Miccosukee Tribe of Indians v. South Florida Water Management District

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

FILED

No. 07-12012 U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

________________________ FEBRUARY 24, 2009

THOMAS K. KAHN

D. C. Docket No. 98-06056-CV-JAL CLERK

MICCOSUKEE TRIBE OF INDIANS OF FLORIDA,

FRIENDS OF THE EVERGLADES,

Plaintiffs-Appellants,

UNITED STATES ARMY CORPS OF ENGINEERS, et al.,

Intervenor-Plaintiffs,

versus

SOUTH FLORIDA WATER MANAGEMENT DISTRICT,

Defendant-Appellee.

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(February 24, 2009)

Before DUBINA and CARNES, Circuit Judges, and GOLDBERG,* Judge.

CARNES, Circuit Judge:

This is a tale of two cases, one of which is before us in this appeal. The

cases are six and eleven years old and together have generated more than twelve

hundred docket entries in the district court. One case has been to the Supreme

Court, where it was remanded back to us, and then we sent it along to the district

court in 2004; the other one went to trial for two months in 2006. The two cases

have a lot in common.

They share the same plaintiffs (the Miccosukee Tribe and the Friends of the

Everglades) and the same defendant (the South Florida Water Management

District), and they both present the issue of whether the Clean Water Act requires

the Water District to obtain National Pollution Discharge Elimination System

(NPDES) permits for its pump stations. One lawsuit, the “S-2 case,” claims that

permits are required for pump stations S-2, S-3, and S-4, which move polluted

water from the Everglades Agricultural Area canals into Lake Okeechobee. The

present lawsuit, the “S-9 case,” claims that a permit is required for pump station S-

*

Honorable Richard W. Goldberg, Judge, United States Court of International Trade,

sitting by designation.

2

9, which moves polluted water from the C-11 canals into Water Conservation Area

3A (WCA-3A).

After the S-2 case was tried to final judgment in 2006, the district court

stayed its proceedings in the S-9 case pending appeal of the S-2 judgment. The

appeal of the S-2 judgment is still pending in this Court. See Friends of the

Everglades, Inc. v. S. Fla. Water Mgmt. Dist., 2006 WL 3635465 (S.D. Fla. Dec.

11, 2006), No. 07-13829 (appeal docketed Aug. 13, 2007).

This appeal challenges the stay order that the district court on its own

motion entered in the S-9 case pending the outcome of the appeal in the other case.

The first, and as it turns out, the last issue we need to address is whether we have

jurisdiction to review the stay order under 28 U.S.C. § 1291. The jurisdiction

question requires us to decide whether the stay order in this case put the plaintiffs

“effectively out of court” and whether the collateral order doctrine applies here.

I.

A.

This case was filed in the district court in January 1998. The Friends of the

Everglades and the Miccosukee Tribe sued the Water District,1 contending that its

1

The Miccosukee Tribe and Friends of the Everglades initially filed separate lawsuits

against the Water District, but the cases were consolidated in May 1998.

3

S-9 pump station required an NPDES permit. In 1999 the district court granted

summary judgment to the plaintiffs because the court found that the S-9 pump

qualified as a point source and moved polluted water from one distinct water body

into another. Miccosukee Tribe of Indians v. S. Fla. Water Mgmt. Dist., 1999 WL

33494862, at *7 (S.D. Fla. Sept. 30, 1999). We affirmed the district court’s ruling

on the Clean Water Act issue. Miccosukee Tribe of Indians v. S. Fla. Water

Mgmt. Dist., 280 F.3d 1364, 1371 (11th Cir. 2002).

The Supreme Court granted review and decided that the S-9 pump was a

point source under the Clean Water Act. The Court, however, did not decide

whether the C-11 canals and WCA-3A were “meaningfully distinct” water bodies.

See S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe of Indians, 541 U.S. 95, 112,

124 S. Ct. 1537, 1547 (2004). Instead, the Court remanded the case for further

factfinding on that point and for consideration of the Water District’s “unitary

waters” argument. Id. Under the unitary waters theory all navigable waters are

considered to be one body of water, so that moving a pollutant from one navigable

water to another would not amount to the “addition of a pollutant to the navigable

waters” under the Clean Water Act. Id. at 107–09, 124 S. Ct. at 1543–45. If that

theory holds water, the Water District would not need an NPDES permit even if

the water conservation area and the canals were meaningfully distinct water

4

bodies. Id. We remanded the case to the district court for further proceedings in

November 2004. It has been pending there ever since.

B.

The parallel S-2 case, which concerns whether the Water District’s other

pumps (S-2, S-3, and S-4) require an NPDES permit, was filed by the same

plaintiffs (and some others) against the same defendant in 2002. The proceedings

in the S-2 case were stayed for nineteen months until the Supreme Court’s

decision in the S-9 case was issued. See Miccosukee, 541 U.S. 95, 124 S. Ct.

1537. Then the S-2 case was re-opened.

In January 2006 the S-2 case went to trial, which lasted nearly two months

and involved more than a dozen expert witnesses and one hundred and fifty

exhibits. The district court issued a 107-page ruling concluding that the

Everglades Agricultural Area canals and Lake Okeechobee— the water bodies

connected by the S-2, S-3, and S-4 pumps— were meaningfully distinct water

bodies, and that the pumps required an NPDES permit because they moved

pollutants from the canals into the Lake. Friends of the Everglades v. S. Fla.

Water Mgmt. Dist., 2006 WL 3635465, at *51 (S.D. Fla. Dec. 11, 2006). In the

course of reaching that conclusion, the court rejected the Water District’s unitary

waters theory. Id. at *43.

5

C.

Meanwhile, this case—back from its trip to the Supreme Court— was being

handled in the same district by a different judge. In light of the S-2 decision, and

without a request from the parties, she issued a stay in this case. The stay order

stated that “it is extremely likely that an appeal is forthcoming in [the S-2 case],

which is much further along in its proceedings than the instant [S-9] case.” The

order noted “extensive similarities” between the issues in the cases and found that

“the interests of justice and judicial economy, including avoiding inconsistent

results, the duplication of efforts, and the waste of judicial resources, will be

promoted by granting a stay of this proceeding.” Unless extended by written

order, the stay was to expire after one year or at the conclusion of the appeals of

the S-2 case, whichever came first.2 This is the Miccosukee Tribe and the Friends

of the Everglades’ appeal from the stay order.

II.

The Friends of the Everglades and the Miccosukee Tribe contend that the

district court abused its discretion in entering the stay. The Water District

contends that we lack jurisdiction to decide that. Jurisdiction is a threshold issue.

2

The initial stay was issued in March of 2007. In July 2008, the plaintiffs filed a notice

that the stay had lapsed and requested a trial. The district court instead renewed the stay for one

more year under the same terms as the first one.

6

See Parents Involved in Cmty. Sch. v. Seattle Sch. Dist., ___ U.S. ___, 127 S. Ct.

2738, 2750 (2007); King v. Cessna Aircraft Co., 505 F.3d 1160, 1165 (11th Cir.

2007).

The key provision, 28 U.S.C. § 1291, states: “The courts of appeals . . .

shall have jurisdiction of appeals from all final decisions of the district courts of

the United States . . . .” Ordinarily a stay order is not a final decision for purposes

of § 1291. Moses H. Cone Mem. Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 10

n.11, 103 S. Ct. 927, 934 n.11 (1983) (“[T]he usual rule [is] that a stay is not

ordinarily a final decision for purposes of § 1291, since most stays do not put the

plaintiff ‘effectively out of court.’”). Using a “practical construction” of finality,

however, the Supreme Court has blazed through the jurisdictional thicket several

paths by which a stay order may be considered a final decision. See Swint v.

Chambers County Comm’n, 514 U.S. 35, 41–42, 115 S. Ct. 1203, 1207–08 (1995)

(referring to the collateral order doctrine “not as an exception to the ‘final

decision’ rule laid down by Congress in § 1291, but as a ‘practical construction’ of

it” (citations omitted)). Our plaintiffs, the Friends of the Everglades and the

Miccosukee Tribe, contend that two of those practical construction paths can get

them to the higher ground of appellate jurisdiction.

7

A.

The first of those paths, according to the plaintiffs, is the one staked out in

Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 715 n.2, 82 S. Ct.

1294, 1296 n.2 (1962), which recognized that a stay leaving a party “effectively

out of court” is a final order appealable under § 1291. See also Cessna Aircraft,

505 F.3d at 1165–66.

Ordinarily a party is “effectively out of court” when a federal court stays its

hand pending the conclusion of related state court or state administrative

proceedings. See Idlewild, 370 U.S. at 715, 82 S. Ct. at 1296 (holding that

abstention under the Pullman doctrine to allow a state court to interpret and clarify

state law put plaintiff effectively out of court); Quackenbush v. Allstate Ins. Co.,

517 U.S. 706, 116 S. Ct. 1712 (1996) (holding that a remand order under the

Burford abstention doctrine to allow a state administrative agency to decide the

issue put plaintiff effectively out of court); Moses H. Cone, 460 U.S. at 10–13,

103 S. Ct. at 934–35 (holding that a stay granted under the Colorado River

abstention doctrine to allow a state court to address the central issue of the lawsuit

put plaintiff effectively out of court).

The Idlewild, Moses H. Cone, and Quackenbush decisions establish the

foundation of the “effectively out of court” finality rule. See Cessna Aircraft, 505

8

F.3d at 1166–68. Concerns about protecting federal court decisional authority

underlie all three of those decisions. Moses H. Cone, 460 U.S. at 10 n.11, 103 S.

Ct. 934 (“Idlewild’s reasoning is limited to cases where . . . the object of the stay is

to require all or an essential part of the federal suit to be litigated in a state

forum.”); Quackenbush, 517 U.S. at 714, 116 S. Ct. at 1719 (noting that the

remand to state court was “precisely to surrender jurisdiction of a federal suit to a

state court.”).

Even though the effectively out of court doctrine has its roots in concerns

about federal courts’ surrendering decisional authority to state courts, its branches

have spread beyond that. In a handful of cases we have found jurisdiction to

review orders granting stays pending litigation in non-state forums, including the

Italian courts in Cessna Aircraft, 505 F.3d at 1169; the Iran-United States Claims

Tribunal in CTI-Container Leasing Corp. v. Uiterwyk Corp., 685 F.2d 1284 (11th

Cir. 1982); and the EEOC in Hines v. D’Artois, 531 F.2d 726 (5th Cir. 1976).3

See also Ortega Trujillo v. Conover & Co. Commc’ns, Inc., 221 F.3d 1262 (11th

Cir. 2002) (jurisdiction assumed where stay granted pending litigation in the

Bahamian courts).

3

In our en banc decision in Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th

Cir.1981), we adopted as binding precedent all decisions of the former Fifth Circuit handed down

prior to October 1, 1981.

9

The Cessna Aircraft case stemmed from an airplane collision in Italy. 505

F.3d at 1163. The district court stayed an American plaintiff’s lawsuit to await the

Italian courts’ resolution of whatever issues might be raised in future litigation

there. Id. at 1163–64. Even though the stay had not been issued in favor of a state

court, we explained that the “differences between federalism and international

comity . . . . do not, however, affect the extent to which a plaintiff is placed

‘effectively out of court,’ which is the measure that defines our appellate

jurisdiction over stay orders.” Id. at 1169–70. The plaintiff in Cessna Aircraft

was effectively out of court under Idlewild and Moses H. Cone because that

doctrine applies “when a federal court stays its hand to allow another [type of]

court to assume partial jurisdiction over the merits of the suit.” Id. at 1169. See

also Moses H. Cone, 460 U.S. at 9 n.8, 103 S. Ct. at 933 n.8 (effectively out of

court means “out of federal court—in keeping with the fact that the decision under

appeal is the refusal to exercise federal jurisdiction”).

The present case is unlike the traditional effectively out of court cases

because this stay was not issued pending the conclusion of state court or

administrative proceedings, and it is unlike Cessna Aircraft because the stay was

not issued pending foreign court proceedings. It was issued pending the outcome

of other litigation in federal court—the appeal of a lawsuit filed in the same

10

district court. The Southern District of Florida simply had two lawsuits raising

some potentially dispositive issues common to both. After one judge entered

judgment in the case before her, the second judge stayed her case to await the

outcome of an appeal of that final judgment. To the extent jurisdiction was

“surrendered” to any court, see Quackenbush, 517 U.S. at 714, 116 S. Ct. at 1719,

it was not to a state court or to a foreign court. Instead, it was surrendered to this

Court, the same one that would decide any appeal from any final judgment in the

stayed case, if the proceedings had not been stayed.

Our plaintiffs are not being forced to litigate their case in a non-federal

court in derogation of the federal courts’ “virtually unflagging obligation . . . to

exercise the jurisdiction given them.” Colorado River Water Conservation Dist. v.

United States, 424 U.S. 800, 817, 96 S. Ct. 1236, 1246–47 (1976). The Supreme

Court noted in Colorado River that “as between state and federal courts, the rule is

that the pendency of an action in the state court is no bar to proceedings

concerning the same matter in the Federal court having jurisdiction . . . . As

between federal district courts, however, though no precise rule has evolved, the

general principle is to avoid duplicative litigation.” 424 U.S. at 817, 96 S. Ct. at

1246 (citations omitted). Avoiding duplicative federal litigation is the reason the

stay was entered in this case. Because it does not require the federal court

11

plaintiffs to await a decision from a non-federal court or other tribunal, they have

not been put effectively out of court in the traditional way.

The plaintiffs argue, however, that they can satisfy the effectively out of

court doctrine by showing that their case has been placed in an “extended state of

suspended animation” even though it was suspended to await the result of another

federal court action. See Hines, 531 F.2d at 730.

In Hines the plaintiffs sued representatives of the Shreveport police under §

1981 and Title VII seeking redress for “a broad range of racially discriminatory

practices” in the police force. 531 F.2d at 728. The district court stayed the case

until the plaintiffs pursued their EEOC remedies under Title VII. Id. at 728–29.

The stay would have put the federal court proceedings—including the statutorily

independent § 1981 claims for which there was no EEOC remedy—on hold for

anywhere from one and a half to five and a half years. Id. at 731–32. The Hines

Court characterized the result as “an extended state of suspended animation,” id. at

730, imposed without any “reasonable possibility that the EEOC conciliation

efforts [would] be productive.” Id. at 731. It concluded that in those

circumstances the stay had put the plaintiffs effectively out of court. “For the

purposes of expedition and certainty, the parties here would have been served just

as well by a stay pending the arrival of Godot.” Id. at 731–32. Although Hines

12

pre-dated the clear distinction between the Idlewild (effectively out of court) and

Cohen (collateral order) doctrines, we have since applied Hines’ “suspended

animation” concept as part of the effectively out of court doctrine in Am. Mfrs.

Mut. Ins. Co. v. Stone, 743 F.2d 1519, 1524 (11th Cir. 1984).

It cannot be, however, that any state of suspended animation places a

plaintiff effectively out of court and confers appellate jurisdiction under § 1291. If

that were the case, then every stay would be an appealable final order because

every stay suspends the animation of a case. And we know that not every stay is

appealable. Moses H. Cone, 460 U.S. at 10 n.11, 103 S. Ct. at 934 (“[A] stay is

not ordinarily a final decision for purposes of § 1291, since most stays do not put

the plaintiff ‘effectively out of court.’”). The plaintiffs’ argument sweeps too

much into its net.

The suspended animation cases in which the stay has been held to be

appealable, and there are only four,4 all share one characteristic that the present

case lacks. They all involved stays resulting in indefinite delays pending the

outcome of proceedings that were unlikely to control or to narrow substantially the

claims or unresolved issues in the stayed lawsuit. See Hines, 531 F.2d at 736–37

4

Arguably there are only three of them; Cessna Aircraft does not cite the “suspended

animation” formulation of Hines, but could fall under it. 505 F.3d at 1163–70.

13

(holding that a stay of a lawsuit raising § 1981 claims pending an EEOC

proceeding for distinct Title VII claims put the plaintiffs effectively out of court

because the delay would last for years without any “reasonable probability that the

EEOC conciliation efforts will be productive”); CTI, 685 F.2d at 1287–88

(holding that a stay in a case between two American companies to await action by

the Iran-United States Claims Tribunal on the defendant’s claim against Iran put

the plaintiff effectively out of court in part because the defendant’s claims against

Iran were “contingent upon a finding in the district court”); Stone, 743 F.2d at

1523–24 (holding that a stay granted to await the outcome of related state-court

litigation put the plaintiff effectively out of court because the parties agreed that

“the state lawsuit will not decide the issues presented in [the plaintiff]’s federal

claim,” meaning that the federal case had been subjected to “an indefinite and

unnecessary delay”); Cessna Aircraft, 505 F.3d at 1172 (holding that a stay issued

to await proceedings in Italian court put the plaintiff effectively out of court in part

because there was “no assurance at all that the Italian proceedings will directly

relate to the issues in this lawsuit”).

Effectively out of court by suspended animation is a narrow doctrine that

applies only when a case is placed in an “extended state of suspended animation”

without good reason. See Hines, 531 F.2d at 730. In Hines, CTI, Stone, and

14

Cessna Aircraft, the plaintiffs’ federal claims languished for no good reason

because there was little likelihood that the other forums’ decisions would control

or significantly inform the litigation.

In this case, however, the reason for the district court’s stay was at least a

good one, if not an excellent one: to await a federal appellate decision that is

likely to have a substantial or controlling effect on the claims and issues in the

stayed case. The central question in both the S-2 case and in this S-9 case is

whether, under the Clean Water Act, the Water District must acquire NPDES

permits for its enormous pumps. In one case some of those pumps move polluted

water from canals into a water conservation area, and in the other case the pumps

move polluted water from different canals into Lake Okeechobee. The central

argument for the Water District, as supported by an EPA regulation, is the “unitary

waters theory.” If we accept that theory in the S-2 appeal, it will wash out the

plaintiffs’ S-2 case entirely and also will flood most of their S-9 case.5 But if we

reject the unitary waters theory, then the S-9 case would remain on dry ground and

proceed to a determination of whether the canals and water conservation area

involved in that case are “meaningfully distinct” water bodies. Even that finding,

5

The plaintiffs have argued that the S-9 pump, unlike the S-2 pumps, also adds pollution

in the form of turbidity. Though this issue would remain in the S-9 case regardless of the

outcome of the S-2 case, it is only a small part of the S-9 case.

15

however, would be substantially guided by our determination in the S-2 case of

what “meaningfully distinct” means and by our application of that standard to the

canals and lake involved in it.

Because the S-2 and S-9 cases are so similar, it appears that the district

court’s stay was designed to provide the parties with a special deal in which they

could get two outcomes for the price of one appeal. The plaintiffs, however, are

not interested in that bargain and insist that they have a right to proceed

immediately to trial with the S-9 case despite the pendency of an appeal in the S-2

case. But the effectively out of court doctrine, and its suspended animation

component, do not clear a path to appellate review of whether they have that right.

B.

A second potential path to appellate jurisdiction is the collateral order

doctrine. See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S. Ct. 1221

(1949). “To come within the ‘small class’ of decisions excepted from the

final-judgment rule by Cohen, the order must [1] conclusively determine the

disputed question, [2] resolve an important issue completely separate from the

merits of the action, and [3] be effectively unreviewable on appeal from a final

judgment.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S. Ct. 2454,

16

2458 (1978); Carpenter v. Mohawk Indus., Inc., 541 F.3d 1048, 1052 (11th Cir.

2008).

The Supreme Court has insisted that each part of the Cohen test is

“stringent,” which keeps the doctrine “narrow and selective in its membership.”

Will v. Hallock, 546 U.S. 345, 349–50, 126 S. Ct. 952, 957–58 (2006) (“[W]e

have not mentioned applying the collateral order doctrine recently without

emphasizing its modest scope.”); Digital Equip. Corp. v. Desktop Direct, Inc., 511

U.S. 863, 868, 114 S. Ct. 1992, 1996 (1994) (“The ‘narrow’ exception should stay

that way and never be allowed to swallow the general rule that a party is entitled to

a single appeal, to be deferred until final judgment has been entered. . . .” (citation

omitted)). The reason for the stringency of the doctrine’s requirements—for the

narrowness and modesty of its reach—is the fear that a robust collateral order

doctrine would “overpower the substantial finality interests § 1291 is meant to

further: judicial efficiency, for example.” Will, 546 U.S. at 350, 126 S. Ct. at 958.

Consistent with the Court’s confinement of the collateral order doctrine,

each part of the Cohen test is a critical condition for jurisdiction. Feldspar

Trucking Co. v. Greater Atlanta Shippers’ Ass’n., 849 F.2d 1389, 1392 (11th Cir.

1988) (“If any one criteria is not met, jurisdiction cannot be invoked. . . .”). In this

17

case, we need not address the first and third conditions because the second is not

satisfied.

The second condition under Cohen is that the stay order must “resolve an

important issue completely separate from the merits of the action.” Moses H.

Cone, 460 U.S. at 11, 103 S. Ct. at 934. A decision to grant a stay is “separate

from the merits,” but it must also raise an “important issue,” which means that an

important right is at stake. Id. The Supreme Court has observed that “[t]he

importance of the right asserted has always been a significant part of our collateral

order doctrine.” Will, 546 U.S. at 352, 126 S. Ct. at 959 (quoting Lauro Lines

S.R.L. v. Chasser, 490 U.S. 495, 502, 109 S. Ct. 1976, 1980 (1989) (Scalia, J.,

concurring)). The doctrine requires “a judgment about the value of the interests

that would be lost through rigorous application of a final judgment requirement.”

Id. at 351–52, 126 S. Ct. at 959 (quoting Digital Equip. Corp., 511 U.S. at 878–79,

114 S. Ct. at 2001).

Examples of “important issues” significant enough to justify immediate

appellate jurisdiction under the collateral order doctrine include denials of the

defenses of absolute presidential immunity, qualified immunity, Eleventh

Amendment immunity, and double jeopardy. Will, 546 U.S. at 352, 126 S. Ct. at

18

959. In all of these cases, “a substantial public interest” existed in taking an

immediate appeal. Id. at 353, 126 S. Ct. at 959.

In Moses H. Cone the Court held that the stay order in that case involved a

public interest important enough to satisfy the collateral order doctrine. 460 U.S.

at 12, 103 S. Ct. at 935. The lawsuit sought to compel arbitration in a contract

dispute. Id. at 7, 103 S. Ct. at 932. Because a lawsuit between the same parties

presenting the same question was already underway in state court, the district

court stayed the federal proceedings to await the state court’s judgment. Id. Once

the state court judgment was issued the federal court would have to give it res

judicata effect, id. at 10, 103 S. Ct. at 934, and as a result meaningful federal

review of the arbitration question would have been impossible. The Court stated

that there was “no dispute that this order meets the second . . . [collateral order

doctrine] criteria. An order that amounts to a refusal to adjudicate the merits

plainly presents an important issue separate from the merits.” Id. at 12, 103 S. Ct.

at 934.

At first glance, it appears that any stay granted to await another court’s

controlling resolution of shared issues would “amount[] to a refusal to adjudicate

the merits,” meeting the Moses H. Cone requirement of an important issue for

Cohen purposes. On second glance, however, the federal court’s stay in Moses H.

19

Cone meant that a state court would resolve the issue. 460 U.S. at 35, 103 S. Ct. at

947 (Rehnquist, J., dissenting) (“The issue here was whether the factual question

whether there was an agreement to arbitrate should be adjudicated in a state or

federal court.”). The Supreme Court later clarified the distinction when it stated in

Quackenbush: “We determined [in Moses H. Cone] that a stay order based on the

Colorado River doctrine presents an important issue separate from the merits

because it amounts to a refusal to adjudicate the case in federal court.” 517 U.S. at

713, 116 S. Ct. at 1719 (quotation marks omitted).

In other words, a decision to grant a stay pending the outcome of other

litigation may or may not be an important issue. In Moses H. Cone, the stay issue

was “important” because it involved a federal court surrendering its jurisdiction

over a case to a state court. That implicated the federal courts’ “virtually

unflagging obligation” to decide cases over which they have jurisdiction.

Colorado River, 424 U.S. at 817, 96 S. Ct. at 1246. There is a sufficiently strong

public interest in federal courts exercising their jurisdiction when it exists to place

Moses H. Cone in the company of other important issue cases, such as those

involving the denial of immunity and double jeopardy defenses.

The stay in this case does not present an “important issue” as required by

the collateral order doctrine. See Coopers & Lybrand, 437 U.S. at 468, 98 S. Ct. at

20

2458. There are no issues of federalism or international comity to add weight and

finality to the district court’s stay order. See Kershaw v. Shalala, 9 F.3d 11, 14

(5th Cir. 1993) (“[T]he Moses Cone exception should not apply[] where a district

court enters an order staying its own proceedings in favor of other proceedings

within the same federal judicial system.”). Instead, in this case the plaintiffs

assert, in effect, that there is a public interest in their being allowed to proceed

with two federal lawsuits at the same time even though they raise common issues.

Specifically, the plaintiffs want to proceed in the Southern District of Florida with

their S-9 case while the appeal on the merits of their parallel S-2 case is pending in

this Court. There is no “substantial public interest,” Will, 546 U.S. at 353, 126 S.

Ct. at 959, in their being allowed to do so.6 Because the issue is not an important

one within the meaning of Cohen’s second condition, see Moses H. Cone, 460

6

Withholding decision in a case to await guidance from a higher court in a different case

is not an unusual event. It happens with some regularity in the district courts, and from time to

time we have done it ourselves. To give but one example, in Cunningham v. Billy, No. 07-

10808, after oral argument we issued a notice that no decision would be forthcoming in that case

until we had the benefit of the Supreme Court’s decision in Dist. Atty’s Office v. Osborne, 129

S. Ct. 488 (cert. granted Nov. 3, 2008).

Similarly, proceedings in the S-2 case were stayed by the district court in 2003 to await

the Supreme Court’s decision in the present case. See Miccosukee, 541 U.S. at 95, 124 S. Ct.

1537. That stay, which the Friends of the Everglades asked for, lasted nineteen months. At no

time did any party assert that the stay had put them out of court or that there was a substantial

public interest in pressing ahead in the S-2 case while the S-9 case was pending on appeal.

21

U.S. at 12, 103 S. Ct. at 934, that path to appellate jurisdiction is not open to the

plaintiffs.

III.

For all of these reasons, the Friends of the Everglades and the Miccosukee

Tribe have not demonstrated that § 1291 or any of its “practical constructions”

apply. We lack jurisdiction to hear the appeal of the district court’s stay order.

APPEAL DISMISSED FOR LACK OF JURISDICTION.

22