Opinion
23-4067
06-27-2023
MERLIN SCOTT PHILLIPS; VICKIE PHILLIPS; S &V PHILLIPS DEVELOPMENT, Plaintiffs - Appellants, v. UNITED STATES ARMY CORPS OF ENGINEERS; SCOTT SPELLMON, Chief of Engineers, U.S. Army Corps, in his official capacity; JAMES HANDURA, District Engineer, Sacramento District Office, U.S. Army Corps, in his official capacity; MATTHEW WILSON, in his personal capacity; JASON GIPSON, in his personal capacity; MICHAEL JEWELL, in his personal capacity, Defendants - Appellees.
(D.C. No. 2:21-CV-00355-TS-DBP) (D. Utah)
Before TYMKOVICH, PHILLIPS, and EID, Circuit Judges.
ORDER
Plaintiffs-appellants Merlin Scott Phillips and Vickie Phillips own plaintiffappellant S&V Phillips Development, LLC, which owns two adjacent parcels of real property in Payson, Utah. In the case underlying this appeal, plaintiffs-appellants challenge the United States Army Corps of Engineers' approved jurisdictional determination (AJD) under Section 404 of the Clean Water Act, 33 U.S.C. § 455, and allege claims against the Corps and Corps officials in their individual and official capacities.
Appellants filed notice of their intent to appeal three interlocutory orders: the district court's August 24, 2022 order granting defendants' partial motion to dismiss [ECF No. 92]; its October 12, 2022 order denying plaintiffs' motion for summary judgment [ECF No. 99]; and its April 11, 2023 order denying reconsideration of the partial dismissal order, staying consideration of the remaining Administrative Procedure Act claim pending the United States Supreme Court's decision in Sackett v. Environmental Protection Agency, No. 21-454, and denying certification for interlocutory appeal under 28 U.S.C. § 1292(b) [ECF No. 124].
The district court case remains pending. Following the Supreme Court's decision in Sackett, the Corps filed a motion in the district court, seeking voluntary remand to consider the relevance of Sackett in the first instance. [ECF No. 135 (citing Sackett v. Envtl. Prot. Agency, No. 21-454, 143 S.Ct. 1322 (2023)]. The district court has not yet ruled on the motion to remand.
Upon receipt and review of appellants' docketing statement and review of the district court's docket, this court issued an order to show cause, directing appellants to respond and address any basis in law for this court to exercise jurisdiction over this appeal. Appellants filed a timely response, asserting that the orders they seek to appeal are appealable under 28 U.S.C. § 1292(a)(1) which provides for immediate appeal from interlocutory orders granting or denying injunctions. At the court's direction, appellees also filed a memorandum addressing the court's jurisdiction.
Appellants bear the burden to establish this court's jurisdiction. See Raley v. Hyundai Motor Co., 642 F.3d 1271 (10th Cir. 2011). Upon consideration of the parties' submissions, the district court docket, and the applicable law, the court holds that appellants have not met their burden and thus dismisses this appeal for the reasons set forth below.
This court's appellate jurisdiction is generally limited to review of final decisions. See 28 U.S.C. § 1291. A statutory exception to the "final judgment rule" allows the court to review the issuance or denial of injunctive relief, Miller v. Basic Research, LLC, 750 F.3d 1173, 1176 (10th Cir. 2014) (citing 28 U.S.C. § 1292(a)(1)), and in certain, limited circumstances, an order may be appealed because it was "a de facto denial of a preliminary injunction," rather than an express denial of that relief. See Office of Pers. Mgmt. v. Am. Fed'n of Gov't Emps., AFL-CIO, 473 U.S. 1301, 1305 (1985).
In the latter situation, however, jurisdiction is appropriate only where: (1) the order has the practical effect of granting or denying an injunction; (2) an immediate appeal "will further the statutory purpose of permitting litigants to effectually challenge interlocutory orders of serious, perhaps irreparable, consequence;" and (3) the order can be "effectually challenged only by immediate appeal." Miller, 750 F.3d at 1176 (citations and internal quotation marks omitted).
Appellants' appeal does not meet these criteria. The district court has neither granted nor denied any injunction, nor do its orders have the practical effect of doing so. The first order on appeal [ECF No. 92] granted appellees' motions to dismiss each of appellants' claims except their APA claim. The second [ECF No. 99] denied appellants' motion for summary judgment on the APA claim. The third [ECF No. 124] granted the Federal Defendants' Motion for Stay of Proceedings pending the United States Supreme Court's decision in Sackett v. EPA, No. 21-454 [see ECF No. 124] (which case the Supreme Court has now decided) and otherwise denied appellants' motions to reconsider, amend, or certify for interlocutory appeal ECF Nos. 92 and 99.
The only portion of any one of these three orders that prohibits or requires certain, specified activity is that portion of the district court's April 11, 2023 order that stays the underlying litigation pending the Supreme Court's decision in Sackett. However, a district court's decision to stay litigation "is not ordinarily a final decision for the purposes of § 1291." Crystal Clear Commc'ns, Inc. v. Sw. Bell Tel. Co., 415 F.3d 1171, 1175 (10th Cir. 2005) (quoting Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 10 n.11 (1983)); see also UFCW Loc. 880-Retail Food Emps. Joint Pension Fund, 276 Fed.Appx. 747, 749 n.3 (10th Cir. April 25, 2008) (unpublished) ("[A] stay order 'by a federal court that relates only to the conduct or progress of litigation before that court ordinarily is not considered an injunction and therefore is not appealable under § 1292(a)(1).'" (quoting Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 279 (1988))).
The Supreme Court has explained:
An injunction and a stay have typically been understood to serve different purposes. The former is a means by which a court tells someone what to do or not to do. When a court employs the extraordinary remedy of injunction, it directs the conduct of a party, and does so with the backing of its full coercive powers.Nken v. Holder, 556 U.S. 418, 428 (2009) (citation and internal quotation marks omitted). Conversely, "a stay operates upon the judicial proceeding itself" "either by halting or postponing some portion of the proceeding, or by temporarily divesting an order of enforceability." Id. Although "in a general sense, every order of a court which commands or forbids is an injunction; ... in its accepted legal sense, an injunction is a judicial process or mandate operating in personam," whereas "[a] stay is an intrusion into the ordinary processes of administration and judicial review." Id. at 427-28 (citations and internal quotation marks omitted).
The district court's order staying proceedings before it pending the Supreme Court's decision in Sackett merely suspended the ordinary course of proceedings before the district court: it did not regulate any person's out-of-court conduct.
Nor is this court persuaded that delaying appellate jurisdiction over ECF Nos. 92, 99, and 124, alone or in combination, "imposes serious consequences" or will cause the district court's orders to "effectively evade appellate review." Miller, 750 F.3d at 1176-77. Appellants present no reason they cannot challenge these orders following entry of final judgment.
As a result, the orders appellants seek to challenge are not immediately appealable under § 1292(a)(1), see Cline v. Sunoco, Inc. (R&M), No. 22-7017, 2022 WL 16578857, at *1-2 (10th Cir. Aug. 4, 2022) (unpublished), and likewise are not immediately appealable under the collateral order doctrine, see Miller, 750 F.3d at 1177, or under 28 U.S.C. § 1292(b). [See ECF No. 124 at 6-7 (district court order denying certification of these orders for immediate appeal)]. For the foregoing reasons, this court is without jurisdiction to hear this appeal.
APPEAL DISMISSED.
Entered for the Court