Filed: Aug. 25, 2016
Latest Update: Mar. 03, 2020
Summary: United States Court of Appeals For the Eighth Circuit _ No. 15-2021 _ Colleen M. Auer lllllllllllllllllllllPlaintiff - Appellant v. Trans Union, LLC, a Delaware Limited Liability Company; CBCInnovis, Inc., a Pennsylvania Corporation lllllllllllllllllllllDefendants City of Minot, a North Dakota Municipal Corporation; Smith, Bakke, Porsborg, Schweigert & Armstrong, a North Dakota General Partnership lllllllllllllllllllllDefendants - Appellees John Does 1-100, inclusive lllllllllllllllllllllDefenda
Summary: United States Court of Appeals For the Eighth Circuit _ No. 15-2021 _ Colleen M. Auer lllllllllllllllllllllPlaintiff - Appellant v. Trans Union, LLC, a Delaware Limited Liability Company; CBCInnovis, Inc., a Pennsylvania Corporation lllllllllllllllllllllDefendants City of Minot, a North Dakota Municipal Corporation; Smith, Bakke, Porsborg, Schweigert & Armstrong, a North Dakota General Partnership lllllllllllllllllllllDefendants - Appellees John Does 1-100, inclusive lllllllllllllllllllllDefendan..
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United States Court of Appeals
For the Eighth Circuit
___________________________
No. 15-2021
___________________________
Colleen M. Auer
lllllllllllllllllllllPlaintiff - Appellant
v.
Trans Union, LLC, a Delaware Limited Liability Company; CBCInnovis, Inc., a
Pennsylvania Corporation
lllllllllllllllllllllDefendants
City of Minot, a North Dakota Municipal Corporation; Smith, Bakke, Porsborg,
Schweigert & Armstrong, a North Dakota General Partnership
lllllllllllllllllllllDefendants - Appellees
John Does 1-100, inclusive
lllllllllllllllllllllDefendants
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No. 15-2386
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In re: Colleen M. Auer
lllllllllllllllllllllPetitioner
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Appeals from United States District Court
for the District of North Dakota - Bismarck
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Submitted: May 31, 2016
Filed: August 25, 2016
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Before RILEY, Chief Judge, COLLOTON and SHEPHERD, Circuit Judges.
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RILEY, Chief Judge.
In the first of these two consolidated cases, Colleen Auer seeks appellate review
of what she believes is a permanent injunction issued by the district court1 in her
ongoing lawsuit. We disagree with Auer’s characterization of the ruling in question,
so we dismiss her interlocutory appeal for lack of jurisdiction. The other case
concerns Auer’s petition for a writ of mandamus overruling an order in which the
district court dismissed her claims against some defendants. We deny the petition
because an appeal from the district court’s eventual final judgment is the proper
vehicle for Auer’s challenges to the order.
I. BACKGROUND
Auer briefly served as city attorney for Minot, North Dakota. After accepting
the appointment, she completed and signed a form purporting to authorize a
background check, including a credit report. After she was terminated, she filed a
complaint claiming wrongful termination and submitted a public-records request for,
among other things, her complete personnel file. A few weeks later, the city’s outside
counsel, Smith, Bakke, Porsborg, Schweigert & Armstrong (the firm), sent Auer a
letter telling her that the materials the city provided in response to her request included
a credit report and asking whether she wanted a copy, since they believed she already
had one.
1
The Honorable Ralph R. Erickson, Chief Judge, United States District Court
for the District of North Dakota.
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Auer believed the city and firm’s acquisition and handling of her credit report
were contrary to federal law. She wrote letters telling them so and demanding they
follow her instructions to protect her claimed privacy rights. The firm responded that
they had done nothing wrong. After an exchange of letters failed to resolve the
dispute, Auer sued the city, the firm, the company that sold the report to the city, the
company that originally compiled the report, and anyone else who might have
received the report from the city, alleging they violated various provisions of the Fair
Credit Reporting Act, 15 U.S.C. §§ 1681-1681x. The city and the firm jointly moved
for the district court to either dismiss Auer’s complaint for failing to state a claim, see
Fed. R. Civ. P. 12(b)(6), or grant them summary judgment, see Fed. R. Civ. P. 56(a).
Citing “Auer’s alleged concern over the safekeeping of her consumer information”
and disclaiming “any use for, or interest in, [it],” the city and the firm also asked for
the district court’s permission to destroy the copies of the report they still had in their
possession. The other named defendants filed answers to the complaint and did not
join the motion.
The district court treated the motion as a motion to dismiss and granted it.
Because Auer had not responded to the city and firm’s request to be allowed to
destroy their copies of the report and the district court could not tell if the report might
be relevant to Auer’s pending wrongful-termination case—apparently the district
court did not consider whether the report could still be relevant evidence in this
case—the district court “deem[ed] the destruction of the consumer report without a
direction to do so by Auer as unadvisable.” Instead, the district court ordered the city
and the firm to give their copies to the clerk of court for safekeeping. The clerk was
to destroy them after thirty days unless Auer or the district court directed otherwise.
The city and the firm promptly handed over all their physical copies of the report and
destroyed their electronic copies. Auer then told the clerk to keep the hard copies “in
its secure files” while she sought appellate review.
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Auer filed a notice of appeal. Invoking 28 U.S.C. § 1292(a)(1), she claims we
have appellate jurisdiction to review “the district court’s . . . order granting permanent
injunctive relief to the City and Smith Firm authorizing these defendants to
immediately dispose of all copies of Auer’s consumer report in their possession.” She
also filed a petition for a writ of mandamus in which she asks this court to direct the
district court to vacate its dismissal order.2 We granted her motion to consolidate the
two cases.
II. DISCUSSION
A. Injunction
We only have limited jurisdiction to hear appeals from district court rulings
before they are final. See 28 U.S.C. § 1292. Auer takes for granted that the order
telling the city and firm what to do with their copies of her credit report was a
permanent injunction and thus immediately appealable under 28 U.S.C. § 1292(a)(1).
But “[w]hile many orders are addressed to a party and direct the party to take or not
take some action, not all such orders qualify as injunctions for purposes of section
1292(a)(1).” United States v. Santtini, 963 F.2d 585, 590-91 (3d Cir. 1992). The
district court did not describe this order as an injunction or treat it as one. Nor did the
city and firm purport to seek an injunction when they “request[ed] authorization” to
shred the reports. Labels are not controlling on this point, see, e.g., Nordin v.
Nutri/System, Inc.,
897 F.2d 339, 342-43 (8th Cir. 1990), but here they are accurate.
The order was directed at the same parties who asked for it and did not compel any
other party—such as Auer—to do or not do anything, and the order did not have
2
In the last line of her mandamus petition, Auer also calls for her case to be
transferred from the present district court to the district judge to whom it was
previously assigned. See D.N.D. Civ. L. R. 3.1(B)(3) (“The court may order a change
of division assignment . . . at any time in the court’s discretion with or without a
motion by a party.”). Other than vague intimations that the district court “stepped in
. . . to lock the courthouse doors on [her] claims,” Auer offers no argument or
explanation for her request, so we deny it without further discussion.
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anything to do with the relief Auer sought nor did it resolve any part of her case. We
conclude the order did not “grant[] . . . [an] injunction[]” for purposes of § 1292(a)(1),
so we lack jurisdiction to review the order at this stage. Cf. Tenkku v. Normandy
Bank, 218 F.3d 926, 927 (8th Cir. 2000) (“Even though a discovery order may compel
a party to perform certain actions, and usually is enforceable by contempt, such an
order is not injunctive in nature because it does not grant or withhold substantive
relief.” (citation and internal quotation marks omitted)).3
B. Mandamus
The availability of mandamus—“a ‘drastic and extraordinary’ remedy ‘reserved
for really extraordinary causes’”—is also limited. Cheney v. U.S. Dist. Court for the
D.C., 542 U.S. 367, 380 (2004) (quoting Ex parte Fahey,
332 U.S. 258, 259-60
(1947)). One key prerequisite is “‘the party seeking issuance of the writ [must] have
no other adequate means to attain the relief [s]he desires’—a condition designed to
ensure that the writ will not be used as a substitute for the regular appeals process.”
Id. at 380-81 (first alteration in original) (citation omitted) (quoting Kerr v. U.S. Dist.
Court for the N. Dist. of Cal.,
426 U.S. 394, 403 (1976)). The relief Auer seeks is
vacatur of the order dismissing her claims against the city and the firm, based on what
she calls the district court’s “abuse of power and discretion.” But her account of how
the district court overstepped its bounds is, in truth, nothing more than a list of ways
she thinks the district court misapplied the standards for ruling on motions to dismiss
and for summary judgment and thereby violated various Federal Rules of Civil
Procedure. Such arguments about why an assertedly mistaken ruling cannot stand are
routinely raised and addressed on a direct appeal, and we see no reason to treat Auer’s
3
Without appellate jurisdiction, we decline to speculate about the proper
taxonomy of the order—what exactly it was if not an injunction—and we offer no
view on whether the district court was right to let the city and firm dispose of the
reports at the heart of Auer’s still-pending case or whether Auer forfeited her
objections by not voicing them sooner.
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differently.4 Cf. Will v. United States, 389 U.S. 90, 98 n.6 (1967) (“Courts faced with
petitions for the peremptory writs must be careful lest they suffer themselves to be
misled by labels such as ‘abuse of discretion’ and ‘want of power’ into interlocutory
review of nonappealable orders on the mere ground that they may be erroneous.”).
III. CONCLUSION
Both sides devote the bulk of their briefs to attacking or defending various
aspects of the district court’s order. We refuse to take the bait. This court will address
the parties’ arguments if and when they are properly presented on appeal. For now,
Auer’s appeal is dismissed for lack of jurisdiction and her petition for a writ of
mandamus is denied.
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4
We are not persuaded by Auer’s assertion that the dismissal of her claims
against the city and the firm “denied [her] the opportunity to develop evidence in
support of her claims that could prove determinative on a post-judgment appeal,” both
because she fails to explain what that evidence might be and because, as far as we can
tell, any evidence she found would be irrelevant on appeal anyway, because the issue
on appeal would be whether her complaint stated a claim upon which relief could be
granted. We also think Auer has sufficient tools at hand to seek appellate review
through the usual channels while preserving her rights against the other defendants,
notwithstanding their threats to seek sanctions against her if she does not drop her
claims in light of the district court’s ruling.
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