United States v. El Dorado County ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA , No. 11-17134
Plaintiff-Appellant,
D.C. No.
v. 2:01-cv-01520-
MCE-GGH
EL DORADO COUNTY , California and
CITY OF SOUTH LAKE TAHOE,
Defendants-Appellees. OPINION
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., Chief District Judge, Presiding
Argued and Submitted
October 16, 2012—San Francisco, California
Filed January 11, 2013
Before: J. Clifford Wallace and Carlos T. Bea,
Circuit Judges, and Jane A. Restani, Judge.*
Opinion by Judge Wallace
*
The Honorable Jane A. Restani, Judge for the U.S. Court of
International Trade, sitting by designation.
2 UNITED STATES V . EL DORADO COUNTY
SUMMARY**
Jurisdiction / Final Order
The panel dismissed for lack of jurisdiction, due to lack
of a final appealable order, an appeal from the district court’s
order suspending a consent decree between the federal
government and El Dorado County, pending further hearings.
The panel held that if a district court order deals with a
consent decree that has injunctive effects, an appeal from it
should be analyzed under the requirements set out in Carson
v. Am. Brands, Inc., 450 U.S. 79 (1981). The panel held that
the federal government failed to satisfy the Carson factors,
and concluded that the court lacked jurisdiction at this time to
review the district court’s order.
COUNSEL
Karl J. Fingerhood, Andrew J. Doyle, Maggie B. Smith
(argued), United States Department of Justice, Environmental
and Natural Resources Division, Washington D.C., for
Plaintiff-Appellant.
Thomas M. Bruen (argued), Erik A. Reinertson, Law Offices
of Thomas M. Bruen, P.C., Walnut Creek, California, for
Defendant-Appellee.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V . EL DORADO COUNTY 3
OPINION
WALLACE, Circuit Judge:
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., 360 F.3d
989, 992 (9th Cir. 2004), and we dismiss the appeal.
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 United States Forest Service (Forest Service) gave
the County a permit to operate a landfill on Forest Service
land from 1955 through 1971, after which the landfill was
closed. In 1996, toxic chemicals were discovered in the
groundwater near the landfill. After several rounds of
investigation, planning, and negotiation, the Forest Service
and the County entered into a consent decree under which the
County would be obligated to implement a remedial plan
developed by the Forest Service. Soon after beginning
implementation, the County discovered alleged defects in the
plan and moved to modify the consent decree.
4 UNITED STATES V . EL DORADO COUNTY
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., 450 U.S.
79 (1981). To solve the issue presented, we analyze the
relationship between Carson and section 1292(a)(1) in the
context of consent decrees.
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., 39 F.3d 247, 249 (9th Cir. 1994). To
satisfy those added requirements, the appealing party must
show that the order (1) has “the practical effect of the grant or
denial of an injunction”; (2) has “serious, perhaps irreparable
consequences”; and (3) can be “effectively challenged only
by immediate appeal.” Thompson v. Enomoto, 815 F.2d 1323,
1326–27 (9th Cir. 1987).
UNITED STATES V . EL DORADO COUNTY 5
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. 450 U.S. at
83–84. The implication is therefore that consent decrees do
not fit comfortably under section 1292(a)(1) on interlocutory
appeal. Thus, even though a “consent decree is an
injunction,” Gates v. Shinn, 98 F.3d 463, 468 (9th Cir. 1996),
it is nonetheless subject to additional rules on interlocutory
appeal.
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
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.
6 UNITED STATES V . EL DORADO COUNTY
39 F.3d at 249 (emphasis added) (citation omitted). We thus
reinforced the implication from Carson that orders involving
consent decrees do not fall directly under section 1292.
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, 815 F.2d
at 1326–27. See also Sierra Club, Inc. v. Elec. Controls
Design, Inc., 909 F.2d 1350, 1353 (9th Cir. 1990) (order
denying injunctive consent decree is subject to Carson);
EEOC v. Pan Am. World Airways, Inc., 796 F.2d 314, 316
(9th Cir. 1986) (same). These cases make clear that the
correct approach is to apply Carson when presented with an
interlocutory appeal from an order that deals with an
injunctive consent decree.
III.
The government seeks to avoid Carson by relying on our
decision in Hook v. Arizona, 120 F.3d 921 (9th Cir. 1997).
Much like Thompson, Hook reviewed a district court’s order
appointing a special master to oversee implementation of a
preexisting consent decree between prisoners and their prison.
Id. at 925–26. Hook characterized the appointment as part of
a larger order modifying the consent decree. Id. at 926.
Without discussion or citation of any authority, Hook stated
that “[t]he modification order clearly is appealable under
28 U.S.C. § 1292(a)(1).” Id. Hook did not mention Carson or
our cases that apply it.
It is true that while Carson and most of our cases
considered the denial of a consent decree, Hook dealt with a
UNITED STATES V . EL DORADO COUNTY 7
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.”
815 F.2d at 1326 (quoting Carson, 450 U.S. at 84). We have
therefore already clearly recognized that orders modifying
consent decrees should be reviewed under Carson. See also
Heartwood, Inc. v. U.S. Forest Serv., 316 F.3d 694, 699 (7th
Cir. 2003) (applying Carson to an order vacating a previously
established consent decree). See also United States v.
Colorado, 937 F.2d 505, 507–08 (10th Cir. 1991) (applying
Carson to an order denying modification of a 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. 450 U.S. at 83
(“Although the District Court’s order declining to enter the
proposed consent decree did not in terms refus[e] an
injunctio[n], it nonetheless had the practical effect of doing
so”) (internal quotation marks omitted). Thus, just as the
modification of an injunction is appealable, the modification
of an injunctive consent decree is appealable, but only when
the Carson requirements are satisfied. Accordingly, it is
difficult to understand why Hook did not expressly apply
Carson. Nevertheless, it is clear that based upon Carson and
our subsequent cases, Carson applies here. Therefore, we
8 UNITED STATES V . EL DORADO COUNTY
disagree with the government’s contention that Hook
provides jurisdiction in this appeal.
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,
672 F.3d 1160, 1165 (9th Cir. 2012) (internal quotation marks
omitted). However, Carson was designed for precisely the
situation where an order is injunctive in effect as opposed to
on its face. Thus, if the order deals with a consent decree that
has injunctive effects, an appeal from it should be analyzed
under Carson.
IV.
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.
UNITED STATES V . EL DORADO COUNTY 9
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,
634 F.2d 1197, 1202 (9th Cir. 1980) (internal quotation marks
omitted).
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 reviewability 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.