          United States Court of Appeals
                     For the First Circuit


No. 14-2250

                      CHIDIEBERE NWAUBANI,

                     Plaintiff, Appellant,

                               v.

    DIVINA GROSSMAN, in her official capacity as Chancellor,
  University of Massachusetts Dartmouth, and in her individual
                        capacity, et al.,

                     Defendants, Appellees.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

          [Hon. William G. Young, U.S. District Judge]


                             Before
                      Howard, Chief Judge,
              Selya and Thompson, Circuit Judges.


     Eric Nwaubani on brief for appellant.
     Maura Healey, Attorney General, Dierdre Heatwole, Special
Assistant Attorney General, General Counsel, and Denise Barton,
Assistant Counsel, on brief for appellees.


                       November 25, 2015
          THOMPSON, Circuit Judge.         This appeal arises out of a

district court's decision to combine a preliminary injunction

hearing with trial under Federal Rule of Civil Procedure 65(a)(2).

We dismiss the appeal for lack of appellate jurisdiction.

                                 BACKGROUND

          In 2005, Chidiebere Nwaubani ("Nwaubani") was hired as

the director of the African American Studies Program at the

University of Massachusetts at Dartmouth, and then subsequently

also appointed as a tenured Associate Professor in the university's

History Department.

          Over   the    years,    Nwaubani's     relationship   with   the

university got rocky.    For our purposes, we need not delve too far

into these details, but suffice it to say that the crux of the

conflict centered on disagreements about Nwaubani's performance as

director of the African American Studies Program and on Nwaubani's

efforts to get out from under the thumb of the History Department,

whose negative annual evaluations in 2006-07 and 2007-08, Nwaubani

says, resulted in his being passed over for a promotion to full

Professor status in subsequent years.          Things came to a head and

Nwaubani was placed on unpaid administrative leave on July 10,

2013, and then notified on November 8, 2013 that the university

had commenced termination proceedings against him.

          This prompted Nwaubani, represented by counsel, to file

suit, alleging various causes of action, including claims under 42


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U.S.C. § 1983 for violations of his First and Fourteenth Amendment

rights. Nwaubani filed his original complaint on October 11, 2013,

but filed on January 28, 2014 an amended complaint and a separate

motion for preliminary injunction, requesting that the district

court order the ongoing termination proceedings be halted and

Nwaubani be reinstated as director of the African American Studies

Program.1    The defendants moved to dismiss this first amended

complaint on the ground that it failed to comply with Federal Rule

of Civil Procedure 8(a).2   The district court denied the motion

without prejudice, and instead directed Nwaubani to amend the

complaint to comply with Rule 8.

            On March 14, 2014, Nwaubani filed his second amended

complaint, along with an amended motion for preliminary injunction

(which more or less requested the same relief as the first motion

for preliminary injunction).   Now here is how the case came to be

before us today.     The defendants moved to dismiss the second

amended complaint on April 18, 2014, again arguing that it still




     1  Nwaubani also asked for backpay, release of various
documents related to his salary, reinstatement of access to his
official mailbox, and that the defendants be enjoined from all
further communication with him.

     2 The defendants argued that Nwaubani's 721-paragraph first
amended complaint was not a "short and plain statement" of his
claims, see Fed. R. Civ. P. 8, and that the allegations and claims
were excessively long and redundant.




                               - 3 -
suffered from the same pleading defects, and as such did not comply

with Rule 8.      They also contended that the claims against some of

the defendants should be dismissed on administrative exhaustion

grounds.      On June 10, 2014, the district court held a hearing on

the motion to dismiss, at which Nwaubani's counsel did not show

up.3   By electronic order issued that day, the district court both

granted in part and denied in part the motion to dismiss the second

amended complaint (on the written briefs, since no hearing was

held), and also sua sponte combined the motion for preliminary

injunction with a trial on the merits, pursuant to Federal Rule of

Civil Procedure 65.4


       3
       The district court gave the parties notice of the hearing
on May 14, 2014.    On May 23, 2014, Nwaubani's counsel filed a
consent motion to continue the hearing, citing the death of a
family member in Nigeria as the reason for the request.        The
district court denied the request by electronic order that same
day. Nwaubani's counsel then filed, on the morning of the hearing,
an Emergency Motion to Continue the Hearing, explaining that
because of flight delays on his trip back from Nigeria, he could
not be present at the hearing after all. The district court again
denied the emergency motion by electronic order that morning.
Nwaubani's counsel then informed the court's clerk by telephone
that he would, in fact, attend the hearing, but after the court
waited an hour, it became clear Nwaubani's counsel would not show
up, and the court proceeded to call the matter.

       4   The full text of the entry on the electronic docket reads:

       ELECTRONIC Clerk's Notes for proceedings held before
       Judge William G. Young: Motion Hearing held on 6/10/2014
       re 33 MOTION to Dismiss Second Amended Complaint filed
       by William Hogan, Deborah Majewski, Anthony Garro, Alex
       Fowler, Mark Santow, Carol Santos, Jean MacCormack,
       James Griffith, Robert Caret, Henry Thomas, III,



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             The university terminated Nwaubani on June 18, 2014.

The   next    week,   Nwaubani's   counsel   filed   two   motions   for

reconsideration of the district court's June 10, 2014 order, which

combined the preliminary injunction hearing with trial.          He now

appeals that order, along with the district court's denials of his

motions for reconsideration.

             During the pendency of this interlocutory appeal, the

district court has proceeded with the case, which is currently in

the summary judgment phase below.5




      Jeannette Riley, John Farrington, Divina Grossman.
      Counsel for the plaintiff does not appear. The Court
      enters the following Order without oral argument and
      based only on the papers granting in part and denying in
      part 33 Motion to Dismiss; Counts 2-28, 48 and 51 are
      dismissed because they don't state a cause of action;
      denying 41 Motion to Substitute Response. The motion for
      preliminary injunction is combined with trial on the
      merits according to Rule 65(b). This Court will continue
      to preside over this case based on this ruling. The Court
      requests defense counsel confer with plaintiff's counsel
      to determine a trial date.

      5As a general matter, an "interlocutory injunction appeal
under § 1292(a)(1) does not defeat the power of the trial court to
proceed further with the case." 16 Charles Alan Wright & Arthur
R. Miller, Federal Practice and Procedure § 3921.2 (3d ed. 1998).
Before dispositive motions were filed, the case was also referred
to a magistrate judge for a settlement conference, but the
settlement effort failed.



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                               DISCUSSION

            Federal Rule of Civil Procedure 65(a)(2)6 provides that

"[b]efore   or   after   beginning    the     hearing   on   a   motion   for    a

preliminary injunction, the court may advance the trial on the

merits and consolidate it with the hearing."                 Fed. R. Civ. P.

65(a)(2).    Nwaubani does not dispute that the district court had

authority   under   Rule   65(a)(2)    to     consolidate    the   preliminary

injunction hearing with trial, but argues that it did so improperly

when it ordered consolidation without also expediting trial.                    As

we discuss below, we lack jurisdiction to review the district

court's order, so the appeal is dismissed.

            Although, as a general rule, an order must be final

before we may consider it on appeal, see 28 U.S.C. § 1291, we have

appellate    jurisdiction    over     interlocutory      orders     "granting,

continuing, modifying, refusing or dissolving injunctions, or

refusing    to   dissolve    or      modify     injunctions,"      28     U.S.C.

§ 1292(a)(1).       Section 1292(a)(1)'s limited exception to the

finality principle, however, must be "strictly construed" and any

"[d]oubts as to [its] applicability . . . are to be resolved

against immediate appealability," Morales Feliciano v. Rullan, 303


     6 The district court's electronic order incorrectly cites
Federal Rule of Civil Procedure 65(b), which governs temporary
restraining orders, for the authority to consolidate a preliminary
injunction hearing with the trial on the merits, but we will assume
the district court intended to cite Rule 65(a)(2), which permits
such consolidation.


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F.3d   1,   6-7     (1st    Cir.    2002),    in     keeping     with    the   "general

congressional policy against piecemeal review," Carson v. Am.

Brands, Inc., 450 U.S. 79, 84 (1981).

             Where an interlocutory order does not expressly deny

injunctive relief, as is the case here, a party may only appeal if

(1) the district court's decision had the practical effect of

denying injunctive relief; (2) the denial of injunctive relief

would "cause serious (if not irreparable) harm"; and (3) the order

can effectively be challenged only through an immediate appeal.

Watchtower Bible & Tract Soc. of N.Y., Inc. v. Colombani, 712 F.3d

6, 12 (1st Cir. 2013) (citing Carson, 450 U.S. at 83-84).                            Here,

even   if    we    assume     Nwaubani      has     met    the   first      and   second

requirements, he cannot meet the third, so we lack appellate

jurisdiction.

             As    to   the    first      requirement,      Nwaubani        argues    that

because the district court consolidated the preliminary injunction

hearing     with    trial     but   never     held    an    expedited       trial,     the

consolidation       order     had   the    effect     of   denying      a   preliminary

injunction.        Indeed, the district court's docket reveals that in

the year-and-a-half since the consolidation order was entered, the

court has continued to proceed with the case, but to date has

neither held nor scheduled a consolidated merits proceeding.                           In

the last line of its consolidation order, the district court did

request that "defense counsel confer with plaintiff's counsel to


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determine a trial date," but it is unclear from the record and

from the parties' briefs whether the consolidated proceeding was

never scheduled because of a failure on the court's part or because

the parties failed to follow up on the court's request.7         If, for

example, the district court improperly refused to hold an expedited

merits proceeding, Nwaubani's argument that the consolidation

order effectively foreclosed him from a preliminary injunction may

have some merit.    Cf. Fideicomiso De La Tierra Del Caño Martín

Peña v. Fortuño, 582 F.3d 131, 133-34 (1st Cir. 2009) (per curiam)

(holding   that   the   district    court's   denial   of   a   temporary




     7 Regardless, we are troubled that the district court, in
consolidating the preliminary injunction hearing with a trial on
the merits may have unfairly put Nwaubani (over his objection) in
a position where he was forced to forego a ruling on his
interlocutory request for injunctive relief in order to conduct
adequate discovery to prepare for a trial on the merits. See Fed.
R. Civ. P. 65(a)(2) advisory committee's note to 1966 amendment
("The fact that the proceedings have been consolidated should cause
no delay in the disposition of the application for the preliminary
injunction, . . . [in fact,] to consolidate the proceedings will
tend to expedite the final disposition of the action.").

     As Judge (later Justice) Stevens, writing for the Seventh
Circuit, has observed, "[a]t times, particularly if the parties
consent, if discovery has been concluded or if it is manifest that
there is no occasion for discovery, consolidation may serve the
interests of justice," but "[a] litigant applying for a preliminary
injunction should seldom be required either to forego discovery in
order to seek emergency relief, or to forego a prompt application
for an injunction in order to prepare adequately for trial."
Pughsley v. 3750 Lake Shore Drive Coop. Bldg., 463 F.2d 1055, 1057
(7th Cir. 1972).    We are concerned that the district court may
have inappropriately used Rule 65(a)(2) to impose such a Hobson's
choice here.



                                   - 8 -
restraining order did not have the practical effect of denying a

preliminary     injunction    because   "further   interlocutory   relief"

remained available, and the court "gave every indication that it

[was] working to resolve threshold matters in order to clear the

way   for   a   definitive,   reviewable   ruling    on   the   preliminary

injunction").     For our purposes today, however, we need not decide

whether the consolidation was an effective denial -- we will assume

it had the practical effect of denying a preliminary injunction

and that the first requirement is met.

            Moving on to the second requirement, we likewise assume,

favorably to Nwaubani, that it is also met, though we are doubtful

that he has shown the denial of injunctive relief has caused

serious, if not irreparable harm.8


      8Nwaubani argues that he suffers irreparable harm in the form
of "loss of his salary and benefits and the resulting consequences
like health complications, and diminished living standards," as
well as from the continued deprivation of his First and Fourteenth
Amendment rights.    While the loss of salary and its collateral
consequences may be difficult circumstances for the bearer, they
infrequently rise to the level of irreparable harm required for a
preliminary injunction, see Sampson v. Murray, 415 U.S. 61, 91-92
(1974) (holding that a terminated government employee's loss of
income and damage to reputation "falls far short of the type of
irreparable injury which is a necessary predicate to the issuance
of a temporary injunction"), and we are doubtful that the
circumstances of Nwaubani's case clear that hurdle here. It is
likewise unclear that Nwaubani has shown a threat of ongoing harm
from the alleged deprivation of his constitutional rights, such
that he would be entitled to injunctive relief.         Our doubts
notwithstanding, the irreparable harm question is one that
overlaps with the merits of the preliminary injunction motion, and
we decline to reach the question before the district court has an
opportunity to do so.


                                   - 9 -
           Yet, even assuming these first two requirements are met,

we lack jurisdiction because Nwaubani fails to meet the third

requirement     in   that   he    cannot    show   that    the     order    is   only

effectively challenged on immediate appeal.                Colombani, 712 F.3d

at 12.

           Nwaubani     argues      that    immediate     appeal    is     necessary

because if he "awaits the final determination of his case, the

damage to his property interest in continued employment at [the

university] will have already been done."               But at the time of the

filing of this appeal, Nwaubani had already been terminated, so

the damage to which he refers was already past.                      Furthermore,

Nwaubani does not argue that any rights he may have if he succeeds

on the merits, whether they be rights to back pay and money

damages,   or    equitable       remedies   like   declaratory       judgment      or

reinstatement, are somehow less available to him after final

judgment than they are now.             Thus, we have no basis on which to

conclude that this order can only be challenged effectively through

immediate review, and so the third requirement is not met.                        Cf.

Sherri A.D. v. Kirby, 975 F.2d 193, 203-04 (5th Cir. 1992) (finding

the   third     requirement       met    because   an     interlocutory          order

effectively denying services to a severely disabled child could

have resulted in deterioration of the child's cognitive and social

skills and deny her a public education).                  We conclude we lack

jurisdiction.


                                        - 10 -
              Having no jurisdiction over the underlying decision to

consolidate the motion for preliminary injunction with trial, we

also   lack    jurisdiction   over    the     district   court's   denials   of

Nwaubani's motions to reconsider its order.                Accordingly, this

appeal is dismissed.




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