Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civil Action No. 71-1202).
Van Dusen, Hunter and Garth, Circuit Judges
VAN DUSEN, Circuit Judge.
This is an appeal by the plaintiffs, two married, female graduate students at the University of Pittsburgh,*fn1 who also represent all married female students who since 1967 have attended any of the three defendant universities and who were classified as out-of-state students for tuition purposes on the basis of Rule B(2) of the Auditor General of Pennsylvania. See Samuel v. University of Pittsburgh, 56 F.R.D. 435 (W.D. Pa. 1972) (certification of plaintiff class). Plaintiffs appeal from an order entered by the District Court for the Western District of Pennsylvania on June 7, 1974. The order directed the defendant universities to bear the expense of identifying members of plaintiff class and notifying them that, although the defendants had been found liable to the plaintiffs as a class, their damage claims would not be adjudicated on a class-wide basis. For the reasons discussed herein, we find that the appeal must be dismissed for want of a final, appealable order.*fn2 See 28 U.S.C. § 1291.
The plaintiffs brought this action on December 28, 1971, to challenge the constitutionality of the Auditor General's Rule B(2), which classified*fn3 women students as resident or nonresident for tuition purposes. It provided:
"The domicile of a wife (adult or minor) is that of her husband. Where, however, an unmarried woman enrolled as a student having a Pennsylvania resident status marries a non-Pennsylvania resident, she shall continue to be classified as a Pennsylvania resident within the meaning of these Rules." Samuel v. University of Pittsburgh, 56 F.R.D. 435, 437 n.1 (W.D. Pa. 1972).
The plaintiffs assert that the rule denied female students equal protection of the laws. They sought both to have the operation of the Rule enjoined*fn4 and to have restitution made of such tuition amounts as were unconstitutionally collected. The district court certified the above-mentioned class in an opinion and order dated August 21, 1972. Samuel v. University of Pittsburgh, 56 F.R.D. 435 (W.D. Pa. 1972). On October 5, 1972, the district court ordered the members of the plaintiff class to be individually notified at their representatives' expense. On April 10, 1974, the district court by opinion and order found for the plaintiffs on the ground of the rule's unconstitutionality, but at the same time "decertified" the class with respect to the class members' damage claims. Samuel v. University of Pittsburgh, 375 F. Supp. 1119 (W.D. Pa. 1974). Motions of the plaintiffs to enter final judgment on the April 10, 1974, order pursuant to F.R. Civ. P. 54(b), and to certify the decertification of the class for interlocutory appeal pursuant to 28 U.S.C. § 1292(b), were denied on May 1 and May 29, 1974, respectively. On June 7, 1974, the court ordered the defendant universities to send, at their own expense, an approved form of notice of decertification to the class members. The plaintiffs filed timely notice of appeal from this last order, which order was stayed by this court, pending appeal, on July 10, 1974.*fn5
The plaintiffs-appellants assert this court's jurisdiction on the basis of criteria for application of the "collateral order doctrine" set forth in Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 94 S. Ct. 2140, 42 U.S.L.W. 4804, 40 L. Ed. 2d 732 (1974).*fn6 In Eisen the Court held that an order allowing a suit to proceed as a class action and allocating to the defendants a substantial portion of the cost of notifying the plaintiff class was a "final" decision within the meaning of 28 U.S.C. § 1291. Rejecting any "verbal formula," the Court found a touchstone for the interpretation of § 1291 in the "'practical'" inquiry whether "'the inconvenience and costs of piecemeal review'" outweigh "'the danger of denying justice by delay,'" 417 U.S. at 171, 42 U.S.L.W. at 4808, quoting Cohen v. Beneficial Loan Corp., 337 U.S. 541, 546, 93 L. Ed. 1528, 69 S. Ct. 1221 (1949), and Dickinson v. Petroleum Conversion Corp., 338 U.S. 507, 511, 94 L. Ed. 299, 70 S. Ct. 322 (1950). The Court reaffirmed two criteria in the Cohen decision:
"First, the District Court's finding was not 'tentative, informal or incomplete,' 337 U.S. at 546, but settled conclusively the corporation's claim that it was entitled by state law to require the shareholder to post security for costs. Second, the decision did not constitute merely a 'step toward final disposition of the merits of the case . . . .' Ibid. Rather, it concerned a collateral matter that could not be reviewed effectively on appeal from the final judgment."
417 U.S. at 171, 42 U.S.L.W. at 4808.
We find that the second Cohen criterion is not met by the district court's June 7, 1974, order.*fn7 The plaintiffs believe that the second criterion is satisfied because the June 7 order "involves a matter unrelated to any issue remaining before the District Court" and the class plaintiffs "can proceed no further in the District Court," thus making the order "a final disposition of class Plaintiffs' rights."*fn8 Plaintiffs'-Appellants' Reply to Defendants-Appellees' Motions to Dismiss at 5-6. Such an approach to the question of finality fails to confront the basic issue identified by the Court in Eisen, namely, whether the burdens of piecemeal review are justified by the injustice potentially resulting from delay.
The orders appealed from in Eisen and Cohen exemplify the sorts of matters which "could not be reviewed effectively on appeal from the final judgment." 417 U.S. at 171, 42 U.S.L.W. at 4808. In Cohen the district court, in the face of a statute which allowed a corporation to demand security for its litigation expenses from the plaintiffs in a stockholder's derivative action, had allowed the plaintiff to proceed without posting such security. 337 U.S. at 543-45. The order appealed from thus determined who would bear the risk of loss of the corporation's counsel fees during the pendency of the litigation. An improper allocation of risk created by the order could not have been repaired retrospectively in an appeal brought after the district court litigation had reached its conclusion. Id. at 546. Similarly, the district court in Eisen had allowed the plaintiff class to proceed without bearing, during the pendency of the litigation, the risk of loss of the expense of notification, in the face of the "usual rule . . . that a plaintiff must initially ...