* Pursuant to 5 TH C IR

. R. 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in 5 TH C IR

.

R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

December 22, 2004

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-30294

CHRISTOPHER J. DRESSER,

Plaintiff-Appellant,

versus

THE OHIO HEMPERY INC.; ET AL.,

Defendants,

OAKMONT INVESTMENT COMPANY INC.; AMERICAN EMPLOYERS’ INSURANCE

COMPANY; COMMERCIAL UNION INSURANCE COMPANY;

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of Louisiana

(No. 98-CV-2425-R)

Before REAVLEY, DAVIS, and WIENER, Circuit Judges.

PER CURIAM: *

Plaintiff-Appellant Christopher Dresser appeals the district

court’s grant of a stay pending the outcome of a Coast Guard

administrative proceeding. As we are without jurisdiction to

hear the appeal, we dismiss.

I. FACTS AND PROCEEDINGS-2-

Dresser is a Coast Guard-licensed vessel engineer. He alleged

that, prior to taking a Coast Guard drug test, he ingested “Hemp

Liquid Gold,” a product manufactured and distributed by DefendantAppellee Oakmont Investment Company Inc. (“Oakmont”). Dresser

failed the drug test, testing positive for marijuana/THC, as a

result of which the Coast Guard sought to have Dresser’s license

revoked. A hearing was commenced by a Coast Guard Administrative

Law Judge (“ALJ”) in April 1998 and completed in June of that year.

Two months late r, Dresser sued Oakmont in federal district court

seeking damages for emotional distress as well as significant loss

of earnings, earning capacity, pension benefits, medical insurance

and loss of other job-related benefits.

Early the following yea r, the ALJ ordered Dresser’s license

revoked, after which Oakmont sought a stay of the proceedings in

district court pending the outcome of Dresser’s administrative

appeal. Oakmont’s stay was granted and some two and one half years

later the ALJ’s decision was affirmed by the Coast Guard

Commandant. Dresser appealed the Commandant’s decision to the

Natio nal Transportation Safety Board (“NTSB”) which, after the

passage of yet another year, reversed and remanded for new hearings

because the original ALJ had a conflict of interest (the ALJ’s son

was representing Oakmont in the instant litigation).

The month after the NTSB reversed and remanded, Dresser filed

a motion to reopen this case, which motion the district court

granted. Oakmont again sought to stay the district court1 “The courts of appeals . . . shall have jurisdiction of

appeals from all final decisions of the district courts of the

United States . . . except where a direct review may be had in

the Supreme Court.” 28 U.S.C. § 1291.

2 “[A] stay is not ordinarily a final decision for purposes

of § 1291.” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp.

, 460 U.S. 1, 10 n.11 (1983); see also Kershaw v. Shalala , 9 F.3d

11, 14 (5th Cir. 1993) (same).

-3- proceeding pending a final result in the Coast Guard administrative

proceedings. After oral argument and consideration of supplemental

memoranda, the district court granted Oakmont ’s stay. Dresser

seeks appellate review of the stay or, alternatively, a writ of

mandamus.

II. ANALYSIS

Before addressin g the merits of the stay order, we must

determine whether we have appellate jurisdi ction. Generally, 28

U.S.C. § 1291 provides appellate jurisdiction only over final

judgments of the district courts. 1 Stays do not typically qualify

as final judgments for purposes of § 1291. 2 Dresser relies on two

exceptions to § 1291’s finality requirement to sustain our

jurisdiction over this appe al: (1) the so-called death knell or

“effectively out of court” exception; and (2) the collateral order

doctrine. In the alternative, Dresser asks us to treat his appeal

as a petition for mandamus. As a result of the narrow construction

given to both the death knell exception and the collateral order

doctrine, and the restrictio n of mandamus to “extraordinary3 370 U.S. 713 (1962).

4 Idlewild Bon Voyage Liquor Corp. v. Rohan , 188 F.Supp. 434

(S.D.N.Y. 1960).

5 Id. at 715 n.2.

-4- situations,” we conclude that we do not have jurisdiction to hear

Dresser’s appeal.

A. T HE D EATH K NELL E XCEPTION

The death knell or “effectively out of court” exception can be

traced to the Supreme Court’s de cision in I dlewild Bon Voyage

Liquor Corp. v. Epstein

. 3 The plaintiff in I dlewild filed suit in

federal court challenging the constitutionality of a state statute.

The district court declined to convene a three judge panel and

stayed the federal court suit under the Pul lman abstention

doctrine. 4 The Second Circuit disagreed with the district court,

but dismissed for lack of appellate jurisdiction. After the

plaintiff was rejected by the district court for a second time, the

Supreme Court granted certiorari and held that the district court’s

action was final and therefore reviewable by the appellate court,

pointing out that the appellant “was effectively out of court.” 5

In Moses H. Cone Memorial Hospi tal v. Mercury Construction

Corp.

, the Court narrowed the application of I dlewild to “cases

where (under Colorado River

, abstention, or a closely similar

doctrine) the object of the stay is to require all or an essential6 460 U.S. at 10 n.11; see also Quackenbush v. Allstate Ins.

Co. , 517 U.S. 706, 713 (1996).

7 986 F.2d 94 (5th Cir. 1992).

8 Id. at 95.

9 See Kershaw , 9 F.3d at 14 (acknowledging holding in Moses

that limits use of exception to situations when the stay requires

all or essentially all of the suit to be litigated in state

court); Kmart Corp. v. Aronds , 123 F.3d 297, 300 (5th Cir. 1997)

(“[T]his Court has stated that while it liberally construed the

death knell exception in the past, it could no longer do so

because the exception was limited to cases where the stay

requires all or essentially all of the suit to be litigated in

state court.”); United States v. L.J. Garner , 749 F.2d 281, 288

(5th Cir. 1985) (same).

-5- part of the federal suit to be litigate d in a state forum.” 6

Dresser relies primarily on our decision in Granite State Insurance

Co. v. Tandy Corp. in support of his insisten ce that the death

knell exception is applicable to his case. 7 In G ranite State

, we

allowed the appeal of a stay order in favor of a state court

proceeding, holding that “[w]here a stay order effectively

dismisses the federal suit, as in this case, it is treated as a

final order under § 1291.” 8 Following the teaching of M os es H.

Cone

, we have expressly limited application of the death knell

exception to cases in which the stay required all or essentially

all of the suit to be litigated in state court. 9 Dresser’s

reliance on Granite State is misplaced because the stay in the

present case does not require any part of a suit to be decided in

a state forum; it requires a decision by a federal agency.10 9 F.3d 11 (5th Cir. 1993).

11 Id. at 14.

-6- Dresser advances two arguments for why his case should still

fall within the death knell exception. First, he notes that the

suit, although not relegated to state court, has been removed from

a federal forum. In Kershaw v. Shalala , we rejected this line of

reasoning. 10 The plaintiff in K ershaw had been denied disability

benefits under the Social Security Act by the Secretary of Health

and Human Services. The district court ruled that the record did

not contain substantial evidence to sustain the Secretary’s

decision and entered an order reversing and remanding. The

plaintiff filed a motion to recover attorney’s fees and expenses as

provided by statute. The district court stayed the application

pending dispo sition by the administrative agency on remand. The

plaintiff appealed the district court’s stay order but we dismissed

f or lack of appellate jurisdiction, refusing to apply the death

knell exception:

The eventual decision of the Secretary will b e fully

reviewable by the district court , and that court’s

decision will be fully reviewable by this Court. Thus,

unlike certain abstention stay orders, the present order

does not deprive the plaintiff of an effective appeal in

a federal forum. 11

As was the situation in Kershaw

, Dresser will not be deprived

of an “effective appeal in a federal forum.” The decision in the

Coast Guard administrative proceeding will ultimately be reviewable

by federal district and appellate courts. Dresser tries to12 Neither is Dresser deprived of an effective appeal in a

federal forum if a decision in the administrative proceeding will

have no collateral estoppel effect in the instant case. As the

death knell exception fails for other independent reasons, it is

unnecessary to examine the collateral estoppel effect that a

decision by the Coast Guard administrative board would have on

this case.

13 531 F.2d 726 (5th Cir. 1976).

14 See id. at 731-32.

-7- distinguish the cases by highlighting the fact that the district

court that issued the stay here will not be the same one that

con ducts the review, as it was in K ershaw

. This is a

quintessential distinction without a diffe r ence. The concern

animating the death knell exception is with an effective appeal in

“a” federa l forum, not in the s ame federal forum in which the

plaintiff chose to file his action. 12

Second, Dresser argues that the stay is the equivalent of

putting him out of court as a result of the unconscionable delay

that the administrative proceeding and its review will create.

Dresser relies entirely on our decision in Hines v. D’Artois

, in

which we allowed review of a district court’s sua sponte decision

to stay a case brought under §§ 1981 & 1983 pending exhaustion of

Title VII administrative proceedings in the EEOC. 13 Noting that the

EEOC proceedings would likely take eighteen months, if not longer,

we ruled that the stay order effectively put the plaintiffs out of

court for a protracted and indefinite period. 14 Although H ines has

never been overturned , subsequent case law has made its15 379 U.S. 148 (1964).

16 See Moses H. Cone , 460 U.S. at 10 n.11 (limiting the

reach of Idlewild to instances when a stay forces all or an

essential part of a federal suit to be litigated in a state

forum); Coopers & Lybrand v. Livesay , 437 U.S. 463 (1978)

(narrowing Gillespie to its unique facts). In Kmart , we noted

that Gillespie ’s finality exception was no longer recognized in

our circuit. 123 F.3d at 300.

17 337 U.S. 541 (1949).

-8- precedential value questionable. In coming to its conclusion, this

court in Hines relied on the Supreme Court’s decisions in Idlewild

and Gillespie v. United States Steel Corp.

, 15 two rulings that were

narrowed substantially in the years following Hines

. 16

In light of our recent decision in Kershaw

, and the very

narrow interpreta tion given to the death knell exception by both

the Supreme Court and this circuit, we hold that the death knell

exception is unavailable as a basis for appellate jurisdiction.

B. C OLLATERAL O RDER D OCTRINE

Dresser argues in the alternati ve that the denial of his

motion for a stay is appealable under the exception to the finality

rule espoused in Cohen v. Beneficial Loan Corp.

, 17 generally known

as the collateral order doctrine. In this circuit, “an order may

be appealed under the Cohen exception if the appellant demonstrates

that the order (1) conclusively determines the disputed question,

(2) resolves an important issue completely separate from the merits

of the action, and (3) is effectively unreviewable on appeal from18 A-Mark Auction Galleries, Inc. v. Am. Numismatic Ass’n

,

233 F.3d 895, 898 (5th Cir. 2000)(citing Acoustic Systems, Inc.

v. Wenger Corp. , 207 F.3d 287, 290 (5th Cir. 2000) and Coopers &

Lybrand v. Livesay , 437 U.S. 463, 468-69 (1978)).

19 Acoustic Systems , 207 F.3d at 291; see also Kershaw , 9

F.3d at 14 (“Absent a Moses Cone situation, stay orders rarely

satisfy [the doctrine’s] requirements, and therefore, are usually

not reviewable as collateral orders.”).

20 Garner , 749 F.2d at 287.

21 We note, without deciding the issues, that at least one

other circuit, in an unpublished opinion, has held that a stay of

proceedings in favor of federal agency proceedings does not

satisfy the second or third prongs as well. In re American

Freight Systems, Inc. , No. 92-3426, 1993 WL 356784, at *2-3 (10th

Cir. Sept. 3, 1993).

22 Moses H. Cone , 460 U.S. at 13; Gulfstream Aerospace Corp.

v. Mayacamas Corp. , 485 U.S. 271, 277 (1988).

-9- a final j udgment.” 1 8 We have stated that “the collateral order

doctrine is not to be applied liberally. Rather, the doctrine is

extraordinarily limited in its application.” 19 The requirements of

the collateral order doctrine are conjunctive; failure to satisfy

any one of them defeats appellate jurisdiction. 20 As the district

court’s stay orde r does not “conclusively determine the disputed

question,” it does not qualify as a collateral order. 21

The Supreme Court, which analyzed the first prong of the test

for the collateral order doctrine in both Moses Cone and Gulfstream

Aerospace Corp. v. Mayacamas Corp.

, contrasted two types of orders:

those that are “inherentl y tentative” and those that, although

technically amendable, are “made with the expectation that they

will be the final word on the subject addressed.” 22 In M oses Cone

,23 Moses H. Cone , 460 U.S. at 10.

24 Gulfstream , 485 U.S. at 277 (quoting Moses H. Cone , 460

U.S. at 28).

-10- the district court had entered an order under Colorado River Water

Conservation District v. United States staying a federal diversity

suit pending the completion of a declaratory judgment action that

had been filed in state court. The Supreme Court concluded that

such an order is not tentative in nature and held that the stay was

appealable under the collateral order doctrine. 23 In G ulfstream

,

the Court was faced with the question whether the denial of a

Colorado River stay order was appealable. Answering in the

negative, the Court contrasted the nature of the stay order in

Moses Cone with the refusal to grant such a stay and concluded that

a Colorado River stay “‘necessarily contemplates that the federal

court will have nothing further to do in resolving any substantive

part of the case’ because a district court may enter such an order

only if it has full confidence that the parallel state proceeding

will ‘be an adequate vehicle for the complete and prompt resolution

of the issues between the parties.’” 24

Regardless of whether the ultimate outcome of the Coast Guard

administrative hearings will have some estoppel effect on Dresser’s

claims, it cannot be said that a “federal court will have nothing

further to do in resolving any substantive part of the case.” Any

decision by the ALJ will ultimately be reviewable in a federal

district court and presumably in a federal appellate court as well.25 Accord Cofab, Inc. v. Philadelphia Joint Bd., Amalgamated

Clothing & Textile Workers’ Union , 141 F.3d 105 (3d Cir. 1998).

26 In re Occidental Petroleum Corp. , 217 F.3d 293, 295 (5th

Cir. 2000) (citing Southern Pac. Transp. Co. v. San Antonio , 748

F.2d 266, 270 (5th Cir. 1984)).

27 Schlagenhauf v. Holder , 379 U.S. 104, 110 (1964).

-11- If the administrative proceedings are stalled or terminated, the

district court may choose to lift the stay; and it i s virtually

certain that the instant case will be resumed at least to some

extent once the administrative proceeding is completed. As the

district court’s stay order is inapposite to the complete

abdication of federal jurisdiction that was present in Moses Cone

,

the stay in favor of the federal administrative proceedings here

does not fall into that narrow class of cases i n which the

collateral order doctrine applies. 25 We hold that the collateral

order doctrine is not available to confer appellate jurisdiction in

this instance.

C. M

ANDAMUS

Finally, as we have failed to find the stay order otherwise

appealable, we address briefly Dresser’s alternative request that

we issue a writ of mandamus directing the district court to vacate

the stay. “‘Mandamus is an extraordinary remedy reserved for

extraordinary cases,’ one granted ‘not as a matter of right, but in

the exercise of a sound judicial discretion.’” 26 The Supreme Court

has ruled emphatically that mandamus must not be used as a

substitute for appeal. 27 Mandamus is appropriate to correct the28 See Southern Pac. Transp. Co. , 748 F.2d at 270.

29 In re Occidental Petroleum Corp. , 217 F.3d at 295

(internal citations omitted).

30 Gulfstream , 485 U.S. at 289 (citations omitted).

-12- grant of a stay only when there is a clear abuse of discretion. 28

Dresser “must show not only that the district court erred, but that

it clearly and indisputably erred. 29

The short paragraph in Dresse r’s brief requesting mandamus

fails to carry this heavy burden. The district court made its

decision after allowing full briefing and oral argument from both

parties before concluding that a stay was proper. The court

reasoned that (1) it would be wasteful for two separate tribunals

to proceed on the same issue of liability simultaneously; (2)

collateral estoppel could operate to bar Dresser’s claim if he

should fail at the administrative hearing to rebut the presumption

of marijuana use through proof by a preponderance of the evidence

that Hemp Liquid Gold was the cause of his failing the drug test;

and (3) Dresser’s theory of damages is largely predicated on the

final outcome of the Co ast Guard administrative proceedings.

Without addressing wheth er the stay was providently granted, we

hold that Dresser has failed to show clearly and indisputably that

the district court’s order falls under those “e xceptional

circumstances amounting to a judicial usurpation of power.” 30

APPEAL DISMISSED.-13-