Unpublished Disposition, 886 F.2d 1320 (9th Cir. 1989)

No. 88-5765.

United States Court of Appeals, Ninth Circuit.

Before ALARCON and NELSON, Circuit Judges, and PAUL G. ROSENBLATT^* , District Judge.

MEMORANDUM^** 

OVERVIEW

Appellants International Alliance of Theatrical Stage Employees and Moving Picture Operators of the United States and Canada, Local 44 (Local 44), and various of its officers appeal the district court's grant of a preliminary injunction to appellee International Alliance of Theatrical Stage Employees and Moving Picture Operators of the United States and Canada (IATSE), AFL-CIO; denial of appellants' motion to disqualify the district court judge; and denial of appellants' motion for attorneys' fees. We dismiss as moot the appeal from the district court's grant of a preliminary injunction and dismiss the other two appeals for lack of jurisdiction.

FACTUAL AND PROCEDURAL BACKGROUND

IATSE, an international labor organization, filed an action in district court against its Local 44 and officers to obtain a court order sanctioning the imposition of a trusteeship upon the Local. IATSE presented substantial evidence that appellants had engaged in a prolonged series of violations of the IATSE constitution, including financial malpractice and malfeasance, and intimidation, violence, and threats of violence against Local Union members and staff. In a consolidated action, Local 44 alleged that IATSE had violated section 302 of the Labor-Management Reporting and Disclosure Act of 1959, section 1962 of the Racketeering Influenced and Corrupt Organizations Act (RICO), the duty of fair representation, and fiduciary duty. Local 44 sought damages and an injunction prohibiting IATSE from, among other activities, interfering with Local 44's business operations.

The district court granted IATSE's request for a preliminary injunction prohibiting appellants from interfering with IATSE's imposition of the trusteeship and denied Local 44's requests that the judge recuse himself because of an appearance of impartiality and that the judge grant attorney fees to Local 44.

DISCUSSION

I. The appeal from the preliminary injunction must be dismissed as moot.

Appellee IATSE moved for dismissal on the ground that Local No. 44's appeal is moot. Local No. 44 appealed from the district court's grant of a preliminary injunction to IATSE prohibiting appellants from interfering with IATSE's imposition on Local No. 44 of a trusteeship pursuant to 29 U.S.C. § 462. On June 20, 1989, the local union, under the supervision of IATSE's appointed trustee, conducted an election for all officers. The elected candidates took office on June 26, 1989 and the trusteeship was dissolved. Because this court cannot give appellants any effective relief even if it ruled in appellants' favor, the appeal must be dismissed as moot and remanded to the district court with instructions to vacate its order granting the preliminary injunction. United States v. Munsingwear, 340 U.S. 36, 39 (1950) ("The established practice of the Court in dealing with a civil case from a court in the federal system which has become moot while on its way here or pending our decision on the merits is to reverse or vacate the judgment below and remand with a direction to dismiss."); accord, e.g., IBTCWHA Local Union No. 2702 v. Western Air Lines, Inc., et al., 854 F.2d 1178, 1178 (9th Cir. 1988) (dismissing an appeal from denial of an injunction prohibiting merger of two airlines where the merger occurred while appeal was pending, and citing Munsingwear) ; Fultz v. Rose, 833 F.2d 1380 (9th Cir. 1987) (dismissing an appeal and vacating the district court's judgment because of intervening events and citing Munsingwear) .

Appellants' underlying claims for damages before the district court are not mooted by the dissolution of the trusteeship. Similarly, the dissolution of the trusteeship does not moot any damages claims appellants might bring arising from the trustee's management of the union or supervision of the election. Pruitt v. United Brotherhood of Carpenters & Joiners of America, 659 F. Supp. 1511 (N.D. Ga. 1987). Therefore, dismissal on grounds of mootness will not leave appellants without relief.

II. We have no jurisdiction to hear appeals from the district judge's interlocutory orders denying appellants' motions for recusal and attorney fees.

Circuit courts of appeals do not have jurisdiction to hear other than final appeals, except as described in 28 U.S.C. § 1292. See 28 U.S.C. § 1291 (allowing appeals from final orders; implicitly barring jurisdiction over interlocutory orders not described in Sec. 1292); U-Haul Internat'l, Inc. v. Jartran, Inc., 793 F.2d 1034, 1037 (9th Cir. 1986). We ordinarily do not have jurisdiction over appeals from the denial of a motion for recusal. See, e.g., Baltuff v. United States, 35 F.2d 507 (9th Cir. 1929) (holding that there is no jurisdiction over an interlocutory order denying a motion for recusal); McColgan v. Lineker, 289 F. 253 (9th Cir. 1923) (same); Alexander v. Chicago Park District, 709 F.2d 463, 471 (7th Cir. 1983); 9 J. Moore, Federal Practice p 110.25 at 272 n. 14 ("An order rendered pursuant to statute governing disqualification of district judges is not appealable as of right pursuant to 28 U.S.C. 1292(a)."). Nor is an order regarding attorney fees appealable until after final judgment. See, e.g., Kordich v. Marine Clerks Ass'n, 715 F.2d 1392, 1393 (9th Cir. 1983); C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure Sec. 3915 at 356 (1988 Supp.) (noting "the rule that an interlocutory award of attorney fees before decision on the merits ordinarily cannot be appealed"). Appellant seems to assume that the right to appeal the preliminary injunction under section 1292(a) (1) also confers jurisdiction over the interlocutory denial of their motions for recusal and attorney fees. The principle that " 'on an appeal under Section 1292 the appellate court will be reluctant to delve any further into the merits than is necessary to resolve the particular questions made appealable by the statute,' " U-Haul Internat'l, Inc., 793 F.2d at 1037 (quoting 10 C. Wright, A. Miller & M. Kane, Federal Practice and Procedure Sec. 2658.1, at 78 (2d ed. 1983)); accord 9 J. Moore, supra, at p 110.25 at 270-71 ("Where an interlocutory appeal is taken, as from an order granting an injunction, the appellate court will not go any further into the merits of the case than is necessary to decide the matter upon appeal."), precludes jurisdiction over these issues even if the preliminary injunction issue were not now moot. See id.; Alexander, 709 F.2d at 4771 (holding that it would contravene settled judicial policy to permit intermediate appeal from an order denying recusal even though the court had jurisdiction over an appeal from an order denying a preliminary injunction, because full appellate review would be available after a final decision on the merits, "thus allowing for a full contextual assessment of any possible appearance of impropriety"). We therefore dismiss for lack of jurisdiction.

CONCLUSION

The appeal from the grant of the preliminary injunctions is dismissed as moot. The appeals from the interlocutory orders denying appellants' motion for recusal under section 455(a) and for attorney fees are not appealable until after final judgment and are therefore dismissed for lack of jurisdiction. We remand to the district court to vacate its order granting preliminary injunction and for further proceedings on the merits.

DISMISSED.