Appeal from the United States District Court for the Central District of California. D.C. No. CV-91-4249-R. Manuel L. Real, Chief Judge, Presiding.
Before: William C. Canby, Jr., Robert R. Beezer, and Pamela Ann Rymer, Circuit Judges. Opinion by Judge Canby.
Michael Jackson is a California condemned prisoner at San Quentin State Prison. After receiving from the federal district court a number of stays of execution to allow him time to prepare a habeas corpus petition, Jackson filed an ex parte request for an order compelling Daniel Vasquez, warden of the prison, to transport Jackson to the University of California at Irvine, College of Medicine, so that Jackson could undergo a brain scan.
Without giving the Warden notice of the request or an opportunity to respond, the district court issued the order and sealed Jackson's pleadings. The order requires the Warden to transport Jackson to the medical facility at Irvine, to remain with Jackson while the brain scan is administered and to return Jackson to San Quentin. The order provides that the Warden will bear the costs of transporting, housing and guarding Jackson during the trip.
The Warden filed a motion to vacate the order, which the district court denied after a hearing on the matter. The Warden then filed a series of motions and objections seeking to vacate the order and to unseal Jackson's pleadings, but the district court denied all such relief.
At the Warden's request, we issued an emergency stay of the transportation order. While the Warden's appeal of the order was pending, Jackson asked the district court to reissue the transportation order, setting a new date for compliance. The district court granted Jackson's request and we subsequently stayed that order. The Warden challenges both the original and the reissued orders in this appeal.
This appeal presents the question whether the district court has the authority to issue, upon a potential habeas corpus petitioner's ex parte request, a coercive order against a warden requiring him to transport a prisoner for medical tests. Before reaching that question, however, we must determine whether we have jurisdiction to entertain this appeal.
Section 1291 of the Judicial Code gives the appeals courts jurisdiction over "all final decisions of the district courts." 28 U.S.C. § 1291 (1966). Ordinarily, a decision is not considered final unless it "'ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.'" Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 275, 99 L. Ed. 2d 296, 108 S. Ct. 1133 (1988) (quoting Catlin v. United States, 324 U.S. 229, 233, 89 L. Ed. 911, 65 S. Ct. 631 (1945)). The district court's transportation order does not end any litigation on the merits and therefore is not final in this sense.
Under the collateral order doctrine, however, orders that "'finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated'" are considered final, and therefore appealable under section 1291, even though they do not terminate an action or any part of it. Id. at 276 (discussing Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546-47, 93 L. Ed. 1528, 69 S. Ct. 1221 (1949)); see generally, 15A Charles Wright et al., Federal Practice & Procedure, § 3911 (1992).
To be appealable under the collateral order doctrine, the district court's transportation order must satisfy three criteria. First, it must conclusively determine the disputed question. Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 57 L. Ed. 2d 351, 98 S. Ct. 2454 (1978). Second, it must resolve an important issue that is completely separate from the merits of the action. Id. Third, it must be ...