Gharbi v. Blakeway, et al

* Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
1 Section 1447(b) authorizes an alien to “apply to the
district court for the district in which [he] resides for a hearing
on” his naturalization application if USCIS has not made a
decision on his application “before the end of the 120-day period
after the date on which” his naturalization examination is
United States Court of Appeals
Fifth Circuit
F I L E D
June 26, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-51687
Summary Calendar
MOHAMMED H. GHARBI, also known as Mike Gharbi,
Petitioner-Appellant,
versus
ALBERT W. BLAKEWAY, Supervisory DAO, Naturalization Unit, USCIC,
San Antonio; KENNETH PASQUARELL, District Director, USCIC; JOHN
ASHCROFT, U.S. ATTORNEY GENERAL; TOM RIDGE, SECRETARY, DEPARTMENT
OF HOMELAND SECURITY; EDUARDO AGUIRRE, JR., Director, USCIS,
Respondents-Appellees.
--------------------
Appeal from the United States District Court
for the Western District of Texas
(1:04-CV-00693-SS)
--------------------
Before KING, WIENER, and DeMOSS, Circuit Judges.
PER CURIAM*:
Unsatisfied with the pace at which the U.S. Citizenship and
Immigration Service (“USCIS”) was processing his application for
naturalization, in October 2004 Mohammed Gharbi (“Gharbi”)
petitioned the district court under 8 U.S.C. § 1447(b) for it to
hear his naturalization claim.1 Just two weeks later, however, a

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conducted. The district court “has jurisdiction over the matter
and may either determine the matter or remand the matter, with
appropriate instructions, to the Service to determine the matter.”
Id.
2 See 28 U.S.C. § 1291; Kershaw v. Shalala, 9 F.3d 11, 13 (5th
Cir. 1993). To be sure, Congress has expressly granted us
jurisdiction over certain interlocutory orders. See 28 U.S.C.
§ 1292. Neither party, however, asserts 28 U.S.C. § 1292 as a
basis for jurisdiction.
3 See Kershaw, 9 F.3d at 14 (“An order staying judicial
proceedings is ordinarily not considered final and is hence not
appealable.”).
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federal grand jury in the Western District of Texas indicted Gharbi
for conspiracy, mail fraud, wire fraud, bank fraud, money
laundering, and aiding and abetting. Faced with Gharbi’s
indictment, the district court reasoned that “a determination
regarding [his] eligibility for naturalization would be premature.”
It therefore stayed Gharbi’s § 1447(b) action pending resolution of
his criminal proceedings. After having twice moved unsuccessfully
for the district court to reconsider its stay, Gharbi now appeals
the district court’s order denying his second motion for
reconsideration, arguing that the court abused its discretion in
ordering the stay of his § 1447(b) proceedings. We dismiss
Gharbi’s appeal for lack of jurisdiction.
Generally, we have jurisdiction to consider only an appeal
from a district court’s final judgment.2 The parties agree that
the district court’s stay order —— or, more precisely, its order
denying Gharbi’s second motion for reconsideration of the stay
order —— is not a final appealable judgment.3 Instead, Gharbi

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4 337 U.S. 541 (1949).
5 Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978).
6 Kershaw, 9 F.3d at 14.
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premises our jurisdiction on an exception to 28 U.S.C. § 1291’s
final judgment rule: Cohen v. Beneficial Industrial Loan Corp.’s
collateral order doctrine.4
A non-final order “come[s] within the ‘small class’ of
decisions excepted from the final-judgment rule” if it
“conclusively determine[s] the disputed question, resolve[s] an
important issue completely separate from the merits of the action,
and [is] effectively unreviewable on appeal from a final
judgment.”5 We have restated this rule with the following
elements:
(1) The order must finally dispose of an issue so that
the district court’s decision may not be characterized as
tentative, informal or incomplete; (2) the question must
be serious and unsettled; (3) the order must be separable
from, and collateral to, the merits of the principal
case; and (4) there must be a risk of important and
irreparable loss if an immediate appeal is not heard
because the order will be effectively unreviewable on
appeal from final judgment.6
Other than conclusionally stating that the district court’s
“stay order is an appealable collateral order,” Gharbi makes no
attempt to demonstrate exactly how the order denying his second
motion for reconsideration of the stay order meets our four-part
test. Despite his omission, however, we conclude that it does not
meet the test. And, as Gharbi asserts no other basis for our

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7 First, the order denying Gharbi’s second motion for
reconsideration may finally dispose of the instant disputed issue
—— whether the stay should have been granted in the first place.
Like “every order short of a final decree,” the order is subject to
reconsideration and, thus, inherently tentative. Moses H. Cone
Mem’l Hosp. v. Mercury Constr., 460 U.S. 1, 12 (1983). But, as
the Moses H. Cone Court demonstrated, this alone is not enough to
deprive the order of sufficient finality for collateral order
doctrine purposes. See id. at 12-13 (holding that the order at
issue “‘conclusively determine[d] the disputed question” because
“there [was] no basis to suppose that the District Judge
contemplated any reconsideration of his decision”). The district
court here has twice denied reconsideration of his stay order; that
may be enough to find that the court “conclusively determine[d] the
disputed question.” Second, the question is at least arguably
serious: Staying Gharbi’s § 1447(b) naturalization proceeding
pending the outcome of his potentially long criminal proceedings
could significantly delay resolution of his naturalization claim.
And third, the question whether the stay order should have been
granted is clearly separate from the merits of the § 1447(b)
proceeding in which the stay arose.
8 Kershaw, 9 F.3d at 14.
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jurisdiction, we dismiss his appeal.
The four-part collateral order test is conjunctive: If the
order does not satisfy even one element, we lack appellate
jurisdiction. Here, it is at least arguable that the first three
elements have been satisfied.7 But it is more than arguable ——
indeed, we find it inescapable —— that the fourth element is not
satisfied. This is because Gharbi has not demonstrated “a risk of
important and irreparable loss if an immediate appeal is not heard
because the order will be effectively unreviewable on appeal from
final judgment.”8 Gharbi seems to contend that, by itself, the
delay that the stay has caused and is causing to his naturalization
proceedings is sufficient to constitute an “important and

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9 Cf. id. at 15 (reasoning that delayed recovery of fees under
the Equal Access to Justice Act is not a sufficient harm for
collateral order doctrine purposes).
10 EEOC v. Neches Butane Prods. Co., 704 F.2d 144, 148 (5th
Cir. 1983) (emphasis in original).
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irreparable loss.” Delay alone, however, is not enough.9 “Cohen
requires some showing of extraordinary harm,” and Gharbi has not
made such a showing.10 This appeal, therefore, is DISMISSED for
lack of jurisdiction.

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