A. S. v. Karla Major

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 19, 2023
• Docket: 22-35437
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 19 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

A. S.; et al., No. 22-35437

Plaintiffs-Appellants, D.C. No. 6:18-cv-00739-YY

v. MEMORANDUM* KARLA MAJOR, in her individual capacity; et al.,

Defendants-Appellees,

and

MARION COUNTY SHERIFF'S OFFICE- JAIL; MARION COUNTY DISTRICT ATTORNEY'S OFFICE,

Real-party-in-interest.

Appeal from the United States District Court for the District of Oregon Michael W. Mosman, District Judge, Presiding

Argued and Submitted July 11, 2023 Seattle, Washington

Before: GRABER, GOULD, and FRIEDLAND, Circuit Judges.

Plaintiffs are four minor children who have sued the Oregon Department of

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Human Services and others, alleging that Defendants failed in their duty to protect

Plaintiffs from abuse while they were in foster care. The district court denied

Plaintiffs’ motion for an in camera inspection of documents that Defendants

withheld as protected by the attorney-client privilege and consequently denied

Plaintiffs’ request for discovery as to those documents. Plaintiffs filed this timely

interlocutory appeal. Reviewing whether we have jurisdiction over this

interlocutory appeal de novo, Bingue v. Prunchak, 512 F.3d 1169, 1172 (9th Cir.

2008), we dismiss the appeal for lack of jurisdiction.

Our jurisdiction generally is limited to appeals from “final decisions” of

district courts, 28 U.S.C. § 1291, meaning “that a party must ordinarily raise all

claims of error in a single appeal following final judgment on the merits,”

Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374 (1981). An exception

exists for a “small class” of collateral rulings, Cohen v. Beneficial Indus. Loan

Corp., 337 U.S. 541, 546 (1949), that (1) “are conclusive,” (2) “resolve important

questions completely separate from the merits,” and (3) “would render such

important questions effectively unreviewable on appeal from final judgment in the

underlying action,” Digit. Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867

(1994). A ruling qualifies as an appealable collateral order only if all three

elements are satisfied. McElmurry v. U.S. Bank Nat’l Ass’n, 495 F.3d 1136, 1140

(9th Cir. 2007). Here, the third element is lacking because, if the litigation does

2 not settle and if Plaintiffs do not prevail, they can raise the denial of in camera

inspection and discovery as an issue on appeal from the final judgment. See, e.g.,

Rock River Commc’ns, Inc. v. Universal Music Grp., Inc., 745 F.3d 343, 353–54

(9th Cir. 2014) (reviewing, after the entry of final judgment, a district court’s

denial of a request for an in camera review of documents withheld under a claim of

privilege).

In civil cases, “[d]iscovery orders are not final appealable orders under 28

U.S.C. § 1291, and courts have refused interlocutory review of such orders under

the collateral order doctrine.” Admiral Ins. Co. v. U.S. Dist. Ct., 881 F.2d 1486,

1490 (9th Cir. 1989); see also United States v. Columbia Broad. Sys., Inc., 666

F.2d 364, 369–71 (9th Cir. 1982) (observing that, when the right to discovery itself

is contested, allowing appeals would result in delay and a multiplicity of

proceedings, thus not serving the purposes of the final judgment rule). In this

context, it is not enough for Plaintiffs to show that the failure to obtain immediate

relief may cause some harm to a litigation interest that will be lost. Digit. Equip.

Corp., 511 U.S. at 872.1 Rather, an interlocutory appeal is available only if

1 Plaintiffs are concerned that, if the documents they seek are indeed discoverable, it will be too late to add new claims or parties. But see Hensley v. United States, 531 F.3d 1052, 1057 (9th Cir. 2008) (“The doctrine [of equitable tolling] applies in situations where, despite all due diligence, [the party invoking the doctrine] is unable to obtain vital information bearing on the existence of the claim.” (citation and internal quotation marks omitted)).

3 delaying review “would imperil a substantial public interest” or “some particular

value of a high order.” Will v. Hallock, 546 U.S. 345, 352–53 (2006). The

Supreme Court has ruled that even an order compelling discovery adverse to a

claim of privilege does not meet that standard. Mohawk Indus., Inc. v. Carpenter,

558 U.S. 100, 107–09 (2009); see also id. at 109 (“[P]ostjudgment appeals

generally suffice to protect the rights of litigants and ensure the vitality of the

attorney-client privilege.”). The fact that, in this case, the district court declined to

review the disputed documents in camera, in addition to denying discovery, does

not persuade us that the type of order at issue dictates a different result.

APPEAL DISMISSED.