Aguon-Schulte v. Attorney General of Guam , 469 F.3d 1236 ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LOURDES P. AGUON-SCHULTE; JAY 
MERRILL, on his own behalf and
on behalf of all others similarly
situated voters desirous of casting
a vote in favor of Proposal A at a
fair and legal election,
Plaintiffs-Appellees,
v.
GUAM ELECTION COMMISSION; No. 05-16067
GERALD A. TAITANO, in his official
D.C. Nos.
capacity as Executive Director of
the Guam Election Commission;  CV-04-00045-DOC
CV-04-00046-DOC
FELIX P. CAMACHO, in his official
capacity as Governor of Guam; I OPINION
MINA’ BENTE SIETE NA
LIHESLATURAN GUAHAN (THE 27TH
GUAM LEGISLATURE),
Defendants-Appellees,
v.
ATTORNEY GENERAL OF GUAM,
Plaintiff-intervenor-
Appellant.

Appeal from the United States District Court
for the District of Guam
David O. Carter, District Judge, Presiding
Argued and Submitted
June 12, 2006—Honolulu, Hawaii
Filed November 28, 2006
18823
18824 AGUON-SCHULTE v. ATTORNEY GENERAL
Before: Betty B. Fletcher, Harry Pregerson, and
William C. Canby, Jr., Circuit Judges.
Opinion by Judge Pregerson
AGUON-SCHULTE v. ATTORNEY GENERAL 18825
COUNSEL
Robert M. Weinberg (brief), Assistant Attorney General and
Douglas B. Moylan (argued), Attorney General, Territory of
Guam, Hagatna, Guam, for the appellant.
Theodore S. Christopher (brief), and Cesar Cabot (argued),
Cabot Mantanona LLP, Tamuning Guam, for defendants-
appellees, Guam Election Commission & Gerald A. Taitano.
Rodney J. Jacob (brief) and Daniel M. Benjamin (argued),
Calvo & Clark LLP, Tamuning, Guam, for Governor Felix P.
Camacho.
18826 AGUON-SCHULTE v. ATTORNEY GENERAL
OPINION
PREGERSON, Circuit Judge:
This case involves an appeal from a district court’s order
denying a request to strike outside counsel and remanding the
case to the Guam Superior Court for failure to join all defen-
dants in the removal action. Generally, a district court’s order
denying a motion to disqualify counsel is not appealable
under 28 U.S.C. § 1291 prior to final judgment in the underly-
ing litigation. Further, remand orders issued under 28 U.S.C.
§ 1447(c) and invoking the grounds specified therein that
removal was improvident and without jurisdiction are usually
immune from review under § 1447(d). Accordingly, we must
determine whether we have jurisdiction to review this case.
We have provisional jurisdiction under 28 U.S.C. § 1291
and we have jurisdiction to determine whether we have juris-
diction to hear the case. See United States v. Ruiz, 536 U.S.
622, 628 (2002). For the reasons set forth below, we find that
we lack jurisdiction to review this case.
I. Factual Background
The events surrounding this action began twenty months
ago with a general election scheduled for November 2, 2004.
Included on the ballot was Proposal A, an initiative to legalize
gambling on Guam. Guam election law required that the bal-
lot pamphlets mailed to registered voters contain, among
other things, a complete copy of any measure to be submitted
to the voters. See Guam Code Ann. tit. 3 § 17509. Because the
full text of Proposal A contained eighty pages of information,
the pamphlet distributed by the Guam Election Commission
(“GEC”) included only the title of Proposal A and a summary;
it did not include the full text.
Plaintiffs Lourdes P. Aguon-Schulte and Jay Merrill filed
separate complaints, on October 18, 2004, and October 25,
AGUON-SCHULTE v. ATTORNEY GENERAL 18827
2004, respectively, in the Superior Court of Guam. The com-
plaints name as defendants the GEC, Gerald Taitano (Execu-
tive Director of the GEC), the 27th Guam Legislature (I Mina
Bente Siete Na Liheslaturan Guahan), and Governor Felix
Camacho (collectively “Defendants”). Plaintiffs asserted that
the ballot pamphlets were legally defective. They sought
declaratory and injunctive relief and an order from the court
requiring the Governor to hold a special election on Proposal
A.
On October 25, 2004, the Legislature passed Substitute Bill
374, to cure compliance defects with § 17509 by recognizing
that the ballot pamphlet for Proposal A need not contain a
complete copy of the initiative. On October 27, 2004, the
Governor signed Public Law 27-108 which promulgated these
provisions of Bill 374.
On October 26, 2004, Attorney General Douglas Moylan
filed a Notice of Removal of both cases to the District of
Guam. In his removal petition, the Attorney General stated
that removal was proper because Plaintiffs complained of vio-
lations of their right to vote, as protected by the First and
Fourteenth Amendments, and specifically their right to vote
for initiatives, a right protected by the Organic Act of Guam,
a federal statute. The Attorney General stated that as the Chief
Legal Officer of the Government of Guam, he represented all
Defendants. At the same time, the Attorney General lodged
with the District Court a Stipulation and Order for a Prelimi-
nary Injunction in both cases to prevent Proposal A from
being included in the November 2 election. The Stipulation
was signed by Plaintiffs’ counsel and the Attorney General.
The Attorney General purported to sign the Stipulation on
behalf of all Defendants.
On October 28, 2004, the Legislature, the Governor, and
Taitano and the GEC, filed three separate entries of appear-
ance. Each was represented by outside counsel. On the same
day, Defendants lodged an objection to the proposed stipula-
18828 AGUON-SCHULTE v. ATTORNEY GENERAL
tion and order for preliminary injunction executed between
Plaintiffs and the Attorney General. On October 29, 2004, the
Attorney General filed motions to strike the appearances of
the various outside counsel. On the same day, the district
court denied Plaintiffs’ requests for a preliminary injunction.
On or about November 22, 2004, the Legislature moved the
district court to remand the cases to the Guam Superior Court,
arguing that the Legislature had not consented to the removal
of the cases to district court. The Governor, Taitano, and the
GEC joined the motion stating that they too did not consent
to the removal of the actions to the district court.1 The cases
were consolidated on November 23, 2004.
II. Procedural History
On February 18, 2005, Magistrate Judge Manisuban, Jr.
conducted a hearing on the Attorney General’s motions to
strike the appearances and pleadings of private counsel and
Defendants’ motions to remand the actions to the Superior
Court of Guam. At the end of the hearing the magistrate judge
took the motions under advisement and, on March 16, 2005,
he issued his Report and Recommendation (“R&R”) to the
district court. In his R&R, the magistrate judge recommended
that the district court deny the Attorney General’s motions to
strike the appearances of Defendants’ private counsel. He fur-
ther recommended that the district court grant Defendants’
motion to remand the cases to the Superior Court of Guam.
The Attorney General filed objections to the R&R on March
29, 2005. On May 10, 2005, District Judge David O. Carter
adopted the R&R in full and ordered a remand to the Guam
Superior Court.
On June 17, 2005, the Attorney General filed a timely
notice of appeal. The Attorney General contends that the dis-
trict court erred when it adopted the R&R because Guam’s
1
Subsequent to the filing of its motions to remand, the Legislature was
dismissed as a named defendant in each case.
AGUON-SCHULTE v. ATTORNEY GENERAL 18829
Attorney General has the sole authority to set legal policy for
the Government of Guam, its agencies, instrumentalities, and
officials, and to control litigation on their behalf, despite pro-
test by the public officials that he represents.2 For the reasons
set forth below, we find that we lack jurisdiction to review
this case.
III. Standard of Review
The existence of subject matter jurisdiction is a question of
law reviewed de novo. See United States v. Peninsula
Commc’ns, Inc., 287 F.3d 832, 836 (9th Cir. 2002). A district
court’s findings of fact relevant to its determination of subject
matter jurisdiction are reviewed for clear error. See id. As
mentioned above, we have jurisdiction to determine whether
we have jurisdiction to hear the case. See Ruiz, 536 U.S. at
628.
IV. Discussion
Defendants contend that this court lacks jurisdiction to
review this case because the Attorney General is appealing an
unreviewable remand order and an order that is not final —
the district court’s denial of his motions to strike the appear-
ances of Defendants’ private counsel. We agree.
2
On May 1, 2006, we issued an order requiring the parties to respond
to the contention that this case is moot because the November 2, 2004,
election has already taken place and the measure did not pass. We find that
the underlying case is not moot because it still presents a live controversy.
We have stated that, “[w]here the activities sought to be enjoined have
already occurred, and the appellate courts cannot undo what has already
been done, the action is moot.” Friends of the Earth, Inc. v. Bergland, 576
F.2d 1377, 1379 (9th Cir. 1978). However, in this case, the parties still
dispute the legality of the November 2, 2004, election. In addition,
because Plaintiffs challenge the Legislature’s authority to alter election
law, the underlying case presents an issue that is capable of repetition yet
will evade review. See Reich v. Local 396, Int’l Bhd. of Teamsters, 97
F.3d 1269, 1272 n.5 (9th Cir. 1996) (citing Weinstein v. Bradford, 423
U.S. 147, 149 (1975) (per curiam)).
18830 AGUON-SCHULTE v. ATTORNEY GENERAL
[1] As Defendants correctly noted, the district court’s order
is based, in part, on the denial of the Attorney General’s
motions to strike the appearances of private counsel. “[A] dis-
trict court’s order denying a motion to disqualify counsel is
not appealable under [28 U.S.C.] § 1291 prior to final judg-
ment in the underlying litigation.” Firestone Tire & Rubber
Co. v. Risjord, 449 U.S. 368, 379 (1981); see also
Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 440 (1985)
(“We hold that orders disqualifying counsel in civil cases, like
orders disqualifying counsel in criminal cases and orders
denying a motion to disqualify in civil cases, are not collateral
orders subject to appeal as ‘final judgments’ within the mean-
ing of 28 U.S.C. § 1291.”). Because a motion to strike counsel
is unreviewable prior to final judgment, we lack jurisdiction
to review this portion of the district court’s order.3
[2] The district court’s order is also based on the Attorney
General’s failure to join all Defendants in the removal action.
Section 1447(d) states that, “[a]n order remanding a case to
the State court from which it was removed is not reviewable
on appeal or otherwise.” 28 U.S.C. § 1447(d).4 Despite this
3
Our disposition of this issue makes it unnecessary to decide whether
we also lack jurisdiction because the denial of the motion to strike was an
integral part of the remand ruling: the denial established that there had
been a defect in the removal procedure because not all Defendants had
consented to removal. See Kircher v. Putnam Funds Trust, 126 S. Ct.
2145, 2154-56 (2006) (holding that district court decision that state claim
was not precluded by federal law was jurisdictional part of remand deci-
sion and was not reviewable).
4
There is one exception not relevant here. Under 28 U.S.C. § 1443, state
actions alleging a deprivation of civil rights are not subject to § 1447(d)’s
bar and may be appealed. See 28 U.S.C. § 1443; see also id. at § 1447(d).
Section 1443 states that a remand order may be appealed if the action
alleges certain civil rights or equal protection violations. See 28 U.S.C.
§ 1443. Although the Attorney General alleged civil rights violations in
his notice of removal, he did not mention § 1443 in the notice as a basis
for removal. Further, we have recognized that § 1443 does not apply to
Guam because Guam is not a state. See United States v. Bordallo, 857
F.2d 519, 524 (9th Cir. 1988); Territory of Guam v. Landgraf, 594 F.2d
201, 202 (9th Cir. 1979) (“When Congress has intended to extend
§ 1443(1) to an entity other than one of the fifty states, it has done so
expressly.”).
AGUON-SCHULTE v. ATTORNEY GENERAL 18831
broad prohibition, the Supreme Court has held that § 1447(d)
must be read together with § 1447(c) such that § 1447(d) pre-
cludes review only of remands made pursuant to a ground
enumerated in § 1447(c). See Thermtron Prods., Inc. v.
Hermansdorfer, 423 U.S. 336, 345-46 (1976) (“[O]nly
remand orders issued under § 1447(c) and invoking the
grounds specified therein that removal was improvident and
without jurisdiction are immune from review under
§ 1447(d).”), abrogated on other grounds by Quackenbush v.
Allstate Ins. Co., 517 U.S. 706 (1996); see also Bennett v.
Liberty Nat’l Fire Ins. Co., 968 F.2d 969, 970 (9th Cir. 1992)
(recognizing that appellate review is available if the remand
is based on a ground not enumerated in § 1447(c)). Section
1447(c) states that remand may be ordered either for lack of
subject matter jurisdiction or for “any defect” in the removal
procedure. 28 U.S.C. § 1447(c). In this case, the district court
remanded the case to the state court because it found that
removal was procedurally defective in that Defendants did not
consent to removal. This qualifies as a “defect” in a removal
procedure, one of the grounds listed in 28 U.S.C. § 1447(c).
California v. NRG Energy Inc., 391 F.3d 1011, 1023 (9th Cir.
2004). Accordingly, review is barred under § 1447(d).5
Because the district court’s order was based on motions to
strike and a remand order that are unreviewable, we lack
5
This proposition was recently confirmed by the Supreme Court in Kir-
cher, where the Court reiterated that “ ‘[w]here a remand order is based
on one of [the grounds enumerated in 28 U.S.C. § 1447(c) ], review is
unavailable no matter how plain the legal error in ordering the remand.’ ”
126 S. Ct. at 2154 (quoting Briscoe v. Bell, 432 U.S. 404, 413-14, n.13
(1977)). We note, however, that the district court’s decision regarding who
properly represents the named defendants is not binding upon the Guam
Superior Court. As the Supreme Court noted in Kircher, issues decided by
the district court that are incident to and prior to an order of remand “are
open to revision [in subsequent proceedings in state court], irrespective of
the ruling of the [federal court].” Id. at 2157 (quoting Missouri Pacific Ry.
Co. v. Fitzgerald, 160 U.S. 556, 583 (1896)) (second alteration in origi-
nal).
18832 AGUON-SCHULTE v. ATTORNEY GENERAL
jurisdiction to hear this case. Accordingly, the appeal is DIS-
MISSED.