Petition — Gardner v. Westinghouse Broadcasting Co.

Supreme Court, U. S$,

FILED

OCT 14 1977

IN THE MICHAEL RODAK, JR, CLERK

SUPREME COURT OF THE UNIT

No. 97-560 -

October Term, 1977

JO ANN EVANS GARDNER,

Petitioner,

v.

WESTINGHOUSE BROADCASTING COMPANY,

Respondent

PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED

STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

ROBERT N. HACKETT

JOAN P. FELDMAN

BASKIN, BOREMAN, WILNER, SACHS,

GONDELMAN & CRAIG

10th Floor Frick Building

Pittsburgh, Pennsylvania 15219

Counsel for Petitioner,

Jo Ann Evans Gardner

INDEX

one

Page

Tabbe OF Citethemtecccccccccccccccccccccccccccccccscocoscococeccs iii

ene OPINIONS BeElOW......crecrescreccseceesseescesssesscssseesseescees 2

Tuma OCI OReccecccccccccceccccoccccccecccccccoscocccscococcscoccese 2

Statute Involved.........ccccccccccsccscccccccccscssccsccsccccess 2

ene QueSTION PreSeNted.......cccrecrssecescerercecererscecsesecees 3

Statement Of the Case.ccccccccccccccccccccccccccccvccccccccece 3

Reasons for Granting the WTit.........cccccccccccssssesees 6

ene l. The Court of Appeals' Dismissal of Gardner's

Appeal Conflicts With the Holdings of the

Majority of Courts of Appeals...........+. 6

a. The Third Circuit's Decision....... 7

b. Conflicting Decisions in other Cir-

ene CULTS. .cccccccces coccegevoesococococcocosooces 9

ce. The District Court Decision Effectivly

Denied The Broad Injunctive Relief

SOUGH...cccccccccccees ccccees cccccoceccoces 13

d. Immediate Irreparable Consequences

Flow From the Denial of Class Sta-

ene TUS. .ccccccccccccccce svccccccccscecccococococs 14

2. The Third Circuit's Interpretation of 28 U.S.C.

§ 1292(a)(1) Conflicts With The Prior Holdings

of This Court........cces00 cocecccococoncococococs 17

ene CONCLUSION......ceccecerecerereees ceccccccccccccccsccccocococcocoos 22

RBGRGER A secocccccescecsssescssvcnsccsccsesesccoscessoscones cooee «628

it iii

ADDENGIX B..cccccccccccccecccccecccocesccoccoccoccoococccocooccoce 22a TABLE OF CITATIONS

ADDONGIX C.ccccccccccccccccccccccccscccoccoccoccocccocoocoocoocees 34a CASES

Se issih nies ailiiiaibiietesiiiiinibensdtinieaeoninn 4la : sir

Abercrombie and Fitch Co. v. Hunting World, Inc., 461

ene Foe SPUD URED Cals BUY Bftcrecccccesssessscsossoccnsecssneccsee 10

American Pipe and Construction Co. v. Utah, 414 U.S.

SSS (197 4) cccccccceces ceccccccseossccoscoocccocosoococovecoccccossoce 20,21

a Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 249

~ Be SER ANC 17,18

Board of School Commissioners of the City of Indiena-

Dolis v. Jacobs, 420 U.S. 128 (1975)... ecccccseseeeee 20,21

Brunson v. Board of Trustees of School District No. 1,

ene 3Il F.2d 107 (4th Cir. 1963), cert. denied, 373 U.S. 933

Tit idtnstnnennensnncneennetianiietatesamiieidnianatnetiecssscses eee 9,12,13

Build of Buffalo v. Sedita, 441 F.2d 284 (2nd Cir. 1971) 10

City of New York v. International Pipe and Ceramics

ene Corp., 410 F.2d 295 (2nd Cir. 1969).......ccccsscssessseveees 9

Danner v. Phillips Petroleum Co., 447 F.2d 159 (5th Cir.

Seal icuanenieneninats eseceees ecccceoesocscooosoosecoscces sesesccsoceees 14

Donaldson v. Pillsbury Co., 529 F.2d 979 (8th Cir. 1976) 10

ene

East Texas Motor Freight Sas Inc. v. Rodriguez,

eeeeee U.S. eeeoeg s. Be l | 77 eeeeeeeeeeeeeeeeeeeeeereeee 19

Enelow v. New York Life Insurance Co., 293 U.S. 379

(1935)..... eeeeeeeeeee Seeeeeeeeeeeeeeeee seeeeeeeeoeeeeceee eeeeeeeeeeeeeeee 17

ene

Equal Employment tunity Commission v. Inter-

national man's Association, F. 73 (Sth

Cir. 1975), cert. denied, 423 U.S. 994 (1975)........0+. 12

iv

Table of Citations

Ettelson v. Metropolitan Life Insurance Co., 317 U.S.

SOU We Cl dccccccsscossesnceesenssosnensssnesonnsensannsenenntentecents 17

Franks v. Bowman Transportation Co., 424 U.S. 747 (1976)

SESS SSSSSSSHSSSSSESHSSSSSESSSSSSCSCSCSSSSC CSS SS SESE SSS SESE SSCS EEE e eeeeeeeeeeee 19

General Electric Co. v. Marvel Rare Metals Co., 287

Uae SIO Wb Sa pucccecccecescescsecsensusesessennsseasenaneneneeninte 17

Illinois Migrant Council v. Pilliod, 540 F.2d 1062 (7th

Coils Pe Ved bcescccsessseseteennniaaal eccesese eesceess ° 10

Inmates of San Di County Jail v. Duffy, 528 F.2d

954 (9th Cir. 1975)....cccccccecececseees peceeses scscccceseuseueess ° 10

Jenkins v. Blue Cross Mutual Hospital Insurance, Inc.,

522 F.2d 1235( 7 th Cir. 19 / Bibosusssunscnsssenntentiinnaniinesant 9,20

Johnson v. Nekoosa ~Edwards Paper Co., ..... F.2d ..c0e .

14 F.E.P. Cases 1658 (8th Cir. 19 7 eeeeee Seeeeeeeeeeeeeeeeeeeee 10

Jones v. Diamond, 519 F.2d 1090 (5th Cir. 1975)........ 9,11,13

Lamphere v. Brown University, 553 F.2d 714 (Ist Cir.

1977 See Se SSS SES SESE SESS SESSESESESE Seeeeeeeeeeeeeeeeeeeeeeeeeeeeee ee 18

Melendez v. Singer Friden Corp., 529 F.2d 321 (10th Cir.

1976). eeeeeeeeeeeeeeoeeeee eeeeeee SSSSSSSSSSSSSSSSSCSSSCSCSCSSESCSCSSE SSCS ESSE SESES 10

Nance v. Union Carbide Corp., 540 F.2d 718 (4th Cir.

1976) eeeeereeeeeeee Seeeeeeeeeeeoeeeeeeoeee SSSSSSSSSCSSE SSCS SSCSSCSSCCSSCE SESE EE 14

Napier v. Gertrude, 542 F.2d 825 (8th Cir. 1976)...... 20

Oatis v. Crown Zellerbach Corp., 398 F.2d 496 (5th Cir.

1968) seeeeeeeeeeeeeee seeeeeeecece eeeeeeeeeee seeeeceeceeeeeeee eeeeeeee seeeeceeece 21

Price v. Lucky Stores, 501 F.2d 1177 (9th Cir. 1974)... 9,12

v

Table of Citations

Rich v. Martin Marietta Corp., 522 F.2d 333 (10th Cir.

1975)... seeeeeeeeeeeeeevese SSSSSSSSSSSSSSSSCSSSSSCCC CCS SESEEEESEEEE eeeeeeeeeee 15,16

Rodgers . United States Steel Corp., 541 F.2d 365 (3rd

r. 1976)

eeeece SHSSSSSSSSSSSSSESSSSSSSSESESESSESESESEESESSSEESESECECEEEEE ll

Satterwhite v. City of Greenville, Texas, ..... if

1d EP-D. 47773 th Cire 197 overs ceereoeen 20

Sosna v. Iowa, 419 U.S. 393 (1975)......ccccsescececscsceceeess . 19

Spangler v. U.S., 415 F.2d 1242 (9th Cir. 1967).......000. 10

“eS v. United Airlines, Inc., 444 F.2d 1194 (7th Cir.

19

SSSHSSSSHSESSSSESESSH SEES ESESES Seeeeeeeeeeeeeeeseeeee Seeeeeeeseeeeeeee 14

Switzerland Cheese Association, Inc. v. E. Horne's Mar-

HOT, BNGs, SUS Ute SS BOS rccccccccccccccccccccccesccceses 11,12,17,18

United Airlines v. McDonald, ..... U.S. ....., 97 S. Ct.

l SSSSSSSSSSSSSSSSSSSSSSSSSSSESESSESSESSESESEKHSESSESESESCEE SEC SESESE 20

Williams v. Mumford, 5ll F.2d 363 (D.C. Cir. 1975), cert.

’ . . (1975)... eeeeeee seeeeeeeeeeeeeeeeee eeeeeee eeeeece 9,15

Williams v. Wallace Silversmiths, Inc., ..... F.2d .....

13 E.P.D. 11,556 (2nd Cire 197 Merecencs occccscocceoes ta 9

Yaffee v. Powers, 454 F.2d 1362 (ist Cir. 1972)......... 9,10,12

STATUTES

Act of June 25, 1948, c.646, 62 Stat. 929, 28 U.S.C.

& 1292(aX]1) SESS SSSSSSESSSSESESESSE SESE SSEESESESESEEEEESEEEES EEOC OE EEEE 6,7

MISCELLANEOUS AUTHORITIES

Comment, Appealabiity of Class Action Determinations,

44 Ford. L. ev. SHOSSSSSSSSSESESESESEESE SEES C SCC EEESESE eee

vi

Table of Citations

Note, Interlocutory Appeal from Orders Striking Class

Allegations, 70 Colum. L. Rev. 1292 (1970)

In The

SUPREME COURT OF THE UNITED STATES

No.

October Term, 1977

JO ANN EVANS GARDNER,

Petitioner

V.

WESTINGHOUSE BROADCASTING COMPANY,

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

Jo Ann Evans Gardner, Petitioner herein, prays this

Court for a Writ of Certiorari to review the judgment of

the United States Court of Appeals for the Third Circuit

which was entered in this case on June 6, 1977.

2

Statute Involved

OPINIONS BELOW

The opinion of the Court of Appeals (App. A, infra)

has not yet been officially reported. The opinion is set

forth in the Appendix, as is the Court of Appeals' order

denying rehearing and the Opinion Sur Denial of Petition

for Rehearing. (App. B, infra) The opinion of the district

court has not been officially reported, and is set forth in

the Appendix (App. C, infra)

JURISDICTION

The judgment of the Court of Appeals was entered

on June 6, 1977. Jo Ann Evans Gardner's timely petition

for rehearing was denied by the Court of Appeals on July

22, 1977. The jurisdiction of this Court is invoked under

28 U.S.C. § 1254 (I).

STATUTE INVOLVED

This case involves the interpretation and application

of the Act of June 25, 1948, c.646, 62 Stat. 929, 28 U.S.C.

§ 1292(a\(1), which is set forth in the Appendix. (App. D,

infra)

3

Question Presented

QUESTION PRESENTED

Whether the denial of class action certification in an

employment discrimination case where class-wide injunc-

tive relief is requested is immediately appealable as an

interlocutory order refusing an injunction pursuant to 28

U.S.C. § 1292(aX1). ©

STATEMENT OF THE CASE

The instant action was commenced by Jo Ann Evans

Gardner (hereinafter Gardner) as a cluss action seeking

declaratory, injunctive, and consequent monetary damages

to redress Westinghouse Broadcasting Company's (herein-

after Westinghouse's) denial of equal employment opportu-

nity to females. Jurisdiction was alleged pursuant to Title

Vil of The Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et

seq, and Article I, Section 27 of the Constitution of the

Commonwealth of Pennsylvania.

Gardner, an unsuccessful applicant for employment

as a talk-show host with one of Westinghouse's radio

Stations located in Pittsburgh, Pennsylvania, sought to

represent all females adversely affected by Westing-

house's claimed company-wide policy of discrimination

against females on the basis of their sex by, inter alia,

4

Statement

failing to hire or promote them to executive, managerial,

professional, or technical positions. Gardner's complaint

reveals that she claimed authority to represent the class

by virtue of Fed. R. Civ. P. 23(b)(2). The complaint

requested a permanent injunction on behalf of the class,

curtailing all of Westinghouse's unlawful employment

practices which adversely affect the class of females.

In accordance with the requirements of Fed. R. Civ.

P. 23(c)(1) and Local Rule 34(c) of the Rules of Court of

the United States District Court for the Western District

of Pennsylvania, Gardne: filed a Motion to Determine a

Class within ninety (90) days of the filing of the

complaint. Gardner also propounded interrogatories to

Westinghouse in an effort to enable her to define the

scope of the class. Westinghouse objected to all interrog-

atories which sought information as to any of its radio

stations apart from Station KDKA in Pittsburgh.!

Gardner filed a Motion to Compel Discovery in order to

obtain complete answers to the interrogatories requesting

information as to Westinghouse's other radio stations.

By Memorandum and Order dated February 3, 1976,

the District Court denied both the Motion to Determine a

1. Westinghouse owns and operates seven (7)

radio stations throughout the United States.

5

Statement

Class and the Motion to Compel Discovery. The ruling on

the latter motion was the direct result of the decision to

deny class certification. Denial of class status was

predicated on the District Court's view that the require-

ments of Fed. R. Civ. P. 23(a)(2), (a3), and (a)(4) were

not met. (App. C, infra at 38a- 39a)

Thereupon, Gardner, on her own behalf and on behalf

of the class she sought to represent, appealed the order

refusing class certification to the United States Court of

Appeals for the Third Circuit. Westinghouse filed a

Motion to Dismiss Appeal for Lack of Jurisdiction, which

Motion was granted by the Third Circuit.

In support of her right to maintain this appeal,

Gardner argued, inter alia, that the denial of class certi-

fication amounted to the effective denial of the broad

injunctive relief sought on behalf of the class and consti-

tuted an order of immediate and irreparable consequen-

ces; thus it was appealable pursuant to 28 U.S.C. §

1292(a)(1).

The Third Circuit rejected Gardner's argument,

stating that denial of class certification does not consti-

tute the absolute refusal of an injunction and that no

immediate or irreparable consequences flow from a

6

Reasons for Granting the Writ

postponement of review. (App. A, infra at 5a - 10a)”

Gardner's timely Petition for Rehearing was denied

on July 22, 1977.°

REASONS FOR GRANTING THE WRIT

l. The Court of Appeals' Dismissal of Gardner's Appeal

Conflicts With the Holdings of the Majority of

Courts of Appeals.

This Court should grant the instant Petition because

the Court of Appeals has decided an important question of

federal law in a manner which conflicts with the holdings

of the majority of courts of appeal which have considered

the application of § 28 U.S.C. § 1292(a)(1) to interlocutory

appeals of disctrict court orders refusing to grant class

action certification in civil rights cases.

The Act of June 25, 1948, c. 646, 62 Stat. 929, 28

2. Chief Judge Seitz filed a concurring opinion, in

which he determined that should Gardner obtain all of the

individual relief she seeks, she would still have standing to

appeal the class action denial following final judgment.

(App. A. infra at 10a - 21a)

3. Judge Gibbons joined by Judge Adams strongly

dissented from the Third Circuit's denial of Gardner's

Petition for Rehearing. (App. B, infra at 24a - 33a)

7

Reasons for Granting the Writ

U.S.C. § 1292(aX(1), upon which Gardner grounded her right

to appeallate review, provides as follows:

"§ 1292. Interlocutory decisions

(a) The courts of appeals shall have jurisdic-

tion of appeals from:

(1) Interlocutory orders of the district

courts of the United States, the United States

District Court for the District of the Canal

Zone, the District Court of Guam, and the

District Court of the Virgin Islands, or of the

judges thereof, granting, continuing, modify-

ing, refusing or dissolving, injunctions, or

refusing to dissolve or modify injunctions,

except where a direct review may be had in

the Supreme Court. . ."

a. The Third Circuit's Decision

While recognizing the significance of the class

action determinination for the subsequent course of the

litigation and acknowledging the class representative's

interest in early appellate review, the Third Circuit

nonetheless held that a class certificstion decision, unlike

a decision on an application for an injunction, is:

", . . wholly procedural. It is normally within

the discretion of the trial court; [citation omitted]

it may be conditional, subject to alteration or

amendment prior to final judgment, F.R. Civ. P.

23(e)(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

8

Reasons for Granting the Writ

involved is the same delay that accompanies review

of ali 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."

*e ee

"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 mertis

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 by ey effects on the ydents of the

parties’. .." (App. A at 6a - 7a, 9a

4. In so holding, the Third Circuit clearly stated

that it was deliberately closing an avenue of appeal that

had heretofore been available by virtue of Hackett v.

General Host Corp., 455 F.2d 618 (3rd Cir. 1972):

"Secondly, Eisen is not needed to afford interlo-

cutory appellate review in those cases in which the

refusal to grant class action designation amounts to

a denial of apreliminary injunction broader than

would be appropriate for individual relief. 28 U.S.C.

§ 1292(e)(1) [citations omitted] This category of

interlocutory appeals is adequate, we think, to

protect against most district court inhospitability to

class action litigation involving civil rights. .. ."

Id., at 622.

9

Reasons for Granting the Writ

b. Conflicting Decisions in Other Circuits

The Third Circuit recognized that its decision con-

flicted with the decisions of other circuits on the question

of the immediate reviewability of class action denials. In

so holding, the Third Circuit expressly allied itself with

the Second and the District of Columbia Circuits, which

have rejected the proposition that a class action deter-

mination is appealable pursuant to 28 U.S.C. § 1292(a)(1).

Williams v. Wallace Silversmiths, Inc., F.2d 13

E.P.D. @ 1,556 (2nd Cir. 1977); City of New York v.

International Pipe and Ceramics Corp., 410 F.2d 295 (2nd

Cir. 1969); Williams v. Mumford, 5ll F.2d 363 (D.C. Cir.

1975), cert. denied, 423 U.S. 828 (1975).

The First, Fourth, Fifth, Seventh and Ninth Circuits

have held that orders refusing to certify class actions are

appealable under 28 U.S.C. § 1292(a)(l), in cases where

broad injunctive relief is sought against violations of

rights guaranteed by Title VII of the Civil Rights Act of

1964 or by the Constitution of the United States of

America. Yaffee v. Powers, 454 F.2d 1362 (Ist Cir. 1972);

Brunson v. Board of Trustees of School District No. 1, 3ll

F.2d 107 (4th Cir. 1963); cert. denied, 373U.S. 933 (1963);

Jones v. Diamond, 519 F.2d 1090 (5th Cir. 1975); Jenkins v.

Blue Cross Mutual Hospital Insurance, Inc., 522F.2d 1235

(7th Cir. 1975); Price v. Lucky Stores, 501 F.2d 1177 (9th

10

Reasons for Granting the Writ

Cir. 1974); Inmates of San Diego County Jail v. Duffy, 528

F.2d 954 (9th Cir. 1975).°

The theory which emerges from the above cases is

that where "the substantial effect" of the ccurt's order

denying class action status "is to narrow considerably the

scope of any possible injunctive relief in the event

plaintiffs ultimately prevail on the merits. .. the order

is appealable as a denial of the broad injunctive relief

sought." Yaffee v. Powers, supra, at 1364-1365.°

5. Although they did not directly involve class

action certification orders, the following cases permitted

appeals from orders which effectively limit injunctive

relief: Melendez v. Singer Friden Corp., 529 F.2d 321 (10th

Cir. 1976); Abercrombie and Fitch Co. v. Hunting World

Inc. 461 F.2d 1040 (2nd Cir. 1972); Build of BufTal ffalo_v.

Sedita, 441 F.2d 284 (2nd Cir. 1971); Spangler v. U.S., 415

F.2d 1242 (9th Cir. 1967). See, generally, Comment,

Appealability of Class Action Determinations, 44 Ford. L.

Rev. 5 975);Note, Interlocutory Appeal From Orders

Striking Class Allegations, 70 Colum. L. Rev. 1292 (1970)

The Seventh Circuit has sanctioned an appeal

from an order granting class certification, where a pre-

liminary injunction is requested and the class action

decision controls the scope of relief thus obtained. Illinois

Migrant Council v. Pilliod, 540 F.2d 1062 (7th Cir. 1976).

6. The Eighth Circuit has expressly refused to

adopt or reject this theory of appealability for class

action orders. Johnson v. Nekoosa - Edwards Paper Co.,

F.2d , 14 F.E.P. Cases 1658 (8th Cir. 1977);

Donaldson v. Pillsbury Co., 529 F.2d 979 (8th Cir. 1976)

ll

Reasons for Granting the Writ

The Fourth Circuit has delineated the conditions

under which a denial of a class action will be appealable

under 28 U.S.C. § 1292(a)(1), i.e., where the "class action

bears a symbiotic relationship to the frustration of relief.

. -" Jones v. Diamond, supra, at 1095:

"The first, and perhaps obvious requirement is that

the plaintiff's prayer for an injunction must consti-

tute the heart of the relief he seeks. The desired

injunction must be capable of resolving the substan-

tive issues of the claim, it cannot merely maintain

the status quo during the litigation. . ." [citations

omitted]

"The second requirement for appealability is that

the practical result of the order denying the

proposed class must be to deny the requested broad

injunction . . . .We therefore hold that where the

denial of permission to proceed as a class is

synonymous with the denial of the broad injunctive

relief sought on the merits, and where the injunction

is the primary pur of the suit, the order is

appealable under § T292(aN0) as an order 'refusipg' an

injunction." Id., at 1095-1097 (emphasis added). ©

‘7. While Jones v. Diamond, supra was a case

where both a preliminary and a permanent injunction was

sought, the absence of the request for a preliminary

injunction here does not affect appealability. Indeed, in

Rodgers v. United States Steel Corp., 541 F.2d 365 (3rd

Cir. 1976), the Third Circuit rejected the attempt to use a

pre forma preliminary injunction to convert an order not

inal under 28 U.S.C. § 1291 into one arguably appealable

pursuant to 28 U.S.C. § 1292(a\(1)

This Court in Switzerland Cheese Association,

(footnote 7 continued next page)

12

Reasons for Granting the Writ

7. (Continued)

Inc. v. E. Hornes' Market, Inc., 385 U.S. 23 (1966) declined

to hold that an interlocutory order did not include an

order denying a permanent injunction. Citing Switzerland

Cheese, the United States Court of Appeals for the Fifth

Circuit held that an order denying a permanent injunction

was appealable pursuant to 28 U.S.C. § 1292(a\(l). Equal

Employment Opportunity Commission v. International

Longshoreman's Association, 511 F.2d 273 (5th Cir. 1975),

cert. denied, 423 U.S. 994 (1975)

Further, Yaffee v. Powers, supra; Price v.

Lucky Stores, supra; and Brunson v. Board of Trustees of

School District No. 1, supra, held class action denials to be

appealable where only permanent injunctive relief was

requested.

13

Reasons for Granting the Writ

c. The District Court Decision Effectively De-

nied the Broad Injunctive Relief Sought

Thus, it is clear that there is substantial disagree-

ment with the basic premise of the Third Circuit's

decision; that the denial of class action certification does

not diminish the power of a court to afford full relief at a

later stage in the proceedings. As Gardner's complaint

makes clear, the heart of the relief she seeks is a broad

injunction, curtailing all of Westinghouse's policies and

actions which adversely affect females. Such an injunc-

tion would resolve the substantive issues presented by her

claim of a pervasive pattern of sex discrimination which

permeates all of Westinghouse's employment practices.

Jones v. Diamond, supra. However, the District Court's

refusal to grant class action status effectively and finally

precludes Gardner from obtaining the broad remedy

requested. Left only with her individual action, Gardner

will be limited at the trial on the merits to presenting

evidence of employment practices which affected her

personally. Consequently, she will only be able to obtain

relief tailored to her individual complaint: Westinghouse's

failure to hire her. See, Brunson v. Board of Trustees of

School District No. 1, supra. The district court's denial of

the Motion to Compel Discovery, which resulted from the

adverse ruling on the Motion to Determine a Class Action,

is further proof that Gardner will be precluded from

14

Reasons for Granting the Writ

gathering or presenting at trial any evidence concerning

Westinghouse's employment practices at its facilities

outside of the Pittsburgh area. Obviously, no injunctive

remedy could be granted which would curtail Westing-

house's claimed system-wide discrimination. The district

court's order is not conditional, and totally forecloses the

possibility that absent class members, especially those

employed outside of the Pittsburgh area, can obtain any

relief whatsoever.

Gardner is not litigating a company-wide policy,

such as a "no-marriage" rule where an injunction in favor

of the named plaintiff will perforce operate to the benefit

of all employees. See e.g., Sprogis v. United Airlines, Inc.

444 F.2d 1194 (7th Cir. 1974). Rather, this case falls within

the rule established by Nance v. Uni «a Carbide Corp., 540

F.2d 718 (4th Cir. 1976) and Danner v. Phillips Petroleum

Co., 447 F.2d 159 (5th Cir. 1971), that absent compliance

with the requirements of Fed. R. Civ. P. 23 and

certification thereunder, class-wide relief cannot be

obtained. Nance and Danner demonstrate that the Third

Circuit's assumption that Gardner could, after the trial on

the merits of her individual case, still obtain all of the

relief detailed in the complaint is erroneous.

d. Immediate Irreparable Consequences Flow

From the Denial of Class Status

15

Reasons for Granting the Writ

Although the Third Circuit found that no immediate,

irreparable consequences result from the postponement of

review of class action orders, the narrowing of the

permanent injunctive relief which can be obtained by

Gardner is but one example of the consequences attendant

upon and the refusal to grant class status. District Court

inhospitability to class actions, particularly in civil rights

cases, is exacerbated by the non-reviewability of denials

of class certification until after the individual case on the

merits has been concluded, which may be months or even

years after an erroneous order is issued. To allow such

orders to stand as precedent, unreviewed by an appellate

court, until the conclusion of the case on the merits has

an undoubted chilling effect on the class action device and

on civil rights cases generally. Williams v. Mumford,

supra, (Opinion of Judge Spottswood W. Robinson on

application for rehearing before the court en banc, 5ll

F.2d at 371-372)°

As is indicated by Rich v. Martin Marietta Corp..

522 F.2d 333 (10th Cir. 1975), the effect of class action

denials on the further conduct of the case is immediate

“8. ~~ Judge Gibbons expressed much the same senti-

ments in his dissent from the denial of the Petition for

Rehearing in this case. (See App. B, at 25a,32a , infra.)

16

Reasons for Granting the Writ

and irreparable. The scope of discovery and of evidence

at trial is determined by whether or not the case proceeds

as a class action. Class action denial ultimately leads as

it did in the case at bar, to a narrowing of discovery and

to a focus at trial on the merits solely with the

individual's claim.

The case focus shifts to an unwavering concern with

the named plaintiff's individual claim. If the appealability

of orders refusing to certify a class action must await the

conclusion of the trial of the individual plaintiff's claims

on the merits, undue delay and waste of the time of both

judge and counsel will result. If the class action denial is

reversed on appeal, the case will have to be retried,

following an additional period of time for discovery. Such

was the result in Rich v. Martin Marietta, supra, a result

which contravenes the principles underlying Fed. R. Civ.

P. 23.

The denial of a motion to determine a class action in

an employment discrimination case where a broad injunc-

tion is sought has the immediate effect of narrowing the

relief which can ultimately be obtained by the named

plaintiff. The majority of circuits within the federal

appellate system have recognized the irreparable harm

resulting thereby, and have held such orders appealable

pursuant to 28 U.S.C. § 1292(a)(1). The question of the

17

Reasons for Granting the Writ

interlocutory appealability of class action determinations

is of the utmost importance to all litigants involved in

class actions, and particularly to those litigants seeking to

certify class actions in civil rights cases. Since the

circuits are divided on this issue, this Court should resolve

the conflict. It is, therefore, both appropriate and

necessary that this Court grant the instant Petition for

Writ of Certiorari.

2. The Third Circuit's Interpretation of 28 U.S.C. §

1292(aX1) Conflicts With the Prior Holdings of This

Court.

This Court should grant the instant Petition because

the Court of Appeals misapplied this Court's decision in

Switzerland Cheese, Inc. v. E. Hornes' Market, Inc., 385

U.S. 23 (1966) and Baltimore Contractors, Inc. v.

Bodinger, 348 U.S. 249 (1955).9

The Third Circuit erred in its conclusion that the

denial of a class action does not amount to the denial of

9. While not mentioned in the Third Circuit's

opinion, Ettelson v. Metropolitan Life Insurance Co., 317

U.S. 188 (1942); Enelow v. New York Lite Insurance Co.,

293 U.S. 379 (1935); and General Electric Co. v. Marvel

Rare Metals Co., 287 U.S. 430 (1932) support Gardner's

position herein.

18

Reasons for Granting the Writ

an injunction, a conclusion which rested on its view of

Switzerland Cheese Association, Inc. v. E. Horne's Market,

Inc., 385 U.S. 23 (1966). This Court therein held that the

denial of a motion for summary judgment in a case where

injunctive relief, both temporary and permanent, was

sought, was strictly a procedural pre-trial order which did

not settle or tentatively decide anything about the merits

of the claim. Id. at 25. Clearly, however, the order

denying class action status herein is not merely a pre-trial

order that advances the case to trial. The order

definitely narrows the scope of relief which Gardner can

ultimately obtain; and thus effectively denies the broad

permanent injunction which is the heart of the relief

requested in order to resolve the substantive issues of the

case.

In Baltimore Contractors, Inc., this Court analyzed

the legislative history of 28 U.S.C. § 1292(a)(1) as follows:

"No discussion of the underlying reasons for modify-

ing the rule of finality appears in the legislative

history, although the changes seem plainly to spring

from a developing need to permit litigants to

effectually challenge interlocutory orders of serious,

perhaps irreparable consequence." Id., at 181.

10. As the First Circuit noted in Lamphere v.

Brown University, 553 F.2d 714 (Ist Cir. 1977) decisions on

class certification often implicate the merits of the

underlying substantive claims.

19

Reasons for Granting the Writ

The order refusing to certify the class herein

unmistakably is an interlocutory order of serious, irrepar-

able consequence. As this Court has recently indicated in

East Texas Motor Freight System Inc. v. Rodriguez,

U.S. ____, 97 S. Ct. 1891 (1977), the representative

plaintiff must be a member of the class he or she seeks to

represent at the time the class is certified. Where, as

here, a class action is formally denied by the district

court, and the individual plaintiff loses his or her

individual case on the merits, this Court's ruling in East

Texas Motor Freight System, Inc. Suggests that no class

could be subsequently certified, at least by the original

class representative, despite the reversal of a wholly

erroneous district court decision on the maintainability of

the case as a class action.

Indeed, it is probable that an appeal challenging the

merits of a district court order denying class certification

brought by a class representative following the loss of his

or her individual case would be dismissed, as not present-

ing the appellate court with a concrete case or controver-

sy, in violation of Article [I of the Constitution of the

United States. See, East Texas Motor Freight System,

Inc. v. Rodriguez, supra; Franks v. Bowman Transportation

Co., 424 U.S. 747 (1976), Sosna v. Iowa, 419 U.S. 393 (1975),

Board of School Commissioners of the City of Indianapolis |

20

Reasons for Granting the Writ

v. Jacob, 420 U.S. 128 (1975).

Moreover, this Court's recent decision in United

Airlines v. McDonald, U.S. _—sa97' S. Ct. 2464 (1977)

suggests that the statute of limitations will run against

the individual Title VII claims of putative class members,

when class status is denied by the district court and

affirmed on appeal after an intervening trial on the

merits!” The limited tolling of the statute of limitations

for putative class members allowed in United Airlines,

Inc. is for the purpose of allowing them to intervene for

the purpose of obtaining review over the lower court's

allegedly improper class action decision only. Thus this

Court's holding in American Pipe and Construction Co. v.

Utah, 414 U.S. 538 (1974) still prevents members of the

ll. At least one appellate court has refused to

allow an appeal to correct errors in class certification

after the representative plaintiff's claim became moot.

Napier v. Gertrude, 542 F.2d 825 (8th Cir. 1976); Contra,

Satterwhite v. City of Greenville, Texas, F.2d

, 14 E.P.D. 173 (5th Cir. 1977) which contravenes

this Court's decision in East Texas Motor Freight System,

Inc.

12. This Court noted that the denial of class

action certification in United Airlines, Inc. could not be

appealed as of right in the Seventh Circuit. Id., 97 S. Ct.

at 2467 n.4. However, the plaintiffs therein did not

attempt to invoke 28 U.S.C. § 1292(a)(l). See, Jenkins v.

Blue Cross Mutual Hospital Insurance, Inc., supra.

21

Reasons for Granting the Writ

Gardner class from instituting individual suits to litigate

their individual claims at the conclusion of Gardner's

appeal on the merits of the denial of her individual case.

Even if the individual class members’ rights to

present their Title VII claims can be said to be held in

abeyance until the conclusion of all of the appeals which

Gardner can take as an individual, ignorance of the action

and failure to exhaust administrative remedies will result

in the loss of many potential claims. Clearly, the member

of a class action under Title VII need not exhaust his or

her administrative remedies, but the class representative

or plaintiff in an individual action clearly must do so prior

to maintaining a lawsuit. Oatis v. Crown Zellerbach

Corp., 398 F. 2d 496 (5th Cir. 1968).

The above serious and irreparable consequences of

an order denying class certification can only be avoided by

immediate appealability pursuant to 28 U.S.C. § 1292(a)(1).

Gardner respectfully submits that the Third Circuit's

erroneous analysis of 28 U.S.C. § 1292(a)(1) and of the

holdings of this Court require the granting of the instant

Petition.

22

Conclusion IN THE

SUPREME COURT OF THE UNITED STATES

CONCLUSION

For the reasons stated, the Petition for a Writ of

Certiorari should be granted. No.

Respectfully submitted,

ROBERT N. HACKETT October Term, 1977

JOAN P. FELDMAN

BASKIN, BOREMAN, WILNER, SACHS,

GONDELMAN & CRAIG JO ANN EVANS GARDNER,

Petiti

10th Floor Frick Building etitioner,

Pittsburgh, Pennsylvania 15219 ve

co WESTINGHOUSE BROADCASTING COMPANY,

Counsel for Petitioner,

Jo Ann Evans Gardner Respondent

PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED

STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Appendix A - Opinion of the Court of Appeals, June 6,

1977

Appendix B - Order Denying Petition for Rehearing and

Opinion Sur Denial of Petition for Rehearing, July 22, 1977

Appendix C - Opinion of the District Court, February 3,

1976

Appendix D - Act of June 25, 1948, ¢.646, 62 Stat. 929; as

amended, 28 U.S.C. § 1292

2a

Opinion of the Court of Appeals

APPENDIX A

UNITED STATES COURT OF APPEALS

For rags Turep Circuit

No. 76-1410

JO-ANN EVANS GARDNER

v.

WESTINGHOUSE BROADCASTING COMPANY,

Jo Ann Evans Gardner, on her own

behalf as a representative of the

class and on behalf of the class

that she seeks to represent,

Appellant

AppgeaL From tHe Unirep Srares District Court ror THE

Western District or PENNSYLVANIA

(D.C. Civil Action 75-614)

Submitted Under Third Circuit Rule 12(6)

March 28, 1977

Before: Seirz, Chief Judge, and Aupisert and Huntress,

Vircuit Judges.

Robert N. Hackett, Esq.

Joan P. Feldman, Esq.

Baskin, Boreman, Wilner, Sachs,

Gondelman & Craig

10th Floor Frick Building

Pittsburgh, Pennsylvania 15219

Counsel for Appellant

3a

Opinion of the Court of Appeals

Wendell G. Freeland, Esq.

Richard F. Kronz, Esq.

Freeland & Kronz

409 Plaza Building

Pittsburgh, Pennsylvania 15219

Counsel for Appellee

OPINION OF THE COURT

(Filed June 6, 1977)

Auptsert, Circuit Judge.

The question is whether a denial of a class certifica-

tion can be immediately appealed under 28 U.S.C. § 1292

(a)(1)’ on the theory that the denial amounts to the de-

nial of an injunction. The circuits are divided on the

question. Although the theory of §1292(a)(1) appeal-

ability has been mentioned in dictum in several opinions

in this cireuit, 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 adjudi-

cated 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 determina-

tions 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 ap-

pellee’s motion to dismiss the appeal.

1. § 1292. Interlocutory decisions

(a) The courts of appeals shall have jurisdiction of appeals from:

(1) Interlocutory orders of the district courts of t i

States, the United States District Court for the District of Ry ome

Zone, the District Court of Guam, and the District Court of the

Virgin Islands, or of the judges thereof, granting, continuing, modify -

ne. ss = dissolving Layee or refusing to dissolve or

y injunctions, except w i i i

a ae ep e a direct review may be had in the

4a

Opinion of the Court of Appeals

I,

This civil rights action was commenced by the plain-

tiff, 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 defend-

ant, 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). In-

terrogatories 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 ques-

tions of law or fact common to the class, that plaintiff’s

claim was not typical, and that there was no need to con-

sider the discovery motion in light of the denial of class

status. No further rulings were made. Without obtaining

a certifieate under 28 U.S.C. § 1292(b),? Ms. Gardner filed

an appeal from the denial of her class action motion as-

serting 28 U.S.C. § 1292(a)(1) as the jurisdictional predi-

cate. Westinghouse moved to dismiss the appeal for lack

of jurisdiction. That motion has been referred to this

panel and is now before us.

Il.

Ms. Gardner places primary reliance on the dictum in

Hackett v. General Host Corp., 455 F.2d 618, 622 (3d Cir.

2. § 1292. Interlocutory decisions

(b) When a district judge, in making in a civil action an order not

otherwise appealable under this section, shall be of the opiniun that such

order involves a controlling question of law as to which there is substantial

ground for difference of opinion sd that an immediate appeal from the

order may materially advance the ultimate termination of the litigation,

he shall so state in writing in such order. The Court of Appeals may

thereupon, in its discretion, permit an appeal to be taken from such order,

if application is made to it within ten days after the entry of the order:

Provided, however, That application for an appeal hereunder shall not stay

proceedings in the district court unless the district judge or the Court of

Appeals or a judge thereof shall so order.

5a

Opinion of the Court of Appeals

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 = preliminary injunction broader

than would be appropriate for individual relief.’’ That

suggestion was repeated in Samuel v. University of Pitts-

burgh, 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).

A.

Following Judge Gibbons’ seminal opinion in Hackett,

this court, in banc, and again speaking through Judge Gib-

bons, 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.

... [I]f there is any route open for the interlocutory re-

view 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 Kate 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

6a

Opinion of the Court of Appeals

grants of class status and it has been applied to classes

sought under rule 23(b)(2) as well as rule 23(b)(3).°

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 Conver-

sion Corp., 338 U.S. 507, 511 (1950). We do not deny the

importance of the class determination in many cases. In-

deed, we have recently recognized that ‘‘class action de-

termination has significant, practical effects on the litiga-

tion and an aggrieved party may have a very real interest

in securing early appellate review.’’ Link v. Mercedes-

Benz, — F.2d — , — (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 impor-

tant 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 de-

termination does not partake of the same urgency. A de-

cision on class status is wholly procedural. It is normally

within the discretion of the trial court, see Link v. Mer-

cedes-Benz, supra, — F.2d at — ; 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

3. Link v. Mercedes-Benz, — F.2d — (3d Cir. 1976) ; Kramer v. Scientific

Centred Cot Sot Fate) Raduers v. Unied States Steel Corp., 308 F 24

152 (3d Cir. 1975); Samuel v. University of Pittsburgh, supra; Hackett v.

General Host Corp., supra.

7a

Opinion of the Court of Appeals

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 in-

junction 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 con-

cept. It is true that, under the precise dictum of Hackett,

not every refusal of a class is appealable. The refusal

must ‘f‘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 injunc-

tion. 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.

B.

The purposes of § 1292 are narrow. The statute rec-

ognizes the necessity ‘‘to permit litigants to effectively

challenge interlocutory orders of serious, perhaps irrep-

arable, consequence.’’ Baltimore Contractors, Inc. v.

Bodinger, 348 U.S. 176, 181 (1955). The statute, however,

does not leave the courts free to decide which interlocutory

orders are appealable. It sets forth the exceptional orders

specifically.*

4. In addition to the exception for orders relating to injunctions, § 1292

sets forth four other specific and precise exceptions to the final judgment rule:

8a

Opinion of the Court of Appeals

The exception for orders relating to injunctions, under-

standably, 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:

[T]he order below lacks the potential of drastic and

far reaching efrect on the rights of the parties which is

characteristic of orders which decide the propriety of

granting or refusing injunctions. Such potential sup-

plies the rational basis for the incursion upon the gen-

eral 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

4. (Cont’d.)

§ 1292. Interlocutory decisions

(a) The courts of appeals shall have jurisdiction of appeals from:

(1) Interlocutory orders of the district courts of the United States,

the United States District Court for the District of the Canal Zone,

the District Court of Guam, and the District Court of the Virgin

Islands, or of the judges thereof, granting, continuing, modifying,

refusing or dissolving injunctions, or refusing to dissolve or modify

injunctions, except where a direct review may be had in the Supreme

Court ;

(2) Interlocutory orders appointing receivers, or refusing orders

to wind up receiverships or to take steps to accomplish the purposes

thereof, such as directing sales or other disposals of property;

(3) Interlocutory decrees of such district courts or the judges

thereof determining the rights and liabilities of the parties to admiralty

cases in which appeals from final decrees are allowed;

(4) Judgments in civil actions for patent infringement which are

final except for accounting.

(b) When a district judge, in making in a civil action an order not

otherwise appealable under this section, shall be of the opinion that such

order involves a controlling question of law as to which there is substantial

ground for difference of opinion and that an immediate appeal from the

order may materially advance the ultimate termination of the litigation,

he shall so state in writing in such order. The Court of Appeals may

thereupon, in its discretion, permit an appeal tobe taken from such order,

if application is made to it within ten days after the entry of the order:

Provided, however, That application for an appeal hereunder shall not stay

proceedings in the district court unless the district judge or the Court of

Appeals or a judge thereof shall so order.

9a

Opinion of the Court of Appeals

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.

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 ap-

plicable to the present order would unnecessarily

divorce the meaning of the language used from its ap-

parent 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 (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 gencrally, the Court emphasized that ‘‘[o]rders 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).’’ Jd. at 25.

We understand the conceptual basis of the theory ad-

vanced by Ms. Gardner. She argues that the ultimate in-

junctive relief in a successful action may be narrower if

class status is denied than if cluss 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 injunc-

tive rulings from the final judgment rule.

10a

Opinion of the Court of Appeals

We recognize the division of the circuits on this issue.

The First, Fourth, Fifth, and Ninth Circuits * have aceepted

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® have rejected that

proposition. Today we align ourselves with the latter courts

in holding that a class action determination may not be ap-

pealed under § 1292(a)(1). The only mode of interlocutory

review in this circuit will continue to be pursuant to

§ 1292(b).

The motion to dismiss the appeal will be granted.

Serrz, Chief Judge, Concurring.

The argument that the denial of class certification

amounts to an injunction is that some injunctive relief

which might be appropriate in a class action would not be

appropriate in an individual suit by the named plaintiff.

Thus, it is argued, the decision to refuse certification ef-

fectively limits the scope of injunctive relief which might

be granted. See Hackett v. General Host Corp., 455 F.2d

618 (3d Cir. 1972). The majority’s response to this argu-

ment is, at least in part, that the decision not to certify does

not foreclose the grant of class-wide injunctive relief be-

cause this decision can always be reviewed after final judg-

ment, and the application for class certification and class-

wide relief renewed in the district court. Thus, they say

‘*[t]he question is whether the delay in review will work an

injustice ... [i]f, after judgment on the merits, the relief

granted is deemed unsatisfactory, the question of class

5. Doctor v. Seaboard Coast Line R.R., 540 F.2d 699 (4th Cir. 1976) ;

Jones v. Diamond, 519 F.2d 1090 (Sth Cir. 1975); Price v. Lucky Stores, Inc.,

501 F.2d 1177 (9th Cir. 1974); Yaffe v. Powers, 454 F.2d 1362 (lst Cir.

1972) ; Spangler v. United States, 415 F.2d 1242 (9th Cir. 1969) ; Brunson v.

Board of Trustees, 311 F.2d 107 (4th Cir. 1962) ; see Illinois Migrant Council

v. Pilliod, 540 F.2d 1062 (7th Cir. 1976).

6. Williams v. Mumford, 511 F.2d 363 (D.C. Cir. 1975); City of New

York v. International Pipe and Ceramics Corp., 410 F.2d 295 (2d Cir. 1969)

(semble)

lla

Opinion of the Court of Appeals

status is fully reviewable. The delay involved is the same

delay that accompanies review of all interlocutory pro-

eedural rulings in a case, and the delay in no way di-

minishes the power of the court upon review to afford

full relief.’’

Thus, the majority’s analysis depends on its position

that the refusal to certify is always reviewable after final

judgment. While I believe that this position is correct, it

deserves greater explication than the majority has given

it.’

If the district court should deny Ms. Gardner the

individual relief she has sought, she could, of course, raise

the district court’s failure to certify along with her other

assignments of error on appeal after final judgment. But

the problem would be different on the eventuality that the

district court grants her the individual relief she has

sought. This contingency poses a question of Article III

justiciability, namely, whether Ms. Gardner would have

standing to appeal the district court’s refusal to certify

even though she would no longer have personal relief in

the balance. If Ms. Gardner would not have standing to

appeal the district court’s refusal to certify after she had

obtained the individual relief she has requested, the court’s

refusal to certify could have the effect of reducing the

ultimate scope of injunctive relief.

The Supreme Court’s decisions in Sosna v. lowa, 419

U.S. 393 (1975) and Board of School Comm'rs v. Jacobs,

1. Portions of the majority's opinion indicate that, apart from t':e argument

that the certification decision is reviewable after final judgment, the refusal to

certify cannot be deemed to constitute the denial of an injunction because this

refusal dees not directly deny injunctive relief. In view of my conclusion

that the certification decision is appealable after final judgment. | need not

reach this alternative possible ground of decision. But I note that any argu-

ment that an order must directly grant or refuse injunctive relicf to be appeal-

able under §1292(a)(1) is not readily reconcilable with General Electric Co.

v. Marvel Rare Metals Corp., 287 U.S. 430 (1932), where the Supreme Court

sustaine the appealability of an order which dismissed a counterclaim for

improper venue.

I also note that Ms. Gardner’s complaint on bchalf of herself and the

class does not request temporary injunctive relief. I need not decide whether

the disposition of this case should be different if she had. See Stewart-Warner

Corp. v. Westinghouse Electric Corp., 325 F.2d 822, 829-30 (Friendly, J

dissenting) (2d Cir. 1963).

12a

Opinion of the Court of Appeals

420 1.8. 128 (1975) provide some guidance as to whether

Ms. Gardner would have standing. Sosna involved the

constitutionality of Iowa’s requirement that a petitioner

in a divorce action be a resident of the state for one year

prior to the filing of the petition. After the district court

had certified the suit as a class action but before the ease

reached the Supreme Court, the named plaintiff had satis-

fied the one year residence requirement. The Supreme

Court nevertheless held that the suit was justiciable under

Article III. ‘‘When the District Court certified the pro-

priety of the class action, the class of unnamed persons

described in the certification acquired a legal status sep-

arate from the interest asserted by appellant.’’ 419 U.S.

at 399. On the other hand, in Jacobs the Supreme Court

held the case moot when the named plaintiffs had lost their

personal interest in the outcome after the district court

purported to certify the suit as a class action. The Court

stressed that the district court had not properly certified

or even identified the class, and had not adequately deter-

mined that the criteria of Rule 23 were satisfied.

The general rule which would appear to emerge from

Sosna and Jacobs is that a named plaintiff must have a

live personal stake in the suit at the time the class is

properly certified. Thereafter, the suit may be entertained

without violating Article III even though no named plain-

tiff has a live personal stake, as long as the class has a

continuing interest. The application of this rule here

would seem to indicate that the successful individual plain-

tiff could not appeal the refusal to grant class status after

final judgment, since any decision by the district court, on

remand from this court, to certify the class would postdate

the time when the named plaintiff lost her personal stake—

at the time of the original judgment in her favor. But in

footnote 11 of its opinion in Sosna, the Supreme Court

indicated that the apparent general rule is not ironclad:

There may be cases in which the controversy in-

volving the named plaintiffs is such that it becomes

13a

Opinion of the Court of Appeals

moot as to them before the distriet court can reason-

ably be expected to rule on a certification motion. In

such instances, whether the certification can be said

to ‘‘relate back’’ to the filing of the complaint may

depend upon the circumstances of the particular case

and especially the reality of the claim that otherwise

the issue would evade review.

Footnote 11 of Sosna was relied on in Gerstein v. Pugh,

420 U.S. 103, 110 at n.11. In Pugh, named plaintiffs had

been incarcerated without a judicial determination of

probable cause. The Supreme Court said that:

At the time the complaint was filed, the named re-

spondents were members of a class of persons detained

without a judicial probable cause determination, but

the record does not indicate whether any of them were

still in custody awaiting trial when the District Court

certified the class. Such a showing ordinarily would

be required to avoid mootness under Sosna. See

Sosna, supra, at 402 n.11; (citation omitted). The

length of pre-trial custody cannot be ascertained at the

outset, and it may be ended at any time by release on

recognizance, dismissal of the charges, or a guilty plea,

as well as by acquittal or conviction after trial. It is

by no means certain that any given individual, named

as plaintiff, would be in pretrial custody long enough

for a district judge to certify the class. Moreover, in

this case the constant existence of a class of persons

suffering the deprivation is clear. The attorney repre-

senting the named respondents is a public defender,

and we can safely assume that he has other clients

with a continuing live interest in the case.

1. Relation Back Under Footnote 11 of Sosna.

While footnote 11 does not purport to give an exhaus-

tive description of the circumstances in which certifica-

tion may be deemed to relate back to the filing of the

l4a

Opinion of the Court of Appeals

complaint, it does not expressly allow relation back in

circumstances other than those in which a controversy has

such an inherently short cycle that a district court could

not be expected to rule on a motion for certification before

the named plaintiff’s personal stake has expired. But the

Court’s language has not always been narrowly read.*_ In

Allen v. Likins, 517 F.2d 532 (8th Cir. 1975), the court in-

dicated that relation back is permissible when the district

court has unduly delayed its decision on certification. In

Frost v. Weinberger, 515 F.2d 57 (2d Cir. 1975), cert.

denied, 424 U.S. 958 (1976), Judge Friendly said that the

‘‘apparent force’’ of the general rule stated in Sosna was

‘‘largely drained’’ by footnote 11. In Frost, the widow

and two children ot a deceased who had been insured under

the Social Security Act claimed that the Social Security

Administration had deprived them of benefits they de-

served without a full evidentiary hearing. After they

filed their complaint on behalf of ‘‘all persons who now

or may in the future be entitled to survivors’ benefits

under the Act whose benefits have been or may be reduced

without a prior hearing,’’ the district court ordered the

Secretary of Health Education and Welfare to conduct a

full hearing on their claims within a month, and the Sec-

retary did so. Subsequently, the court certified the class.

The defendants claimed that the case should be dismissed

as moot, because the named plaintiffs had already been

given the hearing which they claimed was required by due

process when the district court certified the class. In re-

jecting this argument, Judge Friendly said:

The reason for generally requiring that the controversy

be ‘‘live’’ as to the named plaintiff at the time of the

class action designation is that otherwise the court

would have no assurance that the named plaintiff will

vigorously represent the class. This has little ap-

plication when, as here, the court has deferred class

action determination, with the agreement of all parties,

2. But cf. Napier v. Gertrude, 542 F.2d 825 (10th Cir. 1976).

15a

Opinion of the Court of Appeals

pending a ruling on the merits. The Government has

pointed to no respect in which this case would have

proceeded differently if the court had certified this

as a class action on November 16, 1973, rather than in

its decision of May 3, 1974. If as Mr. Justice White

said with some justification in his dissent in Sosna,

419 U.S. at 412 (footnote omitted), ‘‘The only specific,

identifiable individual with an evident continuing in-

terest in presenting an attack upon the residency re-

quirement is appellant’s counsel’’ and, if the Court

had overcome this by a ‘‘legal fiction’’ consisting of

‘*the reification of an abstract entity, ‘the class’, consti-

tuted of faceless, unnamed individuals who are deemed

to have a live case or controversy against appellees,’’

it seareely ean be consequential in a ease like this

whether the named plaintiff had obtained a hearing in

the period which, with the agreement of the parties,

the court took to make its class action determination.

515 F.2d at 64,

To the extent that the Supreme Court’s opinion in

Sosna relies upon legal fictions, I agree with Judge

Friendly that it cannot be deemed to identify the real con-

siderations which must guide any determination of whether

a case is justiciable under Article III]. While the Court’s

determination that class certification brings new interests

before the court does not appear to involve a legal fiction,

the device of relation back clearly does, and thus it is im-

portant to identify the real considerations which motivate

the use of this device.

The Supreme Court’s apparent concern is that if the

named plaintiff’s stake expired before the class was certi-

fied and thus ‘‘acquired a legal status separate from the

interest asserted by [named plaintiff],’’ there would be a

hiatus in which there would be no live interests before the

court. Use of the relation back device may alleviate this

concern by recasting the facts so that the interests of the

class are deemed to have been presented to the court at a

time when the named plaintiff had a live stake.

16a

Opinion of the Court of Appeals

But the coneern that there might be an interval in

which no live interests are before the court is not, in my

opinion, a compelling one. In the first place, the fact of

the matter is that in any case—such as Pagh--in whieh

the device of relation back is used there will have been

such an interval. It is true that footnote 11 of Sosna does

not explicitly allow extension of the relation back device

to cases other than those where the controversy tends to

dissipate before class certification can be expected, and

that the footnote states that the applicability of relation

back ‘‘may depend .. . especially [upon] the reality of the

claim that otherwise the issue would evade review.’’ But

it would appear that to the extent the ‘‘capable of repeti-

tion, yet evading review”’ criterion would be relevant to

justiciability, it would bear on the ‘‘discretionary decision

whether to reach the merits of an issue, rather than [the]

Art. III ‘case or controversy’ requirement.’’ Franks v.

Bowman Transp. Co., 424 U.S. 747, 781 (Powell, J., con-

curring in part and dissenting in part).

In some circumstances, the ‘‘capable of repetition, yet

evading review’’ criterion is relevant to whether Article

III has been satisfied. In Weinstein v. Bradford, 423 U.S.

147, 149 (1975), the Court said:

Sosna decided that in the absence of a class action,

the ‘‘capable of repetition, yet evading review’’ doc-

trine was limited to the situation where two elements

combined: (1) the challenged action was in its dura-

tion too short to be fully litigated prior to its cessa-

tion or expiration, and (2) there was a reasonable

expectation that the same complaining party would

be subjected to the same action again. The instant

ease, not a class action, clearly does not satisfy the

latter element.

In the context of Bradford, the fact that the same com-

plaining party might reasonably be expected to be sub-

jected to the same action again is undoubtedly relevant to

17a

Opinion of the Court of Appeals

whether Article TIT is satisfied. If an individual plaintiff

can show that there is ‘‘a reasonable expectation that [he

will] be subjected to the same action again,’’ he can show

that he continues to have a personal interest in the out-

come of the case, despite apparent mootness. On the

other hand, if he cannot show that the question is ‘‘capable

of repetition’’ as to himself, he will fail to show that he

continues to have a personal interest in the outcome of the

ease. Thus, my reading of Bradford indicates that the

doctrine of ‘‘capable of repetition, yet evading review,”’

when it bears upon Article III, is a way of demonstrating

that the constitutional requirement of ‘‘case or contro-

versy’’ is really met, despite apparent mootness. The doc-

trine does not function to provide an exception to the con-

stitutional requirement. In faet, it would seem improper

to make an exception to the requirements set forth in the

broad language of Article IIL’

On the other hand, there are circumstances in which

the doctrine of ‘‘capable of repetition, yet evading review’’

goes to the ‘‘diseretionary decision to reach the merits of

an issue, rather than [the] Art. III ‘ease or controversy’

requirement.’’ In Sosna, the Supreme Court mentioned

that one factor weighing in favor of justiciability was that

Iowa’s one year residence requirement for filing a divorce

was so short that it tended to evade review. But in Franks

v. Bowman Transp. Co., supra, the Court said: ‘‘nothing

in our Sosna or [Jacobs] opinions holds or even intimates

that the fact that the named plaintiff no longer has a per-

sonal stake in the outcome of a certified class action

renders the class action moot unless there remains an

issue ‘capable of repetition, yet evading review.’ ”’ (cita-

tion omitted) 424 U.S. at 754. Rather, the Court felt that

the ‘‘capable of repetition, yet evading review’’ criterion

went to the discretionary component of justiciability, and

that Article III was satisfied solely because the interests

of the class were before the court.

3. In United States v. Richardson, 418 U.S. 166, 179-80 (1974), the Court

indicated that standing is not conferred by virtue of the fact that “if respondent

is not permitted to litigate this issue, no one can do so.”

18a

Opinion of the Court of Appeals

With respect to relation back, it would seem that the

doctrine of ‘‘capable of repetition, yet evading review’’

would only be relevant to any constitutional requirement

that there always be live interests before the court if the

doctrine is a way of demonstrating that such a constitu-

tional requirement is in fact satisfied even where it might

not appear to be. If the doctrine does not serve as a way

of showing that there continue to be live interests before

the court, then it goes to the discretionary component of

justiciability, and the fact that the Supreme Court men-

tioned the doctrine in footnote 11 of Sosna does not imply

that there is any constitutional requirement that there be

live interests before the court at every moment of a law-

suit.

The fact that a case presents an issue which may well

become moot as to the named plaintiff before class certifica-

tion can be expected does not imply that during the in-

terval between mootness with respect to the named plain-

tiff and class certification there continue to be live interests

before the court.* Thus, the fact that footnote 11 of

Sosna mentions the question of whether a controversy

tends to dissipate before class certification does not imply

that there is a constitutional requirement that there be live

interests before the court at every moment of a lawsuit.

In fact, since footnote 11 allows relation back and since the

evading review consideration does not speak to Article

III, it would seem that footnote 11 implies that there is

no constitutional requirement that there be live interests

before the court at every moment of a lawsuit.

I find any argument that there should be such a re-

quirement unconvincing. There is no reason why holding

a@ case in abeyance until live interests come before the

court should mean that the case will not go forward with

the necessary concreteness and adverseness. See Flast v.

Cohen, 392 U.S. 83, 99 (1968). I would view any conten-

4. In Gerstein v. Pugh, 420 U.S. at 110-11 n.11, the Court appeared to

look to whether the issue was capable of repetition as to the class members,

not as to the named plaintiffs.

19a

Opinion of the Court of Appeals

tion that a court must at all times have a live plaintiff

before it and cannot consider adding new interests to re-

pair any deficiency as barren of reality. This is not to say

that the class may be certified at any time, but merely that

Article LI] does not divest courts of all discretion to con-

sider adding new parties—even after final judgment—

after it appears that former parties have lost their per-

sonal stake.®

Moreover, as to the discretionary component of jus-

ticiability, I believe that this court should entertain an

appeal from the district court’s refusal to certify the class

by a named plaintiff who has received all the individual

relief she has requested, at least when the named plaintiff

made a timely motion for class certification in the original

proceedings. The contrary position would insulate from

appellate review a decision of far reaching consequences,*

and might frustrate the interests of judicial economy since

it would encourage a multiplicity of lawsuits in conditions

where a class action would be the preferable mode of

adjudication.

In sum, I conclude that footnote 11 in Sosna should

be given an expansive reading, so that Ms. Gardner, even

if she obtains all the individual relief she has requested,

would have standing to seek reversal of the district court’s

decision not to certify.

2. The Named Plaintiff’s Continuing Interest.

The relation back device found in footnote 11 of

Sosna rests on the theory that upon certification, the inter-

5. | agree with Nap‘er v. Gertrude, supra n.2, that the fact that the

Supreme Court in Jacobs did not remand for proper application of F.R. Civ. P.

23 does not weigh against my position, since “(t]he Court did not rule. . .

that mootness removed its power to remand, and it does not appear that the

= to certify the class action was assigned as error .. .” 542 F.2d 825,

6. Even if we should hold that the district court's refusal to certify in this

case may be brought up on an interlocutory appeal because it cannot be re-

viewed after final judgment, there would still be cases which could not be

appealed under §1292(a)(1) because the complaint does not seck injunctive

relief. See Hackett v. General Host Corp., 455 F.2d 618 (3d Cir. 1972).

20a

Opinion of the Court of Appeals

ests of the class are before the court. But even apart from

my conclusion that footnote 11 poses no barrier to, and

impliedly permits certification after the named plaintiff’s

claim is already moot, I believe that the successful named

plaintiff could complain of the district court’s failure to

certify the class because he has the continued personal in-

terest of exercising his fiduciary responsibilities with

respect to the members of the class he has sought to rep-

resent.

The Supreme Court has apparently never expressed,

or been asked to express, any view on the theory that the

putative named plaintiff of a class action has a personal

interest which stems from the fact that he is a fiduciary

with respect to the members of the class. But there are

several indicia of the fact that filing an action with a re-

quest for class treatment imposes a fiduciary responsibility

upon the putative named plaintiff: 1) even before class

certification, the action may not be settled or dismissed

without court approval,’ Kahan v. Rosenstiel, 424 F.2d

161 (3d Cir.), cert. denied, 398 U.S. 950 (1970), 2) F.R. Civ.

P. 23(a)(4) requires as a prerequisite for certification

that ‘‘the representative parties will fairly and adequately

protect the interests of the class’’, 3) F.R. Civ. P. 23(d) (2)

gives the court power to issue orders ‘‘requiring, for the

protection of the members of the class or otherwise for

the fair conduct of the action, that notice be given in such

manner as the court may direct to some or all of the mem-

bers of any step in the action, or of the proposed extent

of the judgment, or of the opportunity of members to

signify whether they consider the representation fair and

adequate, to intervene and present claims or defenses, or

otherwise to come into the action,’’ see Knuth v. Erie-

Crawford Dairy Coop. Assoc., 395 F.2d 420 (3d Cir. 1968).

The fiduciary responsibility of representative parties also,

7. In determining that Article II] does not always require that a named

plaintiff’s personal stake continue throughout the litigation, Sosna, 419 U.S.

393, 399 at n.8 mentioned that “Once the suit is certified as a class action, it

may not be settled or dismissed without the approval of the court.”

2la

Opinion of the Court of Appeals

in my view, explains why class representatives may ever

raise matters bearing on the interests of class members

even though they have no tangible personal interest in

these matters—including the very question of class certi-

fication.

I conclude that whether on the relation back theory

found in footnote 11 of Sosna, or on the theory that Ms.

Gardner has a continuing personal stake stemming from

the fact that she is a fiduciary on behalf of the putative

class, she would be able to appeal the district court’s re-

fusal to certify after final judgment even though she re-

ceives all the individual relief which she has requested.

Since the district court’s refusal to certify will always be

appealable after final judgment, it can hardly be said that

the court’s decision has foreclosed the possibility that the

class could ultimately be certified and class-wide relief

granted. Thus, the court’s refusal does not amount to an

injunction for purposes of §1292(a)(1), and the present

interlocutory appeal must be dismissed.

22a

APPENDIX B

Order Denying Petition for Rehearing

UNITED STATES COURT OF APPEALS

For The Third Circuit

No. 76-1410

JO-ANN EVANS GARDNER

Vv.

WESTINGHOUSE BROADCASTING COMPANY,

Jo Ann Evans Gardner, on her own behalf

as a representative of the class and on

behalf of the class that she seeks to

represent,

Appellant

SUR PETITION FOR REHEARING

Present: SEITZ, Chief Judge, and ALDISERT, ADAMS,

GIBBONS, HUNTER and GARTH, Circuit Judges.*

The petition for rehearing filed by Appellant in the

above entitled case having been submitted to the judges

who participated in the decision of this court and to all

the other available circuit judges of the circuit in regular

23a

Order Denying Petition for Rehearing

active service, and no judge who concurred in the decision

having asked for rehearing, and a majority of the circuit

judges of the circuit in regular active service not having

voted for rehearing by the court in bane, the petition for

rehearing is denied.

By the Court,

/s/ Aldisert

Judge

Dated: July 22, 1977

*Judges Rosenn and Weis did not participate in the con-

sideration of this matter.

24a

Opinion Sur Denial of Rehearing

UNITED STATES COURT OF APPEALS

For The Third Circuit

No. 76-1410

JO-ANN EVANS GARDNER

v.

WESTINGHOUSE BROADCASTING COMPANY,

Jo Ann Evans Gardner, on her own behalf

as a representative of the class and on

behalf of the class that she seeks to

represent,

Appellant

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

OPINION SUR DENIAL OF PETITION FOR REHEARING

(Filed July 22, 1977)

GIBBONS, Circuit Judge, dissenting

I dissent from the denial of appellant's petition for

rehearing in banc. That petition presents an issue which

meets every criterion for in banc reconsideration far more

than most cases that this court has recently so considered.

25a

Opinion Sur Denial of Rehearing

See Fed. R. App. P. 35(a); Walton v. Eaton Corp., Civ. No.

76-1707 (3d Cir. filed July 18, 1977) (Gibbons, J., dissent-

ing). Moreover, the panel opinion, in a case in which it

was not even necessary to reach the question, has

announced a broad prohibition against reviewability of

pendente lite denials of class action injunctive relief in

civil rights cases. Such a prohibition is inconsistent with

the prior law of this circuit, inconsistent with the better

reasoned decisions in other circuits," and unsound except

as an indication of hostility to the underlying rights being

asserted. In that unarticulated hostility, of course, lies

the explanation for the decision.

As Judge Aldisert's opinion for the panel majority

acknowledges, the seminal opinion in this circuit on the

reviewability of class action determinations is Hackett v.

General Host Corp., 455 F. 2d 618 (3d Cir. 1972), cert.

denied, 407 U.S. 925 (1972), in which we declined to adopt

the so-called "death knell" rule of the Second Circuit, that

an order denying a motion to permit a case to proceed as

a class action may be reviewable as a collaterally final

order within the meaning of 28 U.S.C. § 1291 and Cohen v.

Beneficial Industrial Loan Corp., 337 U.S. 541 (1949). But

while Hackett declined to treat a negative class action

determination as a final order it carefully preserved the

l. See Note 2 infra.

26a

Opinion Sur Denial of Rehearing

right to seek appellate review under 28 U.S.C. § 1292(a)(1)

where the denial of class certification amounts to the

denial of preliminary injunctive relief. In Hackett, we

specifically referred to

", . . those cases in which the refusal to grant class

action designation amounts to a denial of a prelimi-

nary injuction broader than would be appropriate for

individual relief. 28 U.S.C. § 1292(a)(l). See, e.g.,

Oatis v. Crown Zellerback Corp., 398 F.2d 496 (5th

Cir. 1968); Shapiro, Bernstein & Co. v. Continental

Record Co., 386 F.2d 426 (2d Cir. 1967); Brunson v.

Board of Trustees, 3ll F.2d 107 (4th Cir. 1962). This

category of interlocutory appeals is adequate, we

think, to protect against most district court inhospi-

tability to class action litigation involving civil

rights, the elective franchise, protection of the

environment and the like."

455 F.2d at 622. The point made in Hackett, a point that,

in my view at least, was the essential justification for

rejecting the Second Circuit's "death knell" rule as

announced in Eisen v. Carlisle & Jacquelin, 370 F.2d 119

(2d Cir. 1966), cert. denied, 386 U.S. 1035 (1967), was that

in civil rights litigation, injunctive relief in favor of a

single plaintiff usually would do nothing whatsoever for

the remaining members of the class. A single black child

27a

Opinion Sur Denial of Rehearing

might be placed in a white school, while all of the child's

fellow black classmates were left in a segregated school.

In such a case the denial of class action treatment would

have the practical effect of denying injuctive relief to the

entire class. Moreover, the key issue in such a case, and

the key issue in the position taken by the panel majority,

is availability of pendente lite injuctive relief. Hackett

concluded that we did not need the Eisen interpretation of

§ 1291 because a denial of pendente lite relief benefiting a

class, in the guise of a denial of class action treatement,

was reviewable under § 1292(a)(1). Now, without taking

the case in banc, a panel majority has overruled the very

fundamental premise on which our Hackett holding rests.

It has done so, moreover, despite the fact that we

reiterated that premise in Rodgers v. United States Steel

Corp., 541 F.2d 365, 372-73 (3d Cir. 1976); Rodgers v.

United States Steel Corp., 508 F.2d 152, 160 (3d Cir. 1975)

and Samuels v. University of Pittsburgh, 506 F.2d 355, 358

n.6 (3d Cir. 1974).

In Hackett we also noted the availability of appel-

late review, in cases where the denial of class action

relief might not amount to the denial of injunctive relief

benefiting a class, either under 28 U.S.C. § 1292(b) or

under Fed. R. Civ. P. 54(b). A plurality of this court in

bane has demonstrated a determination to make the §

1292(b) route a practical impossibility. See Link v.

28a

Opinion Sur Denial of Rehearing

Mercedes-Benz of North America, Inc., 550 F.2d 860 (3d

Cir. 1977) (Gibbons, J., dissenting). The court has also

erected a major, useless, and frequently disregarded

impediment to the utilization of Rule 54(b). See Allis

Chalmers Corp. v. Philadelphia Electric Co., 521 F.2d 360

(2! Cir. 1975). Thus, each of the alternative safeguards

upon which we premised the Hackett holding has now been

eliminated or substantially eroded.

The panel majority opinion need not have reached

out to overrule completely the fundamental premise of

the Hackett holding in this case. It could have noted, as

Judge Seitz' concurrence does at note 1, that the com-

plaint in this case did not request pendente lite relief in

favor of the proposed class. Thus the majority could have

restricted its language so as to apply its rejection of §

1292(a)(1) appealability to that situation only, leaving open

the possibility of an appeal when the putative class

representative did seek pendente lite relief. Instead, in

sweeping language, it totally rejects a substantial and well

considered body of authorities which recognize the ap-

pealability of denials of class certification under §

1292(aX(l) where the denial amounts to a rejection of

pendente lite injunctive relief.”

2. Doctor v. Seaboard Coast Line R.R., 540 F.2d

699 (4th Cir. 1976); Jones v. Diamond, 519 F.2d 1090 (5th

(footnote 2. continued on next page)

29a

Opinion Sur Denial of Rehearing

2. (continued)

Cir. 1975); Price v. Lucky Stores, Inc., 501 F.2d 1177 (9th

Cir. 1974); Yaffe v. Powers, 454 F.2d 1362 (Ist Cir. 1972);

Spangler v. United States, 415 F.2d 1242 (9th Cir. 1969);

Brunson v. Board of Trustees, 3ll F.2d 107 (4th Cir. 1962);

see Illinois Migrant Council v. Pilliod, 540 F.2d 1062 (7th

Cir. 1976).

30a

Opinion Sur Denial of Rehearing

The only explanation we are given in defense of this

broad judicial pronoucement is the brief sentence: "We

perceive no irremediable consequences flowing from a

postponement of review." Majority Op. at _. That is

indeed a faulty perception. If class action pendente lite

relief is denied in a voting rights case elections will pass

before the case reaches us on final hearing, and class

members will have been disenfranchised at those elec-

tions. If class action pendente lite relief is denied in a

school desegregation case class members will remain for

years in segregated classrooms, suffering the permanent

psychological effects of inadequate educational opportuni-

ties. If class action pendente lite relief is denied in an

employment discrimination case years will go by during

which class members remain locked in dead end jobs

lacking challenge, stimulation, and opportunity for intel-

lectual growth. To suggest that these would not be

irremediable consequences it to make a mockery of

equitable principles respecting pendente lite relief, and to

defy the intention of Congress when it provided in the

Evarts Act, Act of March 3, 1891, 26 Stat. 826, for

appellate review of grants or denials of injunctive relief.

I find most disturbing the signals which have gone

out from this court to the district courts of this circuit

with respect to class action determinations. We seem to

be saying that we have totally abdicated all responsibility

3la

Opinion Sur Denial of Rehearing

for making Rule 23 serve its intended remedial purposes.

This last signal is the most disturbing of all, because it

removes completely from appellate review pendente lite

review of denials of class action injunctive relief in civil

rights cases. In most economic class action cases, aa

cases under § 10(b) of the Securities Act of 1934,” a

preliminary injunction in favor of the individual plaintiff

will, for all practical purposes, fully protect the entire

class. A preliminary injunction against a deceptive

practice or a false proxy statement will terminate the

ongoing effect of either. In such case a denial of

pendente lite injuctive relief in the individual's case will

be appealable, and that appeal will inure to the benefit of

the economic class whether or not the district court

granted class action treatment. Thus, instances in which

an economic class will be subjected pendente lite to a

continuing course of illegal conduct will be comparatively

rare.

In the civil rights area of the law, however, an

individual voter may be registered and allowed to vote

pendente lite, an individual child plaintiff may be trans-

ferred and enrolled pendente lite in a desegregated school,

an individual female may be promoted pendente lite, while

3. 15 U.S.C. §78j(b); See Securities and Exchange

Commission Rule 10b-5, 17 C.F.R. § 240.10b-5 (1974).

32a

Opinion Sur Denial of Rehearing

the discrimination against the class of which each was a

member continues. If the district judge is favorably

disposed to the underlying civil rights claim, grants class

action treatment, and affords injunctive relief benefiting

the class, the defendant will be able to appeal under §

1292(a)(1). If, however, that district judge is unfavorably

disposed, the panel majority opinions has indicated to him

precisely how to shield from an appellate review his

unwillingness to grant pendente lite relief to the class.

All of our opinion dismantling opportunities for

review of district court actions in class action cases refer,

in one way or another, to the diluvium consequences upon

our caseload of any other than door closing rules. In Link

v. Mercedes Benz, supra, I observed that an actual count

of § 1292 (b) applications belied any need for such a

concern. 550 F.2d at 873-74. I am equally convinced that

dismantling of the protection afforded to potential class

members by the availability of pendente lite appellate

review pursuant to § 1292(a)(1) will have about as signifi-

cant an effect on our appellate caseload as taking a

bucket of water out of the Delaware River today will have

on tomorrow's tide at Cape May. The real issue is this

court's hospitality or inhospitality to class actions, partic-

ularly those asserted on behalf of minorities. The

vibrations I feel are decidedly hostile.

This case warrants the court's in banc attention. If

33a

Opinion Sur Denial of Rehearing

the Supreme Court is at all interested in the availability

of pendente lite injunctive relief in civil rights class

actions, it warrants that Court's attention as well.

Judge Adams, too, believes that this case warrants

the Court's in banc attention.

34a

Opinion of the District Court

APPENDIX C

Opinion of the District Court

UNITED STATES DISTRICT COURT,

W. D. PENNSYLVANIA.

JO ANN EVANS GARDNER

v.

WESTINGHOUSE BROADCASTING COMPANY

Civil Action No. 75-614

February 3, 1976.

ROBERT N. HACKETT, ESQ.

Pittsburgh, Pa.,

for plaintiff.

WENDELL G. FREELAND, ESQ.

Pittsburgh, Pa.

for defendant.

MEMORANDUM AND ORDER

McCUNE, District Judge

The subject of this suit is alleged sex discrimination.

We consider a motion for class action determination filed

pursuant to Local Rule 34(c) on July 9, 1975. By

stipulation of counsel argument on the motion was post-

poned (in order to allow some time for discovery) until

October 30, 1975. On October 30, 1975, the issue was

35a

Opinion of the District Court

argued and briefs have been considered. The class action

is brought under Rule 23(b)(1) and (2). The action concerns

defendant's radio station, KDKA.

On the same day an additional motion was filed to

require defendant to answer interrogatories concerning

the make up of the employee rosters of six additional

radio stations owned and operated by defendant which are

located in other cities. The issue on the second motion is

whether this suit will be confined to KDKA Broadcasting

in Pittsburgh, Pa., or expanded on a nationwide basis to

include all of the defendant's radio stations located in six

other cities. There will be no need to consider the second

motion unless we certify the action as a class action.

The plaintiff is Dr. Jo Ann Evans Gardner who

unsuccessfully sought employment as a radio talk show

hostess on the defendant's radio station, KDKA. It is

alleged that she read in the radio-television column of a

Pittsburgh newspaper that the radio station was looking

for a male to fill the position of talk-show host and a

female to be a consumer reporter. She applied for the

position as talk-show host but was not hired for that

position. She alleges that the job was given to a male and

that she was the subject of discrimination.

In answers to interrogatories, plaintiff describes

36a

Opinion of the District Court

hereself thus: "I am articulate, well educated, quick

witted, well spoken and experienced in public speaking. I

am knowledgeable in the field of psychology and interact

well with people. I enjoy conversation. I have a clear,

pleasant voice which is lively, interesting and transmits

well by radio communication. Compared with the men

who are talk-show hosts, I would offer a new and different

personality attractive to another wide audience and this

would help Westinghouse Broadcasting capture more lis-

teners, increase its ratings and hence its revenues."

She seeks to represent all women who are employed,

have been employed, have unsuccessfully sought to be

employed and might be employed by defendant as pro-

fessionals, officials and managers in its broadcasting

staff, or as technicians, salesworkers or otherwise.

The defendant argues that this action should not be

certified as a class action because plaintiff had applied

for a very special job which demands specific talent and

expertise and thus there are no questions of law or fact

common to the class of women whom she seeks to

represent as required by Rule 23(aX2) and further, that

the claims or defenses of the parties are not typical of the

claims or defenses of the class as required by Rule

23(aX3).

The defendant further argues that under Rule

37a

Opinion of the District Court

23(bX1MA) and (B), there is no risk of inconsistent or

varying adjudications with respect to individual members

of the class because there was only one opening for a talk-

show host which required a person with unique artistic

ability and an adjudication with respect to the plaintiff

would not impair or impede the ability of others to

protect their interests. Defendant argues that under

23(b)(2) the defendant has not acted on grounds generally

applicable to the class. Further, defendant argues that

the questions of law and fact affect the plaintiff alone,

due to her unique claim, and thet she has nothing in

common with the ordinary day-to-day applicant for a job

at KDKA. Therefore, a class action is not superior to

other available methods for the fair adjudication of the

controversy.

In summary, the claim of defendant is that one

seeking a single, unique job has nothing in common with

other members of a class of women who have not been

hired or promoted or who have been discharged.

I suppose the facts which will eventually be con-

sidered will be somewhat unique as regards the plaintiff.

Whether she was qualified as atalk-show host will be more

difficult to determine than whether a bookkeeper or a

secretary or a salesperson is qualified.

According to answers to interrogatories, KDKA

38a

Opinion of the District Court

Broadcasting has eleven departments, a few of which

employ people requiring some talent, e.g., the Editorial

Writer's Department and the News Department, including

news announcers and the Talent Department, including

departments where peculiar talent may or may not be

required such as the Business and General Services

Department and the Personnel and Administrative Coordi-

nator's Department. In all Departments there are only 78

employees, of whom 21 are females holding jobs of every

description. From January 1, 1972, to the time of the

filing of the answers, 28 females were hired by the radio

Station. From January 1, 1972, to the time of filing

answers to interrogatories, 6 females were discharged,

two of whom were telephone operators and receptionists,

one of whom was a secretary, one an accounting clerk,

one a traffic correlator and one an account executive.

The plaintiff makes reference to no other individual. She

alleges broad based discrimination as the result of her

personal experience at KDKA.

The first duty imposed upon the court under Wetzel

v. Liberty Mutual Insurance Company, 508 F. 2d 239 (3rd

Cir. 1975) is to determine if the four prerequisites for e

class action, listed in Rule 23(a), have been met. At least

two of the four prerequisites are missing here. Rule

23(aX(2) requires questions of law and fact common to the

class and 23(a)(4) requires that the representative parties

will fairly and adequately protect the interests of the

39a

Opinion of the District Court

class.

Adequate representation depends on two factors:

(a), the plaintiff's attorney must be qualified and we find

that he is qualified and (b), the plaintiff must not have

interests antagonistic to those of the purported class.

Dealing with the last statement first, it is our view

that plaintiff may well have antagonistic interests to

those women now employed by defendant. Plaintiff seeks

the job as talk-show host. Is this objective antagonistic to

the interests of the women now employed at KDKA who

may seek promotion to the job? It is difficult to say but

since there is only one job available there may be several

women who consider themselves qualified and who would

intend to compete with plaintiff. Thus the class, or part

of it, may well be in conflict with plaintiff. At least this

query points up the lack of commonality inherent in

plaintiff's situation vis-a-vis the members of the proposed

class. We conclude that there are no questions of law or

fact common to the class of women whom plaintiff seeks

to represent as required by Rule 23(a)(2) and plaintiff's

claim is not typical of the claims of the members of the

proposed class as required by Rule 23(a)(3). Accordingly,

we refuse to certify this action as a class action.

40a

Order of the District Court

UNITED STATES DISTRICT COURT,

W. D. PENNSYLVANIA.

JO ANN EVANS GARDNER

v.

WESTINGHOUSE BROADCASTING COMPANY,

Civil Action No. 75-614

ROBERT N. HACKETT, ESQ.

Pittsburgh, Pa.,

for plaintiff.

WENDELL G. FREELAND, ESQ.

Pittsburgh, Pa.,

for defendant.

Order

AND NOW, February 3, 1976, the motion of plaintiff

for class action determination is denied. The motion to

compel answers to interrogatories concerning six addition-

al radio stations is d>nied.

BY THE COURT,

/s/ Barron P. McCune,

District Judge

4la

Statute

APPENDIX D

Act of June 25, 1948, ¢.646, 62 Stat. 929; as

amended, 28 U.S.C. § 1292:

§ 1292. Interlocutory decisions

(a) The courts of appeals shall have juris-

diction of appeals from:

(1) Interlocutory orders of the district

courts of the United States, the United States

District Court for the District of the Canal Zone,

the District Court of Guam, and the District Court

of the Virgin Islands, or of the judges thereof, grant-

ing, continuing, modifying, refusing or dissolving

injunctions, or refusing to dissolve or modify in-

junctions, except where a direct review may be had

in the Supreme Court;

(2) Interlocutory orders appointing re-

ceivers, or refusing orders to wind up receiverships

or to take steps to accomplish the purposes thereof,

such as directing sales or other disposals of pro-

perty;

(3) Interlocutory decrees of such district

courts or the judges thereof determining the rights

and liabilities of the parties to admiralty cases in

42a

Statute

which appeals from final decrees are allowed;

(4) Judgments in civil actions for patent

infringement which are final except for accounting.

(b) When a district judge, in making in a

civil action an order not otherwise appealable under

this section, shall be of the opinion that such order

involves a controlling question of law as to which

there is substantial ground for difference of opinion

and that an immediate appeal from the order may

materially advance the ultimate termination of the

litigation, he shall so state in writing in such order.

The Court of Appeals may thereupon, in its discre-

tion, permit an appeal to be taken from such order,

if application is made to it within ten days after the

entry of the order: Provided, however, That

application for an appeal hereunder shall not stay

proceedings in the district court unless the district

judge or the Court of Appeals or a judge thereof

shall so order.