Case Information
*1 Before BRISCOE, Chief Judge, LUCERO and McHUGH , Circuit Judges.
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this *2 appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is, therefore, submitted without oral argument.
Parker Livestock, LLC (Parker Livestock) filed suit against the Oklahoma National Stock Yards Company (ONSY) and several other companies and individuals alleging that the defendants engaged in unjustly discriminatory, deceptive, and anti- competitive conduct in violation of state and federal law, including § 312 of the Packers and Stockyards Act, 7 U.S.C. § 213. The district court determined that primary jurisdiction for the issues raised in Parker Livestock’s complaint under the Packers and Stockyards Act lies with the Department of Agriculture and ordered the case stayed pending a decision by the Secretary of Agriculture. Parker Livestock appeals from the district court’s order. Because the district court’s stay order was not a final or immediately appealable decision, we lack appellate jurisdiction and dismiss.
I
ONSY operates a livestock auction in Oklahoma City, Oklahoma. Parker Livestock is a livestock dealer that regularly participates in ONSY’s auctions. John Parker is Parker Livestock’s owner and sole representative. The remaining defendants are either stockyard service providers for ONSY or competitors of Parker Livestock.
In March 2012, John Parker complained to the Department of Agriculture that illegal activity was occurring at ONSY’s auctions. Specifically, John Parker claimed that an ONSY auctioneer was illegally bidding and buying cattle out of consignment in *3 violation of 9 C.F.R. § 201.56(c). [1] Shortly thereafter, ONSY banned John Parker from its auctions and canceled Parker Livestock’s lease for office space on ONSY’s premises. Parker Livestock viewed these acts as retaliatory.
Parker Livestock then filed suit against ONSY and several other defendants alleging, in part, that ONSY’s retaliatory acts violated § 312 of the Packers and Stockyards Act, which prohibits any market agency from “engag[ing] in or us[ing] any unfair, unjustly discriminatory, or deceptive practice or device in connection with . . . [the] marketing . . . or selling . . . of livestock.” See 7 U.S.C. § 213(a). Parker Livestock further alleged that: (i) ONSY breached its lease, (ii) ONSY committed conversion when it took possession of its office space, (iii) the defendants tortiously interfered with Parker Livestock’s business relationships and conspired to do the same, (iv) the defendants conspired to violate the Packers and Stockyards Act, and (v) Parker Livestock was entitled to injunctive relief.
After bringing suit in federal court, Parker Livestock filed a motion for a preliminary injunction requiring ONSY to return Parker Livestock to the status quo by restoring Parker Livestock’s lease and by permitting John Parker to again participate in ONSY’s auctions. The district court did not rule on Parker Livestock’s motion. Instead, the court issued an order staying the case, finding that Parker Livestock lacked prudential standing to assert claims based on John Parker’s legal rights and that Parker Livestock’s *4 claims under § 312 of the Packers and Stockyards Act should be referred to the Secretary of Agriculture under the primary jurisdiction doctrine. The court considered referral to the Secretary to be appropriate because the Packers and Stockyards Act fails to define what constitutes an unfair, unjustly discriminatory, or deceptive practice and a determination by the Secretary would “help promote the uniform definition of these terms.” App. at 319. The district court further noted that referral was proper because there was already “an ongoing investigation by the Secretary regarding Parker Livestock’s claims.” Id. at 320. Recognizing that resolution of the issues referred to the Secretary of Agriculture “would resolve the vast majority of th[e] dispute,” id. at 321, the court ruled that it would stay the proceedings and “reopen[] [the case] if necessary” after it received the Secretary’s ruling. Id. at 324.
Parker Livestock subsequently filed a motion asking the court to reconsider and clarify its order. Specifically, Parker Livestock requested that the court rule on its motion for a preliminary injunction, clarify its referral to the Secretary of Agriculture in light of its finding that Parker Livestock lacked prudential standing, certify its standing and primary jurisdiction holdings for immediate appeal, and reconsider its ruling on these issues. The district court denied Parker Livestock’s motion in its entirety. The court noted that “[b]ecause the proceedings were stayed, [it was] not bound to currently rule upon Plaintiff’s Motion for Preliminary Injunction.” Id. at 349. It also noted that it would be inappropriate for it to certify its standing and primary jurisdiction decisions because both those issues “are intensely factual and would require the appellate court to *5 carefully study the record to make any ruling.” Id. at 350-51.
Parker Livestock filed a notice of appeal. This court suspended briefing on the
merits and ordered the parties to submit memoranda on the question of whether the
district court entered a final or immediately appealable decision in light of Crystal Clear
Commc’ns, Inc. v. Sw. Bell Tel. Co.,
II
Parker Livestock argues on appeal that the district court erred in staying the case and in referring its Packers and Stockyards Act claim to the Secretary of Agriculture. Before considering the merits of this appeal, however, we must determine whether we have appellate jurisdiction.
Parker Livestock argues three bases for jurisdiction. First, it contends the district court’s stay order was a final decision over which we have jurisdiction pursuant to 28 U.S.C. § 1291. Second, it argues the district court’s refusal to rule on its preliminary injunction was in effect a denial of its application for an injunction and appealable under 28 U.S.C. § 1292(a)(1). Finally, it argues the district court’s order was an appealable collateral order.
A. 28 U.S.C. § 1291
Generally, we have jurisdiction over “appeals from all final decisions of the
district courts of the United States.” 28 U.S.C. § 1291. A district court’s decision is final
when it “ends the litigation on the merits and leaves nothing for the court to do but
*6
execute the judgment.” Gray v. Baker,
In Crystal Clear, we addressed an issue very similar to the issue presented here. The plaintiff brought suit under the Sherman Antitrust Act and the Oklahoma Antitrust Reform Act to prevent the defendant from unlawfully engaging in anti-competitive conduct. We examined whether the district court’s decision to stay the proceedings pending resolution of certain issues by the Federal Communications Commission and the Oklahoma Corporation Commission effectively ended the case. We concluded that it did not because, when viewed in its entirety, the district court’s order clearly “intended to refer only particular issues to those agencies,” and contemplated “an eventual return to federal court.” Id. at 1176-77. Thus, we held the district court’s order did not effectively terminate the litigation, but rather merely delayed it. Id. at 1178.
Like the order in Crystal Clear, the district court’s order in this case referred only a
particular issue to the Secretary of Agriculture—whether the defendants violated § 312 of
the Packers and Stockyards Act—and left open the possibility of the case’s eventual
*7
return to federal court. Indeed, the district court specifically indicated that it was staying
the proceedings so that it could “reopen[] [the case] if necessary” after the Secretary ruled
on the whether § 312 of the Packers and Stockyards Act had been violated. App. at 324.
The district court did not permanently relinquish jurisdiction over the case or “put [Parker
Livestock] effectively out of court.” Crystal Clear,
Parker Livestock attempts to distinguish its case from Crystal Clear on the ground that the Secretary of Agriculture lacks the authority to hear the issue referred to it by the district court. Parker Livestock reasons that the district court’s order therefore effectively terminated the litigation. See Aplt. Br. at 7. In making its argument, Parker Livestock points to § 309 of the Packers and Stockyards Act as controlling authority on the Secretary’s jurisdiction to hear this case. That section gives the Secretary of Agriculture the authority to adjudicate claims for violations of §§ 304-307, but not for § 312. [2] See § 309, 42 Stat. 165 (1921). According to Parker Livestock, this prevents it from presenting its § 312 claim to the Secretary. We disagree.
While it may be true that the Secretary lacks the authority to hear complaints for
violations of § 312 under the process outlined in § 309, Parker Livestock ignores the grant
of authority given to the Secretary under § 312 itself. Section 312 states that “[w]henever
complaint is made to the Secretary by any person” that a “stockyard owner, market
*8
agency, or dealer is violating the provisions of [§ 312(a)], the Secretary after notice and
full hearing may make an order that he shall cease and desist from continuing such
violation.” 7 U.S.C. § 213(b). By its terms, this section gives any person, including
Parker Livestock, the right to present its complaint that ONSY, a market agency, is
violating § 312 to the Secretary of Agriculture. It also gives the Secretary the authority to
determine whether a § 312 violation is occurring and to respond to such a violation by
issuing a cease and desist order.
[3]
It is this authority that the district court relied on when
it referred the case to the Secretary. Thus, it cannot be said that Parker Livestock has
been left without a forum in which to bring its claims. And, while we recognize that a
cease and desist order may not be the specific relief Parker Livestock seeks, it is certainly
a form of relief that the Secretary is authorized to grant to prevent § 312 violations.
Parker Livestock can always return to federal court to pursue a damages claim if it finds
the cease and desist order inadequate, which would be “consistent with the usual course
of action in primary jurisdiction cases.” Crystal Clear,
Given the Secretary’s authority under § 312, the district court’s stay order does not prevent this case from continuing in federal court, as Parker Livestock argues, but instead merely delays the adjudication of Parker Livestock’s remaining claims until the Secretary rules on the matter referred. We are therefore left with a ruling by the district court that is not a final appealable order under 28 U.S.C. § 1291.
B. 28 U.S.C. § 1292(a)(1)
Section 1292(a)(1) grants appellate courts jurisdiction to review district court orders “granting, continuing, modifying, refusing or dissolving injunctions.” 28 U.S.C. § 1292(a)(1). Parker Livestock contends that because it was entitled to a ruling on its preliminary injunction, which the district court refused to enter, the district court’s stay order is the functional equivalent of a refusal and therefore satisfies the requirements of § 1292(a)(1). See Aplt. Br. at 12-13. We reject this argument.
When a district court’s order fails to expressly grant or deny an injunction,
jurisdiction is appropriate only in those limited circumstances where the order “has the
practical effect of doing so.” Miller v. Basic Research, LLC,
Cir. 2014) (quotation omitted). In addition to demonstrating that the order represents an
effective denial, a litigant must also show that “(1) the ‘appeal will further the statutory
*10
purpose of permitting litigants to effectually challenge interlocutory orders of serious,
perhaps irreparable, consequence’ and, (2) the order can be ‘effectually challenged’ only
by immediate appeal.” Id. (quoting Carson v. Am. Brands, Inc.,
Unlike Lynd, it is not clear from the facts in this case that Parker Livestock was
entitled to a ruling on its request for injunctive relief. Here, the court never held a hearing
on the injunction, and therefore no evidence was presented that clearly supported Parker
Livestock’s entitlement to an injunction. The district court’s decision also appears similar
to the Fifth Circuit’s subsequent cases, which have narrowed Lynd. See Overton v. City
of Austin,
Because we conclude Parker Livestock has failed to meet its burden of showing that the district court’s refusal to rule on its motion for an injunction was an effective denial, we need not reach the other two prongs of the test. Without an effective denial, we lack jurisdiction under § 1292(a)(1).
C. Collateral Order Doctrine
Finally, Parker Livestock contends that even if the district court’s order is not
final, we still have jurisdiction under the collateral order doctrine. The collateral order
doctrine, first articulated by the Supreme Court in Cohen v. Beneficial Indus. Loan Corp.,
allows interlocutory review of non-final decisions “which finally determine claims of
right separable from, and collateral to, rights asserted in the action,” and which are “too
important to be denied review and too independent of the cause itself to require that
appellate consideration be deferred until the whole case is adjudicated.”
“To establish jurisdiction under the collateral order doctrine, [a litigant] must
establish that the district court’s order (1) conclusively determined the disputed question,
(2) resolved an important issue completely separate from the merits of the case, and (3) is
effectively unreviewable on appeal from a final judgment.” Gray v. Baker, 399 F.3d
1241, 1245 (10th Cir. 2005). These requirements are “stringent” and the collateral order
exception narrow. Crystal Clear,
The district court’s order in this case is not an immediately appealable collateral order. Crystal Clear is again determinative. In Crystal Clear, the appellant made an argument similar to the one Parker Livestock makes here—that the collateral order exception applies when a district court relies on the primary jurisdiction doctrine to resolve certain issues in the case. Id. at 1178. We, however, disagreed, concluding that “[a] district court’s determination of whether to invoke the primary jurisdiction doctrine is not sufficiently separable from the cause of action to qualify for interlocutory review.” Id. at 1180. We noted that because the “entire purpose of the primary jurisdiction doctrine is to allow agencies to render opinions on issues underlying and related to the cause of action,” its invocation requires a district court “to examine [the] factual and legal issues underlying the dispute.” Id. at 1179. Thus, because review of an order invoking primary jurisdiction would require consideration of the merits, we held that a decision on primary jurisdiction does not fall under the collateral order doctrine’s exception. Id. at 1180.
Our ruling in Crystal Clear leads us to conclude that the district court’s stay order in this case is not an immediately appealable collateral order. It does not resolve an issue completely separable from the merits and it is not appropriate for interlocutory review. Indeed, if we were to review the order, we would be forced to delve into the facts underlying Parker Livestock’s dispute and that would exceed the limitations placed upon us by the collateral order doctrine. Accordingly, the collateral order exception does not apply and we lack jurisdiction to review the district court’s stay order.
III
Because the district court’s stay order was neither a final decision nor an immediately appealable interlocutory order, we lack jurisdiction and dismiss.
Entered for the Court Mary Beck Briscoe Chief Judge
Notes
[*] This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
[1] 9 C.F.R. § 201.56(c) provides that “[n]o market agency engaged in selling livestock on commission shall permit its auctioneers . . . to purchase livestock out of consignment for any purpose for their own account, either directly or indirectly.”
[2] Parker Livestock also argues that the district court erred in interpreting § 309 by relying on the language of the United States Code instead of the United States Statutes at Large. See Aplt. Br. at 7-8. Because we conclude that the Secretary’s alternative grant of authority under § 312 is controlling in this case, we need not resolve whether the district court erred in its interpretation.
[3] It is this point that distinguishes Parker Livestock’s case from those on which it
relies. See Jackson v. Swift Erkrich, Inc.,