Stanley v. Woodford ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GERALD F. STANLEY, 
Petitioner-Appellant,
JACK LEAVITT, No. 04-16255
Appellant, D.C. No.
FEDERAL PUBLIC DEFENDER,  CV-95-01500-
Intervenor-Appellee, FCD/GGH
v. OPINION
JEANNE WOODFORD,
Respondent-Appellee.

Appeal from the United States District Court
for the Eastern District of California
Frank C. Damrell, District Judge, Presiding
Submitted February 15, 2006*
San Francisco, California
Filed June 7, 2006
Before: Procter Hug, Jr., Arthur L. Alarcón, and
M. Margaret McKeown, Circuit Judges.
Opinion by Judge Hug
*The panel unanimously finds this case suitable for decision without
oral argument. Fed. R. App. P. 34(a)(2).
6253
STANLEY v. WOODFORD 6255
COUNSEL
Jack Leavitt, Hayward, California, for the appellant.
Mark E. Olive, Tallahassee, Florida, and Tim Schardl, Assis-
tant Federal Defender, Sacramento, California, for the appel-
lee.
OPINION
HUG, Circuit Judge:
This is an interlocutory appeal from a sanctions order com-
pelling attorney Jack Leavitt (“Leavitt”) to pay attorney’s fees
6256 STANLEY v. WOODFORD
under 28 U.S.C. § 1927 and the district court’s inherent pow-
ers. The Magistrate Judge sanctioned Leavitt for violating,
twice and in bad faith, the Magistrate Judge’s order barring
further appearances on behalf of a California prisoner in capi-
tal habeas corpus proceedings under 28 U.S.C. § 2254. Dis-
trict Judge Damrell affirmed, and Leavitt immediately
appeals. We are called on to decide whether, after the
Supreme Court’s unanimous opinion in Cunningham v. Ham-
ilton County, 527 U.S. 198 (1999), this court has appellate
jurisdiction to entertain a prejudgment appeal of an order
imposing sanctions on a non-party attorney, no longer repre-
senting any party in the underlying case, pursuant to 28
U.S.C. § 1927 and the court’s inherent powers. We find juris-
diction to be absent and dismiss Leavitt’s appeal.
I. FACTUAL AND PROCEDURAL BACKGROUND
On January 14, 2002, Leavitt filed papers seeking to dis-
qualify appointed counsel for capital habeas corpus petitioner
Gerald F. Stanley (“Stanley”) and to substitute himself as
counsel of record. This was Leavitt’s second attempt to sub-
stitute himself in federal court; the first was denied in 1998.
Multiple similar requests during state habeas proceedings
were denied by the California Supreme Court in 2001.
On October 22, 2002, the Magistrate Judge rejected the
substitution, finding that on July 29, 2002, Stanley had in
writing authorized his counsel to pursue habeas relief by fil-
ing an amended petition. The court found that “petitioner
Stanley has no present credibility on the issue of whether he
authorized the most recent federal amended petition to be
filed.” Over a seven-year period, Stanley did “nothing but
change his mind back and forth” regarding his desire to pur-
sue habeas proceedings. The Magistrate Judge concluded that
Stanley “learned from his state trial court proceedings that
expressing conflicting viewpoints on his competency, or in
his instructions to his lawyers, could tie the courts in knots.”
STANLEY v. WOODFORD 6257
The same tactic of repeatedly withdrawing and restating
petitions worked in federal court for a time, proving disrup-
tive. Because the Magistrate Judge found Stanley’s appointed
counsel credible in his statements that Stanley did in fact
desire to proceed, the Magistrate Judge ruled that the court
would take Stanley’s most recent authorization as the final
word and entertain no further requests to withdraw the peti-
tion. Accordingly, the Magistrate Judge’s October 22, 2002
order prohibited Leavitt from entering any further appear-
ances in the case on Stanley’s behalf. The Magistrate Judge
warned that further filings would result in sanctions. Leavitt
moved for reconsideration, which District Judge Damrell
denied on November 4, 2002.
Notwithstanding the District Court’s order, Leavitt filed
two appearances in the case in May and October of 2003. On
May 20, 2003, Leavitt wrote a letter to District Judge Damrell
in which he identified himself as Stanley’s “retained (pro
bono) attorney since 1998,” and asked for the same relief he
had been denied in the October 22 order. Leavitt wrote a sec-
ond letter to District Judge Damrell on October 23, 2003
requesting recognition as Stanley’s attorney and, once again,
seeking the relief previously denied. The Magistrate Judge
issued an order to show cause why sanctions should not be
imposed. Leavitt admitted in his written response to willfully
violating the October 22, 2002 order to provoke further litiga-
tion over the matters decided therein. Under 28 U.S.C. § 1927
and the court’s inherent authority, the Magistrate Judge found
Leavitt liable, not for either civil or criminal contempt, but for
sanctions in the amount of $10,356.00 — the cost of approxi-
mately eighty percent of the hours invested by the Federal
Defender in responding to Leavitt’s filings.
On May 7, 2004, District Judge Damrell denied reconsider-
ation, refused Leavitt’s request for certification of the sanc-
tions order for immediate appeal, and declined to stay the
order pending appeal. Notwithstanding the ongoing habeas
6258 STANLEY v. WOODFORD
proceedings in the district court, Leavitt undertook this imme-
diate appeal.
II. JURISDICTION
A.
[1] The jurisdiction of this court is ordinarily limited to
appeals from “final decisions of the district courts.” 28 U.S.C.
§ 1291. District Judge Damrell’s May 7, 2004 affirmance of
sanctions against Leavitt is not a final decision. It “neither
ended the litigation nor left the court only to execute its judg-
ment.” Cunningham, 527 U.S. at 204. However, the Supreme
Court has interpreted the term “final decision” in § 1291 to
permit jurisdiction over appeals from a small category of col-
lateral orders that do not terminate the litigation. See Cohen
v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545-47 (1949).
Historically, we have permitted collateral-order appeal by
attorneys ordered to pay fees for unreasonably and vexa-
tiously multiplying proceedings under § 1927. See, e.g.,
Kanarek v. Hatch, 827 F.2d 1389, 1391 (9th Cir. 1987)
(“order [under section 1927] compelling a non-party, such as
[litigant’s attorney], to pay attorneys’ fees and costs is a final
order reviewable under 28 U.S.C. § 1291”).1 After the
Supreme Court’s decision in Cunningham, the propriety of
this practice changed. Cunningham effectively overruled ear-
lier Ninth Circuit decisions allowing immediate appeal by
attorneys from orders imposing sanctions.
B.
[2] In Cunningham, the district court adopted a discovery
1
We have treated interlocutory orders imposing sanctions pursuant to
other authorities similarly. See, e.g., Telluride Mgmt. Solutions, Inc. v. Tel-
luride Inv. Group, 55 F.3d 463, 465 (9th Cir. 1995) (holding an order of
Rule 37(a) sanctions against an attorney is immediately appealable under
§ 1291).
STANLEY v. WOODFORD 6259
sanction recommended by the Magistrate Judge under Rule
37(a) and disqualified counsel because she was a material wit-
ness in the case. 527 U.S. at 201. The Supreme Court disal-
lowed the collateral-order appeal. Although the sanctions
order was conclusive, Justice Thomas, writing for a unani-
mous Court, reasoned that “appellate review of a sanctions
order [cannot] remain completely separate from the merits.”
Id. at 205. A Rule 37(a) sanctions order will frequently be
“inextricably intertwined with the merits of the action.” Id. In
addition, the court reasoned, there is no reason why a sanc-
tioned attorney should be unable to appeal the order imposing
sanctions after final resolution of the underlying case. Unlike
civil contempt, which is “designed to force the contemnor to
comply with an order of the court,” a Rule 37(a) sanctions
order “lacks any prospective effect and is not designed to
compel compliance.” Id. at 207 (internal quotation omitted).
An attorney sanctioned for causing delay or costs to other liti-
gants from inappropriate filings “by and large suffers no inor-
dinate injury from a deferral of appellate consideration of the
sanction.” Id. at 208. “[A]n attorney’s continued participation
in a case does not affect whether a sanctions order is ‘final’
for purposes of § 1291” because “the efficiency interests
served by limiting immediate appeals far outweigh any nomi-
nal monitoring costs borne by attorneys.” Id. at 209. More-
over, the Cunningham Court observed that immediate appeal
“would undermine the very purpose of Rule 37(a), which was
designed to protect courts and opposing parties from delaying
or harassing tactics. . . .” Id. at 208.
C.
[3] There can be no doubt that Cunningham overruled cases
addressing the immediate appealability of Rule 37(a) sanc-
tions. The Ninth Circuit has yet to apply Cunningham to sanc-
tions entered pursuant to § 1927 or the court’s inherent
authority. However, the policies undergirding Rule 37(a)
sanctions are not relevantly different from those justifying
sanctions under § 1927 or a court’s inherent powers. Indeed,
6260 STANLEY v. WOODFORD
the Ninth Circuit has already expanded Cunningham beyond
Rule 37(a).
[4] In Cato v. Fresno City, 220 F.3d 1073, 1074 (9th Cir.
2000), this court stated that the “reasons underlying Cunning-
ham’s bar against immediate appeal from Rule 37(a) sanc-
tions orders apply equally to Rule 16 sanctions orders.” Cato
followed Cunningham, holding sanctions imposed under Rule
16(f) to be appealable only after final judgment has been
entered, even when the attorney no longer represents any
party in the case. Id. Similarly, in American Ironworks &
Erectors, Inc. v. North American Constr. Corp., we inter-
preted Cunningham to bar immediate appeal of an interlocu-
tory order granting attorney’s fees as a condition of
substituting counsel. 248 F.3d 892, 897 (9th Cir. 2001). We
stated that “[a]lthough there are differences between sanctions
under Rule 37(a) and substitution of counsel conditioned on
payment of fees, the parallel considerations convince us that
the Cunningham rationale applies here. Like Rule 37(a) sanc-
tions, the present situation invokes concerns regarding final-
ity, avoiding piecemeal appeals, and availability of effective
appellate review.” Id.
[5] Cases from the First, Second, Third, and Fifth Circuits
further support interpreting Cunningham as applying more
broadly than to Rule 37(a) sanctions alone. The First Circuit
recognized in Empresas Omajede, Inc. v. Bennazar-Zequeira,
213 F.3d 6, 9 n. 4 (1st Cir. 2000), that Cunningham affirmed
its precedents denying interlocutory appeals in the sanctions
area. See, e.g., United States v. Kouri-Perez, 187 F.3d 1, 14
(1st Cir. 1999) (holding sanctions order pursuant to district
court’s inherent powers not immediately appealable); Appeal
of Licht & Semonoff, 796 F.2d 564, 573 (1st Cir. 1986) (hold-
ing sanctions pursuant to Rule 26(g) not immediately appeal-
able).
The law in the Second Circuit prior to Cunningham had
been that an attorney may immediately appeal an order
STANLEY v. WOODFORD 6261
imposing sanctions under the collateral order exception. How-
ever, in New Pacific Overseas Group (U.S.A.) Inc. v. Excal
Int’l Dev. Corp., 252 F.3d 667, 669-70 (2d Cir. 2001), the
Second Circuit acknowledged that Cunningham effectively
reversed that rule. The New Pacific court dismissed for lack
of appellate jurisdiction an appeal of sanctions imposed under
28 U.S.C. § 1927 and Rule 37(a).
Like the Second Circuit, the Third Circuit extended the
application of Cunningham, holding in Comuso v. Nat’l R.R.
Passenger Corp., 267 F.3d 331, 338-39 (3d Cir. 2001), that
Cunningham applied to sanctions imposed under a district
court’s inherent powers for conduct that occurred outside the
court, and rejecting the argument that Cunningham applied
only to Rule 37(a) sanctions. The court held that earlier Third
Circuit decisions allowing counsel to appeal sanctions imme-
diately “are no longer good law to the extent that they conflict
with Cunningham.” Id. at 339. Specifically, the Third Circuit
observed in Comuso that Cunningham superseded Eavenson,
Auchmuty & Greenwald v. Holtzman, 775 F.2d 535 (3d Cir.
1985), which approved immediate appeal of a sanctions order
imposed under Rule 11 against the plaintiff’s attorney. See
Comuso, 267 F.3d at 339.
In Williams v. Midwest Employers Cas. Co., 243 F.3d 208,
208-09 (5th Cir. 2001), the Fifth Circuit dismissed for lack of
jurisdiction an interlocutory appeal of monetary sanctions
imposed against an attorney pursuant to Rule 11 and the dis-
trict court’s inherent powers. In doing so, the Williams court
acknowledged Cunningham’s effect and invoked the Fifth
Circuit’s opinion in Click v. Abilene Nat’l Bank, 822 F.2d
544, 545 (5th Cir. 1987), which refused to distinguish
between types of sanctions. Williams, 243 F.3d at 210 n. 10.
III. CONCLUSION
[6] The precedential effect of Cunningham is clear. We
now expressly interpret Cunningham as extending to sanc-
6262 STANLEY v. WOODFORD
tions under § 1927 and a district court’s inherent powers, and
overrule prior conflicting cases. Accordingly, this court lacks
jurisdiction to entertain Leavitt’s interlocutory appeal.
DISMISSED for lack of jurisdiction.