State of Alaska v. U.S.

• Decision Date: 06 September 1995
• Docket Number: No. 94-36176,94-36176
• Citation: 64 F.3d 1352
• Parties: , 95 Cal. Daily Op. Serv. 7044, 95 Daily Journal D.A.R. 12,046 STATE OF ALASKA, Plaintiff-Appellee, v. UNITED STATES of America, Bruce Babbitt, Secretary of the Interior; Edward F. Spang, State of Alaska Director, Bureau of Land Management; John M. Morehead; Walter Steiglitz, Defendants-Appellants, and Doyon, Ltd., and Chalkyitsk Native Corp., Defendants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1352

64 F.3d 1352

64 USLW 2162, 95 Cal. Daily Op. Serv. 7044,

95 Daily Journal D.A.R. 12,046

STATE OF ALASKA, Plaintiff-Appellee, v. UNITED STATES of America, Bruce Babbitt, Secretary of the

Interior; Edward F. Spang, State of Alaska

Director, Bureau of Land Management;

John M. Morehead; Walter

Steiglitz,

Defendants-Appellants,

and

Doyon, Ltd., and Chalkyitsk Native Corp., Defendants.

No. 94-36176.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 8, 1995.

Decided Sept. 6, 1995.

Edward J. Shawaker, United States Department of Justice, Environment and Natural Resources Division, Washington, DC, for defendants-appellants.

Jennifer A. Kohout, Assistant Attorney General, Anchorage, AK, for plaintiff-appellee.

Appeal from the United States District Court for the District of Alaska.

Before: HALL, WIGGINS, and KLEINFELD, Circuit Judges.

WIGGINS, Circuit Judge:

The United States appeals interlocutorily from the district court's order denying the United States' motion to dismiss this action on the grounds of sovereign immunity. We hold that the collateral order doctrine does not allow immediate appeal of such an order, and we dismiss the appeal for lack of jurisdiction.

The State of Alaska brought this action to quiet title to sections of the beds of the Kandik, Nation, and Black Rivers. ¹ The district court's jurisdiction is premised on 28 U.S.C. Secs. 1346(f) and 2409a, which allow the United States to be named as a defendant in actions to quiet title to real property "in which the United States claims an interest." Section 2409a(a). The United States, although it refused to disclaim title, sought dismissal of the suit on the grounds that it had never actively "claim[ed] an interest" in the river beds within the meaning of those sections, and, consequently, there had been no waiver of sovereign immunity. The district court denied the motion, finding that the United States claimed an interest in the land within the meaning of the statute. The United States immediately appealed the district court's decision without seeking permission under 28 U.S.C. Sec. 1292(b) to file an interlocutory appeal. ² Instead, the United States contends that this court has jurisdiction under the collateral order doctrine.

The collateral order doctrine is a "practical construction" of the final judgment rule of 28 U.S.C. Sec. 1291. Digital Equipment Corp. v. Desktop Direct, Inc., --- U.S. ----, ----, 114 S.Ct. 1992, 1995, 128 L.Ed.2d 842 (1994). The doctrine allows appeals from "a small class [of orders] which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated." Cohen v. Beneficial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949). The doctrine applies only to:

those district court decisions that are conclusive, that resolve important questions completely separate from the merits, and that would render such important questions effectively unreviewable on appeal from final judgment in the underlying action.

Digital Equipment, --- U.S. at ---- - ----, 114 S.Ct. at 1995-96 (the "Cohen requirements") (enumeration added) (internal quotations and citations omitted). ³

This Circuit has never had occasion to decide whether the denial of sovereign immunity to branches of the federal government is an immediately appealable collateral order. ⁴ It is settled that immediate appeals may be taken from orders denying claims of immunity on one of the following grounds: the sovereign immunity granted to states under the Eleventh Amendment, Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, --- U.S. ----, ----, 113 S.Ct. 684, 688, 121 L.Ed.2d 605 (1993); the sovereign immunity of Guam, Marx v. Guam, 866 F.2d 294, 296 (9th Cir.1989); foreign sovereign immunity derived from the Foreign Sovereign Immunities Act, 28 U.S.C. Secs. 1602-1611, Compania Mexicana De Aviacion, S.A. v. United States Dist. Ct., 859 F.2d 1354, 1356 (9th Cir.1988); the President's absolute immunity, Nixon v. Fitzgerald, 457 U.S. 731, 102 S.Ct. 2690, 73 L.Ed.2d 349 (1982); a government official's qualified immunity, Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985); intramilitary immunity based on the doctrine of Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), Lutz v. Secretary of the Air Force, 944 F.2d 1477 (9th Cir.1991); and a criminal defendant's double jeopardy claim, Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977).

At first glance, federal sovereign immunity seems to fit comfortably among the types of immunities for which immediate appeal is appropriate. In Digital Equipment the Supreme Court observed that "orders denying certain immunities are strong candidates for prompt appeal under Sec. 1291." --- U.S. at ----, 114 S.Ct. at 1998. This is because certain immunities are more likely to meet the third prong of the Cohen analysis: where the immunity guarantees a "right not to stand trial," that right may be "irretrievably lost" if immediate review is not available. The Supreme Court in Digital Equipment hastened to add, however, that "a party's ability to characterize a district court's decision as denying an irreparable 'right not to stand trial' altogether is [not] sufficient ... for a collateral order appeal," because virtually every right or procedural step that can be enforced by pretrial dismissal could be characterized as a right not to stand trial. --- U.S. at ----, 114 S.Ct. at 1998.

We hold that, despite the label "immunity," federal sovereign immunity is not best characterized as a "right not to stand trial altogether." The only other case to consider the issue, Pullman Construction, concluded that federal sovereign immunity was more accurately considered a right to prevail at trial, i.e., a defense to payment of damages. 23 F.3d at 1169. Like immunity from service of process (leading to lack of personal jurisdiction), federal sovereign immunity is better viewed as a right not to be subject to a binding judgment. Such a right may be vindicated effectively after trial. See Van Cauwenberghe v. Biard, 486 U.S. 517, 524, 108 S.Ct. 1945, 1950, 100 L.Ed.2d 517 (1988).

Pullman Construction concluded that orders denying federal sovereign immunity are not immediately appealable. 23 F.3d at 1169. We agree for the following reasons, summarized here and discussed more fully below. Federal sovereign immunity does not implicate the sovereignty concerns that motivate immediate appeal of orders denying Eleventh Amendment immunity or foreign sovereign immunity. Likewise, denial of federal sovereign immunity need not be reviewed with the same urgency as the denial of official immunity or double jeopardy claims. The interest served by federal sovereign immunity (the United States' freedom from paying damages without Congressional consent) may be served equally well if review follows a final judgment on the merits. Because there is no sufficiently important interest in immediate review, the third prong of the Cohen test is not satisfied, and the order denying federal sovereign immunity is not an immediately appealable collateral order. This result is confirmed when one considers the relative inefficiency of applying the collateral order doctrine to federal sovereign immunity cases.

I.

Federal sovereign immunity is readily distinguishable from the states' immunity under the Eleventh Amendment and foreign governments' immunity under the Foreign Sovereign Immunities Act. The latter two doctrines allow one sovereign entity the right to avoid, altogether, being subjected to litigation in another sovereign's courts. ⁵ Pullman Constr., 23 F.3d at 1169. Similar sovereignty concerns are not implicated by the maintenance of suit against the United States in federal court. ⁶ Federal sovereign immunity has had such broad exceptions carved out of it that, as Pullman Construction concluded, "Congress, on behalf of the United States, has surrendered any comparable right not to be a litigant in its own courts." Id. ⁷ In the present day, federal sovereign immunity serves merely to channel litigation into the appropriate avenue for redress, ensuring that "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law." Pullman Constr. at 1168 (quoting Art. I, Sec. 9, cl. 7). "Congress requires litigants to follow certain forms and restricts available remedies, but implementing these restrictions is an ordinary task of statutory interpretation, for which interlocutory appeals are no more necessary (or appropriate) than they are in the bulk of federal litigation." Pullman Constr., 23 F.3d at 1169.

II.

Because federal sovereign immunity is a defense to liability rather than a right to be free from trial, the benefits of immunity are not lost if review is postponed. The United States argues that this is not the case and that its claim would, in fact, be "effectively unreviewable" at a later point: If this case goes to trial, the United States will have to decide whether to claim or disclaim the lands in question. According to the United States, doing so will moot the argument that the courts lack jurisdiction because the United States has never claimed or disclaimed the lands. The United States claims that the essence of its sovereign immunity is freedom from having to appear in court and take a position, and hence the benefits of immunity will be irretrievably lost if immediate appeal is denied.

This argument fails for two reasons. First, the argument is too particularized to affect our inquiry. "[T]he issue of appealability under Sec. 1291 is to be determined for the entire category to which a claim belongs, without regard to the chance that the litigation at hand might be speeded, or a particular injustice averted, by a...