Elnashar v. Speedway Superamerica, LLCElnashar v. Speedway Superamerica, LLC
Counsel who presented argument on behalf of the appellee was Joshua Waldman, Assistant U.S. Attorney, of Washington, D.C. Also appearing on the brief were Peter D. Keisler, Thomas B. Heffelfinger, and Scott R. McIntosh.
BEAM, Circuit Judge.
Abdel Elnashar appeals a discovery order. We dismiss for lack of jurisdiction.
I. BACKGROUND
Elnashar sued his former employer, Speedway SuperAmerica, LLC, alleging, among other things, that he was subjected to a hostile work environment and wrongfully disciplined because of his religion and national origin. In connection with this lawsuit, Elnashar sought testimony from a Federal Bureau of Investigation (FBI) agent and unredacted FBI reports in an effort to learn the name of an unidentified informant. Elnashar argued that the information was relevant to his employment claims, because he believed that the informant was a Speedway SuperAmerica employee, and that the evidence would show discriminatory intent. The court denied Elnashar‘s motions to compel the production of FBI documents and the appearance of an FBI witness and to review the FBI‘s decision not to release information. El-
II. JURISDICTION
Federal appellate jurisdiction is statutorily circumscribed. United States v. Haley, 541 F.2d 678 (8th Cir. 1974). This is an appeal from an interlocutory order, which is appealable only in very narrow circumstances.
In general, an interlocutory order may not be appealed unless it includes the grant or denial of an injunction,
First, Elnashar argues that he is appealing from the district court‘s “summary judgment” in favor of the FBI. He likens his case to an appeal from a final judgment in an action against a government agency filed “pursuant to the APA [Administrative Procedure Act], challenging the federal government‘s refusal to disclose the information he seeks.” Mak v. FBI, 252 F.3d 1089, 1091 (9th Cir. 2001). While we assume, without deciding, that Elnashar need not file a separate action under the APA against the FBI to conduct discovery, he nonetheless cannot appeal the discovery order. Unlike Mak, no final judgment had been entered at the time of Elnashar‘s interlocutory appeal. Therefore, this court lacks jurisdiction to consider the appeal.
Second, Elnashar states that this court has jurisdiction over the discovery order as an order confirming a review of a final agency decision, citing In re SEC ex rel. Glotzer, in which the Securities and Exchange Commission (SEC) sought a writ of mandamus to prevent the district court from compelling its attorneys to testify. 374 F.3d 184, 185-86 (2d Cir. 2004). Again, we disagree. Elnashar is not seeking a writ, which was appropriate in Glotzer, because “the district court‘s order [was] not immediately appealable.” Id. at 188. Further, in Glotzer, the SEC attorneys’ only option, absent a writ, was to be held in contempt, then appeal, which implicated separation of powers issues. Id. at 187-88. Elnashar‘s appeal does not implicate any separation of powers issues. Further, the instant discovery order, which denied disclosure and can be reviewed after final judgment, does not present the same exigency as an order compelling disclosure of privileged testimony which cannot be undisclosed after final judgment.
Finally, Elnashar points out that at least one other circuit has reviewed a subpoena duces tecum served on a government agency as a third party. United States EPA v. Gen. Elec. Co., 197 F.3d 592 (2d Cir. 1999), amended by 212 F.3d 689 (2000). The court reviewed an order quashing a subpoena, implicitly holding that it had jurisdiction to review an interlocutory discovery matter. However, the court only explicitly decided three issues: (1) a subpoena addressed to an agency need not have the exact name of the officeholder correct, (2) agency actions are reviewable under the APA, and (3) a litigant need not commence a separate lawsuit to gain judicial review. Id. at 597-99. The court did not review the merits of the discovery order as an interlocutory matter, but remanded to the district court after setting forth those holdings. The court did not hold that a final agency decision affirmed by a discovery order is reviewable before final judgment in the underlying matter. Neither do we.
Finally, Elnashar sought access to a full, unredacted record, based on the
Elnashar argues that the district court erred by failing to make a de novo review of an agency decision. The district court granted judgment on the pleadings in favor of the FBI and DOJ for the access claim, because Elnashar had failed to exhaust his administrative remedies.2 Elnashar argues that since he was entitled to a judicial review of the unredacted FBI record, the district court necessarily could not grant judgment on the pleadings, because the unredacted records were not part of the pleadings. The district court relied on a magistrate judge‘s order to determine that Elnashar did not exhaust his administrative remedies because he did not administratively appeal his request for records. Because the district court may look to public records not contradictory to the complaint, in a motion for judgment on the pleadings, Porous Media Corp. v. Pall Corp., 186 F.3d 1077, 1079 (8th Cir. 1999), the district court used a correct methodology to determine that Elnashar did not exhaust his administrative remedies in seeking access to his records, which is a prerequisite to bringing suit.