Summary
The Fifth Circuit dismissed the EEOC's interlocutory appeal from an order staying a subpoena-enforcement action pending discovery concerning the Commissioner's motives in issuing a discrimination charge. The court held that the stay was not a final appealable order under 28 U.S.C. § 1291 or the collateral-order doctrine, and declined to consider mandamus because the EEOC had not complied with Federal Rule of Appellate Procedure 21.
Holdings
- The indefinite stay of the EEOC's subpoena-enforcement proceeding was not a final decision under § 1291 and therefore was not immediately appealable.
- The discovery and stay order did not qualify as a collateral order because it was neither conclusively determinative nor subject to the type of extraordinary and probably irreparable harm required for immediate review.
- The court would not consider the Commission's alternative mandamus request because the Commission had not filed or served a petition complying with Federal Rule of Appellate Procedure 21 and had not shown an adequate excuse.
Questions Presented
- Whether the Fifth Circuit had jurisdiction under 28 U.S.C. § 1291 to review the district court's indefinite stay of the subpoena-enforcement action.
- Whether the stay and discovery order qualified for immediate review under the Cohen collateral-order doctrine.
- Whether the court could treat the appeal as a petition for mandamus when the EEOC had not filed or served a petition complying with Federal Rule of Appellate Procedure 21.
Disposition
dismissed
Cases Cited (16)
- United States v. Bear Marine Services, 696 F.2d 1117, 1119 & n. 4 (5th Cir. 1983)(followed)
- United States v. Richardson, 204 F.2d 552 (5th Cir. 1953)(followed)
- United States v. 2,606.84 Acres of Land, 432 F.2d 1286, 1288 n. 2 (5th Cir. 1970), cert. denied, 402 U.S. 916 (1971)(followed)
- Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546-47, 69 S. Ct. 1221, 1225-26, 93 L. Ed. 1528 (1949)(followed)
- Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 103 S. Ct. 927, 935, 74 L. Ed. 2d 765 (1983)(distinguished)
- Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 470, 98 S. Ct. 2454, 2457-58, 57 L. Ed. 2d 351 (1978)(followed)
- American Express Warehousing, Ltd. v. Transamerica Insurance Co., 380 F.2d 277, 281 (2d Cir. 1967)(followed)
- United States v. Procter & Gamble Co., 356 U.S. 677, 78 S. Ct. 983, 2 L. Ed. 2d 1077 (1958)(followed)
- Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S. Ct. 1236, 47 L. Ed. 2d 483 (1976)(followed)
- Southern Methodist University Association of Women Law Students v. Wynne & Jaffe, 599 F.2d 707, 711-12 (5th Cir. 1979)(distinguished)
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Cited In (0)
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