# Kershner v. Mazurkiewicz > Court of Appeals for the Third Circuit · February 1, 1982 · 670 F.2d 440 URL: https://www.frixlaw.com/law-library/cases/8914665 ## Case - **Full name:** KERSHNER, Royce, Ryan, Bernard, on their own behalf and on behalf of others similarly situated v. MAZURKIEWICZ, J. F., Superintendent Gerber, Gary R., Librarian, SCI at Rockview, Bellefonte, Pa. - **Court:** Court of Appeals for the Third Circuit - **Decided:** February 1, 1982 - **Citations:** 670 F.2d 440; 33 Fed. R. Serv. 2d 429 - **Precedential status:** Published - **Opinion:** Concurring in part by Higginbotham - **Judges:** Adams, Higginbotham, Seitz - **Cited by:** 229 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8914665 ## How later opinions describe it (automated extraction) - explaining that if "the appellate court can dispose of the section 1292(a)(1) appeal without venturing into otherwise nonreviewable matters, its jurisdiction should be limited accordingly" (footnote omitted) - holding pendent class certification order appealable under doctrine of pendent appellate jurisdiction only if "inextricably bound" to related issue appealable pursuant to 28 U.S.C. Sec. 1292 ## Opinion text A. LEON HIGGINBOTHAM, Jr., Circuit Judge, concurring and dissenting. I concur in the majority opinion insofar as it affirms the district court’s denial of a preliminary injunction. I believe the majority’s view “that a pendent class certification order is not appealable under section 1292(a)(1) unless the preliminary injunction issue cannot properly be decided without reference to the class certification question” is too narrow a rule. Majority Opinion, at 448 (footnote omitted). Furthermore, I would extend pendent appellate jurisdiction to the issue of class certification in this case because I have concluded that it is intertwined with the court’s denial of injunctive relief. I. The cases, including the majority and concurring opinions here, reveal four basic approaches to the issue of pendent appellate jurisdiction. In D’Iorio v. County of Delaware, 592 F.2d 681 , 685 n.4 (3d Cir. 1978), a most thoughtful and analytical opinion by Judge Garth, our court expressed the view that “[w]hen appellate jurisdiction is established [under § 1292(a)(1)], the entire order, and not simply the propriety of the injunctive relief, is before the court for review.” This case is illustrative of the most liberal and expansive approach to pendent appellate jurisdiction. The majority today repudiates D’Iorio and adopts a rule whereby there can be no pendent appellate jurisdiction unless “the preliminary injunction issue appealable under section 1292(a)(1) cannot be resolved without reference to the otherwise nonappealable class certification issue. . . . ” Majority Opinion, at 449 (emphasis in original). The concurring opinion would go even further and eliminate completely our discretion to assume pendent appellate jurisdiction. In Chief Judge Seitz’ view, appellate courts are vested with no jurisdiction to review ancillary orders of the district court, whether or not they directly control an order granting or denying injunctive relief. Although the D’Iorio rule and the approach suggested by the concurring opinion do establish bright line rules which have the virtue of ease of application, I believe that D’Iorio is too permissive and the concurrence too restrictive. The majority, which continues to allow discretion, albeit closely circumscribed, would not allow for pendent appellate jurisdiction in the class of cases where, because of the intertwining of facts or law, it is useful and economical to reach the non-appealable issue along with the appealable one. The Second Circuit has adopted a rule that allows for a broader measure of flexi *453 bility in the interest of judicial economy. The Second Circuit would assume pendent appellate jurisdiction where there is “sufficient overlap in factors relevant” to both the appealable and otherwise non-appeala-ble issues. Sanders v. Levy, 558 F.2d 636, 643 (2d Cir. 1976), adhered to on this point en banc, 558 F.2d 646, 647-48 (2d Cir. 1977), rev’d on other grounds sub nom., Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340 , 98 S.Ct. 2380 , 57 L.Ed.2d 253 (1978). As the majority noted, Judge Waterman, in State of New York v. Nuclear Regulatory Commission, 550 F.2d 745, 760 (2d Cir. 1977), interpreted the Second Circuit’s rule to allow for pendent appellate jurisdiction where “the expanded review undertaken by the appellate court require[s] no greater expenditure of effort by that court than if it . . . strictly confine[s] its review to the interlocutory order which [is] independently appealable.” Professor Moore stated this approach somewhat differently but to the same effect when he wrote, Where an interlocutory appeal is taken, as from an order granting an injunction, the appellate court will not go any further into the merits of the case than is necessary to decide the matter upon appeal. The appellate court is not, however, limited solely to a consideration of the order upon which the appeal is based, for its jurisdiction embraces such other orders, although interlocutory and in themselves non-appealable, and such questions are basic to and underlie the order supporting the appeal. 9 Moore’s Federal Practice, ¶ 110.25 at 269-70 (2d ed. 1970) (footnotes omitted; emphasis added). . I do not believe that appellate jurisdiction needs to be as closely circumscribed as the majority would have it. The flexibility present in the Second Circuit’s rule would allow us to dispose of issues where very little extra work is required. In fact, the present case is one in which there is a basic underlying question relevant to both the injunction and class certification issues. The magistrate admitted that he was recommending denial of the injunction and of class certification because of the difficulty in defining indigency. Granted, the majority is accurate in its conclusion that the injunction issue can be reviewed separately from the class certification question. Nevertheless, the issues have been fully briefed, there is an obvious overlap in factors relevant to both and it would require very little extra effort to reach the otherwise non-appealable class certification issue. I would adopt a rule similar to that used by the Second Circuit and assume pendent appellate jurisdiction in this case. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8914665. Public record. Not legal advice.