Nunag–Tanedo v. E. Baton Rouge Parish Sch. Bd.

• Decision Date: 27 March 2013
• Docket Number: No. 11–57064.,11–57064.
• Citation: 711 F.3d 1136
• Court: U.S. Court of Appeals — Ninth Circuit
• Parties: Mairi NUNAG–TANEDO; Ingrid Cruz; Donnabel Escuadra; Rolando Pascual; Tomasa Mari, on behalf of themselves and other similarly situated individuals, Plaintiffs–Appellees, v. EAST BATON ROUGE PARISH SCHOOL BOARD, Defendant, and Robert B. Silverman; Silverman & Associates, Inc., Defendants–Appellants.

711 F.3d 1136

Mairi NUNAG–TANEDO; Ingrid Cruz; Donnabel Escuadra; Rolando Pascual; Tomasa Mari, on behalf of themselves and other similarly situated individuals, Plaintiffs–Appellees,

v. EAST BATON ROUGE PARISH SCHOOL BOARD, Defendant,andRobert B. Silverman; Silverman & Associates, Inc., Defendants–Appellants.

No. 11–57064.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 12, 2013.

Filed March 27, 2013.

Robert B. Silverman, Silverman & Associates, Inc., Pasadena, CA; Maureen Jaroscak, Law Office of Maureen Jaroscak, Santa Fe Springs, CA, for Defendants–Appellants.

Dennis B. Auerbach, Covington & Burling LLP, Washington, D.C.; Candice N. Plotkin, Covington & Burling LLP, San Francisco, CA, for Plaintiffs–Appellees.

Appeal from the United States District Court for the Central District of California, John A. Kronstadt, District Judge, Presiding. D.C. No. 8:10–cv–01172–JAK–MLG.

Before: MARSHA S. BERZON and PAUL J. WATFORD, Circuit Judges, and JAMES G. CARR, Senior District Judge.^*

OPINION

BERZON, Circuit Judge:

Our question is whether the denial of a motion for immunity from liability under the Noerr–Pennington doctrine is immediately appealable. We hold that it is not.

California attorney, Robert Silverman, and his firm, Silverman & Associates, Inc. (collectively “Silverman”), were sued by the plaintiffs-appellees on behalf of a class of Filipino teachers recruited to work in several school districts in Louisiana. The plaintiffs allege that Silverman aided and abetted a human trafficking scheme in violation of the Trafficking Victims Protection Act (“TVPA”), 18 U.S.C. §§ 1589, 1590, 1592, 1594, and the Racketeer Influenced and Corrupt Organizations Act (“the RICO Act”), 18 U.S.C. §§ 1961–1968; breached his fiduciary duties to members of the plaintiff class; and committed legal malpractice through his role in procuring H–1B non-immigrant visas for the teachers.

Silverman brings this interlocutory appeal from the district court's denial of his special motion to strike the plaintiffs' second amended complaint. He sought to strike the plaintiffs' state law claims on the ground that they violate California's anti-SLAPP statute,¹Cal.Civ.Proc.Code § 425.16, and invoked Noerr–Pennington immunity against all of the plaintiffs' claims, including their federal statutory claims under the TVPA and the RICO Act.

As we hold in a concurrently filed memorandum disposition covering the anti-SLAPP issue, we have jurisdiction to review the denial of Silverman's anti-SLAPP motion. See DC Comics v. Pac. Pictures Corp., 706 F.3d 1009, 1015 (9th Cir.2013). Although we have not previously addressed the issue, for the reasons set forth below, we now join the other circuits to have ruled on this question and hold that the denial of a motion for Noerr–Pennington immunity from liability is not an immediately appealable collateral order. See Hinshaw v. Smith, 436 F.3d 997, 1003 (8th Cir.2006); Acoustic Sys., Inc. v. Wenger Corp., 207 F.3d 287, 295–96 (5th Cir.2000); We, Inc. v. City of Philadelphia, 174 F.3d 322, 328–30 (3d Cir.1999); Segni v. Commercial Office of Spain, 816 F.2d 344, 345–46 (7th Cir.1987); cf. Kelly v. Great Seneca Fin. Corp., 447 F.3d 944, 947 (6th Cir.2006) (dismissing an interlocutory appeal involving a Noerr–Pennington defense for lack of jurisdiction). Nor do we have pendent appellate jurisdiction over the Noerr–Pennington issue. We therefore do not reach the merits of Silverman's Noerr–Pennington defense.

I.

Under the collateral order doctrine, first announced in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), to be subject to immediate appeal, an order that does not resolve the entire case must: “[1] conclusively determine the disputed question, [2] resolve an important issue completely separate from the merits of the action, and [3] be effectively unreviewable on appeal from a final judgment.” Will v. Hallock, 546 U.S. 345, 349, 126 S.Ct. 952, 163 L.Ed.2d 836 (2006) (alterations in original) (quoting Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993)) (internal quotation marks omitted). These criteria are satisfied by only a “narrow class of [district court] decisions that do not terminate the litigation, but are sufficiently important and collateral to the merits that they should nonetheless be treated as final.” Id. at 347, 126 S.Ct. 952 (quoting Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867, 114 S.Ct. 1992, 128 L.Ed.2d 842 (1994)) (internal quotation marks omitted).

The Noerr–Pennington doctrine protects the First Amendment “right of the people ... to petition the Government for a redress of grievances.” U.S. Const. amend. I. Under Noerr–Pennington, “those who petition any department of the government for redress are generally immune from statutory liability for their petitioning conduct.” Sosa v. DIRECTV, Inc., 437 F.3d 923, 929 (9th Cir.2006) (citing Empress LLC v. City & Cnty. of S.F., 419 F.3d 1052, 1056 (9th Cir.2005)). Although the doctrine was developed in the antitrust context, in Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961), and United Mine Workers v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965), it has since been extended to other statutory schemes. See, e.g., Bill Johnson's Restaurants, Inc. v. N.L.R.B., 461 U.S. 731, 742–43, 103 S.Ct. 2161, 76 L.Ed.2d 277 (1983) (applying the Noerr–Pennington doctrine to the National Labor Relations Act); BE & K Constr. Co. v. N.L.R.B., 536 U.S. 516, 526, 122 S.Ct. 2390, 153 L.Ed.2d 499 (2002) (same); see also Sosa, 437 F.3d at 932 n. 6 (discussing cases applying Noerr–Pennington outside the antitrust context); White v. Lee, 227 F.3d 1214, 1231 (9th Cir.2000) (holding that, because it “is based on and implements the First Amendment right to petition,” the Noerr–Pennington doctrine “applies equally in all contexts”). Today, Noerr–Pennington “stands for a generic rule of statutory construction, applicable to any statutory interpretation that could implicate the rights protected by the Petition Clause,” Sosa, 437 F.3d at 931 (and may also be applicable in construing the reach of common law causes of action, see infra note 2).

A district court's refusal to accord a Noerr–Pennington defense to liability satisfies the first prong of the Cohen collateral order test. That denial conclusively determines the disputed question: whether liability may properly attach to the defendant's conduct at issue in the challenged claims, or whether the conduct is protected petitioning activity. But it fails the second and third prongs.

The question resolved does not involve a “claim[ ] of right separable from, and collateral to, rights asserted in the action,” Cohen, 337 U.S. at 546, 69 S.Ct. 1221, as required by the second prong of the Cohen test, see Will, 546 U.S. at 349, 126 S.Ct. 952. Instead, Noerr–Pennington is a merits defense to liability, premised on an implied limitation as to the reach of the applicable law. See Sosa, 437 F.3d at 931. Here, the disputed question resolved by the ruling on Silverman's Noerr–Pennington defense is whether the conduct for which he is being sued qualifies as petitioning activity for which liability may not be imposed under the TVPA, the RICO Act, or state common law, or whether, instead, it constitutes illegal trafficking and professional malpractice covered by those causes of action. That question is part and parcel of the merits of the plaintiffs' action.

One other circuit has stated otherwise, accepting without analysis that the question resolved in a motion for Noerr–Pennington immunity is ordinarily unrelated to the merits of the case. See We, Inc., 174 F.3d at 325. But in this circuit, at least, the Noerr–Pennington doctrine is a rule of construction. So the result of its application is simply to circumscribe the reach of the cause of action, thereby determining whether there is liability. Given that function, the Noerr–Pennington doctrine is an interpretive doctrine that merges into the merits of the liability determination.

Nor is a ruling on Noerr–Pennington liability unreviewable on appeal from a final judgment, as required to satisfy the third prong of the Cohen test. See Will, 546 U.S. at 349, 126 S.Ct. 952. Denials of claims of absolute, qualified, Eleventh Amendment, tribal, and foreign sovereign immunity, are immediately appealable because those immunity doctrines entitle the defendant to avoid facing suit and bearing the burdens of litigation. That entitlement would be “effectively lost if a case is erroneously permitted to go to trial.” Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) (qualified immunity); see also Puerto Rico Aqueduct & Sewer Auth., 506 U.S. at 144–47, 113 S.Ct. 684 (Eleventh Amendment immunity); Paine v. City of Lompoc, 265 F.3d 975, 980–81 (9th Cir.2001) (absolute immunity); Schwenk v. Hartford, 204 F.3d 1187, 1195 (9th Cir.2000) (qualified immunity); Terenkian v. Republic of Iraq, 694 F.3d 1122, 1130 (9th Cir.2012) (foreign sovereign immunity); Doe v. Holy See, 557 F.3d 1066, 1074 (9th Cir.2009) (same); Burlington N. & Santa Fe Ry. Co. v. Vaughn, 509 F.3d 1085, 1090–91 (9th Cir.2007) (tribal sovereign immunity). Similarly, the purposes underlying the Double Jeopardy Clause include the avoidance of duplicative trial. So improper denial of a double jeopardy defense cannot be fully remedied by a post-trial appeal. See Abney v. United States, 431 U.S. 651, 659, 661–62, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977); see also Flanagan v. United States, 465 U.S. 259, 266–67, 104 S.Ct. 1051, 79 L.Ed.2d 288 (1984) (citing United States v. MacDonald, 435 U.S. 850, 860 n. 7, 98 S.Ct. 1547, 56 L.Ed.2d 18 (1978)) (noting that “[d]ouble jeopardy and Speech or Debate rights are sui generis ” in guaranteeing immunity from trial).

The Noerr–Penning...