                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         DEC 9 2003
                            FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    HONORABLE JOSEPH W.
    ANDERSON, of the Third Judicial
    District Court, State of Utah,

                Plaintiff-Appellant,

    v.                                                  No. 02-4040
                                                  (D.C. No. 2:01-CV-970)
    STEVEN H. STEWART, in his                            (D. Utah)
    individual capacity; KRISTEN G.
    BREWER, in her official capacity as
    director of the office of the Guardian
    ad Litem and in her individual
    capacity; COLIN R. WINCHESTER,
    in his official capacity as Executive
    Director of the Judicial Conduct
    Commission, RUTH LYBBERT, in her
    official capacity as Chair of the
    Judicial Conduct Commission,

                Defendants-Appellees.


                            ORDER AND JUDGMENT          *




Before SEYMOUR , BRISCOE , and LUCERO , Circuit Judges.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Plaintiff, The Honorable Joseph W. Anderson, is a judge in the Utah state

court system who has become embroiled in a dispute with various members of the

Utah bar. After defendant Kristen Brewer, the director of the Utah Office of the

Guardian ad Litem, filed a complaint against Judge Anderson with the state

Judicial Conduct Commission (JCC), Judge Anderson brought suit in federal

district court claiming that the proceedings of the JCC deprived him of liberty and

property interests under color of state law, damaged his reputation in retaliation

for his actions as a judge, threatened the independence of the Utah judiciary,

violated the separation of powers doctrine, and interfered with his federal right to

a republican form of government. Judge Anderson requested a temporary

restraining order and an order enjoining the JCC from investigating him or

holding any proceedings regarding him. He also requested various declaratory

judgments bringing into question the legitimacy of the JCC, damages, and

attorney fees and costs.

      The district court denied the motion for a temporary restraining order and

eventually stayed all proceedings in the case “until the plaintiff has exhausted


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every remedy and pursued every complaint, claim, grievance and allegation

asserted herein, before the Utah Judicial Conduct Commission and the Utah

Supreme Court.” Aplt. App. at 81-82. Because we are under an independent

obligation to examine our own jurisdiction,         McGeorge v. Continental Airlines,

Inc. , 871 F.2d 952, 953 (10th Cir. 1989), we directed the parties to submit

additional briefs addressing whether the district court’s order is final and

appealable. We conclude the order is not a final order, an appealable collateral

order, or an appealable interlocutory order, and dismiss this appeal for lack of

jurisdiction.

       In general, only final orders of the district courts are within this court’s

appellate jurisdiction. 28 U.S.C. § 1291. A final order is one that “ends the

litigation leaving nothing to be done except execution of the judgment.”       Primas

v. City of Okla. City , 958 F.2d 1506, 1513 (10th Cir. 1992). Stay orders are

ordinarily not final orders for purposes of appeal because the plaintiff is not

“effectively out of [federal] court.”   Moses H. Cone Mem’l Hosp. v. Mercury

Constr. Corp. , 460 U.S. 1, 10 n.11 (1983) (quotation omitted). Because the

district court has merely stayed the action pending exhaustion, the action remains

pending in federal court awaiting Judge Anderson's completion of available state

processes. He is not effectively out of federal court; his day in federal court has

merely been postponed.



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       Judge Anderson argues that      Moses H. Cone supports the appealability of

the stay order. This argument is unavailing. In       Moses H. Cone, the federal court

stayed proceedings in favor of parallel litigation in state court regarding a

question of mandatory arbitration. The question was the same in both courts.

Because a decision by the state court would be res judicata in a later federal

action, the plaintiff in   Moses H. Cone was effectively out of federal court,

rendering the stay order final for purposes of appeal.

       Here, the situation is different. The issues before the JCC, and ultimately

before the Utah Supreme Court on review of the decision of the JCC, are distinct

from the claims Judge Anderson raises in his federal complaint. Even if the Utah

Supreme Court should conclude upon recommendation from the JCC or the

special master appointed by the court on June 4, 2003, to sanction Judge

Anderson for judicial misconduct,     1
                                          he still has a federal forum in which to bring

his due process claims and other federal challenges both to the JCC itself and any

proceedings brought against him. The stay order here is not a final order

appealable under either § 1291 or under        Moses H. Cone.




1
      The defendants have filed with this court, pursuant to Federal Rule of
Appellate Procedure 28(j), a copy of an Order of Referral entered by the Utah
Supreme Court on June 4, 2003, which indicates the JCC has completed its
proceedings and has recommended the imposition of sanctions. The court by its
June 4 order appointed a special master to conduct inquiry into additional matters
and to issue a report to the court prior to September 1, 2003.

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      Nor is this an appealable collateral order. The collateral order doctrine is

best understood as a practical construction of 28 U.S.C. § 1291.        Digital Equip.

Corp. v. Desktop Direct, Inc. , 511 U.S. 863, 867 (1994) (quotation omitted). The

“category comprises only those district court decisions that are conclusive, that

resolve important questions completely separate from the merits, and that would

render such important questions effectively unreviewable on appeal from final

judgment in the underlying action.”     Id. The Supreme Court has repeatedly

stressed that this exception to finality is a narrow one and that it should remain

so. Id. at 868.

      In order to evaluate the issue of appealability under the collateral order

doctrine, “we must focus on the right at stake and the loss to [Judge Anderson] if

review is denied.”   United States v. Section 17 Township 23 North, Range 22 East

of IBM, Delaware County, Okla.,       40 F.3d 320, 322 (10th Cir. 1994). “[A]bsent a

constitutional or statutory provision securing the right at stake, it will be difficult

for a party to demonstrate immediate review is necessary.”         Id. (citing Digital

Equip. , 511 U.S. at 878-80).

      In Digital Equip. , the Supreme Court found that the right not to stand trial

emanating from a private settlement agreement was not sufficiently important to

allow immediate review as a collateral order. 511 U.S. at 877-78. Following

Digital Equip. , this court in Section 17 Township held that the right to defend a



                                            -5-
federal forfeiture before the adjudication of state criminal charges similarly

lacked the requisite importance for immediate appealability. 40 F.3d at 322.

       Implicitly, the right Judge Anderson attempts to protect here is the right not

to be made to appear before a state disciplinary authority before he proceeds with

his federal lawsuit. As in   Section 17 Township , we hold that this is not the kind

of “important right” which the Supreme Court in     Digital Equip. contemplated as

requiring immediate review .

       Finally, we reject Judge Anderson’s claim that this order is appealable as

an interlocutory order under 28 U.S.C. § 1292(a)(1). That statute provides this

court with appellate jurisdiction to review district court orders which deny

injunctive relief. 28 U.S.C. § 1291(a)(1). The parties agree that, by not ruling on

Judge Anderson’s request for an injunction, the district court has effectively

denied an injunction. Under these circumstances, however, Judge Anderson must

show additionally that the order threatens a “serious, perhaps irreparable,

consequence” and is one that can be “effectively challenged only by immediate

appeal.” Forest Guardians v. Babbitt , 174 F.3d 1178, 1185 (10th Cir. 1999)

(quotations omitted). For the same reasons stated above, we do not agree that

having to appear before the JCC carries with it the kind of serious, irreparable

consequence justifying immediate appeal. If the cost, stress, and inconvenience

of defending against a criminal prosecution were not enough to establish



                                           -6-
irreparable injury in Younger v. Harris , 401 U.S. 37, 46 (1971), Judge Anderson's

having to appear before the JCC is likewise not a sufficiently irreparable injury

which could justify an immediate appeal.

      Because the order appealed is not a final order under § 1291, an appealable

collateral order, or an appealable interlocutory order under § 1292, we DISMISS

this appeal for lack of jurisdiction. Judge Anderson’s motion to dismiss action or

in the alternative motion to dismiss appeal is DENIED as moot.



                                                    Entered for the Court



                                                    Mary Beck Briscoe
                                                    Circuit Judge




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