FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAMES S. TATE, JR., M.D., 

Plaintiff-Appellant,

v.

UNIVERSITY MEDICAL CENTER OF

SOUTHERN NEVADA; KATHLEEN

SILVER; BRUCE L. WOODBURY; TOM No. 09-16505

COLLINS; CHIP MAXFIELD; D.C. No.

LAWRENCE WEEKLY; CHRIS 2:08-cv-01183-

GIUNCHIGLIANI; SUSAN BRAGER;  LDG-GWF

RORY REID; MEDICAL AND DENTAL District of Nevada,

STAFF OF THE UNIVERSITY MEDICAL Las Vegas

CENTER OF SOUTHERN NEVADA;

ORDER JOHN ELLERTON, M.D.; JOHN

FILDES, M.D.; MARVIN J.

BERNSTEIN, M.D.; BOARD OF

TRUSTEES OF UNIVERSITY MEDICAL

CENTER OF SOUTHERN NEVADA,

Defendants-Appellees. 

Appeal from the United States District Court

for the District of Nevada

Lloyd D. George, Senior District Judge, Presiding

Argued and Submitted

February 9, 2010—San Francisco, California

Filed May 25, 2010

Before: Diarmuid F. O’Scannlain, Stephen S. Trott and

Richard A. Paez, Circuit Judges.

Order;

Concurrence by Judge Paez

7419
COUNSEL

Jacob L. Hafter, Las Vegas, Nevada, filed the briefs and

argued the cause for the plaintiff-appellant. Michael Naethe,

Las Vegas, Nevada, also was on the briefs.

Lisa Wong Lackland, Lewis and Roca LLP, Las Vegas,

Nevada, argued the cause and was on the brief for defendantsappellees Medical and Dental Staff of UMCSN, John Ellerton, M.D., John Fildes, M.D., and Marvin Bernstein, M.D.

Thomas G. Ryan, Lewis and Roca LLP, Las Vegas, Nevada,

filed the brief.

Lynn M. Hansen, Las Vegas, Nevada, filed the brief and

argued the cause for defendants-appellees University Medical

Center of Southern Nevada and Clark County Commissioners.

ORDER

We must decide whether we have jurisdiction to review the

district court’s refusal to enjoin a hospital to reinstate a surgeon when he has since lost all of his clinical privileges at the

hospital.

I

James Tate, MD, is a board-certified general surgeon who

was granted clinical privileges at University Medical Center

(“UMC”) by the Medical & Dental Staff of University Medical Center (“Staff”). UMC and Dr. Tate then entered into a

Trauma Services Agreement, by which UMC employed Dr.

Tate as a surgeon on the trauma on-call schedule. In August,

2008, however, UMC removed Dr. Tate from the trauma oncall schedule after an altercation between Dr. Tate and a

patient’s family. 

7420 TATE v. UNIVERSITY MEDICAL CENTER
Dr. Tate challenged that removal, pleading numerous

causes of action. In particular, Dr. Tate brought a § 1983

claim, alleging that UMC, a county hospital, violated his

Fourteenth Amendment due process right in his clinical privileges. The defendants moved to dismiss Dr. Tate’s suit,

including the § 1983 claim. Dr. Tate opposed that motion. He

also moved for a preliminary injunction reinstating him on the

trauma on-call schedule on the basis of his § 1983 claim.

The district court granted the defendants’ motion to dismiss

the § 1983 claim, holding that Dr. Tate failed to allege the

deprivation of a property interest by defendants acting under

color of state law. The district court, consequently, also

denied Dr. Tate’s motion for a preliminary injunction because

Dr. Tate could not show a likelihood of success on the merits

after the underlying § 1983 claim was dismissed.

Dr. Tate filed an interlocutory appeal of the district court’s

denial of his motion for a preliminary injunction. He also

asked us to exercise pendent appellate jurisdiction over the

district court’s dismissal of the § 1983 claim, on the ground

that it was “inextricably intertwined” with the subject of the

interlocutory appeal. Meredith v. Oregon, 321 F.3d 807, 813

(9th Cir. 2003). While the appeal was pending, however, the

Staff terminated all of Dr. Tate’s clinical privileges because

of his failure to comply with conditions the Staff placed upon

their renewal.1 The defendants then moved to dismiss this

appeal as moot. In their view, we cannot grant effective relief

because Dr. Tate cannot be restored to the trauma on-call

schedule now that he no longer has any clinical privileges at

UMC. We agree. 

II

A federal court “does not have jurisdiction to give opinions

upon moot questions.” Am. Rivers v. Nat’l Marine Fisheries

1Dr. Tate has challenged this action in a separate lawsuit. 

TATE v. UNIVERSITY MEDICAL CENTER 7421
Serv., 126 F.3d 1118, 1123 (9th Cir. 1997). A claim “is moot

when the issues presented are no longer live or the parties

lack a legally cognizable interest in the outcome. The basic

question is whether there exists a present controversy as to

which effective relief can be granted.” Outdoor Media Group,

Inc. v. City of Beaumont, 506 F.3d 895, 900 (9th Cir. 2007).

A case may become moot at any stage. Di Giorgio v. Lee, 134

F.3d 971, 974 (9th Cir. 1998). 

In this appeal, Dr. Tate seeks reinstatement on the trauma

on-call schedule at UMC, despite no longer having clinical

privileges at the hospital. But Dr. Tate is ineligible to practice

medicine at UMC without clinical privileges. In fact, the

Trauma Services Agreement between Dr. Tate and UMC provides for its own automatic termination if Dr. Tate no longer

has clinical privileges. If Dr. Tate is ineligible to practice

medicine at UMC, then he cannot be reinstated on the trauma

on-call schedule at the hospital.

Dr. Tate argues that we can enjoin reinstatement because

removal from the trauma on-call schedule is a “de facto” suspension of his clinical privileges, which are a protected property interest for due process purposes. In Dr. Tate’s view, his

case is not moot because reinstating him on the on-call schedule would restore his clinical privileges. But that is not true.

An employment arrangement is distinct from clinical privileges: employment is merely one method among many of

exercising clinical privileges at a hospital. E.g., Stears v.

Sheridan County Mem’l Hosp. Bd. of Trs., 491 F.3d 1160,

1162-63 (10th Cir. 2007). Here, Dr. Tate had only an employment agreement with the hospital to serve as the trauma oncall surgeon. After termination of that employment, he

remained able to exercise his clinical privileges in other ways,

until they were terminated. Because Dr. Tate’s clinical privileges are distinct from his employment arrangement, reinstating his employment does not restore his clinical privileges.

We simply cannot restore Dr. Tate’s clinical privileges. The

termination of Dr. Tate’s clinical privileges, therefore, pre7422 TATE v. UNIVERSITY MEDICAL CENTER
vents us from reinstating Dr. Tate on the on-call schedule,

despite his argument to the contrary. Since we cannot order

the reinstatement sought by Dr. Tate in his motion for a preliminary injunction, we cannot grant “effective relief” in his

appeal of the denial of that motion.

III

Therefore, this appeal is moot. Our jurisdiction over the

district court’s dismissal of the underlying § 1983 claim was

premised on pendent appellate jurisdiction over matters “inextricably intertwined” with the denial of the preliminary

injunction motion. Since we do not have jurisdiction over the

denial of that motion on account of mootness, we also lack

jurisdiction over the district court’s dismissal of the underlying § 1983 claim.

DISMISSED. The Appellant’s motion for judicial notice is

GRANTED.

PAEZ, Circuit Judge, concurring:

I concur in the dismissal of Dr. Tate’s appeal as moot.

Because the defendants have revoked Dr. Tate’s clinical privileges, and because we lack authority in this suit to restore

those privileges, we cannot direct the district court to reinstate

him on the trauma on-call schedule. Because we therefore

lack the authority to grant any effective relief, this appeal is

moot. See Outdoor Media Group, Inc. v. City of Beaumont,

506 F.3d 895, 900 (9th Cir. 2007). 

I write separately, however, because the majority’s order

inappropriately opines on the merits of Dr. Tate’s due process

claim. “It has long been settled that a federal court has no

authority . . . to declare principles or rules of law which cannot affect the matter in issue in the case before it.” Church of

TATE v. UNIVERSITY MEDICAL CENTER 7423
Scientology v. United States, 506 U.S. 9, 12 (1992) (internal

quotations and citation omitted). Because the majority has

exceeded its constitutional authority by deciding a question

that cannot affect the disposition of this case, I cannot join the

order.

Dr. Tate argues that his removal from the trauma on-call

schedule violated his constitutionally protected property interest in his clinical privileges because the removal effectively

precluded him from exercising those privileges. Although the

majority stops short of explicitly deciding whether Dr. Tate

has a protected interest in his placement on the trauma schedule, the order effectively forecloses his argument on the merits by unnecessarily concluding that his “clinical privileges

are distinct from” his placement on the trauma schedule, and

that Dr. Tate can “exercise his clinical privileges in other

ways.” Order at 7422. These conclusions have absolutely no

bearing on whether Dr. Tate’s appeal is moot and effectively

decide the merits of Dr. Tate’s moot claims.

First, Dr. Tate never made the argument to which my colleagues purport to respond when they discuss the relationship

between Dr. Tate’s clinical privileges and his placement on

the trauma schedule. Contrary to the majority’s assertions, Dr.

Tate did not contend that reinstating him on the trauma schedule would restore his clinical privileges. Rather, Dr. Tate

argues that the defendants should not be able to avoid judicial

review of their actions by rendering this appeal moot by

unconstitutionally revoking his clinical privileges. Dr. Tate’s

actual argument on mootness thus does not invite us to consider whether removal from the trauma schedule effectively

deprived Dr. Tate of his protected clinical privileges.

Second, even if Dr. Tate had made the argument that the

majority recites, my colleagues’ conclusion that the removal

from the on-call schedule did not amount to a revocation of

clinical privileges is wholly unnecessary. Regardless of

whether removal from the trauma schedule de facto revoked

7424 TATE v. UNIVERSITY MEDICAL CENTER
Dr. Tate’s clinical privileges, reinstating him to the schedule

would not restore his independently revoked clinical privileges. Without those clinical privileges, Dr. Tate cannot

obtain any relief from this court. The majority’s discussion of

the effect of Dr. Tate’s removal from the trauma schedule is

therefore utterly irrelevant to whether we can grant any effective relief in this case.

Because the majority has inappropriately opined on questions that cannot affect our disposition of this appeal, I cannot

join in the order. I would dismiss the appeal as moot because

the independent revocation of Dr. Tate’s clinical privileges

precludes us from granting any effective relief. 

TATE v. UNIVERSITY MEDICAL CENTER 7425