FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GERALD F. STANLEY, 

Petitioner-Appellant,

JACK LEAVITT, No. 04-16255

Appellant, D.C. No.

FEDERAL PUBLIC DEFENDER,  CV-95-01500-

Intervenor-Appellee, FCD/GGH

v. OPINION

JEANNE WOODFORD,

Respondent-Appellee. 

Appeal from the United States District Court

for the Eastern District of California

Frank C. Damrell, District Judge, Presiding

Submitted February 15, 2006*

San Francisco, California

Filed June 7, 2006

Before: Procter Hug, Jr., Arthur L. Alarcón, and

M. Margaret McKeown, Circuit Judges.

Opinion by Judge Hug

*The panel unanimously finds this case suitable for decision without

oral argument. Fed. R. App. P. 34(a)(2). 

6253
COUNSEL

Jack Leavitt, Hayward, California, for the appellant. 

Mark E. Olive, Tallahassee, Florida, and Tim Schardl, Assistant Federal Defender, Sacramento, California, for the appellee.

OPINION

HUG, Circuit Judge: 

This is an interlocutory appeal from a sanctions order compelling attorney Jack Leavitt (“Leavitt”) to pay attorney’s fees

STANLEY v. WOODFORD 6255
under 28 U.S.C. § 1927 and the district court’s inherent powers. The Magistrate Judge sanctioned Leavitt for violating,

twice and in bad faith, the Magistrate Judge’s order barring

further appearances on behalf of a California prisoner in capital habeas corpus proceedings under 28 U.S.C. § 2254. District Judge Damrell affirmed, and Leavitt immediately

appeals. We are called on to decide whether, after the

Supreme Court’s unanimous opinion in Cunningham v. Hamilton County, 527 U.S. 198 (1999), this court has appellate

jurisdiction to entertain a prejudgment appeal of an order

imposing sanctions on a non-party attorney, no longer representing any party in the underlying case, pursuant to 28

U.S.C. § 1927 and the court’s inherent powers. We find jurisdiction to be absent and dismiss Leavitt’s appeal. 

I. FACTUAL AND PROCEDURAL BACKGROUND

On January 14, 2002, Leavitt filed papers seeking to disqualify appointed counsel for capital habeas corpus petitioner

Gerald F. Stanley (“Stanley”) and to substitute himself as

counsel of record. This was Leavitt’s second attempt to substitute himself in federal court; the first was denied in 1998.

Multiple similar requests during state habeas proceedings

were denied by the California Supreme Court in 2001. 

On October 22, 2002, the Magistrate Judge rejected the

substitution, finding that on July 29, 2002, Stanley had in

writing authorized his counsel to pursue habeas relief by filing an amended petition. The court found that “petitioner

Stanley has no present credibility on the issue of whether he

authorized the most recent federal amended petition to be

filed.” Over a seven-year period, Stanley did “nothing but

change his mind back and forth” regarding his desire to pursue habeas proceedings. The Magistrate Judge concluded that

Stanley “learned from his state trial court proceedings that

expressing conflicting viewpoints on his competency, or in

his instructions to his lawyers, could tie the courts in knots.”

6256 STANLEY v. WOODFORD
The same tactic of repeatedly withdrawing and restating

petitions worked in federal court for a time, proving disruptive. Because the Magistrate Judge found Stanley’s appointed

counsel credible in his statements that Stanley did in fact

desire to proceed, the Magistrate Judge ruled that the court

would take Stanley’s most recent authorization as the final

word and entertain no further requests to withdraw the petition. Accordingly, the Magistrate Judge’s October 22, 2002

order prohibited Leavitt from entering any further appearances in the case on Stanley’s behalf. The Magistrate Judge

warned that further filings would result in sanctions. Leavitt

moved for reconsideration, which District Judge Damrell

denied on November 4, 2002. 

Notwithstanding the District Court’s order, Leavitt filed

two appearances in the case in May and October of 2003. On

May 20, 2003, Leavitt wrote a letter to District Judge Damrell

in which he identified himself as Stanley’s “retained (pro

bono) attorney since 1998,” and asked for the same relief he

had been denied in the October 22 order. Leavitt wrote a second letter to District Judge Damrell on October 23, 2003

requesting recognition as Stanley’s attorney and, once again,

seeking the relief previously denied. The Magistrate Judge

issued an order to show cause why sanctions should not be

imposed. Leavitt admitted in his written response to willfully

violating the October 22, 2002 order to provoke further litigation over the matters decided therein. Under 28 U.S.C. § 1927

and the court’s inherent authority, the Magistrate Judge found

Leavitt liable, not for either civil or criminal contempt, but for

sanctions in the amount of $10,356.00 — the cost of approximately eighty percent of the hours invested by the Federal

Defender in responding to Leavitt’s filings. 

On May 7, 2004, District Judge Damrell denied reconsideration, refused Leavitt’s request for certification of the sanctions order for immediate appeal, and declined to stay the

order pending appeal. Notwithstanding the ongoing habeas

STANLEY v. WOODFORD 6257
proceedings in the district court, Leavitt undertook this immediate appeal. 

II. JURISDICTION

A. 

[1] The jurisdiction of this court is ordinarily limited to

appeals from “final decisions of the district courts.” 28 U.S.C.

§ 1291. District Judge Damrell’s May 7, 2004 affirmance of

sanctions against Leavitt is not a final decision. It “neither

ended the litigation nor left the court only to execute its judgment.” Cunningham, 527 U.S. at 204. However, the Supreme

Court has interpreted the term “final decision” in § 1291 to

permit jurisdiction over appeals from a small category of collateral orders that do not terminate the litigation. See Cohen

v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545-47 (1949).

Historically, we have permitted collateral-order appeal by

attorneys ordered to pay fees for unreasonably and vexatiously multiplying proceedings under § 1927. See, e.g.,

Kanarek v. Hatch, 827 F.2d 1389, 1391 (9th Cir. 1987)

(“order [under section 1927] compelling a non-party, such as

[litigant’s attorney], to pay attorneys’ fees and costs is a final

order reviewable under 28 U.S.C. § 1291”).1 After the

Supreme Court’s decision in Cunningham, the propriety of

this practice changed. Cunningham effectively overruled earlier Ninth Circuit decisions allowing immediate appeal by

attorneys from orders imposing sanctions. 

B.

[2] In Cunningham, the district court adopted a discovery

1We have treated interlocutory orders imposing sanctions pursuant to

other authorities similarly. See, e.g., Telluride Mgmt. Solutions, Inc. v. Telluride Inv. Group, 55 F.3d 463, 465 (9th Cir. 1995) (holding an order of

Rule 37(a) sanctions against an attorney is immediately appealable under

§ 1291). 

6258 STANLEY v. WOODFORD
sanction recommended by the Magistrate Judge under Rule

37(a) and disqualified counsel because she was a material witness in the case. 527 U.S. at 201. The Supreme Court disallowed the collateral-order appeal. Although the sanctions

order was conclusive, Justice Thomas, writing for a unanimous Court, reasoned that “appellate review of a sanctions

order [cannot] remain completely separate from the merits.”

Id. at 205. A Rule 37(a) sanctions order will frequently be

“inextricably intertwined with the merits of the action.” Id. In

addition, the court reasoned, there is no reason why a sanctioned attorney should be unable to appeal the order imposing

sanctions after final resolution of the underlying case. Unlike

civil contempt, which is “designed to force the contemnor to

comply with an order of the court,” a Rule 37(a) sanctions

order “lacks any prospective effect and is not designed to

compel compliance.” Id. at 207 (internal quotation omitted).

An attorney sanctioned for causing delay or costs to other litigants from inappropriate filings “by and large suffers no inordinate injury from a deferral of appellate consideration of the

sanction.” Id. at 208. “[A]n attorney’s continued participation

in a case does not affect whether a sanctions order is ‘final’

for purposes of § 1291” because “the efficiency interests

served by limiting immediate appeals far outweigh any nominal monitoring costs borne by attorneys.” Id. at 209. Moreover, the Cunningham Court observed that immediate appeal

“would undermine the very purpose of Rule 37(a), which was

designed to protect courts and opposing parties from delaying

or harassing tactics. . . .” Id. at 208. 

C.

[3] There can be no doubt that Cunningham overruled cases

addressing the immediate appealability of Rule 37(a) sanctions. The Ninth Circuit has yet to apply Cunningham to sanctions entered pursuant to § 1927 or the court’s inherent

authority. However, the policies undergirding Rule 37(a)

sanctions are not relevantly different from those justifying

sanctions under § 1927 or a court’s inherent powers. Indeed,

STANLEY v. WOODFORD 6259
the Ninth Circuit has already expanded Cunningham beyond

Rule 37(a). 

[4] In Cato v. Fresno City, 220 F.3d 1073, 1074 (9th Cir.

2000), this court stated that the “reasons underlying Cunningham’s bar against immediate appeal from Rule 37(a) sanctions orders apply equally to Rule 16 sanctions orders.” Cato

followed Cunningham, holding sanctions imposed under Rule

16(f) to be appealable only after final judgment has been

entered, even when the attorney no longer represents any

party in the case. Id. Similarly, in American Ironworks &

Erectors, Inc. v. North American Constr. Corp., we interpreted Cunningham to bar immediate appeal of an interlocutory order granting attorney’s fees as a condition of

substituting counsel. 248 F.3d 892, 897 (9th Cir. 2001). We

stated that “[a]lthough there are differences between sanctions

under Rule 37(a) and substitution of counsel conditioned on

payment of fees, the parallel considerations convince us that

the Cunningham rationale applies here. Like Rule 37(a) sanctions, the present situation invokes concerns regarding finality, avoiding piecemeal appeals, and availability of effective

appellate review.” Id.

[5] Cases from the First, Second, Third, and Fifth Circuits

further support interpreting Cunningham as applying more

broadly than to Rule 37(a) sanctions alone. The First Circuit

recognized in Empresas Omajede, Inc. v. Bennazar-Zequeira,

213 F.3d 6, 9 n. 4 (1st Cir. 2000), that Cunningham affirmed

its precedents denying interlocutory appeals in the sanctions

area. See, e.g., United States v. Kouri-Perez, 187 F.3d 1, 14

(1st Cir. 1999) (holding sanctions order pursuant to district

court’s inherent powers not immediately appealable); Appeal

of Licht & Semonoff, 796 F.2d 564, 573 (1st Cir. 1986) (holding sanctions pursuant to Rule 26(g) not immediately appealable). 

The law in the Second Circuit prior to Cunningham had

been that an attorney may immediately appeal an order

6260 STANLEY v. WOODFORD
imposing sanctions under the collateral order exception. However, in New Pacific Overseas Group (U.S.A.) Inc. v. Excal

Int’l Dev. Corp., 252 F.3d 667, 669-70 (2d Cir. 2001), the

Second Circuit acknowledged that Cunningham effectively

reversed that rule. The New Pacific court dismissed for lack

of appellate jurisdiction an appeal of sanctions imposed under

28 U.S.C. § 1927 and Rule 37(a). 

Like the Second Circuit, the Third Circuit extended the

application of Cunningham, holding in Comuso v. Nat’l R.R.

Passenger Corp., 267 F.3d 331, 338-39 (3d Cir. 2001), that

Cunningham applied to sanctions imposed under a district

court’s inherent powers for conduct that occurred outside the

court, and rejecting the argument that Cunningham applied

only to Rule 37(a) sanctions. The court held that earlier Third

Circuit decisions allowing counsel to appeal sanctions immediately “are no longer good law to the extent that they conflict

with Cunningham.” Id. at 339. Specifically, the Third Circuit

observed in Comuso that Cunningham superseded Eavenson,

Auchmuty & Greenwald v. Holtzman, 775 F.2d 535 (3d Cir.

1985), which approved immediate appeal of a sanctions order

imposed under Rule 11 against the plaintiff’s attorney. See

Comuso, 267 F.3d at 339. 

In Williams v. Midwest Employers Cas. Co., 243 F.3d 208,

208-09 (5th Cir. 2001), the Fifth Circuit dismissed for lack of

jurisdiction an interlocutory appeal of monetary sanctions

imposed against an attorney pursuant to Rule 11 and the district court’s inherent powers. In doing so, the Williams court

acknowledged Cunningham’s effect and invoked the Fifth

Circuit’s opinion in Click v. Abilene Nat’l Bank, 822 F.2d

544, 545 (5th Cir. 1987), which refused to distinguish

between types of sanctions. Williams, 243 F.3d at 210 n. 10.

III. CONCLUSION

[6] The precedential effect of Cunningham is clear. We

now expressly interpret Cunningham as extending to sancSTANLEY v. WOODFORD 6261
tions under § 1927 and a district court’s inherent powers, and

overrule prior conflicting cases. Accordingly, this court lacks

jurisdiction to entertain Leavitt’s interlocutory appeal. 

DISMISSED for lack of jurisdiction. 

6262 STANLEY v. WOODFORD