Evans v. Synopsys, Inc.

34 F.4th 762

Will EVANS; The Center For Investigative Reporting, Plaintiffs-Appellees,

v.SYNOPSYS, INC., Intervenor-Appellant,andU.S. Department of Labor, Defendant-Appellee.

Will Evans; The Center For Investigative Reporting, Plaintiffs-Cross-Appellants,

v.Synopsys, Inc., Intervenor-Cross-Appellee,andU.S. Department of Labor, Defendant.

Will Evans; The Center For Investigative Reporting, Plaintiffs,

v.Synopsys, Inc., Intervenor-Cross-Appellee,andU.S. Department of Labor, Defendant-Cross-Appellant.

No. 20-16416

No. 20-16538

No. 20-16826

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 4, 2021 San Francisco, California

Filed May 12, 2022

Robert M. Loeb (argued) and James A. Flynn, Orrick, Herrington & Sutcliffe LLP, Washington, D.C.; Denise M. Mingrone and Robert L. Uriarte, Orrick, Herrington & Sutcliffe LLP, Menlo Park, California; for Intervenor-Appellant/Cross-Appellee.

Casen B. Ross (argued) and Mark B. Stern, Appellate Staff; Stephanie M. Hinds, Acting United States Attorney; Brian M. Boynton, Acting Assistant Attorney General; Civil Division, United States Department of Justice, Washington, D.C.; for Defendant-Appellee/Cross-Appellant.

D. Victoria Baranetsky (argued), Center for Investigative Reporting, Emeryville, California; Steven A. Hirsch, Matthew M. Werdegar, and Joel F. Wacks, Keker, Van Nest & Peters LLP, San Francisco, California; for Plaintiff-Appellee/Cross-Appellant.

Katie Townsend, Adam A. Marshall, and Gunita Singh, Reporters Committee for Freedom of the Press, Washington, D.C., for Amici Curiae Reporters Committee for Freedom of the Press, and 33 Media Organizations.

John P. Elwood and Janine M. Lopez, Arnold & Porter Kaye Scholer LLP, Washington, D.C.; Tara S. Morrissey and Paul V. Lettow, U.S. Chamber Litigation Center, Washington, D.C.; for Amicus Curiae Chamber of Commerce of the United States of America.

Before: Richard R. Clifton and Michelle T. Friedland, Circuit Judges, and Michael J. McShane,^** District Judge.

FRIEDLAND, Circuit Judge:

This case began as a straightforward Freedom of Information Act ("FOIA") dispute, but it now presents a surprisingly complex civil procedure question: Did Synopsys, a prospective intervenor, file a timely notice of appeal?

Will Evans and The Center for Investigative Reporting (collectively, "CIR") brought a FOIA action against the U.S. Department of Labor ("DOL"), claiming that DOL was improperly withholding workforce demographic data that Synopsys and other companies had submitted pursuant to federal-contractor reporting regulations. The district court agreed and granted CIR summary judgment. Seven weeks after that judgment was entered—and eleven days before the deadline to file a notice of appeal—Synopsys moved to intervene as a defendant. Synopsys sought to assert a crossclaim against DOL and to appeal the district court's grant of summary judgment, if that judgment withstood its crossclaim. About five months after the deadline for filing a notice of appeal of the judgment, the district court denied Synopsys's motion to intervene for the purpose of asserting the crossclaim but granted Synopsys limited intervention for the sole purpose of appealing the judgment. Synopsys then filed a notice of appeal of the judgment. CIR and DOL filed notices of cross-appeal of the district court's partial grant of Synopsys's motion to intervene.

For the reasons below, we hold that Synopsys failed to timely appeal the district court's grant of summary judgment. We therefore dismiss Synopsys's appeal of that judgment for lack of appellate jurisdiction, and we dismiss as moot CIR's and DOL's cross-appeals.¹

I.

In early 2018, Will Evans, a reporter employed by CIR, was investigating diversity in the technology industry. He submitted a FOIA request to DOL, seeking reports containing the employment data of fifty-five federal contractors ("EEO-1 reports"). An EEO-1 report contains a one-page table that breaks down a company's U.S. workforce by job category, sex, and race. Many federal contractors, including Synopsys, must file an EEO-1 report every year with DOL. See 41 C.F.R. § 60-1.7(a). DOL uses EEO-1 reports to monitor compliance with an executive order prohibiting employment discrimination by federal contractors. See Exec. Order No. 11,246, 30 Fed. Reg. 12,319 (Sept. 28, 1965). DOL informed CIR that, of the fifty-five companies listed in the FOIA request, DOL had identified responsive EEO-1 reports from thirty-six.

DOL notified the relevant companies that it had received a FOIA request for their EEO-1 reports. DOL told the companies that it believed the reports could be released but that, pursuant to DOL regulation, it was providing them an opportunity to object "on grounds that specific information contained therein is exempt from mandatory disclosure such as Exemption 4 of the FOIA." Exemption 4 covers "trade secrets and commercial or financial information obtained from a person and privileged or confidential." 5 U.S.C. § 552(b)(4). Twenty of the thirty-six companies, including Synopsys, submitted written objections to the release of their reports. In response, DOL agreed that their reports were "exempt from mandatory disclosure pursuant to Exemption 4 of the FOIA" and that DOL would decline to release them. DOL then sent CIR the non-objecting companies' reports.

By April 2019, DOL was still withholding the twenty EEO-1 reports. CIR concluded that it had exhausted its administrative remedies and filed a Complaint for injunctive relief in the United States District Court for the Northern District of California.

As the litigation progressed, more companies consented to the release of their EEO-1 reports. By August 2019, ten reports—including Synopsys's—remained undisclosed. CIR and DOL filed cross-motions for summary judgment on whether DOL could withhold the undisclosed reports under FOIA Exemption 4 as records that contained "commercial information" that was "confidential."

In a December 10, 2019 summary judgment order, the district court granted CIR's motion for summary judgment and denied DOL's. It entered judgment for CIR the same day. The court ordered DOL to disclose the remaining EEO-1 reports within thirty days. Consistent with a stipulation by the parties, the court extended DOL's disclosure deadline so it coincided with the deadline to appeal the judgment: February 10, 2020.

DOL subsequently informed Synopsys that it had decided not to appeal. Two days later, on January 30, 2020, Synopsys took three litigation steps. First, it moved to intervene in the FOIA action, explaining that it sought intervenor status to assert a reverse-FOIA crossclaim against DOL and to appeal the judgment if it did not prevail on that crossclaim.² Second, Synopsys filed an emergency motion in the district court to stay the release of the EEO-1 reports. Third, Synopsys filed a new action with a reverse-FOIA claim substantively identical to the crossclaim it was attempting to bring against DOL in the FOIA action. CIR and DOL opposed Synopsys's motion to intervene.

On February 4, 2020—six days before the deadline to appeal the judgment—the district court granted Synopsys's emergency motion for a stay. The court wrote: "This stay prevents the disclosure of the EEO-1 [reports] that was scheduled to occur on February 10, 2020, and preserves Synopsys's time to appeal the [summary judgment] order should the motion to intervene be ultimately granted in whole or in part."³ The February 10 appeal deadline then passed without Synopsys or anyone else filing a notice of appeal.

Briefing on the motion to intervene was completed in early March of 2020. About a month later, DOL filed a motion for leave to file a supplemental brief, in which it reasoned that Synopsys's time to appeal that judgment had expired, and Synopsys had also missed the deadline to move to extend its time to appeal. CIR later joined that argument. Synopsys opposed, arguing that because it had not yet been granted party status, it did not have an appeal deadline and could not have sought an extension of its time to appeal. The district court denied DOL's motion to file the supplemental brief and did not opine on the merits of DOL's argument, writing that "the issue regarding the timeliness of an appeal is typically adjudicated by the Court of Appeals."

In July 2020, the district court ruled on Synopsys's motion to intervene. The court denied the motion as untimely to the extent intervention was sought to assert a crossclaim. The court did, however, grant Synopsys intervenor status for the limited purpose of appealing the judgment. The court further stated: "The stay in this case shall be lifted in 7 days, after which Synopsys shall have 6 days to timely file a notice of appeal."

Two days later, on July 22, 2020, Synopsys filed a notice of appeal of the judgment. CIR and DOL then each filed a timely notice of cross-appeal, challenging the order granting Synopsys intervention to appeal the judgment. The court entered an order, pursuant to a stipulation by the parties, keeping the stay in place pending the appeals.

II.

We must determine whether Synopsys's appeal of the judgment is timely. The district court granted CIR's motion for summary judgment on December 10, 2019 and entered judgment the same day. The deadline for a party to file a notice of appeal was February 10, 2020. See 28 U.S.C. § 2107(b) ; Fed. R. App. P. 26(a)(1)(C). Synopsys filed a notice of appeal on July 22, 2020. Synopsys nonetheless urges us to hold that its appeal is timely. It argues primarily that the time to appeal prescribed by § 2107(b) applies only to parties and not to prospective intervenors. Synopsys also advances two alternative arguments: first, that the district court acted within its authority to extend Synopsys's time to appeal by construing its motion to intervene or its motion for an emergency stay as a motion to extend its time to appeal, and second, that Synopsys's motion to intervene was itself a timely notice of appeal. We reject...