APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA D.C. Civil No. 73-905.
Rosenn, Kalodner and Garth, Circuit Judges.
This appeal and cross-appeal arise from an employment discrimination action brought by a federal employee under Section 717 of the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000e-16.*fn1 Richerson, (the plaintiff-appellant), a black engineer employed by the Philadelphia Naval Shipyard, alleged that his supervisors at the Shipyard had denied him advancement because of his race. As required by statute,*fn2 Richerson named the commanding officer of the Shipyard - at present Captain Gerald R. Jones - as the nominal defendant. (Inasmuch as the United States is the real defendant, references hereinafter made to the defendant will be in terms either of the Government or the United States.) After a nonjury trial, the district court found that Richerson had in fact been the victim of discrimination. To remedy the discrimination, the court awarded Richerson several retroactive promotions with back pay and prejudgment and postjudgment interest as well as counsel fees and expenses. The district court, however, refused Richerson's request for punitive damages thereby giving rise to Richerson's appeal.
The government does not contest the court's finding of discrimination or its award of counsel fees and expenses. Instead, it contends that the retroactive promotion of Richerson from GS-11 to GS-12 was not supported by the evidence and that the court erred in assessing interest against the United States.
We have concluded that Richerson's retroactive promotion to GS-12 must be vacated and remanded for additional fact finding, that the district court erred in assessing interest against the government, and that the district court was correct in refusing to award punitive damages. In view of these actions, we have also directed that the district court make those findings required in connection with its award of counsel fees.
Before reaching the merits of this case, we must first determine whether we have jurisdiction over the government's and Richerson's appeals. Each appealed from different orders of the district court. Each claims that we have jurisdiction to entertain his appeal under 28 U.S.C. § 1291,*fn3 and each contends that the order from which he appealed was the "final" one.
Notices of appeal in this case were filed from three separate orders of the district court. On December 18, 1975, the court issued an order which incorporated its findings of fact and conclusions of law and stated simply that "judgment is entered for plaintiff and against defendant." Although the government filed a timely notice of appeal from that order (docketed as No. 76-1385), it does not now contend that that order was a "final" one. Since that order unquestionably was not final*fn4 and since no basis for appellate jurisdiction other than 28 U.S.C. § 1291 has been claimed,*fn5 the government's appeal in No. 76-1385 must be dismissed for lack of subject matter jurisdiction.
The government also filed a timely notice of appeal (docketed as No. 76-1695) from the district court's order of March 12, 1976. That order awarded Richerson retroactive promotion, back pay, and interest but did not include provisions respecting attorney's fees, which were also sought in Richerson's complaint.
Finally, on April 29, 1976, the court entered an order awarding counsel fees and expenses to Richerson. Both the government and Richerson filed timely notices of appeal from that order. Later, however, "after the Solicitor General determined that the government would take no appeal from the award of attorney's fees,"*fn6 the government voluntarily dismissed its appeal from the order of April 29, 1976. Richerson's appeal from that order has been docketed as No. 76-1762.
The government argues that the order of March 12 was the final order because it "decided the merits of the case." Reply Brief for Appellant at 2. Citing Swanson v. American Consumer Industries, Inc., 517 F.2d 555 (7th Cir. 1975), it is maintained that the April 29 order awarding counsel fees was "incidental" to the main litigation and did not "affect the finality of the decision on the merits." Reply Brief for Appellant at 2. Richerson, on the other hand, argues that Liberty Mutual Insurance Co. v. Wetzel, 424 U.S. 737, 96 S. Ct. 1202, 47 L. Ed. 2d 435, 44 U.S.L.W. 4350 (1976), requires that the April 29 order be considered the "final order" for purposes of our jurisdiction.
We agree with Richerson that the order of April 29 is the final order in this case. As the Supreme Court has stated, a final order is one which "terminates the litigation between the parties on the merits of the case and leaves nothing to be done but to enforce by execution what has been determined." St. Louis, Iron Mountain and Southern Ry. Co. v. Southern Express Co., 108 U.S. 24, 28-29, 27 L. Ed. 638, 2 S. Ct. 6 (1883). See also Catlin v. United States, 324 U.S. 229, 233, 89 L. Ed. 911, 65 S. Ct. 631 (1945); J. Moore, Federal Practice para. 110.08  at 118. Applying this rule in Liberty Mutual Insurance Co., the Court held that an order which settled the issue of liability was not final because it did not dispose of the plaintiffs' prayers for relief. The Court noted that the plaintiffs in that case "requested an injunction, but did not get one; they requested damages, but were not awarded any; they requested attorney's fees, but received none." (Emphasis added.) 44 U.S.L.W. at 4352. The Court also observed that judgments which left the "assessment of damages or awarding of other relief" unresolved "have never been considered to be 'final' within the meaning of 28 U.S.C. § 1291." Id. In this case, since the March 12 order did not dispose of Richerson's prayer for substantial attorney's fees, it was not a final order.
Swanson v. American Consumer Industries, Inc., supra, upon which the government relies in arguing that the March 12 order was final, is readily distinguishable from the instant case. Swanson was a stockholder's derivative action in which the district court entered one order which disposed of all the claims between the plaintiff and the defendant and a subsequent order which required the successor of the corporation on whose behalf the action was maintained to reimburse the individual stockholder who had initiated the action for the reasonable attorney's fees he had incurred. Swanson held that the first of these orders was the final order and that the second was "incidental to the main litigation." Id. at 561. That court appears to have reasoned that the first order terminated the litigation between the parties, leaving unresolved only the award of attorney's fees between the plaintiff stockholder and the corporation on whose behalf he sued. In this case, by contrast, the plaintiff requested that his reasonable attorney's fees be assessed against the defendant with whom he was litigating in an adversary context, not a "co-plaintiff" whose position he was supporting. Consequently, the order of March 12, which left the issue of attorney's fees unresolved, did not terminate the litigation between Richerson and the government and, thus, was not a final order.
The order of April 29, on the other hand, did dispose of the last of Richerson's prayers for relief. Therefore it was a final order appealable under 28 U.S.C. § 1291. As a result, we ...