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Dr. INA Braden v. University of Pittsburgh and Wesley W. Posvar

filed: March 11, 1977.



Seitz, Chief Judge, Gibbons and Rosenn, Circuit Judges. Seitz, Chief Judge, Van Dusen, Adams, Gibbons, Rosenn, Hunter, Weis and Garth, Circuit Judges. Seitz, Chief Judge, Van Dusen, Adams, Gibbons, Rosenn, Hunter, Weis and Garth, Circuit Judges. Garth, Circuit Judge

Author: Adams


ADAMS, Circuit Judge.

This appeal raises two perplexing problems, one procedural and one jurisdictional. First, we are required to consider whether a district judge may vacate and reenter a certification order so as to allow an interlocutory appeal, when the appellants initially failed to proceed in a timely manner because they lacked notice of the original certification order.*fn1 If that question is answered affirmatively, we then must determine whether the trial court erred when it declined to dismiss the complaint on the ground that "state action," the essential predicate for jurisdiction under § 1983 of the Civil Rights Act,*fn2 was absent.



This employment discrimination suit was instituted by Dr. Ina Braden, on behalf of herself and other women similarly situated, against the University of Pittsburgh ("University" or "Pitt") and against Dr. Wesley W. Posvar, the Chancellor of the University.*fn3

The district court, however, dismissed the complaint. It did so, with respect to the § 1983 claim, on the ground that the relationship between the Commonwealth and the University was not such as to render the alleged discrimination "state action."*fn4 On initial appeal to this Court, the dismissal was vacated and the case remanded for further consideration of the § 1983 issue - more particularly, the state action question.*fn5

After extensive discovery had been concluded in the district court, and an evidentiary hearing held solely on the issue of state action, at the directive of this Court, the trial judge denied the defendants' renewed motions to dismiss the § 1983 claim for lack of jurisdiction. This time the district court ruled that state action did exist.*fn6 It proceeded, pursuant to 28 U.S.C. § 1292(b), to certify the order denying the motion to dismiss.*fn7

A panel of this Court then granted the defendants permission to appeal under Appellate Rule 5,*fn8 and referred the interlocutory appeal to a second panel for disposition on the merits. At that point, Dr. Braden challenged our jurisdiction, alleging that the defendants had not filed their application for an appeal within ten days of the district court certification, as prescribed by Rule 5. Since resolution of that issue required reexamination of a decision of a prior panel, we elected to consider the question en banc.

The problem confronting us here stems from the failure of the district court to give the defendants notice of its certification order, as provided by Fed. R. Civ. P. 77(d).*fn9 It was only after expiration of the ten-day filing period that the defendants learned of the entry of the order. Immediately thereafter, the defendants moved this Court for permission to appeal out of time, simultaneously obtaining a similar extension from the district court. Although the defendants were informed that this Court lacked authority to extend the time to appeal by virtue of Appellate Rule 26(b),*fn10 we suggested that they request the district judge to vacate his earlier certification order and to enter another. Upon submission of such a request, the district court duly vacated its original order and entered a new one containing the requisite § 1292(b) certification. Defendants thereupon filed their petition for permission to appeal within the time specified in Rule 5, and the new petition was granted.


Dr. Braden now maintains that we lack authority to permit the present interlocutory appeal. She claims that the district court's reentry of the certificate was ineffective to cure the defendants' failure to pursue their appeal within ten days of the original order.

It is well-settled that the neglect of a party to petition for leave to appeal within ten days of the entry of the certification order deprives an appellate court of jurisdiction to consider the petition,*fn11 and that Rule 26(b) forbids appellate courts to enlarge the time for filing such a petition. Nevertheless, the present appeal poses a different and more difficult question - namely, whether a trial judge may vacate and reenter his certification so as to start the ten-day period running again. When, as here, a party has received no notice of the certification order and, therefore, has been prevented from asserting its right to appeal by an error of the trial court, the ability of such court to correct its own mistake might seem manifest. Yet, on cursory examination, there would appear to be no remedy available to an innocent party who fails to receive the requisite notice.

Fed. R. Civ. P. 77(d) expressly provides:

Lack of notice of the entry by the clerk does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed, except as permitted in Rule 4(a) of the Federal Rules of Appellate Procedure.

Rule 4(a), which allows a district court to extend the time to appeal for thirty days upon a showing of "excusable neglect," applies - at least on its face - only to appeals as of right. By contrast, Rule 5 which deals with permissive appeals contains no comparable provision. Nor are permissive appeals referred to in Rule 77(d). If Rule 77(d) had specified that Rule 4(a) were the sole vehicle by which a district court may provide relief from lack of notice,*fn12 it might well follow that a § 1292(b) petitioner would have no remedy for failure to receive notice.*fn13 The proviso of Rule 77(d), applicable only to appeals as of right, contains no authorization for relief in permissive appeals, such as the one at hand.

The question thus arises whether a district court may accomplish indirectly what it may not do directly. At least one court of appeals has sanctioned such a procedure. It upheld a district court which had vacated and reentered its certificate "'in order that the parties not be deprived of a timely appellate decision.'"*fn14

On the other hand, two courts appear to have indicated that vacation and recertification are tantamount to enlarging the time for appeal, and that such a maneuver is proscribed by Rule 77(d). In Woods v. Baltimore & Ohio Railroad,*fn15 the appealing party neglected to file a timely petition, even though he apparently had received adequate notice. After the district court had vacated and reentered its certification order, the appellate court held that such action could not confer jurisdiction over the interlocutory appeal because a district court has no power to extend the time for appeal, either directly or indirectly.

The reasoning of the Woods court was embraced in Nakhleh v. Chemical Construction Corp.*fn16 There the appellant was not aware that an interlocutory order had been entered, because the order had been listed under the wrong initial letter in the local law journal. The district judge stated that, while he could vacate his order should new facts or new decisional law necessitate reconsideration,*fn17 he could not vacate and refile a certification order merely to extend the time for appeal. It should be noted, however, that no attempt was made by the Nakhleh court to distinguish between the plight of the hapless party who, through inadvertence, received no notice, and that of the neglectful party, such as the party in Woods, who simply is remiss in pursuing his appeal. Nakhleh thus did not explore the outer limits of the rules which do not literally authorize extension of the time for appeal in the latter context, nor did it even purport to consider whether a remedy may be found in the former situation.

In addition to Woods and Nakhleh, Dr. Braden refers to this Court's decision in Milbert v. Bison Laboratories, Inc.,*fn18 to support the proposition that a district court has no authority to vacate and reenter a certification order. Yet, any attempted reliance on Milbert would appear to be misplaced. That case concerned the timeliness of the grant by a court of appeals of permission to appeal from an interlocutory order, the petition for leave to appeal having been filed within the prescribed time period. Moreover, whatever applicability Milbert might once have had to the present situation has been subverted by the subsequent amendment of Rule 5, a change which now expressly allows a grant of permission to appeal by a court of appeals "at any time" after entry of the interlocutory order.*fn19

In short, in support of her thesis, Dr. Braden proffers only two cases which even deal with the problem of reentry of a § 1292(b) certificate by a district court - Woods and Nakhleh. Nonetheless, we believe that both of these cases are distinguishable from that at hand. This is so because neither Woods nor Nakhleh concerned a situation in which an appealing party, solely because of dereliction on the part of a court officer, failed to receive the requisite notice of a certification order that had been entered by the Court.


It may be contended, on behalf of the position advanced by Dr. Braden, that the restricted time authorized for launching an interlocutory appeal reflects an interest in the speedy determination of such appeals. After all, the district court grants certification because it believes an immediate appeal "may materially advance the ultimate termination of the litigation."*fn20 To extend the ten-day period by vacation and reentry, goes the reasoning, would defeat the interest in an expedited review of the interlocutory order.

Understandable as this argument may seem, it is substantially undercut by the provision in Rule 5 which permits an application for certification at any time before final judgment. This proviso allows an extended period of time between the entry of an interlocutory order and the appeal therefrom so that considerable delay in prosecuting an appeal under § 1292(b) is, quite evidently, countenanced by the rule. In addition, when petitioned to vacate and reenter its certification, a district judge may determine anew whether such action will bring the litigation closer to an end. If there already has been excessive delay, the trial court can guard against additional delinquency by refusing to vacate and reenter its original certification order.*fn21


Aside from these considerations, we believe that the evolution of Rules 77(d) and 4(a) lends support to the proposition that a district court is not foreclosed from vacating and reentering its own order - at least when the court has neglected to provide a litigant with notice of its actions.

The Supreme Court precipitated several amendments to these rules when it decided Hill v. Hawes.*fn22 In Hill, the district court clerk failed to send notice of a final judgment to the parties, and so the time for appeal expired. Thereafter, the district judge vacated the judgment and entered a second judgment from which an appeal was taken in a timely manner. Treating the later judgment as ineffective, the appellate court dismissed the appeal on the ground it was a nullity. But the Supreme Court reversed, declaring that litigants were entitled to rely on Rule 77(d), which specifies that notice be sent to the parties. The Court posited:

It may well be that the effect to be given to the rule [77(d)] is that, although the judgment is final for other purposes, it does not become final for the purpose of starting the running of the period for appeal until notice is sent in accordance with the rule.*fn23

Because Hill allowed a judgment to be vacated, despite the passage of a protracted period of time, Rule 77(d) subsequently was amended to counteract the impact of that decision on the finality of judgments.*fn24 The revised Rule 77(d) then provided that lack of notice of an order of judgment "does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed, except as permitted in Rule 73(a)." However, the Advisory Committee believed that the benefits of Hill would be preserved. The Committee asserted:

In considering an application for extension of time for appeal as provided in Rule 73(a), the court may take into account, as one of the factors affecting its decision, whether the clerk failed to give notice as provided in Rule 77(d) or the party failed to receive the clerk's notice. It need not, however, extend the time for appeal merely because the clerk's notice was not sent or received.*fn25

Rule 73(a), whose substance later was incorporated into Appellate Rule 4(a), was amended concurrently with Rule 77(d) to "[allow] the sort of relief that was brought about in Hill v. Hawes, but [to avoid] the difficulty of indefinite lack of finality of the judgment . . . ."*fn26 Rule 73(a) applied to all appeals "permitted by law" and specified that:

Upon a showing of excusable neglect based on a failure of a party to learn of the entry of the judgment the district court in any action may extend the time for appeal not exceeding 30 days from the expiration of the original time herein prescribed.

Thus, as the arrangement originally was designed, Rule 77(d) would preserve the finality of judgments, while Rule 73(a) would protect the right to appeal by those who inadvertently were not notified of the entry of a final judgment.

Subsequent to passage of the Interlocutory Appeals Act in 1958, one leading commentator expressed the view that the language of Rule 73(a) was sufficiently flexible to encompass interlocutory appeals.*fn27 Nonetheless, Rule 73(a) was amended in 1966 to deal specifically with appeals under § 1292(b), one of the sections governing non-final judgments. But Rule 73(a) still retained the broad language allowing a thirty-day extension for appeals "in any action."

When the substance of Rule 73(a) was subsumed in Appellate Rule 4(a), and thereby necessarily limited to appeals as of right, Rule 77(d) also was modified to refer to Rule 4(a). The elimination of a remedy for excusable neglect in taking an interlocutory appeal seemingly was the result of an oversight. It follows that Rule 77(d) should not be read woodenly so as to preclude such relief in the interlocutory situation, particularly given its limited purpose - to protect the finality of judgments. This would appear to be so inasmuch as the finality interest is in no way affected by the vacation and reentry of a certification under § 1292(b) before a final judgment has been entered.

Even final judgments have not been totally shielded from the interlocking relationship between Rules 77(d) and 4(a). Courts, in certain circumstances, have been willing to ignore the apparent restriction on the type of relief that they can afford for lack of notice. Some courts, for example, have utilized Rule 60(b)*fn28 to vacate final judgments where the parties have not received actual notice, the successful litigant has not been prejudiced, substantial rights are involved, and a petition for vacation has been made promptly.*fn29 These tribunals rationalize that they are not abrogating the basic principle underlying the need for finality of judgments since a party cannot rely on finality when he lacks knowledge of the judgment itself. Another court has said that the policy of finality must give way in limited situations, including those in which there is an absence of prejudice to one party and the presence of prejudice to the other.*fn30

Certainly, if an appellant may, for good reason, escape the effect of Rule 77(d) in regard to final judgments, the type of judgments that the rule was narrowly tailored to protect, there is no sound reason why he may not also avoid its effect on interlocutory orders. The rationale of Hill v. Hawes is still instructive, even though its result no longer obtains. After acknowledging that Rule 60(b) did not apply to that case, the Supreme Court stated:

We think it was competent for the trial judge, . . . in the exercise of a sound discretion, to vacate the former judgment and to enter a new judgment of which notice was sent in compliance with the rules. . . . The judgment was still within control of the trial judge for such action as was in the interest of justice to a party to the cause.*fn31

Just as in Hill, Rule 60(b) would appear to be inapplicable here because its operation is confined to judgments, orders and proceedings that are final. Nevertheless, the Supreme Court suggested in Hill that a district court retains broad power over its interlocutory orders before a final judgment is entered. It may modify, vacate, or set them aside at any time before the final decree.*fn32 Consequently, we do not read Rule 77(d) and its precursors to forestall the district court from granting relief because of its own failure to provide adequate notice to the defendants. It was in response to defendants' petition that the district court entered the certification in the first instance. As a result, it was not unreasonable for the defendants to await notice of any action which had been taken on their petition - especially since no party has been prejudiced by the reentry of the certification order.


We hold, therefore, that the district court did not err when it vacated and reentered its certification order so as to allow a timely appeal when neither party had actual notice of the entry of the order, the party prevailing in the district court was not prejudiced, and the losing parties had moved promptly to vacate the order after learning of its entry.


Having decided that this Court had the power to grant the interlocutory appeal, we now turn to the obdurate question of state action.

Because every claim based on § 1983 requires state action as a jurisdictional prerequisite,*fn33 we must determine whether the district court erred in refusing to dismiss the complaint on the ground that the University of Pittsburgh was not acting "under color of" state law.*fn34 In so doing, we recognize that, since the dismissal motion was submitted by Pitt, Dr. Braden, as the opposing party, is entitled to the benefit of all reasonable doubts and inferences which may arise in connection with the consideration of such motion.*fn35

In support of their motion to dismiss the complaint, the appellants contend that the University is a private educational institution and is not so involved with the Commonwealth of Pennsylvania that its activities fall under the concept of color of state law. Dr. Braden, in response, maintains, in effect, that the University is a state-related school with such a close and continuing relationship with the Commonwealth that it cannot be concluded, at this stage in the proceedings, that state action is lacking.

Declining to dismiss Dr. Braden's complaint, the district judge ruled that the relationship between Pitt and the Commonwealth is such as to preclude a summary determination that the activities of the educational institution occur outside the ambit of state action. As we do not believe that such a disposition is in error, we affirm.


At the inception of our analysis of the state action issue, we recognize the consequences of sustaining the refusal by the trial judge to declare that Pitt is not clothed with the mantle of the Commonwealth. Should this case be allowed to proceed, and state action ultimately be held to exist, then the University may be subjected to some of the constitutional and statutory strictures ordinarily applied to the state. Not only may Pitt have to answer for alleged violations of portions of the Bill of Rights and the 14th Amendment, but it may be liable under the statutory counterparts to such constitutional provisions as well. Because the burdens that may radiate from a decision upholding the district court may be potentially quite far-reaching, this issue should be dealt with in a full and thoughtful fashion.*fn36

Also, it should be observed that the difficulties of drawing a line between state and private action are by now well-recognized.*fn37 This is so because the realms of the government and the private sector are not as clearly defined as they were during the epoch in which the 14th and 15th Amendments - the sources of the statutory claim in question - were adopted. Today, the federal courts, with ever-increasing frequency, are called upon to judge whether the conduct of ostensibly nongovernmental entities is such as to warrant the application of constitutional and statutory requirements to them.

It becomes our task to consider whether, given the legal precedents and factual setting at hand, the relationship between the University of Pittsburgh and the Commonwealth supports the decision of the trial judge that, at least on the available record, the activities of that educational institution cannot be deemed to be devoid of state action. In undertaking such a consideration, we must, of course, be aware that, although we are required to decide the ...

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