller“). The district court‘s challenged order essentially indicates that any prior final decision is defunct, gone, and further litigation on the merits must resume, and the usual rule that we must not interfere with ongoing district court proceedings governs.
That this is so even the defendants cannot help but confirm backhandedly, complaining to us as they do that the district court‘s March 31, 2009 order means they will “face[] the very serious and unwholesome prospect of protracted litigation of a class action lawsuit.” Aplt. Br. in Supp. of Appellate Jurisdiction at 18. Whether or not the renewed proceedings in district court will be unwholesome or protracted we don‘t know. But the defendants are surely right that, under the order‘s terms, they face more litigation on the merits in the district court. And that irrepressible fact dictates our conclusion that the March 31, 2009 order is no final decision.
Our holding finds compelling parallels in other contexts. In a pair of decisions for
Rather than focus on these parallels, defendants ask us to look to an unpublished (and so non-binding) decision, Roose v. Patrick, 98 Fed.Appx. 719 (10th Cir. 2004), that, they say, should lead us to conclude all post-judgment orders are appealable final decisions. Examining Roose, however, confirms the opposite conclusion. After the district court entered a judgment dismissing her case, Karen Roose filed a motion for leave to file a second amended complaint. Id. at 721. The district court denied the motion and Ms. Roose sought to appeal this post-judgment order. Id. We permitted the appeal only because the court‘s order finally decided the amended complaint issue and no further proceedings were contemplated in the district court. Id. at 722-23. In this way, Roose is similar to the situation where a district court denies a post-judgment motion to reopen a final judgment under
B
While the district court‘s March 31, 2009 order may not disassociate the district court from the case, the defendants reply that it does at least finally decide that the district court‘s earlier 1997 and 2005 decisions aren‘t final. Put differently, the defendants argue that the March 31, 2009 order deprives them of the repose secured by the parties’ earlier settlement agreements—the right to avoid trial or at least renewed litigation. And this right, they say, will be irretrievably—or finally—lost if appellate review is deferred.
But that is not enough. Many interlocutory orders can be characterized as “final”
The defendants urge that a contrary result is compelled by Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949), which held that certain otherwise interlocutory orders can qualify for appeal under
Neither can our conclusion on this score come as a surprise. We said as much long ago, in Desktop Direct, Inc. v. Digital Equipment Corp., 993 F.2d 755 (10th Cir. 1993). There, a party attempted to appeal a district court‘s post-judgment order rescinding a final judgment that was predicated on a settlement agreement between the parties. The district court had rescinded the final judgment because, much as here, the parties’ settlement agreement had been induced by a misrepresentation. Id. at 756. Before this court, the putative appellant argued that, unless its appeal was heard immediately, it would forever lose the right guaranteed to it by the parties’ settlement agreement—not to endure further litigation in the district court. Id. at 758. Writing for this court, Judge Logan declined to permit an appeal under Cohen. Id. at 760. The Supreme Court then granted certiorari and proceeded to affirm Judge Logan‘s decision unanimously. Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 884 (1994). In doing so, the Supreme Court explained that “Congress‘s final decision rule would end up a pretty puny one” if immediate appellate review, whether under Cohen or otherwise, were available every time a party claimed that some interest, such as the right not to stand trial, would be “irretrievably lost” due to an erroneous district court decision. Id. at 872. So it is that, as Desktop Direct held and we reaffirm today, a settlement agreement‘s promise against future litigation, in whatever form, is insufficient to warrant an appeal under the Cohen doctrine. It is insufficient here in the civil context when a party seeks to enforce a rescinded settlement agreement, and it is equally insufficient in the criminal context when a party seeks to enforce a rejected plea deal, see Wampler, 624 F.3d at 1335.
The reason for this rule, the Supreme Court has explained, lies in the fact that the only time a claimed “right not to
If there is to be any change to the Supreme Court‘s bright line rule disallowing immediate appeals based solely on a settlement or plea agreement purporting to grant a right not to stand trial, the Court has indicated it must not be through litigation in this court but through a different avenue altogether. While Cohen was once essentially the only game in town for securing appellate review of “practically” final but otherwise interlocutory district court orders, Congress has since amended the Rules Enabling Act to allow the Supreme Court to prescribe rules “defin[ing] when a ruling of a district court is final for the purposes of appeal under section 1291.”
Unsuccessful in their main efforts at securing an appeal, the defendants seem at times to try still a different approach. They sometimes appear to suggest we should allow their appeal under
If the rule were otherwise—if a party could win admission into the court of appeals by, say, characterizing a district court‘s challenged action as lacking a “jurisdictional” basis—no doubt the only thing that‘d follow would be a flurry of “imaginative attempts to [re]characterize asserted errors as matters of district court power.” Wright & Miller § 3916, at 371. Instead of focusing on whether the district court‘s decision was final, the parties would spend their time arguing, and we would spend our time asking, whether the district court‘s decision is fairly characterized as jurisdictional. And that‘s often a slippery question. The word “jurisdiction” has “many, too many meanings,” Steel Co. v. Citizens for a Better Env‘t, 523 U.S. 83, 90 (1998) (internal quotation omitted), it is “capable of different interpretations,” Rumsfeld v. Padilla, 542 U.S. 426, 434 n. 7 (2004), and it has sometimes been used with “excessive[] exuberan[ce]” to encompass “things other than the [true] absence of constitutional or statutory power to adjudicate a matter,” Flitton v. Primary Residential Mortg., 614 F.3d 1173, 1182 (10th Cir. 2010) (Gorsuch, J., concurring in part and dissenting in part).
Even more problematic for defendants than the practical problems associated with their proffered test, it asks the wrong question. In
III
This case is fifteen years old and, the defendants worry, marked for still more years dragging before the courts. No doubt that‘s why they have tried so hard to secure appellate review now, in an effort to bring some measure of certainty and closure to this proceeding. We are hardly impervious to the defendants’ concerns: the delays and costs associated with civil litigation in modern America are substantial and worrisome, and even the most hard-boiled litigator may raise an eyebrow at a case lasting as long as this one. We are no less hopeful than the defendants that the able district court judge newly assigned to this case will facilitate its expeditious progress toward a lasting final judgment. Neither will the defendants be left without any means for raising the points of error they seek to pursue in this appeal: a district judge may revisit and reconsider not only his or her own interlocutory rulings but also those of a disqualified predecessor; and, of course, there will come a day when this case will reach final judgment and so become amenable to appellate review. Likewise, if this case languishes, the defendants, like all litigants, have (and always had) the ability to seek mandamus, which functions not only to confine district courts to their jurisdiction but also to “compel [them] to exercise [their] authority when it is [their] duty to do so.” In re Antrobus, 519 F.3d 1123, 1124 (10th Cir. 2008) (internal quotation omitted). But one thing we may never do is disregard the bounds of our legal authority and assert
LUCERO, J., concurring.
I concur in the majority opinion, save for the last two paragraphs of Part II(B). There can be no dispute but that (1) the order being appealed was not a final order; and (2) this case is indistinguishable from Desktop Direct, Inc. v. Digital Equipment Corp., 993 F.2d 755, 756 (10th Cir. 1993). I write separately solely to address the final two paragraphs of Part II(B).
Given that this case is factually indistinguishable from Desktop Direct, that appears to me to end the matter. The subject two paragraphs of Part II(B) are analytically unnecessary and are in the nature of dicta. But for their extraneous nature, these paragraphs would present two serious consequences.
First, the majority states that “the only time a claimed right not to stand trial will justify immediate appellate review under Cohen [v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949),] is when a statutory or constitutional provision guarantees that claimed right.” (Majority Op. 1295-96 (quotation omitted).) The majority cites Digital Equipment Corp. v. Desktop Direct, Inc., 511 U.S. 863, 874 (1994), to support this proposition. However, in that case, the Court explicitly declined to so limit Cohen, holding that rights embodied in constitutional or statutory provisions are more likely to be deemed “important,” but “there is no need to decide here that a privately conferred right could never supply the basis of a collateral order appeal.” Id.
The majority‘s contrary language is an unfortunate misreading of the law. If followed, this would present adverse consequences for established legal principles. For example, we allow interlocutory review of denials of qualified immunity. That principle flows from “an entitlement not to stand trial.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Yet qualified immunity is not guaranteed by statute or the Constitution. It is a judge-made doctrine.1 See, e.g., Oscarson v. Office of Senate Sergeant at Arms, 550 F.3d 1, 3 (D.C. Cir. 2008) (qualified immunity is “entirely a judicial creation“). Applying the rule the majority proposes would mean an end to interlocutory review of qualified immunity denials.
Second, the majority would impermissibly limit Cohen. Because of amendments to the Rules Enabling Act, the majority decrees:
“[A]ny further avenue for immediate appeal” of interlocutory rulings not amenable to Cohen, including those involving a putative right not to stand trial guaranteed by a plea or settlement agreement, “should be furnished, if at all, through rulemaking with the opportunity for full
airing it provides,” not through further ad hoc case-by-case expansion of the Cohen doctrine.
(Majority Op. 1296 (quoting Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 130 S.Ct. 599, 609 (2009) (alterations omitted))); see also United States v. Wampler, 624 F.3d 1330, 1338 (10th Cir. 2010) (Gorsuch, J.) (using a similar quotation). I of course have no objection to the proposition that appeal of interlocutory rulings “not amenable to Cohen” should be provided by rulemaking rather than expansion of Cohen. Mohawk Industries, however, holds only that orders to disclose materials over a claimed attorney-client privilege are not amenable to Cohen. Mohawk Indus., 130 S.Ct. at 609. Mohawk Industries does not speak of claimed rights “not to stand trial guaranteed by a plea or settlement agreement.” The Rules Enabling Act decrees “rulemaking, not expansion by court decision,” the preferred method for creating new avenues for interlocutory appeals, see id.; rulemaking is not mandated as the only method. Mohawk Industries preserved, and notably applied, Cohen. Mohawk Indus., 130 S.Ct. at 607. If Cohen is to be reversed or undermined, the Supreme Court has cautioned us that “it is th[e] Court‘s prerogative alone to overrule one of its precedents.” State Oil Co. v. Khan, 522 U.S. 3, 20 (1997).
As noted, the last two paragraphs of Part II(B) are unnecessary to our ruling today, and therefore are in the nature of dicta. Because it is not harmless dicta, I specially concur.
CARLOS F. LUCERO
UNITED STATES CIRCUIT JUDGE