Opinion · Court of Appeals for the Ninth Circuit

United States v. Washington

United States v. Wash., 573 F.2d 1121 (9th Cir. 1978)

Type
Opinion
Court
Court of Appeals for the Ninth Circuit
Jurisdiction
Federal
Date
1978-04-24
Topic
litigation

How later courts describe this case

  • disqualification order reviewable where it has a bearing on appealable order, where it has been properly argued as grounds for reversal, and where proceedings relating to the questioned disqualification are reflected in the record
  • denial of a motion to disqualify the trial judge is neither final nor appealable
  • order 26 denying motion to disqualify judge is not final or appealable
  • denial of motion to disqualify judge not appealable

Citator

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Authority status
pending
Cited by
33 opinions
UNITED STATES v. STATE OF WASH.,573 F.2d 1121(9th Cir. 1978)
UNITED STATES OF AMERICA ET AL., PLAINTIFFS-APPELLEES, v. STATE OF
WASHINGTON, DEFENDANT-APPELLANT.
No. 77-2497.
United States Court of Appeals, Ninth Circuit.
April 24, 1978.
Page 1122
James M. Johnson, Asst. Atty. Gen., Olympia, Wash., for defendant-appellant.

James W. Moorman, Acting Asst. Atty. Gen., Dept. of Justice, Washington, D.C., for plaintiffs-appellees.
Appeal from the United States District Court for the Western District of Washington.
Before CHAMBERS and KENNEDY, Circuit Judges, and JAMESON,fn*District Judge.
KENNEDY, Circuit Judge:
[1] The State of Washington moved in the district court to disqualify the trial judge from any further proceedings inUnited States v. Washington. See United States v. Washington,384 F. Supp. 312(W.D.Wash. 1974),aff'd,520 F.2d 676(9th Cir. 1975),cert. denied,423 U.S. 1086, 96 S.Ct. 877, 47 L.Ed.2d 97 (1976). The motion was denied, and the state seeks to appeal that ruling. The United States has moved to dismiss the appeal for lack of jurisdiction. We agree that the ruling in question is not an appealable order, and we dismiss the appeal.

[2] Early authority in this circuit, and more recent authority generally, hold that denial of a motion to disqualify is not a final order nor one that should be treated as such underCohenv. Beneficial Industrial Loan Corp.,337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949).Robinson v. Largent,419 F.2d 1327 (3d Cir. 1970) (per curiam);Rosen v. Sugarman,357 F.2d 794(2d Cir. 1966);Baltuff v. United States,35 F.2d 507(9th Cir.),cert. denied,278 U.S. 579, 49 S.Ct. 517, 73 L.Ed. 517 (1929);McColgan v. Lineker,289 F. 253 (9th Cir. 1923);see9 Moore's Federal Practice ¶ 110.13[10], at 187 (2d ed. 1975).Cf. Cord v. Smith,338 F.2d 516(9th Cir. 1964) (disqualification of attorney). We adhere to this rule. Since the district court's ruling on the motion was not a final order under28 U.S.C. § 1291nor an order certified under28 U.S.C. § 1292(b), the appeal should be dismissed.

[3] Parties aggrieved by the trial court's refusal to order disqualification are not wholly without an interlocutory remedy. In the exceptional case, where the issue of disqualification appears to be a significant one, the court may consider the motion to disqualify upon a petition for aPage 1123writ of mandamus.Gladstein v. McLaughlin,230 F.2d 762(9th Cir. 1955). Although we may, where circumstances warrant, treat an attempt to appeal from a nonappealable order as a petition for writ of mandamus,Cord v. Smith,338 F.2d 516, 521-22 (9th Cir. 1964), we decline to do so in this case. We considered related or similar contentions by the state when we denied a petition for a writ of mandamus in a previous order.Washington v. United StatesDistrict Court,No. 77-2698 (9th Cir., Oct. 11, 1977) (order denying writ of mandamus). The state claims that additional issues are before us here, but we note that they could have been raised in the previous mandamus proceeding. In these circumstances it would be inappropriate to treat this appeal as still another petition for writ of mandamus, and we decline to do so.

[4] Other orders entered by the district court in this litigation are now before this court on appeal, and the state has moved to consolidate this appeal with one or more of those appeals so that we might consider the disqualification issue. Consolidation under Federal Rule of Appellate Procedure 3(b) may be ordered where the court in its discretion deems it appropriate and in the interests of justice, but each of the matters to be consolidated must be within the jurisdiction of the court. If the refusal to disqualify has a bearing upon appealable orders now on review, if the alleged error has been properly argued as a ground for reversal in the briefs on file, and if the portion of the proceedings relating to the questioned disqualification is reflected in the record on those appeals, then the issue may be argued there. But we cannot inject the issue into those other cases by the device of ordering consolidation when the appeal in question contains a fatal jurisdictional defect.

[5] The appeal is dismissed for lack of appellate jurisdiction.
  1. Honorable William J. Jameson, Senior United States District Judge for the District of Montana, sitting by designation. ↩