Brown v. Bullock

CLARK, Circuit Judge

(concurring in the result).

When my brothers granted leave for this interlocutory appeal I dissented, stating my fear that it would amount only to an exercise in pleading. Appellants' lawyerlike concession, then indicated and now made explicit, that upon proper showing private persons might have a federal remedy for violation of the Investment Company Act would, I thought, leave for this appeal only questions whether the allegations of the complaint were sufficiently pointed. And since an experienced trial judge had found the allegations sufficient, there was little reason to suppose that we would ask for more. In any event my fears have been realized; none of the interesting questions adverted to in the opinion have been seriously contested and we have had in substance merely an appeal from the overruling of a special demurrer which sought more pleading detail. So this has been not only a grievous waste of time for all of us, but as we pointed out in a similar situation in Gottesman v. General Motors Corp., 2 Cir., 268 F.2d 194 , it has put a wholly false emphasis upon pleading niceties, contrary to the basie approach of the Federal Rules of Civil Procedure. 1

Other bizarre results have ensued. Thus there has been (in an endeavor to avoid hopeless duplication of hearings) the leather doubtful compulsion exerted on the parties to forego, at least temporarily, their right to press pez-fectly proper state litigation forward, as described in footnote 1 of the opinion. And in a brave attempt not to cover too much uncei'tain territory, the opinion, in an embarz'assingly restricted way, disposes of contingencies not yet at hand. Thus the issue as to allegedly false proxy statements may easily acquire disturbing prominence hereafter; and I suspect that some day we shall have to disavow the much criticized case of Howard v. Furst, 2 Cir., 238 F.2d 790 , certiorari denied 353 U.S. 937 , 77 S.Ct. 814 , 1 L.Ed.2d 759 , dealing with an earlier statute. See Loss, The SEC Proxy Rules in the Courts, 73 Harv.L.Rev. 1041, 1061 (1960); also 70 Harv.L.Rev. 1493 (1957); 45 Calif.L.Rev. 186 (1957); 105 U. of Pa.L.Rev. 1016 (1957). The real truth is that this case is not ripe for appellate review and our premature remaz'ks are either unapt or superfluous.

The waste occasioned by this and other appeals under the new statute suggests that permanent gain in adjudication can be achieved only when the order under review shows some element of permanent and final decision. And since there are adequate provisions now on the books for interlocutory appeals covering the cases having some measure of finality, see 28 U.S.C. § 1292 (a) and F.R. 54(b), particularly as now amended, it seems probable that this wide grant of review will become even more limited to attacks on pleadings. I suggest that experience has now shown the statute to be undesirable legislation, and I cite this case as a major illustration. Since it is adequate I am accepting the result achieved by my brothers, but I believe it would have been more fitting had we now dismissed the appeal as improvidently allowed.

. Incidentally this case demonstrates that the time restrictions on interlocutory appeals hopefully sot in Milbert v. Bison Laboratories, 3 Cir., 200 F.2d 431, 435-430 , cannot be relied on to be effective, in view of the trial judge’s power (as here exercised) to amend an interlocutory order substantially after its entry, to start an interlocutory appeal on its way. See Wright, The Interlocutory Appeals Act of 1958, 23 F.R.D. 199 , 208-209.