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USCA1 Opinion
May 14, 1992 [NOT FOR PUBLICATION]
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No. 92-1273
DORIS WISHER,
Plaintiff, Appellant,
v.
PAUL COVERDELL, IN HIS OFFICIAL
CAPACITY AS DIRECTOR OF THE UNITED STATES
PEACE CORPS,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Campbell, Senior Circuit Judge,
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and Cyr, Circuit Judge.
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Harold L. Licthen and Angoff, Goldman, Manning, Pyle, Wanger &
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Hiatt, P.C., on Opposition to Defendant's Motion to Dismiss, for
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appellant.
Wayne A. Budd, United States Attorney, and Susan M. Poswistilo,
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Assistant United States Attorney, on Motion to Dismiss Appeal and
Memorandum of Law in Support of Appellee's Motion to Dismiss, for
appellee.
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Per Curiam. The issue before us is whether the
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district court's dismissal of less than all plaintiff's
claims for relief, coupled with its remand for further agency
proceedings on another claim, constituted a final judgment
for purposes of appeal within the meaning of 28 U.S.C.
1291.
I
Plaintiff brought this action under 501 and 504
of the Rehabilitation Act, 29 U.S.C. 791, 794, seeking
damages and equitable relief. She claimed that the Peace
Corps illegally discriminated against her when it
disqualified her from participation in the United Nations
Volunteer program because she was diagnosed with chronic
hepatitis, type B. Ten days before the scheduled trial
date, defendant moved to dismiss the complaint on the ground
of failure to state a claim for relief. The district court
proceeded to conduct a one-day bench trial and then
considered the issues raised by defendant's motion in light
of the evidence, closing arguments, and the parties'
extensive post-trial briefs addressing the issues.
The district court concluded that plaintiff's
Rehabilitation Act claims should be dismissed because (1)
plaintiff was not an "employee" within the meaning of 501
of the Act and, (2) under 504 of the Act, plaintiff did not
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have an implied private cause of action, Cousins v. Secretary
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of the U.S. Dep't of Transp., 880 F.2d 603 (1st Cir. 1989).
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However, the district court further held that
plaintiff's complaint could be read as including a claim for
review of the Peace Corps' medical determination under the
Administrative Procedure Act, 5 U.S.C. 701-706
[hereinafter "APA"]. Under that alternative claim, the
district court held, it had jurisdiction to determine whether
the Peace Corps' decision violated the Rehabilitation Act.
But in light of the evidence presented at trial, the district
court found it was unable to engage in a meaningful review of
the agency's action. The court found that the agency's
"skeleton" record did not support the agency's medical
determination, that the agency had not considered all
relevant factors, and that the court "simply cannot evaluate
the Peace Corps' decision on the basis of the bare record of
the agency's decision." Citing Florida Power & Light Co. v.
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Lorion, 470 U.S. 729 (1985), the district court accordingly
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remanded the case to the Peace Corps for additional
investigation and evaluation. Plaintiff appealed.
II
Defendant has moved to dismiss the appeal, arguing
that the district court's order was not a final judgment
under our holding in Mall Properties, Inc. v. Marsh, 841 F.2d
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440 (1st Cir.), cert. denied, 488 U.S. 848 (1988). We agree.
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The district court's disposition of this matter
does not meet the traditional definition of a final judgment
under 28 U.S.C. 1291: one which "ends the litigation on
the merits and leaves nothing for the court to do but execute
the judgment." Catlin v. United States, 324 U.S. 229 (1945).
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The litigation before the district court has not ended. "It
has simply gone to another forum and may well return again,"
Mall Properties, 841 F.2d at 441. See also American Hawaii
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Cruises v. Skinner, 893 F.2d 1400 (D.C. Cir. 1990) (district
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court's remand to agency for further proceedings coupled with
administrative dismissal of case did not end the litigation
on the merits within meaning of 28 U.S.C. 1291).
Plaintiff urges that this case is distinguishable
from Mall Properties because there the plaintiff had an
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opportunity to obtain all the relief desired on remand
whereas here dismissal of plaintiff's Rehabilitation Act
claims means that "remand cannot bring plaintiff any closer
to her goal of obtaining damages [and] attorney's fees."
(Pl's. Br. p.5). The district court's dismissal of
plaintiff's claim under the Rehabilitation Act effectively
dismissed plaintiff's demand for damages. Under the APA, the
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plaintiff's remedy necessarily would be limited to the
equitable relief demanded, 5 U.S.C. 702.1
This distinction, however, does not affect the
operation of the final judgment rule in this case. The
primary purpose of the rule, to protect effective review by
avoiding unnecessary and piecemeal determinations, would be
undermined by defining finality so narrowly. See 15A Charles
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A. Wright, Arthur R. Miller & Edward H. Cooper, Federal
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Practice and Procedure, 3907 (1992).
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First, the district court's dismissal of some
claims and remand of the other did not finally resolve the
controversy on the merits nor plaintiff's right to all of the
relief she demanded. In addition to damages, plaintiff's
complaint demands an injunction reinstating her, along with
relevant promotions, "to an appropriate position in the Peace
Corps or the United Nations Volunteers with seniority and
credit retroactive to March of 1985." This remedy remains
available to plaintiff under the APA claim if she prevails on
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1. As it is not necessary to reach the issue, we do not here
determine whether plaintiff is correct in her assertion that
she cannot obtain attorney's fees in her APA action, but
merely point out that "one can sometimes obtain attorneys'
fees in an ordinary APA action under the Equal Access to
Justice Act, 28 U.S.C. 2412(b), 2412 (d)(1)(A)," Cousins,
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880 F.2d at 606. Plaintiff's complaint requests attorney's
fees in this action under both the Rehabilitation Act and the
Equal Access to Justice Act. The district court's order did
not address the latter request directly, although the court
awarded plaintiff reasonable costs connected with the
action.)
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the merits. Thus, the district court's judgment remanding
the action was not a final appealable order under 28 U.S.C.
1291. Mall Properties, 841 F.2d 440. See also Giordano v.
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Roudebush, 565 F.2d 1015 (8th Cir. 1977) (district court
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order ruling that plaintiff was not entitled to a full-trial
type procedure but remanding to agency for further
consideration of plaintiff's arguments neither granted nor
denied the ultimate relief plaintiff wanted -- reinstatement
and back pay -- and was not a final appealable order);
Transportation-Communication Div.-Brotherhood of Ry. v. St.
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Louis-San Francisco Ry., 419 F.2d 933, 935 (8th Cir. 1969),
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cert. denied, 400 U.S. 818 (1970) (district court order which
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neither enforced nor denied enforcement of Board's award, but
rather decided some issues and remanded for further
proceedings, made no final determination of the merits of the
entire controversy and is not appealable).
While plaintiff urges here that reinstatement now,
seven years after her initial disqualification, would be a
hollow victory, she did not amend her pleadings below to
delete this claim but in fact vigorously pursued it through
the trial and beyond. Plaintiff testified before the
district court just a few months ago that if the court ruled
in her favor she would "like to get back in that pipeline and
apply for UNV...and also Peace Corps Volunteer and Peace
Corps Staff positions." (Transcript, pp 116-17). Even later,
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in her post-trial brief, plaintiff expanded her request for
relief, urging the district court to enjoin the Peace Corps
from disqualifying her, and any others similarly situated,
solely because "they are asymptomatic carriers of Hepatitis
B" and allowing her to "reapply" for service with the Peace
Corps.
To allow plaintiff, who has been represented by the
same counsel throughout this case, to recharacterize here the
relief she demands, solely for the purpose of seeking the
jurisdiction of this court, would run counter to the strong
policy discouraging fragmentary appeals. Cobbledick v.
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United States, 309 U.S. 323, 324-25 (1940). Cf. USM Corp. v.
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GKN Fasteners, Ltd., 578 F.2d 21 (1st Cir. 1978) (after court
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ruled that there was no jurisdiction to entertain an appeal
from an order staying proceedings on legal claims pending
arbitration of an equitable claim, later amendment to
pleadings dropping prayer for equitable relief solely for
purpose of seeking jurisdiction of this court could not be
permitted to validate jurisdiction of appellate court
retrospectively).2
Second, policy reasons also lead us to reject
plaintiff's argument that this appeal should be considered
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2. Since plaintiff has not unequivocally abandoned her
request for injunctive relief, we need not consider the
circumstances under which a good-faith relinquishment of a
claim for injunctive relief might make the dismissal of her
other claims final and immediately appealable.
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now under the exception to the finality requirement known as
the Cohen collateral order doctrine, Cohen v. Beneficial
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Industrial Loan Corp., 337 U.S. 541 (1949). We have held
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that in exceptional cases an order that does not entirely
terminate an action may be appealable if it reflects the
following: "(1) an issue essentially unrelated to the merits
of the main dispute, capable of review without disrupting the
main trial; (2) a complete resolution of the issue, not one
that is 'unfinished' or 'inconclusive'; (3) a right incapable
of vindication on appeal from a final judgment; and (4) an
unsettled question of controlling law, not merely a question
of the proper exercise of the trial court's discretion."
United States v. Sorren, 605 F.2d 1211, 1213 (1st Cir. 1979);
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see also United States v. Alcon Labs., 636 F.2d 876, 884 (1st
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Cir.), cert. denied, 451 U.S. 1017 (1981); In re Continental
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Inv. Corp., 637 F.2d 1, 4 (1st Cir. 1980).
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"[B]oth the policy considerations underlying Cohen
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and the internal logic of its criteria suggest that the
possibility of irreparable harm resulting from a delay in
appellate review is the dispositive criterion of
interlocutory appealability." In re Continental Inv. Corp.,
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637 F.2d at 6. Where an opportunity for effective review
exists at the conclusion of the proceedings below, there is
no irreparable harm within the meaning of this exception. To
hold otherwise could obliterate the distinction between
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interlocutory and final orders. Id. See also Occidental
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Petroleum Corp. v. S.E.C., 873 F.2d 325 (D.C.Cir. 1989)
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(exception to the rule that remand order is not immediately
appealable is usually allowed only where agency to which case
is remanded would have no opportunity to appeal after the
proceedings on remand); Colon v. Secretary of Health & Human
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Servs., 877 F.2d 148 (1st Cir. 1989) (although remand orders
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normally are not immediately appealable, appeal would be
allowed either under Cohen exception or under All Writs Act
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where it is doubtful whether Secretary, required to implement
district court decision on remand, could later appeal from
agency decision).
Our deferral of the appeal until after the
remaining claims are finally adjudicated in the district
court will not foreclose effective review of the district
court's dismissal of plaintiff's Rehabilitation Act claims.
As the challenged order is not a final judgment within the
meaning of 28 U.S.C. 1291, plaintiff may file a timely
notice of appeal from the final district court judgment
entered after any review of the agency action taken on
remand.3
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3. Plaintiff expresses concern about safeguarding against an
untimely appeal from the dismissed claims once the agency has
completed the proceedings on remand and about the method for
bringing another appeal should the agency grant the requisite
reinstatement. Under Fed. R. App. P. 4(a)(1), the notice of
appeal to this court in a case in which the United States
agency is a party must be filed within 60 days of the entry
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Moreover, allowance of plaintiff's appeal might
invite the very inefficiency condemned by policies against
piecemeal appeals. The most plaintiff could hope to
accomplish in an appeal at this juncture would be
reinstatement of her Rehabilitation Act claims and remand to
the lower court for a determination on the merits. The
district court's remand of plaintiff's remaining
Administrative Procedure Act claim, however, sufficiently
assures that plaintiff will receive a review on the merits.
Under the APA, the district court's task is to review the
agency's action to see if it acted "in accordance with the
law," which law includes the Rehabilitation Act. 5 U.S.C.
706(2); Cousins v. Secretary of the U.S. Dep't of Transp.,
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880 F.2d at 608. As the district court's opinion below
shows, it was precisely so that it could make this
determination on the merits of plaintiff's claim that it
remanded the case to the agency for further proceedings. The
court instructed the agency to create an adequate record of
its reasons for disqualifying plaintiff in particular and
those with hepatitis B generally, and to consider, apparently
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of the order from which the appeal is taken. Even if
plaintiff were not to challenge the final agency action on
remand, plaintiff would be entitled to appeal the earlier
district court order dismissing her other claims, by filing a
timely notice of appeal, see Fed. R. App. P. 4(a)(1), as
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measuredfrom the entry of the final district court judgment.
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for the first time, what, if any, reasonable accommodation
could be made for plaintiff.
Thus allowance of plaintiff's appeal here would not
speed-up the case, for whether plaintiff's claim is styled a
Rehabilitation Act claim or a claim for APA review, its final
resolution must await further proceedings by the agency. An
appeal on one issue now would only add an extra step to the
litigation, consuming judicial resources without any apparent
advantage to the proceedings as a whole.
For these reasons, this appeal must be dismissed.
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Document Info
Docket Number： 92-1273
Filed Date： 5/14/1992
Precedential Status： Precedential
Modified Date： 9/21/2015