Mairi Tanedo, et al v. East Baton Rouge Parish School, et al

Filing

FILED OPINION (MARSHA S. BERZON, PAUL J. WATFORD and JAMES G. CARR) DISMISSED. Judge: MSB Authoring, FILED AND ENTERED JUDGMENT. [8565584]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

MAIRI NUNAG -TANEDO ; INGRID
CRUZ; DONNABEL ESCUADRA ;
ROLANDO PASCUAL; TOMASA MARI,
on behalf of themselves and other
similarly situated individuals,
Plaintiffs-Appellees,

No. 11-57064
D.C. No.
8:10-cv-01172JAK-MLG

v.

OPINION

EAST BATON ROUGE PARISH
SCHOOL BOARD ,
Defendant,
and
ROBERT B. SILVERMAN ; SILVERMAN
& ASSOCIATES, INC.,
Defendants-Appellants.

Appeal from the United States District Court
for the Central District of California
John A. Kronstadt, District Judge, Presiding
Argued and Submitted
February 12, 2013—Pasadena, California
Filed March 27, 2013

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TANEDO V . EAST BATON ROUGE PARISH SCH . BD .
Before: Marsha S. Berzon and Paul J. Watford, Circuit
Judges, and James G. Carr, Senior District Judge.*
Opinion by Judge Berzon

SUMMARY**

Appellate Jurisdiction
The panel dismissed for lack of jurisdiction an appeal
from the denial of a motion for immunity from liability under
the Noerr-Pennington doctrine, which protects the First
Amendment right to petition the government for a redress of
grievances.
Joining other circuits, the panel held that the denial of a
motion for Noerr-Pennington immunity is not an immediately
appealable collateral order. The panel also held that it did not
have pendent appellate jurisdiction over the NoerrPennington issue.

COUNSEL
Robert B. Silverman, Silverman & Associates, Inc.,
Pasadena, California; Maureen Jaroscak, Law Office of

*

The Honorable James G. Carr, Senior District Judge for the U.S.
District Court for the Northern District of Ohio, sitting by designation.
**

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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Maureen Jaroscak, Santa Fe Springs, California, for
Defendants-Appellants.
Dennis B. Auerbach, Covington & Burling LLP, Washington,
D.C.; Candice N. Plotkin, Covington & Burling LLP, San
Francisco, California, for Plaintiffs-Appellees.

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

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plaintiffs’ state law claims on the ground that they violate
California’s anti-SLAPP statute,1 Cal. 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 NoerrPennington 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
(1949), to be subject to immediate appeal, an order that does
1

SLAPP stands for “strategic lawsuit against public participation.”

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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 (2006) (alterations in
original) (quoting Puerto Rico Aqueduct & Sewer Auth. v.
Metcalf & Eddy, Inc., 506 U.S. 139, 144 (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 (quoting Digital Equip. Corp. v. Desktop
Direct, Inc., 511 U.S. 863, 867 (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
(1961), and United Mine Workers v. Pennington, 381 U.S.
657 (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 (1983) (applying the NoerrPennington doctrine to the National Labor Relations Act); BE
& K Constr. Co v. N.L.R.B., 536 U.S. 516, 526 (2002) (same);
see also Sosa, 437 F.3d at 932 n.6 (discussing cases applying
Noerr-Pennington outside the antitrust context); White v. Lee,

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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, as required by the second
prong of the Cohen test, see Will, 546 U.S. at 349. 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.

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One other circuit has stated otherwise, accepting without
analysis that the question resolved in a motion for NoerrPennington 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. 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 (1985) (qualified immunity);
see also Puerto Rico Aqueduct & Sewer Auth., 506 U.S. at
144–47 (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,

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431 U.S. 651, 659, 661–62 (1977); see also Flanagan v.
United States, 465 U.S. 259, 266–67 (1984) (citing United
States v. MacDonald, 435 U.S. 850, 860 n.7 (1978)) (noting
that “[d]ouble jeopardy and Speech or Debate rights are sui
generis” in guaranteeing immunity from trial).
The Noerr-Pennington doctrine, in contrast, does not
confer a right not to stand trial. Although we have repeatedly
characterized the protection afforded by Noerr-Pennington as
a form of “immunity,” see, e.g., Sosa, 437 F.3d at 929;
Empress LLC, 419 F.3d at 1056; Liberty Lake Invs., Inc. v.
Magnuson, 12 F.3d 155, 160 (9th Cir. 1993); Omni Res. Dev.
Corp. v. Conoco, Inc., 739 F.2d 1412, 1413 (9th Cir. 1984),
the use of the term “immunity” in this context signals
immunity from liability, not from trial. Again, unlike
California’s anti-SLAPP statute, which is “in the nature of an
immunity from suit,” see DC Comics, 706 F.3d at 1013;
Batzel v. Smith, 333 F.3d 1018, 1025–26 (9th Cir. 2003), the
Noerr-Pennington doctrine provides only a defense to
liability, implied into various federal statutes to protect the
right of petitioning, see Sosa, 437 F.3d at 929, 931.
As a principle of statutory interpretation, NoerrPennington is no more a protection from litigation itself than
is any other ordinary defense, affirmative or otherwise and
constitutionally grounded or not. For example, a defense that
a claim is barred by the statute of limitations does not provide
immunity from litigation. See Estate of Kennedy v. Bell
Helicopter Textron, Inc., 283 F.3d 1107, 1111 (9th Cir.
2002). Nor does a defense that the particular remedy plaintiffs
seek is foreclosed by statute. See Miranda B. v. Kitzhaber,
328 F.3d 1181, 1190 (9th Cir. 2003) (holding that the denial
of a defense to suit based on a statutory bar to relief under
§ 1983 is not immediately appealable under the collateral

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order doctrine); see also Burns-Vidlak ex rel. Burns v.
Chandler, 165 F.3d 1257, 1260–61 (9th Cir. 1999) (holding
that the denial of a defense to liability for punitive damages
is not immediately appealable). Consequently, denial of a
Noerr-Pennington defense is as effectively reviewable on
appeal from the final judgment as any potentially “erroneous
ruling on liability” ordinarily is. See Swint v. Chambers Cnty.
Comm’n, 514 U.S. 35, 43 (1995).
The Supreme Court has cautioned against characterizing
every right that “could be enforced appropriately by pretrial
dismissal” as “conferring a ‘right not to stand trial’” and
therefore subject to immediate appeal under the collateral
order doctrine. Digital Equip. Corp., 511 U.S. at 873.
Allowing interlocutory appeals of all such rights would:
move [28 U.S.C.] § 1291 aside for claims that
the district court lacks personal jurisdiction,
that the statute of limitations has run, that the
movant has been denied his Sixth Amendment
right to a speedy trial, that an action is barred
on claim preclusion principles, that no
material fact is in dispute and the moving
party is entitled to judgment as a matter of
law, or merely that the complaint fails to state
a claim.
Id. (citations omitted). Instead, courts of appeals should
“view claims of a ‘right not to be tried’ with skepticism, if not
a jaundiced eye.” Id.
Nor is the “constitutional nature of the right [protected]
. . . dispositive of the collateral order inquiry.” Perry v.
Schwarzenegger, 591 F.3d 1126, 1135 (9th Cir. 2009) (citing

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Flanagan, 465 U.S. at 267–68). The Petition Clause of the
First Amendment, which Noerr-Pennington is designed to
safeguard, does not enjoy a special status, or confer any
greater immunity, than that provided by other First
Amendment guarantees. See McDonald v. Smith, 472 U.S.
479, 484–85 (1985). And “[t]he courts have never recognized
. . . that an immunity from suit was necessary to prevent an
unacceptable chill of those First Amendment rights.” We,
Inc., 174 F.3d at 327. Accordingly, “no possible ground
remains for thinking that a defense based on that clause is any
different—so far as is relevant to the issue of appealability
under the collateral order doctrine—from any other
affirmative defense.” Segni, 816 F.2d at 346; accord We, Inc.,
174 F.3d at 328–29; Acoustic Sys., Inc., 207 F.3d at 296;
Hinshaw, 436 F.3d at 1003.
We therefore hold that denial of a Noerr-Pennington
defense is not immediately appealable under the collateral
order doctrine.
II.
Nor do we have pendent jurisdiction to review the denial
of Silverman’s Noerr-Pennington defense. That denial is
neither “inextricably intertwined” with nor “necessary to
ensure meaningful review of” the issue which is properly
subject to interlocutory appeal: the denial of Silverman’s antiSLAPP motion. Swint, 514 U.S. at 51; accord Hendricks v.
Bank of Am., N.A., 408 F.3d 1127, 1134 (9th Cir. 2005)
(discussing pendent jurisdiction); see also DC Comics,
706 F.3d at 1015 (reaffirming that the denial of an antiSLAPP motion is immediately appealable). As California’s
anti-SLAPP statute applies only to state law claims, see
Hilton v. Hallmark Cards, 599 F.3d 894, 901 (9th Cir. 2010),

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Silverman’s asserted Noerr-Pennington defense against
federal statutory liability under the TVPA and the RICO Act
is severable from, and neither necessary to nor necessarily
resolved by, our ruling on the anti-SLAPP motion to strike.
See id. at 900 (citing Batzel, 333 F.3d at 1023).2
III.
For these reasons, Silverman’s appeal from the district
court’s denial of his Noerr-Pennington motion is
DISMISSED for lack of appellate jurisdiction.

2

Silverman’s asserted Noerr-Pennington defense against the plaintiffs’
state law claims may well fail for the same reason the anti-SLAPP motion
to strike those claims fails. But as the Noerr-Pennington question is not
properly before us, we need not address whether the doctrine provides
immunity against state common law claims at all. That remains an open
question in this circuit, the answer to which may well depend on state law.
See Sosa, 437 F.3d at 932 n.6 (discussing the application of NoerrPennington outside the antitrust context, including, in other circuits, to
common law causes of action); In re Am. Cont’l Corp./Lincoln Sav. &
Loan Sec. Litig., 102 F.3d 1524, 1538 & n.15 (9th Cir. 1996) (declining
to decide whether Noerr-Pennington applies to state law tort claims, but
compiling “extensive case law” on both sides of the question), rev’d on
other grounds sub nom. Lexecon Inc. v. Milberg Weiss Bershad Hynes &
Lerach, 523 U.S. 26 (1998).