Burleson v. Sprint PCS Group ( 2003 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 3 2003
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
SHERRONE BURLESON,
Plaintiff-Appellant,
v. No. 03-6261
(D.C. No. 02-CV-1000-C)
SPRINT PCS GROUP, (W.D. Okla.)
Defendant-Appellee.
ORDER AND JUDGMENT *
Before BRISCOE, Circuit Judge, BRORBY, Senior Circuit Judge, and
MURPHY, Circuit Judge.
Sherrone Burleson petitions the Chief Judge of the Tenth Circuit for an
emergency stay of a trial set for October 14, 2003, pending her interlocutory
appeal of an order of the district court. We initially conclude that Ms. Burleson
has failed to establish an “emergency” requiring the consideration of only one
judge. See 10th Cir. R. 8.3.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
In order to demonstrate her entitlement to a stay, Ms. Burleson must first
establish our jurisdiction over her appeal. See 10th Cir. R. 8.1, 18.1; Desktop
Direct, Inc. v. Digital Equip. Corp. , 993 F.2d 755, 756-57, 760 (10th Cir. 1993),
aff’d , 511 U.S. 863 (1994). The record indicates that she has not paid the
appellate filing fee. See Fed. R. App. P. 3(e); 10th Cir. R. 3.3.
According to her motion for stay, Ms. Burleson seeks interlocutory appeal
from two orders: (1) an order denying her request that the district court judge
recuse herself for bias and (2) an order denying Ms. Burleson’s request to extend
the discovery deadline in which to identify expert and lay witnesses and exhibits
for trial. But a review of her notice of appeal reveals that she has appealed only
from the order denying recusal. U.S. Dist. Ct. R. Doc. 123. We therefore address
only the issue raised in the notice of appeal. 1
We have jurisdiction only over appeals from final orders, see 28 U.S.C.
§ 1291, or certain kinds of interlocutory orders, see 28 U.S.C. § 1292. “An order
denying a motion to recuse is interlocutory and is, therefore, not immediately
appealable.” Nichols v. Alley, 71 F.3d 347, 350 (10th Cir. 1995).
1
We note, however, that a pretrial order regarding discovery is not
immediately appealable as a final order. Graham v. Gray , 827 F.2d 679, 681
(10th Cir. 1987). Thus, if that issue had been raised in her notice of appeal, it
would have to be dismissed for lack of jurisdiction.
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Because we have no jurisdiction over the issue raised in the notice of appeal, we
must dismiss the appeal and deny the motion for stay as moot.
Even if we were to designate Ms. Burleson’s notice of appeal on the issue
of recusal as a petition for a writ of mandamus, see id. ; In re Bennett, 283 B.R.
308, 321 (10th Cir. B.A.P. 2002), we would still deny relief. Adverse rulings are
ordinarily insufficient to justify recusal. Nichols, 71 F.3d at 351.
The appeal is DISMISSED and the motion for emergency stay is DENIED.
ENTERED FOR THE COURT
PER CURIAM
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