834 F.3d 933
8th Cir.2016Background
- Auer, a former city attorney for Minot, ND, sued the city, its outside law firm, and credit-report companies under the Fair Credit Reporting Act after a credit report was obtained and disclosed in response to her public-records request.
- The city and the firm moved to dismiss (or in the alternative for summary judgment) and asked permission to destroy their copies of the credit report, claiming no use or interest in it.
- The district court treated the motion as a Rule 12(b)(6) dismissal and granted it as to the city and the firm. It ordered the city and firm to deliver physical copies of the report to the clerk for safekeeping and allowed destruction after 30 days unless directed otherwise.
- The city and firm surrendered physical copies and destroyed electronic ones; Auer instructed the clerk to retain the hard copies while she appealed.
- Auer appealed, characterizing the clerk-order as a permanent injunction appealable under 28 U.S.C. § 1292(a)(1), and also filed a mandamus petition seeking vacatur of the dismissal. The court consolidated both matters.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court order disposing of the reports is an appealable permanent injunction under 28 U.S.C. § 1292(a)(1) | Auer: The order authorizes immediate disposal of her consumer report and functions as a permanent injunction, so interlocutory appeal is proper | City & firm: The order merely addressed their possession of the reports and was not an injunction directing Auer or altering the merits of the case | Court: The order is not an injunction under § 1292(a)(1); appellate jurisdiction lacking, appeal dismissed |
| Whether mandamus is appropriate to vacate the dismissal of claims against city and firm | Auer: District court abused discretion and misapplied dismissal/summary-judgment standards; extraordinary relief justified | Defendants: Ordinary appellate process is the appropriate remedy; mandamus is extraordinary and not warranted | Court: Mandamus denied because Auer has adequate appellate alternatives; errors in dismissal are for direct appeal |
| Request to transfer case to a different district judge | Auer: Asks reassignment (vague) | Implicit: No compelling basis shown | Court: Denied for lack of argument or justification |
| Whether Auer was prejudiced by inability to develop evidence before dismissal | Auer: Dismissal foreclosed fact development needed for appeal | Defendants: Dismissal concerns pleading standards; additional evidence irrelevant to rule 12(b)(6) review | Court: Unpersuaded; any new evidence would not affect rule 12(b)(6) inquiry; usual appellate path remains available |
Key Cases Cited
- United States v. Santtini, 963 F.2d 585 (3d Cir. 1992) (not all orders directing a party are injunctions for § 1292(a)(1) purposes)
- Nordin v. Nutri/System, Inc., 897 F.2d 339 (8th Cir. 1990) (labels do not control characterization of orders)
- Tenkku v. Normandy Bank, 218 F.3d 926 (8th Cir. 2000) (discovery orders that compel action are not injunctive under § 1292(a)(1))
- Cheney v. U.S. Dist. Court for the D.C., 542 U.S. 367 (2004) (mandamus is a drastic remedy reserved for extraordinary causes)
- Ex parte Fahey, 332 U.S. 258 (1947) (historical limit on peremptory writs)
- Kerr v. U.S. Dist. Court for the N. Dist. of Cal., 426 U.S. 394 (1976) (mandamus unavailable if adequate alternative remedies exist)
- Will v. United States, 389 U.S. 90 (1967) (courts should not recharacterize nonappealable orders as ‘abuse of discretion’ to permit interlocutory review)