OPINION
The United States of America (government) entered into a consent decree with El Dorado County (County) concerning the clean up of an abandoned landfill located near Lake Tahoe in California. The County shortly thereafter moved to modify the decree, and the district court suspended the decree pending further hearings. The government appealed. The County later moved to dismiss for lack of jurisdiction, arguing that the order was not appealable because it is nonfinal. We have jurisdiction to determine our own jurisdiction, Special Invs., Inc. v. Aero Air, Inc.,
I.
The County and the government have a long history with respect to the landfill. Much of the detail is irrelevant to our jurisdiction decision and we will therefore only recount the facts relevant to our determination.
The district court held that (1) the plan contained significant errors; (2) as a result, the implementation costs would be substantially increased; and (3) the government must pay those costs. The district court therefore “suspended” the consent decree “pending further order” and directed that an evidentiary hearing would be held to determine the extent of the government’s liability for the increased costs.
II.
The government argues that we have jurisdiction because (1) the order is a modification of an injunction and therefore falls within 28 U.S.C. § 1292(a)(1); and (2) even if it does not fall under section 1292(a)(1) by its own terms, the order is immediately appealable because it satisfies the extra requirements set out in Carson, v. Am. Brands, Inc.,
The text of section 1292(a)(1) allows for interlocutory appeal only of orders “granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions.” “Carson ... expanded the scope of appeals that can be taken under section 1292(a)(1), but in doing so imposed an additional requirement on appeals that do not fall directly within the meaning of the statute.” Shee Atika v. Sealaska Corp.,
Orders dealing with consent decrees do not fall directly within the language of 1292(a)(1): they are not orders granting, denying, or modifying injunctions by their own terms. However, such orders may have the same practical effect as an injunction, and therefore they demand application of Carson’s special rules. Thus, a court reviewing an interlocutory order involving a consent decree should apply Carson, not just section 1292(a)(1) alone, to determine jurisdiction. Carson and our cases construing Carson make this relationship clear.
Carson itself dealt specifically with a request for approval of a consent decree with injunctive properties.
This understanding of Carson is confirmed by our discussion of the case in Shee Atika:
In Carson, the Supreme Court considered whether section 1292(a)(1) permitted appeal from an order denying the parties’ joint motion for approval of a*1264 consent decree that contained an injunction as one of its provisions. Because the order did not, on its face, deny an injunction, an appeal from the order did not fall precisely within the language of section 1292(a)(1). The Court nevertheless permitted the appeal.
The proposition is further supported in Thompson, in which we applied Carson to determine whether an interlocutory order appointing a monitor to oversee a preexisting injunctive consent decree between prisoners and their prison was immediately appealable. Thompson,
III.
The government seeks to avoid Carson by relying on our decision in Hook v. Arizona,
It is true that while Carson and most of our cases considered the denial of a consent decree, Hook dealt with a modification. The question is whether that difference establishes a proper distinction. We conclude that it does not.
First, Thompson, applying Carson, considered whether an interlocutory order appointing a monitor to oversee a consent decree was immediately appealable as “an order ‘granting, modifying, refusing, or dissolving’ the consent decree.”
Second, application of Carson’s special rules should not hinge on what an order does to a consent decree with injunctive aspects: whether it grants, denies, or modifies. The animating principle of Carson is that consent decrees sometimes have the same practical effect as injunctions and can therefore be treated as such on interlocutory appeal if certain additional requirements are satisfied.
We are mindful that our reasoning in some ways depends on labels, and that “[i]n determining the appealability of an interlocutory order under 28 U.S.C. § 1292(a)(1), we look to its substantial effect rather than its terminology.” Turtle Island Restoration Network v. U.S. Dep’t of Commerce,
IY.
Applying Carson, we hold that the government has not satisfied its burden. We recognize that the order suspends, as opposed to permanently cancels, the consent decree. Whether this “incomplete” modification qualifies as having the same practical effect as a denial of an injunction is an issue we need not decide, however, because the government has not succeeded on the other Carson factors.
The government has not shown that it will suffer serious, perhaps irreparable harm if we do not review the district court’s order now. The government argues that if the order freeing the County from its obligations is allowed to stand even temporarily, further damage to the landfill site is a serious possibility. However, at worst, the government must pay for the clean up activities itself and then be reimbursed. This kind of harm does not qualify.
Mere injuries, however substantial, in terms of money, time and energy necessarily expended ... are not enough. The possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm.
L.A. Mem’l Coliseum Comm’n v. Nat’l Football League,
Nor has the government shown that the order can only be challenged by immediate appeal. Once the district court has held its evidentiary hearing and enters the final judgment, the government can appeal the same legal issues. The government argues that the order can only be appealed now because the project will fail if the County is not required to continue clean up. This is merely a repetition of the government’s harm arguments, and fails for the same reason. As stated before, at worst, the government must pay for the clean up itself and then be reimbursed. That situation has no impact on the re-viewability of the underlying legal issue.
Because the government has failed to satisfy the Carson factors, we do not have jurisdiction at this time. The motion to dismiss is therefore granted.
APPEAL DISMISSED.