OLIVER, Senior District Judge, concurring in part and dissenting in part.
This case pends on an interlocutory appeal noticed pursuant to
Section 1292(a)(1) of Title 28, U.S.C., from a modified order of the
district court which "preliminarily enjoined [MDC] from displaying, referencing or including the page number of any and all publications within plaintiff's National Reporter System … published during the period from January 2, 1910 to the present within or in relation to the text of court opinions contained in the Decision database." Addendum at 25a-26a.
I concur in what the majority stated in regard to the procedural posture of the case and its discussion of Fed. R. Civ. P. 65(a)(2). Slip op. at 18. It is my view, however, that the majority's analysis of this case exceeds the limited scope of appellate review provided by a Section 1292(a)(1) appeal.
I therefore dissent because I do not believe, in light of the meager record before the district court, that the majority's analysis is consistent with the applicable law. It is my view that our panel should follow the lead of the First Circuit as stated in Building Officials & Code Adm. v. Code Tech, Inc., 628 F.2d 730 (1st Cir. 1980), in which a not dissimilar question was presented on a Section 1292(a)(1) appeal.
That case, as does this case, involved the application of principles first enunciated in Wheaton v. Peters, 33 U.S. (8 Pet.) 591, 8 L.Ed. 1055 (1834), and later applied in Banks v. Manchester, 128 U.S. 244, 32 L.Ed. 425, 9 S.Ct. 36 (1888), and Callaghan v. Myers, 128 U.S. 617, 32 L.Ed. 547, 9 S.Ct. 177 (1888). The First Circuit reversed the district court's grant of a preliminary injunction and remanded the case for a trial on the merits without making any definitive ruling on the merits of legal issues presented on the Section 1292(a)(1) appeal that pended in that court.
I.
A.
MDC, for reasons I find difficult to understand, invoked the appellate jurisdiction of this Court pursuant to 28 U.S.C. § 1292(a)(1). MDC argued in the district court that the granting of a preliminary injunction restraining MDC from adding the "star pagination" feature "would give West the time it would need to do the considerable work necessary to add its own pagination feature to Westlaw." (App. 103).
MDC obviously invited further delay that would permit West to play catch-up when it elected to notice a Section 1292(a)(1) appeal in this case. Certainly MDC was not required to notice such an appeal. See Scarrella v. Midwest Federal Savings & Loan, 536 F.2d 1207, 1209 (8th Cir. 1976), ("[a] party is not required to take an interlocutory appeal authorized by statute"). MDC's citation and reliance on O'Connor v. Peru State College, 728 F.2d 1001, 1002 (8th Cir. 1984), see page 24 of MDC brief, establishes that it knew that the scope of appellate review on a Section 1292(a)(1) appeal from an "interlocutory order" is necessarily more narrow than the scope of appellate review of a "final decision" on an appeal taken pursuant to 28 U.S.C. § 1291.
O'Connor and Edudata Corp v. Scientific Computers, Inc., 746 F.2d 429, 430 (8th Cir. 1984) (per curiam), both cited in the majority opinion (Slip op. at 4), are but two recent Eighth Circuit cases that recognize the established Eighth Circuit rule in regard to the limited scope of appellate review on a Section 1292(a)(1) appeal.
The majority opinion recognized that the scope of appellate review on a Section 1292(a)(1) appeal is limited and circumscribed. For on page 18 of the slip opinion it quoted that portion of Independent Fed'n of Flight Attendants v. Trans World Airlines, 655 F.2d 155, 159 (8th Cir. 1981), which concluded that "the District Court's findings, and our observations as to the governing law made in this opinion, are tentative and provisional, in the sense that different findings or conclusions might be warranted after a trial on the merits."
