Planned Parenthood of Columbia/Willamette v. Acla

Decision Date11 February 2008
Docket NumberNo. 06-35733.,06-35733.
Citation518 F.3d 1013
PartiesPLANNED PARENTHOOD OF THE COLUMBIA/WILLAMETTE INC.; Portland Feminist Women's Health Center; Robert Crist, M.D.; Warren M. Horn, M.D.; Elizabeth Newhall, M.D.; James Newhall, M.D., Plaintiffs-Appellees, v. AMERICAN COALITION OF LIFE ACTIVISTS; Advocates for Life Ministries; Michael Dodds; Timothy Paul Dreste; Joseph L. Foreman; Bruce Evan Murch; Donald Treshman; Charles Wysong; Michael Bray; Andrew Burnett; David Crane; Charles Roy McMillan; Catherine Ramey; Dawn Marie Stover, Defendants-Appellants.
CourtU.S. Court of Appeals — Ninth Circuit

Maria T. Vullo (argued), Julie Fink, Paul, Weiss, Rifkind, Wharton & Garrison LLP, Seattle, WA; Carol J. Bernick, Davis Wright Tremaine, LLP, Portland, OR; Roger K. Evans, Planned Parenthood Federation of America, Inc., New York, NY, for the plaintiffs-appellees.

Christopher A. Ferrara (argued), American Catholic Lawyers Association, Fairfield, NJ; Richard Thompson, Thomas More Law Center, Ann Arbor, MI, for the defendants-appellants.

Appeal from the United States District Court for the District of Oregon; Robert E. Jones, District Judge, Presiding. D.C. No. CV-95-01671-REJ.

Before: EDWARD LEAVY, RAYMOND C. FISHER and MARSHA S. BERZON, Circuit Judges.

FISHER, Circuit Judge:

At what all surely must hope is the conclusion of this long running litigation, we must address an issue of some importance under Federal Rule of Appellate Procedure 37(b) relating to the award of post-judgment interest to the plaintiffs-appellees on the punitive damages judgment they obtained against the defendants-appellants. This is a cautionary tale for all whose judgments on appeal are subject to the requirements of Rule 37(b).

In an earlier appeal, we reduced the punitive damages because we concluded they were excessive under the Supreme Court's Due Process Clause jurisprudence. We accordingly directed the district court on remand to enter a judgment for the damage amounts we specified, assuming the plaintiffs opted not to have a new trial. Because our mandate did not contain instructions about the allowance of post-judgment interest as required by Rule 37(b), we are now called upon to decide whether the district court had the authority to award post-judgment interest from the date of its original judgment, as modified in its final judgment, or only from the date of that final judgment. We hold that our failure to specify the accrual date for post-judgment interest in our mandate precluded the district court's order that interest would run from the date of the original judgment.

We conclude, however, that our omission of post-judgment interest was inadvertent, and we therefore recall the earlier mandate and amend it to provide for post-judgment interest from the date of the original judgment. In so doing, we caution that in the future, Rule 37(b)'s requirements as to the terms of our mandates should be noted and adhered to.

BACKGROUND

In 1995, four individual physicians and two clinics that provide medical services, including abortions, to women (collectively, "Physicians") brought suit against American Coalition of Life Activists and 13 others (collectively, "ACLA") for violating the Freedom of Access to Clinic Entrances Act ("FACE"), 18 U.S.C. § 248, and the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961-68. The underlying facts giving rise to this long history of litigation are fully described in our en banc opinion, Planned Parenthood of the Columbia/Willamette, Inc. v. Am. Coalition of Life Activists, 290 F.3d 1058, 1062-66 (9th Cir.2002) (en banc) (hereinafter PPCW V).

The jury found for Physicians on all counts and awarded a total of $526,336.14 in compensatory damages under FACE, $108.5 million in punitive damages under FACE and $11.8 million in compensatory damages (after trebling) under RICO. See id. at 1066 n. 4. On February 22, 1999, the district court entered judgment against ACLA in the full amount of the jury's verdict ("Original Judgment"). The Original Judgment also provided that "[e]ach plaintiff shall recover the aforementioned damages with interest thereon at the rate as provided by law, 28 U.S.C. § 1961."

ACLA appealed the judgment, which we affirmed on rehearing en banc except as to punitive damages. Id. at 1088. We remanded for the district court "to consider in the first instance whether the award is appropriate in light" of In re Exxon Valdez, 270 F.3d 1215 (9th Cir.2001), which clarified the constitutional limitations on punitive damages awards. Id. at 1086. On remand, the district court entered judgment reinstating the punitive damages award in full and awarding post-judgment interest on the entire award from the date of the Original Judgment ("Revised Judgment").

ACLA again appealed. We reduced the punitive damages award to a total of $4.7 million and remanded for the "district court to order a new trial unless [P]hysicians accept a remittitur in accord" with the amounts we specified. Planned Parenthood of the Columbia/Willamette, Inc. v. Am. Coalition of Life Activists, 422 F.3d 949, 965 (9th Cir.2005) (hereinafter PPCW VIII). The parties did not address post-judgment interest. Neither did our opinion or mandate.

Physicians accepted the remittitur. On July 10, 2006, the district court entered judgment and awarded post-judgment interest on the entire award from the date of the Original Judgment ("Final Judgment"). ACLA appealed, challenging the district court's authority to award post-judgment interest from the date of the Original Judgment because our mandate in PPCW VIII contained no instructions about the allowance of post-judgment interest.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction to hear ACLA's timely appeal from a final judgment. 28 U.S.C. § 1291. Because this case involves the proper construction of 28 U.S.C § 1961 and Federal Rule of Appellate Procedure 37(b), our review is de novo. See AT & T v. United Computer Sys., Inc., 98 F.3d 1206, 1209 (9th Cir.1996).

DISCUSSION
I

As a preliminary matter, ACLA contends that the district court's award of post-judgment interest on the entire damages award from the date of the Original Judgment rather than the date of the Final Judgment was improper. We do not address this contention, because it is barred from reconsideration by the law of the case. "Nothing is before this court but what is subsequent to the mandate." Atlas Scraper & Eng'g Co. v. Pursche, 357 F.2d 296, 297 (9th Cir.1966) (quoting Himely v. Rose, 9 U.S. (5 Cranch) 313, 314, 3 L.Ed. 111 (1809)). In PPCW V, we affirmed the district court's "judgment in all respects but for punitive damages." 290 F.3d at 1088. We necessarily affirmed the compensatory damages awards and post-judgment interest on those damages. Accordingly, ACLA's present appeal is limited to review of the district court's award of post-judgment interest on the punitive damages award only. All other issues were finally decided in PPCW V and PPCW VIII.

II

ACLA's argument relies on two premises. First, ACLA contends that Briggs v. Pennsylvania R.R. Co., 334 U.S. 304, 68 S.Ct. 1039, 92 L.Ed. 1403 (1948), and Federal Rule of Appellate Procedure 37(b) deprive a district court of authority to award post-judgment interest from the date of an original judgment when the appellate court's mandate directs the entry of a particular, modified money judgment and contains no instructions about the allowance of post-judgment interest. Second, ACLA contends that PPCW VIII directed the entry of a particular, modified money judgment without mention of post-judgment interest. Therefore, the district court was bound by our mandate and could award post-judgment interest on the punitive damages award only from the date of the Final Judgment, not the date of the Original Judgment. ACLA is correct.

A

Assessing ACLA's first premise requires that we unravel the relationship between 28 U.S.C. § 1961 and Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U.S. 827, 110 S.Ct. 1570, 108 L.Ed.2d 842 (1990), which together govern the calculation of post-judgment interest, and Briggs and Rule 37(b), which together forbid the district court to award post-judgment interest in excess of our mandate.1 The district court's award of post-judgment interest is valid only if it complies with § 1961 and conforms to our mandate.

Section 1961 provides for the mandatory award of post-judgment interest "on any money judgment in a civil case recovered in a district court." See Ford v. Alfaro, 785 F.2d 835, 842 (9th Cir.1986) (quoting 28 U.S.C. § 1961(a)). Post-judgment interest must run from the date of a judgment when the damages were "supported by the evidence" and meaningfully "ascertained." See Kaiser, 494 U.S. at 835-36, 110 S.Ct. 1570; AT & T, 98 F.3d at 1210; Tinsley v. Sea-Land Corp., 979 F.2d 1382, 1383 (9th Cir.1992) (per curiam). We may reverse and remand a judgment without concluding that it is erroneous or unsupported by the evidence. See Guam Soc'y of Obstetricians and Gynecologists v. Ada, 100 F.3d 691, 703 (9th Cir.1996). When the legal and evidentiary basis of an award is thus preserved, post-judgment interest is ordinarily "computed from the date of [the judgment's] initial entry." Perkins v. Standard Oil Co. of Cal., 487 F.2d 672, 676 (9th Cir.1973); see Guam Soc'y, 100 F.3d at 702-03.

Kaiser and § 1961 explain how to determine the accrual date of post-judgment interest in the first instance. Briggs and Rule 37(b), on the other hand, limit the power of the district court to award post-judgment interest from any date other than the date of entry of judgment on remand when that is what our mandate requires. In Briggs, the district court entered judgment for the defendant notwithstanding the verdict after granting a motion to dismiss for lack of jurisdiction. See 334 U.S. at 305, 68 S.Ct. 1039. Without making provision for post-judgment interest, the court of...

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