# Brace v. O'Neill

> Court of Appeals for the Third Circuit · November 10, 1977 · 567 F.2d 237

URL: https://www.frixlaw.com/law-library/cases/8904191

## Case

- **Full name:** Penelope BRACE on behalf of herself and on behalf of all others similarly situated v. Joseph O'NEILL, Hillel S. Levinson, Foster B. Roser, Frank Rizzo, and City of Philadelphia
- **Court:** Court of Appeals for the Third Circuit
- **Decided:** November 10, 1977
- **Citations:** 567 F.2d 237; 16 Fair Empl. Prac. Cas. (BNA) 99; 15 Empl. Prac. Dec. (CCH) 7932; 1977 U.S. App. LEXIS 10823
- **Precedential status:** Published
- **Opinion:** Dissent by Rosenn
- **Judges:** Aldisert, Garth, Rosenn
- **Cited by:** 1 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

ROSENN, Circuit Judge
dissenting.
I agree with the majority that this court ordinarily may not hear the appeal of a non-final order 1 and that a court of appeals must give “practical” and not “technical” construction when considering the finality of a district court’s order. I have no quarrel with this statement of the law and the reason underlying it. In denying jurisdiction, however, I believe the majority have erroneously given the requirement of finality a technical rather than a practical effect. I would hold that there is appellate jurisdiction and I therefore respectfully dissent.
I. FACTUAL CONTEXT OF THE APPEAL
Some additional facts are necessary to properly understand the context of this appeal. On July 18, 1973, Penelope Brace (“Brace”) filed charges of employment discrimination with the Equal Employment Opportunity Commission alleging discrimination in her employment as a police officer because of her sex. On January 28, 1974, the Department of Justice issued a right to sue letter on account of the charge, and on February 12, 1974, Brace filed this class action alleging across-the-board sex discrimination in the employment practices of the Philadelphia Police Department. Brace also sought relief for herself alleging that she was the victim of illegal retaliation on account of her activity relating to these causes of action. One week later, on February 19, 1974, the United States also filed an action against the City of Philadelphia charging sex discrimination in the employment practices of the Philadelphia Police Department. In March of 1974 Brace’s case and the Government’s case were consolidated for purposes of trial and adjudication.
On February 10, 1974, trial was commenced. At the close of Brace’s and the Government’s case in chief, the defendants renewed a motion to have the complaint dismissed. The motion was denied. Defendants thereupon put in their case, but prior to Brace’s and the Government’s rebuttal testimony, the district court terminated the trial by an order entered on March 5, 1976. The order provided for certain interim relief, severed the retaliation claim, and deferred final judgment on the other claims until twenty-four months from the date of the order. This order was entered under the caption of both Brace’s case and the Government’s case. Brace, however, never consented to the arrangement and was not a signatory to the order. 2
*246 No further action was taken in Brace’s case until the district court — apparently sua sponte as my reading of the record shows no motion by any party — entered an opinion and order on June 4, 1976. 3 In its opinion, the court indicated that it desired to hold Brace’s claims in abeyance pending decision on the merits in the Government’s case. The district court also concluded that there was “abundant evidence to establish sex discrimination in the employment practices of the Philadelphia police department.” The delay in the court’s final decision was only to give the defendants time to carry out a study to prove its Bona Fide Occupational Qualification (“BFOQ”) defense. The court’s opinion differed from its order which dismissed three of appellant’s claims pending final decision in the Government’s case and found in favor of defendants on the retaliation claim.
From this procedural puzzle, Brace appealed to this court under 28 U.S.C. § 1291 (1970) claiming that a final judgment was entered on all claims. Brace argued that the March 5, 1976, order for a study was unnecessary as a matter of law, that the disposition of her retaliation claim was incorrect, that a class should have been certified, and that she was entitled to full relief. The defendants did not contest appellate jurisdiction until this court, by letter, asked that the question be briefed. Thus, apparently both parties understood the district court’s order to be final.
The majority hold that the court of appeals may modify an ambiguous order of a district court, thereby avoiding appellate jurisdiction. Thus, the district court’s dismissal without prejudice, which the majority acknowledge is a final order and is ap-pealable, Majority Opinion at 241-242, n. 22, has become an unappealable stay of proceedings by modification in this court. The majority concludes that “[s]o read, the conclusion inevitably follows that the district court’s disposition ... is not final, hence not appealable under Section 1291.” Majority Opinion at 243.
It seems to me that such an approach retards rather than advances the efficiency and fairness of our legal system. I disagree with this approach for three distinct reasons: first, the terms of the order indicate that it is final; second, even if read as a stay of proceedings, the order is final and appealable; and third, in view of the unusual posture of the aborted trial, even if the order is viewed as non-appealable mandamus should be considered as an alternative remedy. 4
Before discussing my analysis, I deem it necessary to state preliminarily what is at stake here. At first blush, the majority opinion appears to preserve Brace’s rights. Closer examination reveals particular weakness with their solution. Four years have already elapsed since Brace initially sought relief from the discrimination of which the district court found abundant evidence. The majority’s disposition insures further delay at least until March 5, of 1978 and possibly longer. Their order provides for a stay in Brace’s action pending “final decision” in the Government’s suit. That disposition may take far longer than the suppos *247 ed twenty-four months. 5 The majority suggests that Brace may seek “whatever relief she may deem available in the district court.” Majority Opinion at 243. Given the district court’s disposition to withhold final judgment, I find it difficult to fathom what interim relief the majority has in mind.
Consideration must be given to the enormous outlay of time and undoubtedly money which already has gone into this case and appeal. The district court’s orders of March 5 and June 4 are, to say the least, unclear. Substantial rights of appellant and her class may be lost or at least placed into incubation for years. With this background, and following the majority’s suggestion to give a practical rather than a technical construction to the finality requirement, Brace is entitled to be heard on her appeal.
II. THE DISTRICT COURT’S ORDER IS FINAL BECAUSE IT IS A DISMISSAL WITHOUT PREJUDICE
The district court’s order of June 4,1976, which is the subject of this case reads as follows:
(1) All claims raised by Plaintiff Penelope Brace in Counts I, II and IV of her complaint alleging discriminatory employment practices based on sex are dismissed without prejudice pending final decision in the related case of United States v. City of Philadelphia, et al., C.A. No. 74 — 400.
(2) On all remaining Counts, the Court finds in favor of the defendants. Judgment is to be entered in favor of the defendants against the plaintiff.
No question is raised as to the finality of part two of the district court’s order. It finally and unequivocally disposes of Brace’s retaliation claim. Similarly, no problem may be found with the proposition that a dismissal without prejudice is ordinarily final for purposes of 28 U.S.C. § 1291 . 9 Moore’s Federal Practice ¶110.13[1], 152 (1975) (“An order that dismisses the entire action is clearly final and appeal-able, . . . even if the dismissal is without prejudice”) (footnote omitted). The problem with the district court’s order which the majority found fatal to its ap-pealability is that the dismissal was “qualified”; it was a dismissal without prejudice pending final decision in another case. The majority modified the order of the district court so as to make it conform to the district court’s opinion. It is only by following this curious procedure that the majority rejects jurisdiction.
This procedure baffles me. Appeals are taken from the orders of a court, not from its opinions. In many cases, opinions are unclear or are brief, giving little understanding of the basis for the order. For this reason, courts of appeals review orders, judging appealability solely from the content of the order. Had this appeal been in the posture of an order which on its face was non-final, one questions whether this court would undertake an examination of the content of the opinion to search for appealability. Ordinarily, we view the opinion for its value in support of the disposition of a case, but an appellate court does not substitute its understanding of the order for that of the district court. I therefore cannot agree with the majority’s assessment that the basic difference that divides us in part II of this dissent is the *248 interpretation of the June 4th district court order and not a legal principle. Majority op. at 242 n. 25a. Where there is conced-edly an ambiguity in the district court’s order, it should be remanded to that court for clarification; this court should not run the risk of attempting to give clarity to such an order by reforming or revising it. When an order apparently is not justified by the reasoning of the district court’s opinion, a court of appeals will vacate the order and remand to the district court for clarification or proper resolution of the problem. Here, the majority has turned this procedure on its head.
If effectuation of the intent of the district court is the issue, then it would seem that the district court would be in a better position to assess its own intent. The choice of the words “dismissal without prejudice” must have meant something to the district court. It is apparent that the district court desired the case to be dropped from its docket. Rather than question the basis for this resolution, the majority has substituted a different order which would keep Brace’s case on the docket, but deprive her of the immediate right of review.
The majority cite our recent case of Evans v. Buchanan, 555 F.2d 373 (3d Cir. 1977) for the proposition that the court of appeals must first determine the content of the order to test appealability and may modify a district court’s order to remove inconsistency with the district court’s opinion. Evans does not support such broad modification powers. In that case we faced an order of the district court desegregating a school system. This court upheld the order but found problem with the language of the opinion which could be construed as inconsistent, not with the order of the district court, but with the opinion of the court of appeals. 555 F.2d at 380 . Thus, the court of appeals modified the district court’s order not to comply with the district court’s opinion, but with the opinion of the court of appeals. Id. at 381 . Such a modification, which would save the time and expense of an unnecessary remand is a far cry from the procedure adopted by the majority in the instant case.
The duty of the court of appeals is to review orders of the district court. Finality is a prerequisite to review, and finality is judged by the practical effect of the order. Had the majority done nothing here to modify the order, Brace would have had to refile her complaint. She would have faced severe problems with the statute of limitations. 6 I believe that the district court’s order was final as to all four counts of Brace’s complaint. I would thus reach the merits of the retaliation count and the denial of class certification. As to the remaining counts, because the district court made no findings of fact and conclusions of law, I would vacate the dismissal order and remand for appropriate findings and conclusions.
III. THE ORDER IS FINAL EVEN IF VIEWED AS A STAY OF PROCEEDINGS
The majority have changed a final order dismissing Brace’s claim without prejudice into an order staying proceedings in her action pending resolution of a related case. They conclude that such stays are “inevitably” not final and hence not appealable under section 1291. This conclusion of per se non-appealability of stay orders is overdrawn under the law of this circuit as well as others. Even if this order is read as a stay of proceedings, I would hold it final and appealable.
As a general rule this circuit has held that a stay order is not final and hence is not appealable. Cotler v. Inter-County Orthopaedic Ass’n, 526 F.2d 537, 540 (3d Cir. *249 1975); Stateside Machinery Co., Ltd. v. Alperin, 526 F.2d 480 (3d Cir. 1975); Arny v. Philadelphia Transp. Co., 266 F.2d 869 (3d Cir. 1959). This court’s treatment of the appealability under section 1291 of stay orders, however, has not been inflexible. Cotler v. Inter-County Orthopaedic Ass’n, supra 526 F.2d at 540; Haberern v. Lehigh & New England Rw. Co., 554 F.2d 581 (3d Cir. 1977); In re Grand Jury Proceedings (U.S. Steel), 525 F.2d 151 (3d Cir. 1975); Joffe v. Joffe, 384 F.2d 632 (3d Cir. 1967), cert, denied, 390 U.S. 1039 , 88 S.Ct. 1635 , 20 L.Ed.2d 300 (1968). The rule of this circuit is not that stay orders are never final; rather the cases teach that it is the duty of this court to examine the circumstances of each case to determine whether an appeal may be taken. 7
This circuit has recently held that where a stay will have the practical effect of a dismissal of the underlying cause of action, appealability exists. In re Grand Jury Proceedings (U.S. Steel), supra, 525 F.2d at 154-55. In that case, the district court stayed a grand jury proceeding pending final judgment in a civil contempt action. We held that because the grand jury proceeding would terminate before the completion of the civil action, we would hear the appeal to avoid the practical demise of the underlying action. This was done for the sake of fairness and efficiency in the judiciary. Id. at 156 (“the lower court’s order has caused the entire federal proceedings . to grind to a halt,” thus the appeal was heard to avoid “leaden-footed” administration of justice); see Haberern v. Lehigh & New England Rw. Co., supra (employee’s suit against bankrupt railroad stayed pending district court’s reorganization litigation, held appealable); Joffe v. Joffe, supra (district court stayed action in suit pending resolution of New Jersey state suit. Without discussing appealability, this court heard the appeal).
Recent cases decided in other circuits reinforce this practical approach which would find appealability where there is an effective extended delay in final resolution of the dispute. E. g., Hines v. D’Artois, 531 F.2d 725 (5th Cir. 1976); McSurely v. McClellan, 426 F.2d 664 (D.C.Cir.1970); Amdur v. Lizars, 372 F.2d 103 (4th Cir. 1967). 8
In Hines v. D’Artois, supra, the Fifth Circuit faced an appeal similar to that involved here. Appellant in that case was a police officer charging discrimination, under the Civil Rights Act, in his employment. The district court sua sponte stayed decision in the action pending the filing and processing of a complaint with the EEOC. Over objection of the appellees, the court held that it had jurisdiction under section 1291. 531 F.2d at 730 . Citing Gillespie v. United States Steel Corp., 379 U.S. 148 , 85 S.Ct. 308 , 13 L.Ed.2d 199 (1964), and Cohen v. Beneficial Industrial Loan Corp., supra, the Court concluded that the balance of the danger in piecemeal review against possible delay in justice coupled with a practical approach to finality, would allow appeala *250 bility in a case in which the effect of the district court’s order would create extreme delay in resolution of the dispute. 531 F.2d at 730 . The court held that “[A] ‘practical’ construction requires that when a plaintiff’s action is effectively dead, the order which killed it must be viewed as final. Effective death should be understood to comprehend any extended state of suspended animation.” Id 9 The effect of the majority opinion’s holding in the instant case is to place Brace’s case in a deepfreeze for at least twenty-four months and probably more. After a period of litigation which commenced four years ago, such a result could well spell the death of the action. The district court’s order, even as modified by this Court, has all the makings of a final order, especially in light of the history of this litigation.
Furthermore, certain salient factors are not considered by the majority. Brace has claimed that the Government’s lawsuit differs from her own. There is only limited collateral estoppel effect between the two cases. Brace has asked for broader relief than that requested by the Government and, unlike the Government, has sought to represent a class. Moreover, Brace has opposed consistently any need for a study and has claimed that such a study as a matter of law cannot help defendants. Although the United States has consented to a stay in this case, Brace has resisted any such delay in her suit. This pause of at least two years, pending a suit to which Brace is not even a party, is tantamount to the comatose state of suspended animation visualized by Judge Goldberg in Hines v. D’Artois. 10
IV. EVEN IF NON-APPEALABLE, THE STAY ORDER IS REVIEWABLE BY MANDAMUS
Assuming arguendo that the stay order created by the majority’s modification of the district court’s dismissal is non-appeala-ble, appellant’s only route to appellate review would be through a petition for mandamus. See 28 U.S.C. § 1641 (1970) (the All Writs Act); Fed.R.App.P. 21 (extraordinary writs directed against judges). Mandamus is made available because when “inexorably applied the final judgment rule can at time work an injustice.” 9 Moore’s Federal Practice II 110.26, 276 (1975). “Machine like rigidity cannot be the final goal of judicial administration. There is some need for flexibility so that, in exceptional situations appellate review may be had of an order that is non-appealable.” Id. & 1110.28, 305. Exercise of this power is given when the need for immediate review to insure justice *251 in an individual case outweighs the federal policy favoring finality. Id. 286 . Had the district court clearly ordered Brace’s case stayed pending disposition of the Government’s case and had the literal language of the order not led all parties to assume that it was appealable, Brace might very well have requested mandamus relief. That she did not make such a request should not necessarily prevent her from obtaining relief.
Ordinarily a writ of mandamus must be requested in accordance with the Federal Rules of Appellate Procedure, 9 Moore’s Federal Practice 1110.28, 315 (1975). However, “courts of appeals can, and frequently do, treat a notice of appeal as a petition for mandamus if the order sought to be reviewed is non-appealable but the question presented is subject to review by mandamus.” Id. 315-16 . 11 This is precisely the type of case in which treating the appeal as a petition for mandamus is sensible and just. Here, but for the confusion in the district court, mandamus would have been the clear remedy. “[Ojnce an appeal has been taken in good faith, and the attendant expense of time, money and manpower has been suffered, a court of appeals is not powerless to prevent further useless expenditure.” 9 Moore’s Federal Practice 1110.12, 151 (1975). These principles should oblige us at least to consider Brace’s arguments in light of mandamus relief.
Although a writ of mandamus is an extraordinary remedy, sparingly invoked, it may be exercised to prevent injustice. In Cotler v. Inter-County Orthopaedic Ass’n, supra, this court after finding non-appealability, nevertheless granted appellant’s mandamus request to insure an adequate federal forum for relief. 526 F.2d at 539. We held that a stay granted by the district court pending resolution of similar state proceedings constituted an abuse of discretion, as some claims were exclusively federal. See Dellinger v. Mitchell, supra (Leventhal, J.) (granting petition in a case in which an indefinite stay was entered).
Brace has sufficiently made out a case for review by mandamus. I express no opinion on her claim, but recognize that it is substantial enough to demand consideration by this court. She has set forth (1) that the study ordered by the district court in the related case, which is the sole basis for the stay, is unnecessary as a matter of law, 12 (2) that the relief received as a consequence of the consent decree is inadequate, (3) that the interests of the United States are sufficiently distinguishable so as to make a stay inappropriate, and (4) that a stay of such an indefinite duration prejudices rights of the class appellant purports to represent. Read together with the unusual nature of the district court’s orders, I would hold that Brace has made out a prima facie case for review by mandamus. Because I am dissenting and the defendants have not argued the point, I express no views on the merits of Brace’s claim. If this court does not find appealability, it should consider the mandamus alternative. 13
*252 V. CONCLUSION
(1) I would treat the district court’s order as appealable. The order entered was final; the majority was in error modifying the original order so as to make it correspond to the opinion of the district court. The proper result would have been a remand for findings of fact and conclusions of law as to counts I, II, and IV of the complaint and a review of the final disposition of count III as well as the denial of class certification.
(2) Even if the order is read as a stay of proceedings, it is final and appealable. Under the Cohen and Gillespie tests as well as the laws of this and other circuits, no per se rule of non-appealability of stay orders exists. Rather, practical effect must be given and when, as here, the action is effectively shelved, it must be seen as final. So read, I would reach the question of whether the stay was proper as well as the other issues finally decided.
(3) Even if the stay order is not final and appealable, Brace’s arguments warrant our treatment of the appeal as a petition for mandamus.
. The majority do however recognize that there are some procedures which allow review of non-final orders. Majority Opinion at 243, n. 28 & 244, n. 29; see 28 U.S.C. § 1292 (b) (1970) (interlocutory appeals of certain questions); 28 U.S.C. § 1651 (1970) (the All Writs Act); Fed.R.App.P. 21 (writs directed toward judges); Fed.R.Civ.P. 54(b) (certification when there is partial judgment in cases involving multiple claims or parties).
. There is some controversy as to the meaning and effect of the order of March 5, 1976. The order speaks as if it embraces both the Brace lawsuit, Brace v. O’Neill, et al., C.A. No. 74-399, and the parallel lawsuit of the United States v. City of Philadelphia, et al., C.A. No. 74 — 400. The order arose out of a consensual *246 arrangement entered into by the defendants and the United States to which Brace was not a party. Counsel for the Government stated during oral argument in this court that on March 15, 1976, the United States and the City of Philadelphia consented to an order dismissing No. 74 — 400 without prejudice. This order did not include the Brace claims. Thus, it appears that as of that date, Brace’s case was severed from the Government’s case.
. The district court’s order is set forth at page 247 of this dissent.
. There is also an argument to be made that a stay of proceedings entered on Brace’s case, which includes a prayer for injunctive relief, is equivalent to a denial of an injunction. If this were so, we would have appellate jurisdiction under 28 U.S.C. § 1292 (a)(1). An order granting or denying a stay is not ordinarily regarded as a grant or denial of an injunction. 9 Moore’s Federal Practice fl 110.20[4.-2], 250 (1975) and thus is not ordinarily reviewable under § 1292. See Cotler v. Inter-County Orthopaedic Ass’n, 526 F.2d 537, 541 (3d Cir. 1975). Because I believe that we have jurisdiction on other grounds, I express no views on appealability under section 1292. See Hines v. D’Artois, 531 F.2d 726 , 730 (5th Cir. 1976); Dellinger v. Mitchell, 143 U.S.App.D.C. 60 , 442 F.2d 782 (D.C.Cir.1971).
. The order as modified by this court provides that Brace’s case is to be stayed pending resolution of the Government’s case. The order then incorporates the March 5, 1976, order of the district court. Nothing in this court’s modification prevents the Government and the City of Philadelphia from modifying their present agreement and extending the time period allotted for the study. Nothing prevents undertaking new or additional research. Moreover, the majority modification stays proceedings pending “final decision” in the Government’s case. Whether this includes all appeals filed by the United States and the City of Philadelphia is not clear, but a fair reading of the modified order might permit this. Significant problems already exist in the effectuation of the March 5 order and appeals are presently pending in that action. United States v. City of Philadelphia, et al., App.Doc. No. 77-1707 through 77-1711. Given the present procedural morass, the twenty-four month estimate seems improbably optimistic.
. The majority implicitly recognize that the order of the district court if unmodified would have been final. At oral argument, counsel for the defendants was asked for a promise not to enforce the statute of limitations defense in further proceedings. Not satisfied that this promise alone would protect appellant, this court was forced to modify the order so as to obviate “any statute of limitations problem which may have been posed by the dismissal language . . . .” Majority Opinion at 243: The majority’s action reinforces my belief that on its face the order is a dismissal.
. Other circuits have also found appealability of orders staying one case pending resolution of another. See, e. g., Hines v. D’Artois, 531 F.2d 726 (5th Cir. 1976); McSurely v. McClellan, 138 U.S.App.D.C. 187 , 426 F.2d 664 (D.C. Cir.1970); Amdur v. Lizars, 372 F.2d 103 (4th Cir. 1967). In each of these cases stays were ordered — explicitly, unlike this case — pending resolution of another case. Yet, the courts rejected any per se rule of non-appealability and addressed the facts alleged on appeal.
. But see Dellinger v. Mitchell, 442 F.2d 782, 782-89 (D.C.Cir.1971); Lyons v. Westinghouse Elec. Corp., 222 F.2d 184 (2d Cir. 1955); International Nickel Co. v. Barry, 204 F.2d 583 (4th Cir. 1953). The courts denying appealability to stay orders found the question close. Moreover, in each case the court was led to give appellate review by the alternate means of mandamus.
Dellinger v. Mitchell, supra, 442 F.2d at 788-90 (appeal treated as petition for mandamus in alternative writ granted); Lyons v. Westinghouse Elec. Corp., supra, 222 F.2d at 190 (appeal treated as a petition for mandamus in alternative, writ granted); International Nickel Co. v. Barry, supra 204 F.2d at 585 (appeal treated as petition for mandamus in alternative writ denied); see Cotler v. Inter-County Orthopaedic Ass’n, supra, 526 F.2d at 539 (petition for mandamus, writ granted even though nonappealable). For a discussion of the possibility for mandamus relief here, see Dissenting Opinion at 250-251, infra.
. See McSurely v. McClellan, supra, 426 F.2d at 671 n. 47 (“There is undoubted appellate jurisdiction to review the grant of an indefinite stay in a civil proceeding.”); Amdur v. Lizars, supra, 372 F.2d at 106 (the district court stay order amounted to a dismissal, hence appellate jurisdiction).
I have stated elsewhere my belief that the holding of the Supreme Court in Gillespie v. United States Steel Corp., supra, mandates our review of cases in which a seemingly non-final order is of such a character as to effectively dispose of the case. Hackett v. General Host Corp., 455 F.2d 618, 629 (3d Cir. 1972) (Rosenn, J., dissenting). This involves the intricate balancing of the policy against piecemeal litigation with the injustice of withholding immediate review. Id. This balancing has already once led this circuit to find appealability in stay orders, In re Grand Jury Proceedings (U.S. Steel), supra, and has mandated appealability in the Fifth Circuit, Hines v. D’Artois, supra, the D.C. Circuit, McSurely v. McClellan, supra, and the Fourth Circuit, Amdur v. Lizars, supra. The facts of appellant’s case are no less compelling.
. The majority asserts that the interim orders entered by the district court since June 4th demonstrate that relief “in Brace’s case is ongoing.” Majority op. at 244, n. 29a. I believe that such relief, while directed at securing rights for Brace and her class, is not alone sufficient to revive Brace’s otherwise slumbering lawsuit. Brace is not a party to 74-400. She has no independent right to move the district court for interim relief, and she is not a signatory to the consent decree. She has no standing to appeal from interim relief which she finds unsatisfactory. Thus, she stands as a mere spectator while other parties decide her fate. Moreover, none of the orders entered in the Government’s lawsuit have in any way limited the possibility of extending the time period for the study or prohibited any supplemental research. Without these assurances, Brace’s lawsuit may be indefinitely delayed and no amount of interim relief can make her whole as the two lawsuits do not ask for identical relief.
. See, e. g., Dellinger v. Mitchell, supra, 442 F.2d at 789-90 ; In re Harmon, 425 F.2d 916 (1st Cir. 1970); International Products Corp. v. Lyons, 325 F.2d 403 (2d Cir. 1963); Leesona Corp v. Control Manuf. Corp., 308 F.2d 895 (4th Cir. 1962); Lyons v. Westinghouse Elec. Corp., supra; International Nickel Co. v. Barry, supra.
. “If both questions of law and abuse of discretion are involved, review should be sought by mandamus . . 9 Moore’s Federal Practice ¶ 110.22[5], 267 (1975); see Van Dusen v. Barrack, 376 U.S. 612 , 84 S.Ct. 805 , 11 L.Ed.2d 945 (1964).
Brace’s brief is replete with detailed reasons why the study is unnecessary. She cites numerous cases for the proposition that a BFOQ defense cannot be made out except in the narrowest fashion. This principle is especially true to prevent defendants from use of sex-based averaging and stereotypes. See Jurinko v. Edwin L. Weigand Co., 477 F.2d 1038 (3d Cir.), vacated and remanded on other grounds, 414 U.S. 970 , 94 S.Ct. 293 , 38 L.Ed.2d 214 (1973); Rosenfeld v. Southern Pacific Co., 444 F.2d 1219 (6th Cir. 1971); Diaz v. Pan American World Airways, 442 F.2d 385 (5th Cir. 1971).
. Rather than reach the merits of the mandamus petition, the court may treat this appeal as a motion for leave to file a mandamus petition, International Products Corp. v. Lyons, supra, and remand to the district court. Dellinger v. Mitchell, supra (remanded with some suggestion as to the correct result).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8904191. Public record. Not legal advice.