                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                December 22, 2004

                                                         Charles R. Fulbruge III
                                                                 Clerk
                             No. 04-30294



CHRISTOPHER J. DRESSER,

                                               Plaintiff-Appellant,

                                versus

THE OHIO HEMPERY INC.; ET AL.,

                                                         Defendants,

OAKMONT INVESTMENT COMPANY INC.; AMERICAN EMPLOYERS’ INSURANCE
COMPANY; COMMERCIAL UNION INSURANCE COMPANY;

                                              Defendants-Appellees.



          Appeal from the United States District Court
              for the Eastern District of Louisiana
                        (No. 98-CV-2425-R)


Before REAVLEY, DAVIS, and WIENER, Circuit Judges.

PER CURIAM:*

     Plaintiff-Appellant Christopher Dresser appeals the district

court’s grant of a stay pending the outcome of a Coast Guard

administrative proceeding.    As we are without jurisdiction to

hear the appeal, we dismiss.

                  I. FACTS AND PROCEEDINGS


     *
        Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
     Dresser is a Coast Guard-licensed vessel engineer. He alleged

that, prior to taking a Coast Guard drug test, he ingested “Hemp

Liquid Gold,” a product manufactured and distributed by Defendant-

Appellee Oakmont Investment Company Inc. (“Oakmont”).                    Dresser

failed the drug test, testing positive for marijuana/THC, as a

result of which the Coast Guard sought to have Dresser’s license

revoked.      A hearing was commenced by a Coast Guard Administrative

Law Judge (“ALJ”) in April 1998 and completed in June of that year.

Two months later, Dresser sued Oakmont in federal district court

seeking damages for emotional distress as well as significant loss

of earnings, earning capacity, pension benefits, medical insurance

and loss of other job-related benefits.

     Early the following year, the ALJ ordered Dresser’s license

revoked, after which Oakmont sought a stay of the proceedings in

district court pending the outcome of Dresser’s administrative

appeal. Oakmont’s stay was granted and some two and one half years

later   the     ALJ’s    decision    was     affirmed     by   the   Coast   Guard

Commandant.      Dresser appealed the Commandant’s decision to the

National Transportation Safety Board (“NTSB”) which, after the

passage of yet another year, reversed and remanded for new hearings

because the original ALJ had a conflict of interest (the ALJ’s son

was representing Oakmont in the instant litigation).

     The month after the NTSB reversed and remanded, Dresser filed

a motion to reopen this case, which motion the district court

granted.       Oakmont    again     sought    to   stay    the   district    court

                                       -2-
proceeding pending a final result in the Coast Guard administrative

proceedings. After oral argument and consideration of supplemental

memoranda, the district court granted Oakmont’s stay.                   Dresser

seeks appellate review of the stay or, alternatively, a writ of

mandamus.

                                II.   ANALYSIS

     Before addressing the merits of the stay order, we must

determine whether we have appellate jurisdiction.                 Generally, 28

U.S.C. § 1291 provides appellate jurisdiction only over final

judgments of the district courts.1          Stays do not typically qualify

as final judgments for purposes of § 1291.2         Dresser relies on two

exceptions    to   §   1291’s   finality     requirement     to    sustain   our

jurisdiction over this appeal: (1) the so-called death knell or

“effectively out of court” exception; and (2) the collateral order

doctrine.    In the alternative, Dresser asks us to treat his appeal

as a petition for mandamus.       As a result of the narrow construction

given to both the death knell exception and the collateral order

doctrine,    and   the   restriction    of   mandamus   to    “extraordinary




     1
       “The courts of appeals . . . shall have jurisdiction of
appeals from all final decisions of the district courts of the
United States . . . except where a direct review may be had in
the Supreme Court.” 28 U.S.C. § 1291.
     2
       “[A] stay is not ordinarily a final decision for purposes
of § 1291.” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp.,
460 U.S. 1, 10 n.11 (1983); see also Kershaw v. Shalala, 9 F.3d
11, 14 (5th Cir. 1993) (same).

                                      -3-
situations,” we conclude that we do not have jurisdiction to hear

Dresser’s appeal.

A.   THE DEATH KNELL EXCEPTION

     The death knell or “effectively out of court” exception can be

traced to the Supreme Court’s decision in Idlewild Bon Voyage

Liquor Corp. v. Epstein.3        The plaintiff in Idlewild filed suit in

federal court challenging the constitutionality of a state statute.

The district court declined to convene a three judge panel and

stayed    the    federal   court   suit    under   the   Pullman   abstention

doctrine.4      The Second Circuit disagreed with the district court,

but dismissed for lack of appellate jurisdiction.                  After the

plaintiff was rejected by the district court for a second time, the

Supreme Court granted certiorari and held that the district court’s

action was final and therefore reviewable by the appellate court,

pointing out that the appellant “was effectively out of court.”5

     In Moses H. Cone Memorial Hospital v. Mercury Construction

Corp., the Court narrowed the application of Idlewild to “cases

where (under Colorado River, abstention, or a closely similar

doctrine) the object of the stay is to require all or an essential




     3
         370 U.S. 713 (1962).
     4
       Idlewild Bon Voyage Liquor Corp. v. Rohan, 188 F.Supp. 434
(S.D.N.Y. 1960).
     5
         Id. at 715 n.2.

                                     -4-
part of the federal suit to be litigated in a state forum.”6

Dresser relies primarily on our decision in Granite State Insurance

Co. v. Tandy Corp. in support of his insistence that the death

knell exception is applicable to his case.7       In Granite State, we

allowed the appeal of a stay order in favor of a state court

proceeding,    holding   that   “[w]here   a   stay   order   effectively

dismisses the federal suit, as in this case, it is treated as a

final order under § 1291.”8      Following the teaching of Moses H.

Cone, we have expressly limited application of the death knell

exception to cases in which the stay required all or essentially

all of the suit to be litigated in state court.9               Dresser’s

reliance on Granite State is misplaced because the stay in the

present case does not require any part of a suit to be decided in

a state forum; it requires a decision by a federal agency.




     6
       460 U.S. at 10 n.11; see also Quackenbush v. Allstate Ins.
Co., 517 U.S. 706, 713 (1996).
     7
         986 F.2d 94 (5th Cir. 1992).
     8
         Id. at 95.
     9
       See Kershaw, 9 F.3d at 14 (acknowledging holding in Moses
that limits use of exception to situations when the stay requires
all or essentially all of the suit to be litigated in state
court); Kmart Corp. v. Aronds, 123 F.3d 297, 300 (5th Cir. 1997)
(“[T]his Court has stated that while it liberally construed the
death knell exception in the past, it could no longer do so
because the exception was limited to cases where the stay
requires all or essentially all of the suit to be litigated in
state court.”); United States v. L.J. Garner, 749 F.2d 281, 288
(5th Cir. 1985) (same).

                                   -5-
       Dresser advances two arguments for why his case should still

fall within the death knell exception.              First, he notes that the

suit, although not relegated to state court, has been removed from

a federal forum.         In Kershaw v. Shalala, we rejected this line of

reasoning.10      The plaintiff in Kershaw had been denied disability

benefits under the Social Security Act by the Secretary of Health

and Human Services.         The district court ruled that the record did

not    contain    substantial      evidence    to   sustain    the   Secretary’s

decision and       entered    an   order   reversing   and     remanding.       The

plaintiff filed a motion to recover attorney’s fees and expenses as

provided by statute.         The district court stayed the application

pending disposition by the administrative agency on remand.                     The

plaintiff appealed the district court’s stay order but we dismissed

for lack of appellate jurisdiction, refusing to apply the death

knell exception:

              The eventual decision of the Secretary will be fully
              reviewable by the district court, and that court’s
              decision will be fully reviewable by this Court. Thus,
              unlike certain abstention stay orders, the present order
              does not deprive the plaintiff of an effective appeal in
              a federal forum.11

       As was the situation in Kershaw, Dresser will not be deprived

of an “effective appeal in a federal forum.”             The decision in the

Coast Guard administrative proceeding will ultimately be reviewable

by    federal    district    and   appellate   courts.        Dresser   tries    to

       10
            9 F.3d 11 (5th Cir. 1993).
       11
            Id. at 14.

                                       -6-
distinguish the cases by highlighting the fact that the district

court that issued the stay here will not be the same one that

conducts    the    review,   as    it    was   in   Kershaw.         This    is     a

quintessential distinction without a difference.                 The concern

animating the death knell exception is with an effective appeal in

“a” federal forum, not in the same federal forum in which the

plaintiff chose to file his action.12

     Second, Dresser argues that the stay is the equivalent of

putting him out of court as a result of the unconscionable delay

that the administrative proceeding and its review will create.

Dresser relies entirely on our decision in Hines v. D’Artois, in

which we allowed review of a district court’s sua sponte decision

to stay a case brought under §§ 1981 & 1983 pending exhaustion of

Title VII administrative proceedings in the EEOC.13 Noting that the

EEOC proceedings would likely take eighteen months, if not longer,

we ruled that the stay order effectively put the plaintiffs out of

court for a protracted and indefinite period.14          Although Hines has

never     been    overturned,     subsequent    case   law     has    made        its



     12
       Neither is Dresser deprived of an effective appeal in a
federal forum if a decision in the administrative proceeding will
have no collateral estoppel effect in the instant case. As the
death knell exception fails for other independent reasons, it is
unnecessary to examine the collateral estoppel effect that a
decision by the Coast Guard administrative board would have on
this case.
     13
          531 F.2d 726 (5th Cir. 1976).
     14
          See id. at 731-32.

                                        -7-
precedential value questionable. In coming to its conclusion, this

court in Hines relied on the Supreme Court’s decisions in Idlewild

and Gillespie v. United States Steel Corp.,15 two rulings that were

narrowed substantially in the years following Hines.16

     In light of our recent decision in Kershaw, and the very

narrow interpretation given to the death knell exception by both

the Supreme Court and this circuit, we hold that the death knell

exception is unavailable as a basis for appellate jurisdiction.

B.   COLLATERAL ORDER DOCTRINE

     Dresser argues in the alternative that the denial of his

motion for a stay is appealable under the exception to the finality

rule espoused in Cohen v. Beneficial Loan Corp.,17 generally known

as the collateral order doctrine.      In this circuit, “an order may

be appealed under the Cohen exception if the appellant demonstrates

that the order (1) conclusively determines the disputed question,

(2) resolves an important issue completely separate from the merits

of the action, and (3) is effectively unreviewable on appeal from




     15
          379 U.S. 148 (1964).
     16
        See Moses H. Cone, 460 U.S. at 10 n.11 (limiting the
reach of Idlewild to instances when a stay forces all or an
essential part of a federal suit to be litigated in a state
forum); Coopers & Lybrand v. Livesay, 437 U.S. 463 (1978)
(narrowing Gillespie to its unique facts). In Kmart, we noted
that Gillespie’s finality exception was no longer recognized in
our circuit. 123 F.3d at 300.
     17
          337 U.S. 541 (1949).

                                 -8-
a final judgment.”18     We have stated that “the collateral order

doctrine is not to be applied liberally.   Rather, the doctrine is

extraordinarily limited in its application.”19   The requirements of

the collateral order doctrine are conjunctive; failure to satisfy

any one of them defeats appellate jurisdiction.20     As the district

court’s stay order does not “conclusively determine the disputed

question,” it does not qualify as a collateral order.21

     The Supreme Court, which analyzed the first prong of the test

for the collateral order doctrine in both Moses Cone and Gulfstream

Aerospace Corp. v. Mayacamas Corp., contrasted two types of orders:

those that are “inherently tentative” and those that, although

technically amendable, are “made with the expectation that they

will be the final word on the subject addressed.”22    In Moses Cone,



     18
       A-Mark Auction Galleries, Inc. v. Am. Numismatic Ass’n,
233 F.3d 895, 898 (5th Cir. 2000)(citing Acoustic Systems, Inc.
v. Wenger Corp., 207 F.3d 287, 290 (5th Cir. 2000) and Coopers &
Lybrand v. Livesay, 437 U.S. 463, 468-69 (1978)).
     19
       Acoustic Systems, 207 F.3d at 291; see also Kershaw, 9
F.3d at 14 (“Absent a Moses Cone situation, stay orders rarely
satisfy [the doctrine’s] requirements, and therefore, are usually
not reviewable as collateral orders.”).
     20
          Garner, 749 F.2d at 287.
     21
       We note, without deciding the issues, that at least one
other circuit, in an unpublished opinion, has held that a stay of
proceedings in favor of federal agency proceedings does not
satisfy the second or third prongs as well. In re American
Freight Systems, Inc., No. 92-3426, 1993 WL 356784, at *2-3 (10th
Cir. Sept. 3, 1993).
     22
       Moses H. Cone, 460 U.S. at 13; Gulfstream Aerospace Corp.
v. Mayacamas Corp., 485 U.S. 271, 277 (1988).

                                 -9-
the district court had entered an order under Colorado River Water

Conservation District v. United States staying a federal diversity

suit pending the completion of a declaratory judgment action that

had been filed in state court.     The Supreme Court concluded that

such an order is not tentative in nature and held that the stay was

appealable under the collateral order doctrine.23    In Gulfstream,

the Court was faced with the question whether the denial of a

Colorado River stay order was appealable.         Answering in the

negative, the Court contrasted the nature of the stay order in

Moses Cone with the refusal to grant such a stay and concluded that

a Colorado River stay “‘necessarily contemplates that the federal

court will have nothing further to do in resolving any substantive

part of the case’ because a district court may enter such an order

only if it has full confidence that the parallel state proceeding

will ‘be an adequate vehicle for the complete and prompt resolution

of the issues between the parties.’”24

     Regardless of whether the ultimate outcome of the Coast Guard

administrative hearings will have some estoppel effect on Dresser’s

claims, it cannot be said that a “federal court will have nothing

further to do in resolving any substantive part of the case.”   Any

decision by the ALJ will ultimately be reviewable in a federal

district court and presumably in a federal appellate court as well.

     23
          Moses H. Cone, 460 U.S. at 10.
     24
       Gulfstream, 485 U.S. at 277 (quoting Moses H. Cone, 460
U.S. at 28).

                                 -10-
If the administrative proceedings are stalled or terminated, the

district court may choose to lift the stay; and it is virtually

certain that the instant case will be resumed at least to some

extent once the administrative proceeding is completed.                      As the

district      court’s   stay   order    is    inapposite    to    the   complete

abdication of federal jurisdiction that was present in Moses Cone,

the stay in favor of the federal administrative proceedings here

does not fall into that narrow class of cases in which the

collateral order doctrine applies.25           We hold that the collateral

order doctrine is not available to confer appellate jurisdiction in

this instance.

C.    MANDAMUS

      Finally, as we have failed to find the stay order otherwise

appealable, we address briefly Dresser’s alternative request that

we issue a writ of mandamus directing the district court to vacate

the stay.        “‘Mandamus is an extraordinary remedy reserved for

extraordinary cases,’ one granted ‘not as a matter of right, but in

the exercise of a sound judicial discretion.’”26 The Supreme Court

has   ruled    emphatically    that    mandamus   must     not   be   used    as   a

substitute for appeal.27        Mandamus is appropriate to correct the

      25
       Accord Cofab, Inc. v. Philadelphia Joint Bd., Amalgamated
Clothing & Textile Workers’ Union, 141 F.3d 105 (3d Cir. 1998).
      26
       In re Occidental Petroleum Corp., 217 F.3d 293, 295 (5th
Cir. 2000) (citing Southern Pac. Transp. Co. v. San Antonio, 748
F.2d 266, 270 (5th Cir. 1984)).
      27
           Schlagenhauf v. Holder, 379 U.S. 104, 110 (1964).

                                       -11-
grant of a stay only when there is a clear abuse of discretion.28

Dresser “must show not only that the district court erred, but that

it clearly and indisputably erred.29

      The short paragraph in Dresser’s brief requesting mandamus

fails to carry this heavy burden.                The district court made its

decision after allowing full briefing and oral argument from both

parties before concluding that a stay was proper.                   The court

reasoned that (1) it would be wasteful for two separate tribunals

to proceed on the same issue of liability simultaneously; (2)

collateral estoppel could operate to bar Dresser’s claim if he

should fail at the administrative hearing to rebut the presumption

of marijuana use through proof by a preponderance of the evidence

that Hemp Liquid Gold was the cause of his failing the drug test;

and (3) Dresser’s theory of damages is largely predicated on the

final      outcome   of   the   Coast   Guard    administrative   proceedings.

Without addressing whether the stay was providently granted, we

hold that Dresser has failed to show clearly and indisputably that

the     district     court’s    order    falls    under   those   “exceptional

circumstances amounting to a judicial usurpation of power.”30

APPEAL DISMISSED.




      28
           See Southern Pac. Transp. Co., 748 F.2d at 270.
      29
       In re Occidental Petroleum Corp., 217 F.3d at 295
(internal citations omitted).
      30
           Gulfstream, 485 U.S. at 289 (citations omitted).

                                        -12-
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