APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Civil Action 75-614).
Seitz, Chief Judge, and Aldisert and Hunter, Circuit Judges. Seitz, Chief Judge, concurring. Adams, Gibbons and Garth, Circuit Judges.*fn* Gibbons, Circuit Judge, dissenting.
The question is whether a denial of a class certification can be immediately appealed under 28 U.S.C. § 1292 (a)(1)*fn1 on the theory that the denial amounts to the denial of an injunction. The circuits are divided on the question. Although the theory of § 1292(a)(1) appealability has been mentioned in dictum in several opinions in this circuit, especially Hackett v. General Host Corp., 455 F.2d 618 (3d Cir. 1972), we have never applied it to permit such an appeal, nor have we ever directly adjudicated its validity. Upon consideration, we believe that the theory is unworkable as an exception to the general rule in this circuit limiting the appealability of class determinations and that it is unwarranted in its expansion of the narrow purposes of § 1292(a)(1). Accordingly, we reject the theory of § 1292(a)(1) appealability and grant appellee's motion to dismiss the appeal.
This civil rights action was commenced by the plaintiff, Jo Ann Evans Gardner, on her own behalf and on behalf of a class of similarly situated women alleging sex discrimination in the employment practices of the defendant, Westinghouse Broadcasting Company. The complaint sought injunctive and monetary relief, and attorney's fees. Shortly after commencing the action, Ms. Gardner moved for a class certification under F.R. Civ. P. 23(b)(2). Interrogatories were served. After Westinghouse failed to respond fully to certain interrogatories, Ms. Gardner moved to compel discovery. After oral argument, the district court denied both motions, ruling that there were no questions of law or fact common to the class, that plaintiff's claim was not typical, and that there was no need to consider the discovery motion in light of the denial of class status. No further rulings were made. Without obtaining a certificate under 28 U.S.C. § 1292(b),*fn2 Ms. Gardner filed an appeal from the denial of her class action motion asserting 28 U.S.C. § 1292(a)(1) as the jurisdictional predicate. Westinghouse moved to dismiss the appeal for lack of jurisdiction. That motion has been referred to this panel and is now before us.
Ms. Gardner places primary reliance on the dictum in Hackett v. General Host Corp., 455 F.2d 618, 622 (3d Cir. 1972), which suggested that interlocutory review of a class denial might be had under § 1292(a)(1) "in those cases in which the refusal to grant class action designation amounts to a denial of a preliminary injunction broader than would be appropriate for individual relief." That suggestion was repeated in Samuel v. University of Pittsburgh, 506 F.2d 355, 358 n.6 (3d Cir. 1974), in Rodgers v. United States Steel Corp., 508 F.2d 152, 160 (3d Cir. 1975), and again in a later aspect of the same case, Rodgers v. United States Steel Corp., 541 F.2d 365, 372-73 (3d Cir. 1976). In none of these cases was the suggestion found to be applicable. In Hackett itself, interlocutory review of a class determination was refused. Thus, though it has not been expressly rejected in this circuit, neither has the Hackett suggestion ever been applied. This case directly presents the issue whether such an interpretation of § 1292(a)(1) can be squared either with the strong and consistent policy in this circuit of discouraging piecemeal appellate review, or with the special and narrow purposes of § 1292(a)(1).
Following Judge Gibbons' seminal opinion in Hackett, this court, in banc, and again speaking through Judge Gibbons, enunciated what has become the core principle of class determination appealability in this circuit. "A class action determination, affirmative or negative, is not in this circuit a final order appealable under 28 U.S.C. § 1291. . . . If there is any route open for the interlocutory review of a grant of class action treatment under rule 23(b)(3) in this circuit, it is only pursuant to 28 U.S.C. § 1292(b)." Katz v. Carte Blanche Corp., 496 F.2d 747, 752 (3d Cir. 1974). Katz adjudicated the particular issue of a class certification granted under F.R. Civ. P. 23(b)(3). In other applications, however, the Katz principle has not been so limited. The requirement of a § 1292(b) certificate as a prerequisite to considering the case for interlocutory review has been applied neutrally to denials as well as grants of class status and it has been applied to classes sought under rule 23(b)(2) as well as rule 23(b)(3).*fn3
Our policy on this question derives, in part, from a balancing of "the inconvenience and costs of piecemeal review on the one hand and the danger of denying justice by delay on the other." Dickinson v. Petroleum Conversion Corp., 338 U.S. 507, 511, 94 L. Ed. 299, 70 S. Ct. 322 (1950). We do not deny the importance of the class determination in many cases. Indeed, we have recently recognized that "class action determination has significant, practical effects on the litigation and an aggrieved party may have a very real interest in securing early appellate review." Link v. Mercedes-Benz, 550 F.2d 860, 862 (3d Cir. 1976) (in banc) (plurality opinion). But the possible effects of a ruling are not determinative of whether it can be immediately appealed. Evidentiary rulings, for example, can be critically important but they are not the proper subject of an interlocutory appeal. The question is whether the delay in review will work an injustice. In the case of an application for an injunction, especially a preliminary injunction, the urgency of the matter is obvious. The request for an injunction goes to the merits of the case and delayed review may be the practical equivalent of no review. But a class determination does not partake of the same urgency. A decision on class status is wholly procedural. It is normally within the discretion of the trial court, see Link v. Mercedes-Benz, supra, 550 F.2d at 862; it may be conditional, subject to alteration or amendment prior to final judgment, F.R. Civ. P. 23(c)(1); and it does not implicate the merits of the case at all. If, after judgment on the merits, the relief granted is deemed unsatisfactory, the question of class status is fully reviewable. The delay involved is the same delay that accompanies review of all interlocutory procedural rulings in a case, and the delay in no way diminishes the power of the court upon review to afford full relief.
We perceive no irremediable consequences flowing from a postponement of review. At the same time, we do envision, in the rule here contended for, a sure and quick evisceration of our general policy against interlocutory review of class determinations. The adoption of the rule would not discourage attempts at interlocutory review, it would encourage them. Obviously, a prayer for an injunction can easily be added in most, if not all, purported class actions. Moreover, if we accepted the proposition that a refusal of class status could amount to a denial of an injunction, there is no reason why it could not also be argued that a grant of class status could amount to a grant of an injunction under § 1292(a)(1). See Illinois Migrant Council v. Pilliod, 540 F.2d 1062, 1072 (7th Cir. 1976). That, at least, would be a neutral application of the concept. It is true that, under the precise dictum of Hackett, not every refusal of a class is appealable. The refusal must "amount to" a denial of an injunction. But we would face in each case the question whether the particular refusal did or did not amount to the denial of an injunction. We would be faced with piecemeal review of that issue and the general rule of § 1291 and Katz would be effectively swallowed up by the § 1292(a)(1) exception.
The purposes of § 1292 are narrow. The statute recognizes the necessity "to permit litigants to effectively challenge interlocutory orders of serious, perhaps irreparable, consequence." Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176, 181, 99 L. Ed. 233, 75 S. Ct. 249 (1955). The statute, however, does not leave the courts free to decide which interlocutory orders are appealable. It sets forth the exceptional orders specifically.*fn4
The exception for orders relating to injunctions, understandably, has been the subject of litigation before. In Morgenstern Chemical Co. v. Schering Corp., 181 F.2d 160, 162 (3d Cir. 1950), it was argued that a denial of summary judgment amounted to a denial of an injunction where the complaint sought injunctive relief. Speaking through Judge Hastie, this court rejected the argument:
The order below lacks the potential of drastic and far reaching effect on the rights of the parties which is characteristic of orders which decide the propriety of granting or refusing injunctions. Such potential supplies the rational basis for the incursion upon the general policy proscribing interlocutory appeals in the exceptional situations covered by § 1292. This view has recently been expressed by the Supreme Court in its statement that § 1292 indicates "the purpose to allow appeals from orders other than final judgments when they have a final and irreparable effect on the rights of the parties." Cohen v. Beneficial Indus. Loan Corp., 1949, 337 U.S. 541, 545, 69 S. Ct. 1221, 1225, [93 L. Ed. 1528]. Similarly, in this circuit we have said, "The manifest purpose of the statute is to enable a litigant to seek prompt review in an appellate court from an order or decree which in most instances is effective upon its rendition and is drastic and far reaching in effect." Maxwell v. Enterprise Wall Paper Co., 3 Cir., 1942, 131 F.2d 400, 402. Thus, to construe § 1292 as applicable to the present order would unnecessarily divorce the meaning of the language used from its apparent purpose.
The Supreme Court rejected an identical argument concerning the effect of a denial of summary judgment in Switzerland Cheese Association, Inc. v. E. Horne's Market, Inc., 385 U.S. 23, 17 L. Ed. 2d 23, 87 S. Ct. 193 (1966). A denial of a motion for summary judgment, said the Court, "is strictly a pretrial order that decides only one thing - that the case should go to trial." More generally, the Court emphasized that "orders that in no way touch on the merits of the claim but only relate to pretrial procedures are not in our view 'interlocutory' within the meaning of § 1292(a)(1)." Id. at 25.
We understand the conceptual basis of the theory advanced by Ms. Gardner. She argues that the ultimate injunctive relief in a successful action may be narrower if class status is denied than if class status were granted. But this effect will occur, if at all, only after a decision on the merits of the prayer for injunctive relief. Prior to that time, an order denying a class certification does not "touch on the merits of the claim" nor does it have "final and irreparable effect on the rights of the parties." In sum, a class determination, affirmative or negative, lacks the immediate and drastic consequences which attend an injunction and which form the basis for excepting injunctive rulings from the final judgment rule.
We recognize the division of the circuits on this issue. The First, Fourth, Fifth, and Ninth Circuits*fn5 have accepted the proposition that a class determination, at least in some instances, may be appealed under § 1292(a)(1). The Second and District of Columbia Circuits*fn6 have rejected that proposition. Today we align ourselves with the latter courts in holding that a class action determination may not be appealed under § ...