[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
FILED
No. 07-12012 U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
________________________ FEBRUARY 24, 2009
THOMAS K. KAHN
D. C. Docket No. 98-06056-CV-JAL CLERK
MICCOSUKEE TRIBE OF INDIANS OF FLORIDA,
FRIENDS OF THE EVERGLADES,
Plaintiffs-Appellants,
UNITED STATES ARMY CORPS OF ENGINEERS, et al.,
Intervenor-Plaintiffs,
versus
SOUTH FLORIDA WATER MANAGEMENT DISTRICT,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(February 24, 2009)
Before DUBINA and CARNES, Circuit Judges, and GOLDBERG,* Judge.
CARNES, Circuit Judge:
This is a tale of two cases, one of which is before us in this appeal. The
cases are six and eleven years old and together have generated more than twelve
hundred docket entries in the district court. One case has been to the Supreme
Court, where it was remanded back to us, and then we sent it along to the district
court in 2004; the other one went to trial for two months in 2006. The two cases
have a lot in common.
They share the same plaintiffs (the Miccosukee Tribe and the Friends of the
Everglades) and the same defendant (the South Florida Water Management
District), and they both present the issue of whether the Clean Water Act requires
the Water District to obtain National Pollution Discharge Elimination System
(NPDES) permits for its pump stations. One lawsuit, the “S-2 case,” claims that
permits are required for pump stations S-2, S-3, and S-4, which move polluted
water from the Everglades Agricultural Area canals into Lake Okeechobee. The
present lawsuit, the “S-9 case,” claims that a permit is required for pump station S-
*
Honorable Richard W. Goldberg, Judge, United States Court of International Trade,
sitting by designation.
2
9, which moves polluted water from the C-11 canals into Water Conservation Area
3A (WCA-3A).
After the S-2 case was tried to final judgment in 2006, the district court
stayed its proceedings in the S-9 case pending appeal of the S-2 judgment. The
appeal of the S-2 judgment is still pending in this Court. See Friends of the
Everglades, Inc. v. S. Fla. Water Mgmt. Dist., 2006 WL 3635465 (S.D. Fla. Dec.
11, 2006), No. 07-13829 (appeal docketed Aug. 13, 2007).
This appeal challenges the stay order that the district court on its own
motion entered in the S-9 case pending the outcome of the appeal in the other case.
The first, and as it turns out, the last issue we need to address is whether we have
jurisdiction to review the stay order under 28 U.S.C. § 1291. The jurisdiction
question requires us to decide whether the stay order in this case put the plaintiffs
“effectively out of court” and whether the collateral order doctrine applies here.
I.
A.
This case was filed in the district court in January 1998. The Friends of the
Everglades and the Miccosukee Tribe sued the Water District,1 contending that its
1
The Miccosukee Tribe and Friends of the Everglades initially filed separate lawsuits
against the Water District, but the cases were consolidated in May 1998.
3
S-9 pump station required an NPDES permit. In 1999 the district court granted
summary judgment to the plaintiffs because the court found that the S-9 pump
qualified as a point source and moved polluted water from one distinct water body
into another. Miccosukee Tribe of Indians v. S. Fla. Water Mgmt. Dist., 1999 WL
33494862, at *7 (S.D. Fla. Sept. 30, 1999). We affirmed the district court’s ruling
on the Clean Water Act issue. Miccosukee Tribe of Indians v. S. Fla. Water
Mgmt. Dist., 280 F.3d 1364, 1371 (11th Cir. 2002).
The Supreme Court granted review and decided that the S-9 pump was a
point source under the Clean Water Act. The Court, however, did not decide
whether the C-11 canals and WCA-3A were “meaningfully distinct” water bodies.
See S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe of Indians, 541 U.S. 95, 112,
124 S. Ct. 1537, 1547 (2004). Instead, the Court remanded the case for further
factfinding on that point and for consideration of the Water District’s “unitary
waters” argument. Id. Under the unitary waters theory all navigable waters are
considered to be one body of water, so that moving a pollutant from one navigable
water to another would not amount to the “addition of a pollutant to the navigable
waters” under the Clean Water Act. Id. at 107–09, 124 S. Ct. at 1543–45. If that
theory holds water, the Water District would not need an NPDES permit even if
the water conservation area and the canals were meaningfully distinct water
4
bodies. Id. We remanded the case to the district court for further proceedings in
November 2004. It has been pending there ever since.
B.
The parallel S-2 case, which concerns whether the Water District’s other
pumps (S-2, S-3, and S-4) require an NPDES permit, was filed by the same
plaintiffs (and some others) against the same defendant in 2002. The proceedings
in the S-2 case were stayed for nineteen months until the Supreme Court’s
decision in the S-9 case was issued. See Miccosukee, 541 U.S. 95, 124 S. Ct.
1537. Then the S-2 case was re-opened.
In January 2006 the S-2 case went to trial, which lasted nearly two months
and involved more than a dozen expert witnesses and one hundred and fifty
exhibits. The district court issued a 107-page ruling concluding that the
Everglades Agricultural Area canals and Lake Okeechobee— the water bodies
connected by the S-2, S-3, and S-4 pumps— were meaningfully distinct water
bodies, and that the pumps required an NPDES permit because they moved
pollutants from the canals into the Lake. Friends of the Everglades v. S. Fla.
Water Mgmt. Dist., 2006 WL 3635465, at *51 (S.D. Fla. Dec. 11, 2006). In the
course of reaching that conclusion, the court rejected the Water District’s unitary
waters theory. Id. at *43.
5
C.
Meanwhile, this case—back from its trip to the Supreme Court— was being
handled in the same district by a different judge. In light of the S-2 decision, and
without a request from the parties, she issued a stay in this case. The stay order
stated that “it is extremely likely that an appeal is forthcoming in [the S-2 case],
which is much further along in its proceedings than the instant [S-9] case.” The
order noted “extensive similarities” between the issues in the cases and found that
“the interests of justice and judicial economy, including avoiding inconsistent
results, the duplication of efforts, and the waste of judicial resources, will be
promoted by granting a stay of this proceeding.” Unless extended by written
order, the stay was to expire after one year or at the conclusion of the appeals of
the S-2 case, whichever came first.2 This is the Miccosukee Tribe and the Friends
of the Everglades’ appeal from the stay order.
II.
The Friends of the Everglades and the Miccosukee Tribe contend that the
district court abused its discretion in entering the stay. The Water District
contends that we lack jurisdiction to decide that. Jurisdiction is a threshold issue.
2
The initial stay was issued in March of 2007. In July 2008, the plaintiffs filed a notice
that the stay had lapsed and requested a trial. The district court instead renewed the stay for one
more year under the same terms as the first one.
6
See Parents Involved in Cmty. Sch. v. Seattle Sch. Dist., ___ U.S. ___, 127 S. Ct.
2738, 2750 (2007); King v. Cessna Aircraft Co., 505 F.3d 1160, 1165 (11th Cir.
2007).
The key provision, 28 U.S.C. § 1291, states: “The courts of appeals . . .
shall have jurisdiction of appeals from all final decisions of the district courts of
the United States . . . .” Ordinarily a stay order is not a final decision for purposes
of § 1291. Moses H. Cone Mem. Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 10
n.11, 103 S. Ct. 927, 934 n.11 (1983) (“[T]he usual rule [is] that a stay is not
ordinarily a final decision for purposes of § 1291, since most stays do not put the
plaintiff ‘effectively out of court.’”). Using a “practical construction” of finality,
however, the Supreme Court has blazed through the jurisdictional thicket several
paths by which a stay order may be considered a final decision. See Swint v.
Chambers County Comm’n, 514 U.S. 35, 41–42, 115 S. Ct. 1203, 1207–08 (1995)
(referring to the collateral order doctrine “not as an exception to the ‘final
decision’ rule laid down by Congress in § 1291, but as a ‘practical construction’ of
it” (citations omitted)). Our plaintiffs, the Friends of the Everglades and the
Miccosukee Tribe, contend that two of those practical construction paths can get
them to the higher ground of appellate jurisdiction.
7
A.
The first of those paths, according to the plaintiffs, is the one staked out in
Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 715 n.2, 82 S. Ct.
1294, 1296 n.2 (1962), which recognized that a stay leaving a party “effectively
out of court” is a final order appealable under § 1291. See also Cessna Aircraft,
505 F.3d at 1165–66.
Ordinarily a party is “effectively out of court” when a federal court stays its
hand pending the conclusion of related state court or state administrative
proceedings. See Idlewild, 370 U.S. at 715, 82 S. Ct. at 1296 (holding that
abstention under the Pullman doctrine to allow a state court to interpret and clarify
state law put plaintiff effectively out of court); Quackenbush v. Allstate Ins. Co.,
517 U.S. 706, 116 S. Ct. 1712 (1996) (holding that a remand order under the
Burford abstention doctrine to allow a state administrative agency to decide the
issue put plaintiff effectively out of court); Moses H. Cone, 460 U.S. at 10–13,
103 S. Ct. at 934–35 (holding that a stay granted under the Colorado River
abstention doctrine to allow a state court to address the central issue of the lawsuit
put plaintiff effectively out of court).
The Idlewild, Moses H. Cone, and Quackenbush decisions establish the
foundation of the “effectively out of court” finality rule. See Cessna Aircraft, 505
8
F.3d at 1166–68. Concerns about protecting federal court decisional authority
underlie all three of those decisions. Moses H. Cone, 460 U.S. at 10 n.11, 103 S.
Ct. 934 (“Idlewild’s reasoning is limited to cases where . . . the object of the stay is
to require all or an essential part of the federal suit to be litigated in a state
forum.”); Quackenbush, 517 U.S. at 714, 116 S. Ct. at 1719 (noting that the
remand to state court was “precisely to surrender jurisdiction of a federal suit to a
state court.”).
Even though the effectively out of court doctrine has its roots in concerns
about federal courts’ surrendering decisional authority to state courts, its branches
have spread beyond that. In a handful of cases we have found jurisdiction to
review orders granting stays pending litigation in non-state forums, including the
Italian courts in Cessna Aircraft, 505 F.3d at 1169; the Iran-United States Claims
Tribunal in CTI-Container Leasing Corp. v. Uiterwyk Corp., 685 F.2d 1284 (11th
Cir. 1982); and the EEOC in Hines v. D’Artois, 531 F.2d 726 (5th Cir. 1976).3
See also Ortega Trujillo v. Conover & Co. Commc’ns, Inc., 221 F.3d 1262 (11th
Cir. 2002) (jurisdiction assumed where stay granted pending litigation in the
Bahamian courts).
3
In our en banc decision in Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th
Cir.1981), we adopted as binding precedent all decisions of the former Fifth Circuit handed down
prior to October 1, 1981.
9
The Cessna Aircraft case stemmed from an airplane collision in Italy. 505
F.3d at 1163. The district court stayed an American plaintiff’s lawsuit to await the
Italian courts’ resolution of whatever issues might be raised in future litigation
there. Id. at 1163–64. Even though the stay had not been issued in favor of a state
court, we explained that the “differences between federalism and international
comity . . . . do not, however, affect the extent to which a plaintiff is placed
‘effectively out of court,’ which is the measure that defines our appellate
jurisdiction over stay orders.” Id. at 1169–70. The plaintiff in Cessna Aircraft
was effectively out of court under Idlewild and Moses H. Cone because that
doctrine applies “when a federal court stays its hand to allow another [type of]
court to assume partial jurisdiction over the merits of the suit.” Id. at 1169. See
also Moses H. Cone, 460 U.S. at 9 n.8, 103 S. Ct. at 933 n.8 (effectively out of
court means “out of federal court—in keeping with the fact that the decision under
appeal is the refusal to exercise federal jurisdiction”).
The present case is unlike the traditional effectively out of court cases
because this stay was not issued pending the conclusion of state court or
administrative proceedings, and it is unlike Cessna Aircraft because the stay was
not issued pending foreign court proceedings. It was issued pending the outcome
of other litigation in federal court—the appeal of a lawsuit filed in the same
10
district court. The Southern District of Florida simply had two lawsuits raising
some potentially dispositive issues common to both. After one judge entered
judgment in the case before her, the second judge stayed her case to await the
outcome of an appeal of that final judgment. To the extent jurisdiction was
“surrendered” to any court, see Quackenbush, 517 U.S. at 714, 116 S. Ct. at 1719,
it was not to a state court or to a foreign court. Instead, it was surrendered to this
Court, the same one that would decide any appeal from any final judgment in the
stayed case, if the proceedings had not been stayed.
Our plaintiffs are not being forced to litigate their case in a non-federal
court in derogation of the federal courts’ “virtually unflagging obligation . . . to
exercise the jurisdiction given them.” Colorado River Water Conservation Dist. v.
United States, 424 U.S. 800, 817, 96 S. Ct. 1236, 1246–47 (1976). The Supreme
Court noted in Colorado River that “as between state and federal courts, the rule is
that the pendency of an action in the state court is no bar to proceedings
concerning the same matter in the Federal court having jurisdiction . . . . As
between federal district courts, however, though no precise rule has evolved, the
general principle is to avoid duplicative litigation.” 424 U.S. at 817, 96 S. Ct. at
1246 (citations omitted). Avoiding duplicative federal litigation is the reason the
stay was entered in this case. Because it does not require the federal court
11
plaintiffs to await a decision from a non-federal court or other tribunal, they have
not been put effectively out of court in the traditional way.
The plaintiffs argue, however, that they can satisfy the effectively out of
court doctrine by showing that their case has been placed in an “extended state of
suspended animation” even though it was suspended to await the result of another
federal court action. See Hines, 531 F.2d at 730.
In Hines the plaintiffs sued representatives of the Shreveport police under §
1981 and Title VII seeking redress for “a broad range of racially discriminatory
practices” in the police force. 531 F.2d at 728. The district court stayed the case
until the plaintiffs pursued their EEOC remedies under Title VII. Id. at 728–29.
The stay would have put the federal court proceedings—including the statutorily
independent § 1981 claims for which there was no EEOC remedy—on hold for
anywhere from one and a half to five and a half years. Id. at 731–32. The Hines
Court characterized the result as “an extended state of suspended animation,” id. at
730, imposed without any “reasonable possibility that the EEOC conciliation
efforts [would] be productive.” Id. at 731. It concluded that in those
circumstances the stay had put the plaintiffs effectively out of court. “For the
purposes of expedition and certainty, the parties here would have been served just
as well by a stay pending the arrival of Godot.” Id. at 731–32. Although Hines
12
pre-dated the clear distinction between the Idlewild (effectively out of court) and
Cohen (collateral order) doctrines, we have since applied Hines’ “suspended
animation” concept as part of the effectively out of court doctrine in Am. Mfrs.
Mut. Ins. Co. v. Stone, 743 F.2d 1519, 1524 (11th Cir. 1984).
It cannot be, however, that any state of suspended animation places a
plaintiff effectively out of court and confers appellate jurisdiction under § 1291. If
that were the case, then every stay would be an appealable final order because
every stay suspends the animation of a case. And we know that not every stay is
appealable. Moses H. Cone, 460 U.S. at 10 n.11, 103 S. Ct. at 934 (“[A] stay is
not ordinarily a final decision for purposes of § 1291, since most stays do not put
the plaintiff ‘effectively out of court.’”). The plaintiffs’ argument sweeps too
much into its net.
The suspended animation cases in which the stay has been held to be
appealable, and there are only four,4 all share one characteristic that the present
case lacks. They all involved stays resulting in indefinite delays pending the
outcome of proceedings that were unlikely to control or to narrow substantially the
claims or unresolved issues in the stayed lawsuit. See Hines, 531 F.2d at 736–37
4
Arguably there are only three of them; Cessna Aircraft does not cite the “suspended
animation” formulation of Hines, but could fall under it. 505 F.3d at 1163–70.
13
(holding that a stay of a lawsuit raising § 1981 claims pending an EEOC
proceeding for distinct Title VII claims put the plaintiffs effectively out of court
because the delay would last for years without any “reasonable probability that the
EEOC conciliation efforts will be productive”); CTI, 685 F.2d at 1287–88
(holding that a stay in a case between two American companies to await action by
the Iran-United States Claims Tribunal on the defendant’s claim against Iran put
the plaintiff effectively out of court in part because the defendant’s claims against
Iran were “contingent upon a finding in the district court”); Stone, 743 F.2d at
1523–24 (holding that a stay granted to await the outcome of related state-court
litigation put the plaintiff effectively out of court because the parties agreed that
“the state lawsuit will not decide the issues presented in [the plaintiff]’s federal
claim,” meaning that the federal case had been subjected to “an indefinite and
unnecessary delay”); Cessna Aircraft, 505 F.3d at 1172 (holding that a stay issued
to await proceedings in Italian court put the plaintiff effectively out of court in part
because there was “no assurance at all that the Italian proceedings will directly
relate to the issues in this lawsuit”).
Effectively out of court by suspended animation is a narrow doctrine that
applies only when a case is placed in an “extended state of suspended animation”
without good reason. See Hines, 531 F.2d at 730. In Hines, CTI, Stone, and
14
Cessna Aircraft, the plaintiffs’ federal claims languished for no good reason
because there was little likelihood that the other forums’ decisions would control
or significantly inform the litigation.
In this case, however, the reason for the district court’s stay was at least a
good one, if not an excellent one: to await a federal appellate decision that is
likely to have a substantial or controlling effect on the claims and issues in the
stayed case. The central question in both the S-2 case and in this S-9 case is
whether, under the Clean Water Act, the Water District must acquire NPDES
permits for its enormous pumps. In one case some of those pumps move polluted
water from canals into a water conservation area, and in the other case the pumps
move polluted water from different canals into Lake Okeechobee. The central
argument for the Water District, as supported by an EPA regulation, is the “unitary
waters theory.” If we accept that theory in the S-2 appeal, it will wash out the
plaintiffs’ S-2 case entirely and also will flood most of their S-9 case.5 But if we
reject the unitary waters theory, then the S-9 case would remain on dry ground and
proceed to a determination of whether the canals and water conservation area
involved in that case are “meaningfully distinct” water bodies. Even that finding,
5
The plaintiffs have argued that the S-9 pump, unlike the S-2 pumps, also adds pollution
in the form of turbidity. Though this issue would remain in the S-9 case regardless of the
outcome of the S-2 case, it is only a small part of the S-9 case.
15
however, would be substantially guided by our determination in the S-2 case of
what “meaningfully distinct” means and by our application of that standard to the
canals and lake involved in it.
Because the S-2 and S-9 cases are so similar, it appears that the district
court’s stay was designed to provide the parties with a special deal in which they
could get two outcomes for the price of one appeal. The plaintiffs, however, are
not interested in that bargain and insist that they have a right to proceed
immediately to trial with the S-9 case despite the pendency of an appeal in the S-2
case. But the effectively out of court doctrine, and its suspended animation
component, do not clear a path to appellate review of whether they have that right.
B.
A second potential path to appellate jurisdiction is the collateral order
doctrine. See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S. Ct. 1221
(1949). “To come within the ‘small class’ of decisions excepted from the
final-judgment rule by Cohen, the order must [1] conclusively determine the
disputed question, [2] resolve an important issue completely separate from the
merits of the action, and [3] be effectively unreviewable on appeal from a final
judgment.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S. Ct. 2454,
16
2458 (1978); Carpenter v. Mohawk Indus., Inc., 541 F.3d 1048, 1052 (11th Cir.
2008).
The Supreme Court has insisted that each part of the Cohen test is
“stringent,” which keeps the doctrine “narrow and selective in its membership.”
Will v. Hallock, 546 U.S. 345, 349–50, 126 S. Ct. 952, 957–58 (2006) (“[W]e
have not mentioned applying the collateral order doctrine recently without
emphasizing its modest scope.”); Digital Equip. Corp. v. Desktop Direct, Inc., 511
U.S. 863, 868, 114 S. Ct. 1992, 1996 (1994) (“The ‘narrow’ exception should stay
that way and never be allowed to swallow the general rule that a party is entitled to
a single appeal, to be deferred until final judgment has been entered. . . .” (citation
omitted)). The reason for the stringency of the doctrine’s requirements—for the
narrowness and modesty of its reach—is the fear that a robust collateral order
doctrine would “overpower the substantial finality interests § 1291 is meant to
further: judicial efficiency, for example.” Will, 546 U.S. at 350, 126 S. Ct. at 958.
Consistent with the Court’s confinement of the collateral order doctrine,
each part of the Cohen test is a critical condition for jurisdiction. Feldspar
Trucking Co. v. Greater Atlanta Shippers’ Ass’n., 849 F.2d 1389, 1392 (11th Cir.
1988) (“If any one criteria is not met, jurisdiction cannot be invoked. . . .”). In this
17
case, we need not address the first and third conditions because the second is not
satisfied.
The second condition under Cohen is that the stay order must “resolve an
important issue completely separate from the merits of the action.” Moses H.
Cone, 460 U.S. at 11, 103 S. Ct. at 934. A decision to grant a stay is “separate
from the merits,” but it must also raise an “important issue,” which means that an
important right is at stake. Id. The Supreme Court has observed that “[t]he
importance of the right asserted has always been a significant part of our collateral
order doctrine.” Will, 546 U.S. at 352, 126 S. Ct. at 959 (quoting Lauro Lines
S.R.L. v. Chasser, 490 U.S. 495, 502, 109 S. Ct. 1976, 1980 (1989) (Scalia, J.,
concurring)). The doctrine requires “a judgment about the value of the interests
that would be lost through rigorous application of a final judgment requirement.”
Id. at 351–52, 126 S. Ct. at 959 (quoting Digital Equip. Corp., 511 U.S. at 878–79,
114 S. Ct. at 2001).
Examples of “important issues” significant enough to justify immediate
appellate jurisdiction under the collateral order doctrine include denials of the
defenses of absolute presidential immunity, qualified immunity, Eleventh
Amendment immunity, and double jeopardy. Will, 546 U.S. at 352, 126 S. Ct. at
18
959. In all of these cases, “a substantial public interest” existed in taking an
immediate appeal. Id. at 353, 126 S. Ct. at 959.
In Moses H. Cone the Court held that the stay order in that case involved a
public interest important enough to satisfy the collateral order doctrine. 460 U.S.
at 12, 103 S. Ct. at 935. The lawsuit sought to compel arbitration in a contract
dispute. Id. at 7, 103 S. Ct. at 932. Because a lawsuit between the same parties
presenting the same question was already underway in state court, the district
court stayed the federal proceedings to await the state court’s judgment. Id. Once
the state court judgment was issued the federal court would have to give it res
judicata effect, id. at 10, 103 S. Ct. at 934, and as a result meaningful federal
review of the arbitration question would have been impossible. The Court stated
that there was “no dispute that this order meets the second . . . [collateral order
doctrine] criteria. An order that amounts to a refusal to adjudicate the merits
plainly presents an important issue separate from the merits.” Id. at 12, 103 S. Ct.
at 934.
At first glance, it appears that any stay granted to await another court’s
controlling resolution of shared issues would “amount[] to a refusal to adjudicate
the merits,” meeting the Moses H. Cone requirement of an important issue for
Cohen purposes. On second glance, however, the federal court’s stay in Moses H.
19
Cone meant that a state court would resolve the issue. 460 U.S. at 35, 103 S. Ct. at
947 (Rehnquist, J., dissenting) (“The issue here was whether the factual question
whether there was an agreement to arbitrate should be adjudicated in a state or
federal court.”). The Supreme Court later clarified the distinction when it stated in
Quackenbush: “We determined [in Moses H. Cone] that a stay order based on the
Colorado River doctrine presents an important issue separate from the merits
because it amounts to a refusal to adjudicate the case in federal court.” 517 U.S. at
713, 116 S. Ct. at 1719 (quotation marks omitted).
In other words, a decision to grant a stay pending the outcome of other
litigation may or may not be an important issue. In Moses H. Cone, the stay issue
was “important” because it involved a federal court surrendering its jurisdiction
over a case to a state court. That implicated the federal courts’ “virtually
unflagging obligation” to decide cases over which they have jurisdiction.
Colorado River, 424 U.S. at 817, 96 S. Ct. at 1246. There is a sufficiently strong
public interest in federal courts exercising their jurisdiction when it exists to place
Moses H. Cone in the company of other important issue cases, such as those
involving the denial of immunity and double jeopardy defenses.
The stay in this case does not present an “important issue” as required by
the collateral order doctrine. See Coopers & Lybrand, 437 U.S. at 468, 98 S. Ct. at
20
2458. There are no issues of federalism or international comity to add weight and
finality to the district court’s stay order. See Kershaw v. Shalala, 9 F.3d 11, 14
(5th Cir. 1993) (“[T]he Moses Cone exception should not apply[] where a district
court enters an order staying its own proceedings in favor of other proceedings
within the same federal judicial system.”). Instead, in this case the plaintiffs
assert, in effect, that there is a public interest in their being allowed to proceed
with two federal lawsuits at the same time even though they raise common issues.
Specifically, the plaintiffs want to proceed in the Southern District of Florida with
their S-9 case while the appeal on the merits of their parallel S-2 case is pending in
this Court. There is no “substantial public interest,” Will, 546 U.S. at 353, 126 S.
Ct. at 959, in their being allowed to do so.6 Because the issue is not an important
one within the meaning of Cohen’s second condition, see Moses H. Cone, 460
6
Withholding decision in a case to await guidance from a higher court in a different case
is not an unusual event. It happens with some regularity in the district courts, and from time to
time we have done it ourselves. To give but one example, in Cunningham v. Billy, No. 07-
10808, after oral argument we issued a notice that no decision would be forthcoming in that case
until we had the benefit of the Supreme Court’s decision in Dist. Atty’s Office v. Osborne, 129
S. Ct. 488 (cert. granted Nov. 3, 2008).
Similarly, proceedings in the S-2 case were stayed by the district court in 2003 to await
the Supreme Court’s decision in the present case. See Miccosukee, 541 U.S. at 95, 124 S. Ct.
1537. That stay, which the Friends of the Everglades asked for, lasted nineteen months. At no
time did any party assert that the stay had put them out of court or that there was a substantial
public interest in pressing ahead in the S-2 case while the S-9 case was pending on appeal.
21
U.S. at 12, 103 S. Ct. at 934, that path to appellate jurisdiction is not open to the
plaintiffs.
III.
For all of these reasons, the Friends of the Everglades and the Miccosukee
Tribe have not demonstrated that § 1291 or any of its “practical constructions”
apply. We lack jurisdiction to hear the appeal of the district court’s stay order.
APPEAL DISMISSED FOR LACK OF JURISDICTION.
22