United States Court of Appeals

For the First Circuit

No. 00-1731

NICHOLAS ANDERSON, ET AL.,

Plaintiffs, Appellants,

v.

CITY OF BOSTON, ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nancy Gertner, U.S. District Judge]

Before

Torruella, Chief Judge,

Boudin and Stahl, Circuit Judges.

Robert J. Roughsedge, with whom Chester Darling and Michael

Williams, were on brief, for appellants.

Frances S. Cohen, with whom Merita A. Hopkins, Corporation Counsel

of the City of Boston, Adam N. Lewis, Peter N. Kochansky and Hill &

Barlow, were on brief, for appellees.

April 5, 2001
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1 Some time after the decision underlying this appeal had issued, 

this Court granted a writ of mandamus to recuse the district judge,

based on an appearance of partiality stemming from that judge's public

comments. Boston's Children First v. City of Boston, 239 F.3d 59 (1st

Cir. 2001), amended on denial of reh'g, -- F.3d --, 2001 WL 274467 (1st

Cir. Mar. 2, 2001). We asked both parties to file supplemental briefs

addressing whether that grant of mandamus required us to vacate the

decision underlying this appeal. Both parties argued that it did not,

because the appealed-from order predated the events giving rise to the

writ. We agree. See Liljeberg v. Health Servs. Acquisition Corp., 486

U.S. 847, 864 (1988) (scope of recusal remedy is complex and fact-

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TORRUELLA, Chief Judge. Appellants are five school-age

children who live in Boston, Massachusetts. In combination with five

other children and an advocacy group, Boston's Children First, they

brought suit, claiming that the Boston elementary school assignment

program denied them their preferred school assignments based on their

race, in violation of federal and state law. Boston's Children First

v. City of Boston, 98 F. Supp. 2d 111, 112 (D. Mass. 2000). Each

plaintiff sought declaratory and injunctive relief, as well as

compensatory or nominal damages. Id. The district court held that

because the five appellant children did not apply to change schools

prior to the 1999-2000 school year, they could not be said to suffer

any injury requiring injunctive relief, and therefore lacked standing

to sue for such relief. Id. at 114. Accordingly, the district court

granted defendants' motion to dismiss as it related to appellants'

claims for injunctive relief. Id. Appellants then appealed to this

Court. Because we lack jurisdiction to entertain this interlocutory

appeal, we must dismiss without addressing the merits.1
dependent); In re Allied-Signal Inc., 891 F.2d 967, 973 (1st Cir. 1989)

(lack of actual bias made it unnecessary to vacate rulings made prior

to mandated recusal); In re Sch. Asbestos Lit., 977 F.2d 764, 786 (3d

Cir. 1992) (proposing four approaches to vacating pre-recusal

decisions, none of which would require us to vacate this decision).

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A

Appellants argue first that this Court has jurisdiction

pursuant to 28 U.S.C. § 1292(a)(1), which provides for appellate

jurisdiction of "[i]nterlocutory orders . . . granting, continuing,

modifying, refusing or dissolving injunctions . . . ." They suggest

that the district court's dismissal of their claims for injunctive

relief, based on the determination that they lacked standing, amounted

to a refusal of an injunction appealable pursuant to § 1292(a)(1).

Orders in which the district court expressly denies a request

for injunctive relief are immediately appealable as of right under

§ 1292(a)(1). Casas Office Machs. v. Mita Copystar Am., Inc., 42 F.3d

668, 673 (1st Cir. 1994) (quoting Morganstern v. Wilson, 29 F.3d 1291,

1294 (8th Cir. 1994)). When the order only has the "practical effect"

of denying an injunction, however, the denial must have a "serious,

perhaps irreparable, consequence," and be "effectually challenged only

by immediate appeal." Id.; see also Carson v. American Brands, Inc.,

450 U.S. 79, 84 (1981) (setting forth this test). This narrow scope

given to § 1292(a)(1) stems from the "general congressional policy

against piecemeal review," as well as Congress's intent to "carve out
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only a limited exception to the final-judgment rule." Carson, 450 U.S.

at 84.

This Court has held that the dismissal of some claims for

injunctive relief when other claims remain pending does not "expressly"

deny an injunction. Plymouth County Nuclear Info. Comm., Inc. v.

Boston Edison Co., 655 F.2d 15, 16-17 (1st Cir. 1981) (striking claims

for injunctive relief because they were preempted by federal

legislation); see also Hutchinson v. Pfeil, 105 F.3d 566, 569 (10th

Cir. 1997) (partial summary judgment against plaintiff who sought

injunctive relief); Gamboa v. Chandler, 101 F.3d 90, 91 (9th Cir. 1996)

(same); Cuomo v. Barr, 7 F.3d 17, 19 (2d Cir. 1993) (partial summary

judgment on claims for injunctive relief); Woodard v. Sage Prods.,

Inc., 818 F.2d 841, 845 (Fed. Cir. 1987) (partial summary judgment in

favor of several defendants).

The district court's determination that the five appellants

lacked standing to seek injunctive relief does have the "practical

effect" of denying an injunction, because it has "erected a 'legal

barrier' foreclosing any meaningful future consideration of a formal

application" for injunctive relief by these particular appellants.

Plymouth Nuclear, 655 F.2d at 17. This Court may therefore only

premise its jurisdiction on a showing that appellants face "serious,

perhaps irreparable, harm" upon the denial of immediate review.

Carson, 450 U.S. at 84. The procedural history of the instant
2 Interlocutory orders denying preliminary injunctive relief may almost

always be immediately appealed pursuant to § 1292(a)(1). E.g., CMM

Cable Rep., Inc. v. Ocean Coast Props., Inc., 48 F.3d 618, 620-21 (1st

Cir. 1995).

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litigation, specifically appellants' failure to pursue appellate (or

other) review of the district court's earlier denial of a preliminary

injunction, points against a finding of serious harm. Plymouth

Nuclear, 655 F.2d at 17-18 (holding that the failure to appeal from or

move for reconsideration of a previous denial of a preliminary

injunction makes interim relief a "dead issue," and is indicative of a

lack of serious harm). In this case, appellants' motion for a

preliminary injunction was denied on August 10, 1999, nine months

before the order appealed here issued. See Boston's Children First v.

City of Boston, 62 F. Supp. 2d 247, 248 (D. Mass. 1999); cf. Plymouth

Nuclear, 655 F.2d at 17-18 (eighteen months between denial of

preliminary injunction and dismissal of claims for permanent injunctive

relief). There was no appeal from the denial of interim relief,2 nor

was a motion for reconsideration filed. Plymouth Nuclear, 655 F.2d at

17-18; Samayoa v. Chicago Bd. of Educ., 783 F.2d 102, 104 (7th Cir.

1986) (failure to appeal denial of preliminary relief indicative of

lack of urgency). Appellants also failed to seek other avenues of

interlocutory appeal, such as a separate final judgment on the

dismissed claims pursuant to Federal Rule of Civil Procedure 54(b) or

certification for an interlocutory appeal under 28 U.S.C. § 1292(b).
3 The renewed motion for a preliminary injunction was later withdrawn.

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Barr, 7 F.3d at 20 (failure to pursue all available courses of

interlocutory appeal supports an inference that serious harm does not

exist).

Appellants seek to distinguish Plymouth Nuclear by arguing

that their failure to press their claims for temporary relief resulted

from delays attributable to appellees or the district court: namely,

the alleged failure of appellees to cooperate with discovery orders and

the court's suggestion that a renewed motion for a preliminary

injunction would fail unless additional evidence was unearthed during

discovery. Even if these discovery-related complaints are justified,

however, their timing makes appellants' argument meritless. The

original motion for a preliminary injunction was denied on August 10,

1999. Appellants did not attempt to renew that motion until over nine

months later, on May 19, 2000,3 which was coincidentally the same day

that the district court partially granted defendants' motion to

dismiss. It was not until a month later, at a June 20, 2000 scheduling

conference, that the district court indicated that the renewed motion

would probably fail because insufficient new evidence had emerged (via

discovery) in the preceding ten months. The reasons why appellants

withdrew their May 19 renewed motion for preliminary injunction and

delayed its resubmission are irrelevant: it is their failure to press
4 The renewed motion was actually filed the same day that the order

issued (May 19, 2000), but as we have noted, was later withdrawn.

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their original motion for a preliminary injunction that is indicative

of the lack of serious harm.

Even if we were to ascribe minimal weight to appellants'

failure to press their request for interim relief, appellants have made

no showing that this order is of the type that can be "effectually

challenged only by immediate appeal." Casas, 42 F.3d at 672. The

order simply dismisses certain claims while other claims remain

pending. Once the district court has disposed of all claims, this

Court can address them as a whole, if appellants choose to appeal at

that point. Appellants have simply made no compelling argument as to

why the order is "insusceptible of effective vindication following

final judgment." In re Unanue Casal, 998 F.2d 28, 32 (1st Cir. 1993);

see also Woodard, 818 F.2d at 851-52 (comparing the ability to review

denials of permanent injunctions upon final appeal with the inability

to review denials of preliminary injunctions at that stage).

Appellants also argue that the dismissal of their claims for

permanent injunctive relief "effectively denied" their renewed motion

for a preliminary injunction, which had not yet been filed when this

order issued.4 In other words, because the district court found that

these five plaintiffs lacked standing to seek injunctive relief, they

could not be included in a renewed petition for preliminary relief.
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Even if we assume that this is so, and even if we were to read

§ 1291(a)(1) as applicable to the "effective denial" of an as yet

unrequested preliminary injunction, we have previously denied

interlocutory review of the refusal of a permanent injunction despite

the assumption that such refusal would "foreclose any meaningful future

consideration" of claims for injunctive relief. See Plymouth Nuclear,

655 F.2d at 17. We do so again here. To hold otherwise could

unacceptably broaden the scope of § 1292(a)(1), as any plaintiff denied

a permanent injunction would claim jurisdiction based on their plans to

seek future preliminary relief.

B

Appellants would alternatively premise this Court's

jurisdiction on the "collateral order doctrine," which provides a

narrow exception to the final judgment rule. Midland Asphalt Co. v.

United States, 489 U.S. 794, 798 (1989). This doctrine allows appeal

from decisions "which finally determine claims of right separate from,

and collateral to, rights asserted in the action, too important to be

denied review and too independent of the cause itself to require that

appellate jurisdiction be deferred until the whole case is

adjudicated." Id. (quoting Cohen v. Beneficial Indus. Loan Corp., 337

U.S. 541, 546 (1949)) (internal quotation marks omitted). This Court

applies a four-part test to determine whether a decision qualifies as

a "collateral order." The order must involve:
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(1) an issue essentially unrelated to the merits

of the main dispute, capable of review without

disrupting the main trial; (2) a complete

resolution of the issue, not one that is

'unfinished' or 'inconclusive'; (3) a right

incapable of vindication on appeal from final

judgment; and (4) an important and unsettled

question of controlling law, not merely a

question of the proper exercise of the trial

court's discretion.

United States v. Sorren, 605 F.2d 1211, 1213 (1st Cir. 1979). In other

words, the order must be separable, final, urgent, and important. In

re Cont'l Inv. Corp., 637 F.2d 1, 7 (1st Cir. 1980).

We need not determine whether this order is final, urgent,

and important, because it is clearly not separable in the manner

contemplated by the collateral order doctrine. For an order to be

collateral, it must not be "enmeshed in the factual and legal issues

comprising the plaintiff's cause of action." Coopers & Lybrand v.

Livesay, 437 U.S. 468-69 (1978) (quoting Mercantile Nat'l Bank v.

Langdeau, 371 U.S. 555, 558 (1963)) (internal quotation marks omitted).

Here, the district court order dismissing the claims for injunctive

relief was dependent on the court's evaluation of the factual basis for

a claim of unconstitutional discrimination, as well as the application

of standing jurisprudence to those facts. Moreover, a partial grant of

a motion to dismiss simply is not the sort of order that falls within

the collateral order bailiwick -- a category whose usual members

include orders denying security in derivative suits, bail
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determinations, orders requiring plaintiffs to identify themselves, and

orders granting disqualification of the trial judge -- decisions which

in no way go to the merits of the underlying claim. See generally 15A

Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal

Practice and Procedure § 3911.2 (3d ed. 1992) (discussing scope of the

collateral order doctrine). In short, this order is a decision on the

merits, not on an issue collateral to them.

C

Appellants also suggest that this Court has jurisdiction

pursuant to the "pragmatic finality" doctrine, which they understand as

allowing this Court to premise its jurisdiction on an ad hoc balancing

of "the inconvenience and costs of piecemeal review and the danger that

delay will create an injustice." Gillespie v. U.S. Steel Corp., 379

U.S. 148, 152 (1964). However, the Supreme Court has since

substantially limited the reach of Gillespie and condemned a broad

balancing approach to questions of finality. See Johnson v. Jones, 515

U.S. 304, 315 (1995) ("[W]e do not now in each individual case engage

in ad hoc balancing to decide issues of appealability"). Numerous

courts have agreed that Gillespie, in itself, does not provide

appellate review unless another exception to the final judgment rule is

available. See, e.g., Kmart Corp. v. Aronds, 123 F.3d 297, 300 (5th

Cir. 1997) (no longer recognizing the exception); Green v. Dep't of

Commerce, 618 F.2d 836, 841 (D.C. Cir. 1980) ("No federal appellate
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court, to our knowledge, has ever followed the Gillespie dictum in a

case in which the appeal could not be justified on the basis of some

other, narrower, policy demanding deviation from the finality rule.").

Apart from established exceptions, this Court has indicated that

appellate jurisdiction does not exist in the absence of finality, and

that cases in the "twilight zone" of finality, such as Gillespie, are

only addressable via mandamus upon a showing of palpable error and

irreparable harm. Petralia v. AT&T Global Info. Solutions Co., 114

F.3d 352, 354 (1st Cir. 1997). We have already noted the lack of

serious harm or manifest injustice in delaying appeal here until a

final judgment has issued; the pragmatic finality doctrine, if it still

survives, does not apply.

D

Because we have no jurisdiction pursuant to § 1292(a)(1), and

no exception to the final judgment rule applies, we dismiss the appeal

for lack of jurisdiction.