Qwest Corporation v. Level 3 Communications LLC

FILED
NOT FOR PUBLICATION MAR 26 2010

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

QWEST CORPORATION, No. 08-15887

Plaintiff - Appellee, D.C. No. 2:06-CV-02130-SRB

v.
MEMORANDUM *
ARIZONA CORPORATION
COMMISSION,

Defendant,

MIKE GLEASON et al.,

Defendants - Appellees,

LEVEL 3 COMMUNICATIONS, LLC,

Defendant - Appellant,

and

PAC-WEST TELECOMM, INC.,

Defendant,

Appeal from the United States District Court
for the District of Arizona
Susan R. Bolton, District Judge, Presiding

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Argued November 4, 2009; Resubmitted February 19, 2010
San Francisco, California

Before: B. FLETCHER, CANBY, and GRABER, Circuit Judges.

Level 3 Communications, LLC ("Level 3"), and Qwest Corporation

("Qwest") entered into an Interconnection Agreement to provide for the exchange

of Internet Service Provider ("ISP")-bound traffic pursuant to the

Telecommunications Act of 1996 ("the Act"). The parties agreed to exchange

"ISP-bound traffic (as that term is used in the FCC [Federal Communications

Commission] ISP [Remand] Order) at the FCC ordered rate, pursuant to the FCC

ISP [Remand] Order." Level 3 filed a complaint with the Arizona Corporation

Commission ("Commission"), claiming that this provision required Qwest to pay

intercarrier compensation to Level 3 for virtual NXX calls (calls to a customer

whose area code bears no relation to its physical location). The Commission ruled

in favor of Level 3, and Qwest appealed to the district court. Level 3 now appeals

an order from the district court that remanded the case to the Commission.

We dismiss the appeal as being from a non-final order. A remand order

is considered final where (1) the district court conclusively resolves a
separable legal issue, (2) the remand order forces the agency to apply
a potentially erroneous rule which may result in a wasted proceeding,
and (3) review would, as a practical matter, be foreclosed if an
immediate appeal were unavailable.

2
Chugach Alaska Corp. v. Lujan, 915 F.2d 454, 457 (9th Cir. 1990). Here, the

remand order fails the third prong because denying an appeal now would not

foreclose review in the future. The district court in this case did not resolve

Qwest’s claims for relief, and it did not enter a final judgment. In fact, the district

court did not enter judgment on any of the issues presented by Qwest.

Our precedent instructs that a remand order may be considered a final,

appealable order only when "review would, as a practical matter, be foreclosed if

an immediate appeal were unavailable." Alsea Valley Alliance v. Dep’t of

Commerce, 358 F.3d 1181, 1184 (9th Cir. 2004) (internal quotation marks

omitted). Neither party is foreclosed from seeking appellate review, in the future,

of any legal determination made in the district court’s final order. Because the

remand order is not a final, appealable order, we must dismiss the appeal. See

Williamson v. UNUM Life Ins. Co. of Am., 160 F.3d 1247 (9th Cir. 1998)

(holding that a remand order was not a final order); Alsea Valley Alliance, 358

F.3d at 1184 (same).

DISMISSED.