Lynn v. Gateway Unified School District , 771 F.3d 1135 ( 2014 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KENDALL LYNN, No. 12-15104
Plaintiff,
D.C. No.
and 2:10-cv-00981-
JAM-CMK
ROBERT E. THURBON,
Appellant,
OPINION
v.
GATEWAY UNIFIED SCHOOL
DISTRICT,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Argued and Submitted
February 12, 2014—San Francisco, California
Filed November 6, 2014
Before: Richard C. Tallman and Johnnie B. Rawlinson,
Circuit Judges, and Thomas O. Rice, District Judge.*
Opinion by Judge Rawlinson
*
The Honorable Thomas O. Rice, United States District Judge for the
Eastern District of Washington, sitting by designation.
2 THURBON V. GATEWAY UNIFIED SCH. DIST.
SUMMARY**
Sanctions / Appellate Jurisdiction
The panel dismissed for lack of jurisdiction an attorney’s
appeal from an order finding that he committed ethical
violations, and disqualifying him from representing the
plaintiff in a wrongful termination action.
The panel held that it lacked jurisdiction because the
ethical violations were intertwined with the disqualification
order, and disqualification is not subject to interlocutory
appeal.
COUNSEL
Robert E. Thurbon, Thurbon & McHaney, LP, Gold River,
California, Appellant in Proper Person.
John P. Kelley, Halkides, Morgan & Kelley, Redding,
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.
THURBON V. GATEWAY UNIFIED SCH. DIST. 3
OPINION
RAWLINSON, Circuit Judge:
Attorney Robert E. Thurbon (Thurbon) appeals the
district court’s order finding that he committed ethical
violations, and disqualifying him from representing the
plaintiff Kendall Lynn (Lynn) in a pending action against
Gateway Unified School District (Gateway). Because the
ethical violations are intertwined with the disqualification
order, and because the United States Supreme Court has held
that disqualification is not subject to interlocutory appeal, we
dismiss the appeal for lack of jurisdiction.
I. BACKGROUND
Lynn is the former Director of Information and
Technology for Gateway. He was responsible “for
maintaining, operating and ensuring the security of
[Gateway’s] Information Technology systems including [its]
email system.” Lynn “reported directly to the Assistant
Superintendent and the Superintendent . . .”
John Strohmayer (Strohmayer) was the Superintendent for
Gateway from 2002 to June 30, 2009. From July 1, 2009, to
June 30, 2011, Robert Hubbell (Hubbell) was the
Superintendent. Jody Thulin (Thulin) was the Assistant
Superintendent/Chief Business Official of Gateway. On June
3, 2009, when Thulin was on administrative leave, Hubbell
met with Thulin, among others, to assess whether she would
be a “good fit” for his administrative team.
After his meeting with Thulin, Hubbell concluded that she
“was not a team player and was confrontational . . .[,] had
4 THURBON V. GATEWAY UNIFIED SCH. DIST.
very limited experience as a Chief Business Official; seemed
highly opinionated; appeared controlling and would be a
constant battle . . .” On June 29, 2009, Hubbell
recommended to the Gateway Board of Trustees (Board) that
Thulin be reassigned to a teaching position. The Board voted
unanimously in favor of reassignment, effective June 30,
2009. Thulin “refused the position, resigned and commenced
litigation. . . .” Thurbon was the attorney for both Lynn and
Thulin.
Hubbell also met with Lynn “to inform him of likely cuts
to his department, includ[ing] the possible elimination of
[Lynn’s] position.” On or about August 14, 2009, Hubbell
met with Lynn to tell him that Hubbell would be
recommending that the Board eliminate Lynn’s position
during the next Board meeting. On August 19, 2009,1
Hubbell recommended to the Board that Lynn’s “position be
eliminated for budgetary reasons,” and the Board approved
the recommendation, effective October 6, 2009. Lynn
worked August 21, 2009, and was out on sick leave from
August 24, 2009, through October 6, 2009. Believing his
layoff was based on his race, and because he was thought to
have aided Thulin in her lawsuit, Lynn instituted the
underlying action for wrongful termination.
According to Lynn, some time before June 30, 2009, he
“began a random sampling and review of [Gateway’s] emails
to determine what if any security issues, breaches . . . or
misuse . . . were occurring as expressed by” Strohmayer and
Director of Human Resources Kathy Campbell. Lynn avers
that he discovered emails suggesting racial bias and illegal
1
Hubbell’s declaration reads 2010, but the context shows this was a
typographical error.
THURBON V. GATEWAY UNIFIED SCH. DIST. 5
“job action against Jody Thulin. . . .” In July, 2009, Hubbell
hired an outside consultant, to whom Lynn was instructed to
give “full ‘administrative rights’ and control over
[Gateway’s] email system.” Believing that Gateway officials
were trying to “erase[] or manipulate[]” the email system “to
create alleged security leaks,” Lynn made a backup copy of
the emails. He also provided a copy to Thurbon.
Upon learning of the existence of the emails and the facts
regarding their acquisition, Thurbon conducted “certain legal
research regarding [Lynn’s] possession and potential use of
the emails in his Federal District Court action.” Thurbon
concluded that Lynn acquired the emails “during the course
and scope of his employment with Gateway.” Thurbon
believed that “Lynn had authorized access to the emails as
part of his job duties,” including “full administrative control
and discretionary decision making in undertaking steps to
back up and preserve [Gateway] records. . . .” Based on his
research, Thurbon determined that “Lynn had lawfully and
properly accessed the emails . . . and properly backed up the
system and was entitled to possess the back up copy . . .”
“Sometime right after June 14, 2010,” Lynn also informed
Thurbon that there were emails that could support Thulin’s
case. Thurbon then arranged for Thulin to come to his office
to review the emails. Thulin spent roughly “four hours
reviewing emails and identified 146 pages” that she believed
were relevant.
Lynn testified in his state court deposition that “all e-mail
traffic regarding school accounts is school property and can
be reviewed if necessary[.]” Gateway’s Job Description for
Lynn’s position provided that Lynn was to perform his duties
“[u]nder the general direction of the Superintendent.” Lynn
6 THURBON V. GATEWAY UNIFIED SCH. DIST.
was asked to review his job description for language that gave
him the “right and sole discretion to review e-mails including
those of the superintendent or board members[.]” Lynn
answered, generally, that he was responsible for establishing
and maintaining “standards of security” and for setting up
user accounts and access rights. He admitted that nothing
else in his job description gave him unfettered authority to
review emails. Also, Lynn acknowledged that “in terms of
reviewing emails,” he was “the designee to do that if Mr.
Strohmayer or the superintendents ask[ed him] to do it. . . .”
(Emphasis added).
Strohmayer and Hubbell both stated in their declarations
that they did not authorize Lynn’s unfettered access to
Gateway’s email system. Strohmayer recalled giving Lynn
authorization to access Gateway employees’ emails only on
two occasions. The emails produced by Thulin and Lynn
“would not have been included” in those authorizations, and
Lynn was never given “authority to access any of the emails
contained in either production. . . .” Lynn was never given
“blanket authority to view emails of employees[,]” so he
“never should have been reviewing [the] emails” at issue.
Hubbell stated that “[i]n 2009 and 2010, none of [the emails]
were knowingly released by [Gateway] to anyone other [than]
the recipients . . .” Hubbell “never authorized release of any
of these documents to anyone other than the recipients . . .”
Ultimately, the state court determined that Lynn was not
authorized to possess or disseminate the emails, and enjoined
Thurbon and Thulin from using the emails in state court
proceedings. Thurbon later used the knowledge gained from
the emails to request production of emails which were
otherwise covered by the injunction. Upon learning that the
extent of copied emails was much greater than Gateway had
THURBON V. GATEWAY UNIFIED SCH. DIST. 7
realized, Gateway filed another action in state court to
recover all emails possessed by Lynn.
The state court issued an emergency restraining order,
which would become a preliminary injunction, again
prohibiting use of the questionably-obtained emails. After
discovering that Thurbon continued to use the knowledge
gained from the emails to prepare a public records request,
Gateway obtained two orders to show cause why Thurbon
was not in contempt of the injunctions. Hearings on the
orders were consolidated, and the state court judge found five
willful violations by Thurbon. Thurbon was sanctioned in the
amount of $2,500.
In the meantime, Lynn filed his federal lawsuit.
Following a hearing, the district court determined that “Lynn
stole 39,312 emails” and “did not make a public records
request to obtain the emails. . . .” The court found that “he
really had absolutely no authority for doing what he did. . . .”
The court opined that “what a careful lawyer . . . should have
done . . . is the minute that these [emails] were turned over to
him, he should have hired criminal counsel for Mr. Lynn. He
should have advised Mr. Lynn of his Fifth Amendment rights.
He should have advised Mr. Lynn of possible Penal Code
violations[,]” but “[h]e did none of that.” “[E]ven more
shocking,” said the court, is that Thurbon “actually used the
emails in this other lawsuit, creating a clear conflict of
interest for him now between his two clients. . . .”
The district court noted that “at least eight violations of
professional conduct” had been raised. Although the court
denied Gateway’s request to dismiss the lawsuit completely,
Thurbon and his firm were disqualified from further
participation in the case. The court also ruled “that none of
8 THURBON V. GATEWAY UNIFIED SCH. DIST.
the emails which were stolen can be used in any way in this
lawsuit.” The court memorialized these rulings in an order,
and Thurbon timely filed a Notice of Appeal.2 As a threshold
issue, we must determine whether we have jurisdiction to
consider this appeal.
II. STANDARD OF REVIEW
“We consider our jurisdiction de novo.” Metabolic
Research, Inc. v. Ferrell, 693 F.3d 795, 798 (9th Cir. 2012)
(citation omitted).
III. DISCUSSION
As an appellate court, we only have jurisdiction over final
judgments. See 28 U.S.C. § 1291. An exception to the final
judgment requirement is made for a collateral order. See
United States v. Tillman, 756 F.3d 1144, 1149 (9th Cir.
2014). A collateral order is one that is conclusive, resolves
an important question that is separate from the merits of the
underlying case, and is effectively unreviewable on appeal.
See id. The United States Supreme Court has explicitly held
that “orders disqualifying counsel in civil cases . . . are not
collateral orders subject to appeal as ‘final judgments’ within
the meaning of 28 U.S.C. § 1291. The Court of Appeals
lack[s] jurisdiction to entertain [such an] appeal . . .”
Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 440–41
(1985) (citation omitted).
2
Thurbon challenges only the disqualification and findings of ethical
violations in this appeal. While this appeal has been pending, Lynn’s
wrongful termination case has been continued in the district court.
THURBON V. GATEWAY UNIFIED SCH. DIST. 9
In Cunningham v. Hamilton Cnty., Ohio, 527 U.S. 198
(1999), the Supreme Court considered whether the collateral
order doctrine applies to a sanctions order coupled with
disqualification of an attorney. See id. at 200–01. The
Supreme Court explained that it is unlikely that a sanctions
order can be reviewed separately from the merits. See id. at
205. In addition, the Court noted its ruling in Richardson-
Merrell that an order disqualifying an attorney was not a final
decision subject to appeal. See id. at 207. The rationale of
Cunningham leads to the conclusion that a sanctions order
coupled with disqualification of counsel is doubly
unappealable. See id. at 205–07. Indeed, Thurbon conceded
during oral argument that, to the extent the sanctions and
disqualification rulings are intertwined, we lack jurisdiction.
Nevertheless, Thurbon argues that United States v. Talao,
222 F.3d 1133 (9th Cir. 2000), provides us with appellate
jurisdiction based on the sanctions order. In Talao, a
government attorney appealed a district court order finding
that she had violated a rule of ethical conduct and that this
violation warranted a referral of her misconduct to the state
bar, and an instruction informing the jurors in an ongoing
criminal case that they could take her misconduct into
account when assessing a particular witness’s credibility. See
id. at 1136. We held that this order was per se a sanction, and
hence appealable, because “the district court made a finding
and reached a legal conclusion that [the government attorney]
knowingly and wilfully violated a specific rule of ethical
conduct.” Id. at 1138. We have endorsed this standard in
distinguishing between a criticism and a reprimand, although
other circuits have adopted slightly different standards for
determining when an attorney may in his or her own right
appeal an order. See United States v. Ensign, 491 F.3d 1109,
1117 (9th Cir. 2007). Thus, in Talao, we focused on whether
10 THURBON V. GATEWAY UNIFIED SCH. DIST.
the court’s verbal reprimand rose to the level of a sanction
rather than on whether the sanction constituted a final order
subject to appeal. See id. at 1138. Notably, the Talao
decision fails to mention either Richardson-Merrell or
Cunningham in its analysis. Indeed, Talao does not discuss
the interlocutory nature of the appeal whatsoever, other than
to recognize that the sanctions appeal was consolidated for
consideration with the government’s mandamus petition to
prevent the district court from giving its proposed remedial
instruction. See Talao, 222 F.3d at 1137. In such a
circumstance, where the prior case did not delve into the issue
at hand, we have not considered ourselves bound to reach the
same outcome. See V.S. ex rel. A.O. v. Los Gatos-Saratoga
Joint Union High Sch. Dist., 484 F.3d 1230, 1232 n.1 (9th
Cir. 2007). Moreover, we have not extended Talao’s holding
beyond its limited facts where a sanction imposed against
government counsel may affect the outcome of an underlying
criminal proceeding. See Talao, 222 F.3d at 1135; see also
Stanley v. Woodford, 449 F.3d 1060, 1065 (9th Cir. 2006)
(relying upon Cunningham in concluding that an attorney
may not pursue an interlocutory appeal of a sanctions order).
In addition, we have recognized our lack of jurisdiction to
consider an interlocutory appeal of disqualification only. See
Am. Prot. Ins. Co. v. MGM Grand Hotel-Las Vegas, Inc.,
765 F.2d 925, 926 (9th Cir. 1985) (citing Richardson-Merrell,
472 U.S. at 424). We are persuaded that we lack jurisdiction
over this appeal.
APPEAL DISMISSED.