Elnashar v. Speedway Superamerica, LLC

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 04-3973
___________
Abdel Elnashar, *
*
Plaintiff/Appellant, *
*
v. *
* Appeal from the United States
Speedway SuperAmerica, LLC, * District Court for the District
* of Minnesota.
Defendant/Appellee, *
*
United States Department of Justice; *
Federal Bureau of Investigation, *
Minneapolis Office; Nancy Schuster, *
Special Agent in Charge, *
*
Interested Parties/ *
Appellees. *
___________
Submitted: October 12, 2005
Filed: May 3, 2006
___________
Before BYE, BEAM, and SMITH, Circuit Judges.
___________
BEAM, Circuit Judge.
Abdel Elnashar appeals a discovery order. We dismiss for lack of jurisdiction.
I. BACKGROUND
Elnashar sued his former employer, Speedway SuperAmerica, LLC, alleging,
among other things, that he was subjected to a hostile work environment and
wrongfully disciplined because of his religion and national origin. In connection with
this lawsuit, Elnashar sought testimony from a Federal Bureau of Investigation (FBI)
agent and unredacted FBI reports in an effort to learn the name of an unidentified
informant. Elnashar argued that the information was relevant to his employment
claims, because he believed that the informant was a Speedway SuperAmerica
employee, and that the evidence would show discriminatory intent. The court denied
Elnashar's motions to compel the production of FBI documents and the appearance of
an FBI witness and to review the FBI's decision not to release information. Elnashar
brought this appeal, prior to final judgment.1
II. JURISDICTION
Federal appellate jurisdiction is statutorily circumscribed. United States v.
Haley, 541 F.2d 678 (8th Cir. 1974). This is an appeal from an interlocutory order,
which is appealable only in very narrow circumstances.
In general, an interlocutory order may not be appealed
unless it includes the grant or denial of an injunction, §
1292(a)(1); or the district court has certified a controlling
issue of law under § 1292(b); or the court has directed entry
of a partial final judgment pursuant to Rule 54(b) of the
1
We note that Speedway SuperAmerica's motion for summary judgment was
granted on September 22, 2005. However, we have previously rejected the doctrine
of "cumulative finality" which would grant this court jurisdiction to hear a
prematurely filed appeal once final judgment has been entered. Miller v. Special
Weapons, L.L.C., 369 F.3d 1033, 1035 (8th Cir. 2004). This case presents no reason
to change our stance.
-2-
Federal Rules of Civil Procedure; or the order is appealable
as a final order under the judicially created collateral order
doctrine.
Borntrager v. Cent. States, Se. and Sw. Areas Pension Fund, 425 F.3d 1087, 1090 (8th
Cir. 2005). Elnashar contends that his appeal involves either a partial final judgment
or the collateral order doctrine, "under which an interlocutory order is immediately
appealable if it conclusively 'resolve[s] an important issue completely separate from
the merits of the action' and is 'effectively unreviewable on appeal from a final
judgment.'" Id. at 1092 (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 468
(1978)). We disagree with Elnashar's contention.
First, Elnashar argues that he is appealing from the district court's "summary
judgment" in favor of the FBI. He likens his case to an appeal from a final judgment
in an action against a government agency filed "pursuant to the APA [Administrative
Procedure Act], challenging the federal government's refusal to disclose the
information he seeks." Mak v. FBI, 252 F.3d 1089,1091 (9th Cir. 2001). While we
assume, without deciding, that Elnashar need not file a separate action under the APA
against the FBI to conduct discovery, he nonetheless cannot appeal the discovery
order. Unlike Mak, no final judgment had been entered at the time of Elnashar's
interlocutory appeal. Therefore, this court lacks jurisdiction to consider the appeal.
Second, Elnashar states that this court has jurisdiction over the discovery order
as an order confirming a review of a final agency decision, citing In re SEC ex rel.
Glotzer, in which the Securities and Exchange Commission (SEC) sought a writ of
mandamus to prevent the district court from compelling its attorneys to testify. 374
F.3d 184, 185-86 (2d Cir. 2004). Again, we disagree. Elnashar is not seeking a writ,
which was appropriate in Glotzer, because "the district court's order [was] not
immediately appealable." Id. at 188. Further, in Glotzer, the SEC attorneys' only
option, absent a writ, was to be held in contempt, then appeal, which implicated
-3-
separation of powers issues. Id. at 187-88. Elnashar's appeal does not implicate any
separation of powers issues. Further, the instant discovery order, which denied
disclosure and can be reviewed after final judgment, does not present the same
exigency as an order compelling disclosure of privileged testimony which cannot be
undisclosed after final judgment.
Third, Elnashar argues that we should follow, Westinghouse Elec. Corp. v. City
of Burlington, 351 F.2d 762 (D.C. Cir. 1965), to find that we have jurisdiction, under
the collateral order doctrine. We disagree. While Westinghouse did involve a
discovery order, it involved information pertinent to tolling the statute of limitations
for the instant parties, as well as for potential parties in other circuits. Id. at 764-65.
The court analogized the case to the appealability of "an order quashing a subpoena
entered in a district other than the one in which the main case is pending," id. at 765,
and held that the appeal was appropriate because other defendants in other
jurisdictions would be affected and might not be afforded review if the instant
defendants did not appeal. Id. at 766. However, Elnashar has post-judgment control
to decide whether to appeal these issues, and thus, the collateral order doctrine does
not apply.
Finally, Elnashar points out that at least one other circuit has reviewed a
subpoena duces tecum served on a government agency as a third party. United States
EPA v. Gen. Elec. Co., 197 F.3d 592 (2d Cir. 1999), amended by 212 F.3d 689
(2000). The court reviewed an order quashing a subpoena, implicitly holding that it
had jurisdiction to review an interlocutory discovery matter. However, the court only
explicitly decided three issues: (1) a subpoena addressed to an agency need not have
the exact name of the officeholder correct, (2) agency actions are reviewable under the
APA, and (3) a litigant need not commence a separate lawsuit to gain judicial review.
Id. at 597-99. The court did not review the merits of the discovery order as an
interlocutory matter, but remanded to the district court after setting forth those
-4-
holdings. The court did not hold that a final agency decision affirmed by a discovery
order is reviewable before final judgment in the underlying matter. Neither do we.
III. CONCLUSION
For the foregoing reasons, we dismiss for lack of jurisdiction.
______________________________
-5-