Warren E. Burger: We will hear arguments next in Gardner against Westinghouse. Mr. Hackett you may proceedwhenever you are ready.
Robert N. Hackett: Mr. Chief Justice and May it please enter the Court. The argument of the petitioner Joan Evans Gardner will be presented first with a little statement of the facts, then I would like to discuss the legal issue of the heart of the relief sought in the case and I would like to discuss the unconditional denial of the class and I would like to discuss the rationale that the Courts have used in interpreting section 1292(a)(1) as a means of appealing a denial of injunction. Then, I would like look at the logic of the cases under 1292(a)(1) starting with the early cases in the 30s and finally finishing with Switzerland Cheese case in 1966. Then I would like to discuss the issue of a permanent versus a preliminary injunction and then I would like to discuss the strong policy to allow civil right Class Actions and finally, the general floodgate argument that has been proposed by the respondent concerning the floodgate of appeals. Joan Evans Gardner filed this case in May 29, 1975 seeking a wide Class Action under Rule 23(b)(2) seeking as a heart of relief, injunctive relief. The scope of the class is set forth in pages 8a to 11a of the Appendix and the injunctive is set forth in complaint that it was requested in pages 13a to 14a. We moved within 90 days as required by the local rule for a class determination, we filed class interrogatories. On February 3rd, 1976, the lower court denied the Class Action stating that Ms. Gardner was an inadequate representative of the class under 23(a)(4) because she sought a job that some other woman might want and therefore she was antagonistic to the class. This was an unconditional order. Then, we appealed that decision as a matter of right under 1292(a)(1) as a denial of our injunctive relief because it narrowed the scope of the relief. The Third Circuit dismissed with no jurisdiction saying that 1292(a)(1) did not apply. First, I think it is obvious the injunctive relief under b2 is the heart of the relief sought in a wide civil rights case. We sought an across the board Class Action as has been sanctioned by the Fifth Circuit in Long vs.Seth and the denial of the broad injunctive relief has been recognized by four circuits. The first circuit doing so was the Fourth in about 1962 under Brunson vs. Board of Trustees. The First, Fifth, and Ninth circuits have all agreed with that under Yaffe vs. Powers, Jones vs. Diamond and Price vs. Lucky Stores. Further, the determination by Judge McCune that it was an unconditional denial, was a matter of law and contained no possibility except within his scope of being reversed because if she is antagonistic to the class, she is going to stay antagonistic to the class Thus as Justice Stewart said in United Airlines vs. McDonald, the action was stripped of its character as the Class Action.
William H. Rehnquist: Did the possibility remain open that persuaded Judge McCune to change his mind?
Robert N. Hackett: I do not believe we could persuade Judge McCune to change his mind. We could have tried but, we felt first of all that we had a right of appeal because of the four circuits cases and only at that time one or two against us and secondly, it has been our experience in the Western District Court that it is simply too unsure and heavy a burden to try to get Class Action denials changed. I guess that was a policy decision on my part. The unconditional denial doctrine was recognized in Yaffe vs. Powers when they said the broad injunctive relief was denied. I now like to move to general rationale of what the courts have used to interpret 1292(a)(1). The buzz words that the courts has used since General Electric vs. Marvel Rare Products till Switzerland Cheese has not changed. That is, if the substantial effect of the order is to deny an injunction then they have considered that rationale as what they will look at.
John Paul Stevens: What if a friend of mine and I sue for an injunction, and two other friends move to intervene and they are denied? Is that denial appealable?
Robert N. Hackett: Is that permissive intervention sir?
John Paul Stevens: Yes, and is it appealable?
Robert N. Hackett: Under permissive intervention, I do not believe it is appealable.
John Paul Stevens: Even though arguably, it certainly denies them an injunction?
Robert N. Hackett: Arguably it does, but they are free right there to institute their own suit and they know about it and there no problem then instituting the suit. I think that is a little different fact situation. I think the Class Action situation is more like General Electric vs. Marvel Rare Products where a counter claim asked for the injunction and the counter claim was denied and they held it was a denial of an injunction. The courts all the way though General Electric and Switzerland Cheese have said that the substantial effect doctrine will apply. Now let us look what the results were of the 1291 cases. I submit that if you follow the logic of looking, if the decision effects the ultimate relief sought, then it should be appealable under 1292(a)(1). Now, for example, if you are just delaying the decision in Switzerland Cheese, where you failed to grant a summary judgment and then you leave the equitable relief possibility open to the end, because there is an issue effect. You are not affecting the ultimate relief that you could get, you are only delaying it. Again, in Baltimore Contractors, if you are simply refusing to stay in accounting, an accounting does not give you the ultimate relief and accounting is only a means used to show if something is owed or not. But in a Class Action, you are drastically reducing the scope of the relief sought. As Justice Stevens said in his dissent in (Inaudible), you must have the Class Action in order to get the wide injunctive relief or it would be unfair to the defendant. In this Court, Justice Stewart in the Teamsters v. US case, and Justice Brennan in Franks v. Bowman, set forth the burden of proof in Class Action cases and the injunctive granted in the Class Action sets the perimeters for that burden of proof. So that you have a completely different of proof in Class Action cases and in the scope of the reliefs than you do in the McDonald Douglas v. Green case which was the individual opinion by Justice Powell.
Byron R. White: But if had I joined two or three claims in a suit against the defendant and the judge terminates my case with respect to two of my claims and have permanently reduced the kind of a judgment that I can get, I still can appeal unless he cooperates with me.
Robert N. Hackett: If you joint the suits and you have claims?
Byron R. White: I have claims and every body agrees that if I prevailed on all three claims, I would have a millions dollars. If I prevail on one instead of three, I will have a $100,000.00.
Robert N. Hackett: But I do not believe that is injunctive relief sought is it sir?
Byron R. White: It may not be but it certainly affects the scope of my judgment.
Robert N. Hackett: Yes sir, but it is the scope of the judgment that is the issue. It is the scope, Mr. Justice White it is the scope of the injunctive relief, the 1292(a)(1) speaks to. It has to be a denial of a relief that is equitable in nature and injunctive in nature and not just the a change in money.
Byron R. White: So you say that you would be making the same argument if I joined three claims for an injunction, and if I won on all, I think that would be an injunction of a certain scope and if I only win on one it would would be a much narrower injunction.
Robert N. Hackett: It would narrow the injunction.
Byron R. White: Then it would be a 1291 case, if the judge dismisses two of my claims?
Robert N. Hackett: If you have three claims joined, all asking for injunction and the claim as to injunctions is dismissed one or two of them, I think that is exactly the General Electric Marvel case where the counterclaim came in, he dismissed the counterclaim. The counterclaim asked for an injunction held appealable. I think that is that fact sir.
Byron R. White: Under 1291?
Robert N. Hackett: Under 1292 sir.
Byron R. White: Yes, that requires the judge who takes up, I mean 1292a.
Robert N. Hackett: A1 does not required judge to cooperate.
Byron R. White: That is right.
William H. Rehnquist: Did you say rule 54, it is not involved at all in a 1292a rule?
Robert N. Hackett: No, that is correct Justice Rehnquist. We have it as a matter of right. In other words, it is an exception to the rule. I think it is also clear that 1292a applies to a permanent as well a preliminary injunction. There is no question that there is precedent for this, in this courts cases in George v. Victor Talking Machine in 1934 and John Simons case in 1922, and I think Mr. Justice Rehnquist, in his opinion in Wetzel indicated that an appeal would have been possible under 1292(a)(1) by the granting by an injunction but we had the parties mixed up in Wetzel, so that we could not get it but he indicated in that case that it would be possible on a permanent injunction not just a preliminary injunction.Judge Friendly in the Second Circuit in Stewart Warner vs. Westinghouse in his dissent indicated that 1292(a)(1) only applies to a preliminary injunction. No other circuits have excepted that. There are many circuit cases and Supreme Court cases and they do not except that and he cited Justice Frankfurter?s argument 1928 business of the court and other legislative history and I think it is very important?
Thurgood Marshall: I know it is true that the old three judge court, you could not get a three judge court unless you ask for preliminary injunction?
Robert N. Hackett: Yes sir.
Thurgood Marshall: Which is no longer true so I guess maybe that might be the reason for it.
Robert N. Hackett: I think that is true. I believed you discuss that in Goldstein vs. Cox and the Tide Water case that Mr. Justice Marshall?
Thurgood Marshall: It could be but that is not true anymore.
Robert N. Hackett: But it is a good thing to point out that out I think sir that the Expediting Act says particularly preliminary injunction. But 1292(a)(1) does not say preliminary injunction.
William H. Rehnquist: What if you have named six defendants, and you are having a hearing on a preliminary injunction before a District Judge and he grants a motion to dismiss as to one of the six defendants, is that appealable under the 1292a?
Robert N. Hackett: Are the defendants requesting in a counterclaim injunctive relief?
William H. Rehnquist: No.
Robert N. Hackett: You are requesting, yes that has been held appealable in some circuit cases where they said that the dismissal of three or four defendants where you narrowed the in-scope of the injunctive relief, that would be appealable under 1292a.
William H. Rehnquist: You say that goes for just dismissal of one out of ten defendants.
Robert N. Hackett: I am not sure an exact number but?
William H. Rehnquist: How can it possibly make any difference as to the exact number?
Robert N. Hackett: I do not think it does conceptually. Unless it was just the minimal. In other words you have to say and we have to the test as the substantial affect is to limit the injunctive relief sought.
William H. Rehnquist: Where do you get the word substantial?
Robert N. Hackett: The substantial effect comes from all previous cases. The Enlow Edison cases, the General Electric case. It is cited in Baltimore Contractors.
John Paul Stevens: Do you have the case cited that you are referring to in response to Mr. Justice Rehnquists questions? About dismissing particular?
Robert N. Hackett: Defendants, that is a circuit case Billed of Buffalo.
William H. Rehnquist: That is not from this court then?
Robert N. Hackett: That particular case is not from this Court, but the substantial effect language is from this Court.
John Paul Stevens: Is that cited in your brief?
Robert N. Hackett: Billed of Buffalo, yes it is sir.
Warren E. Burger: Mr. Hackett, I believe you referred to a dissent by Judge Friendly in Stewart-Warner case, I?
Robert N. Hackett: Stewart-Warner. v. Westinghouse.
Warren E. Burger: I cannot seem to find it in your main ?
Robert N. Hackett: I believe we cited Stewart-Warner.
Warren E. Burger: Do not trouble yourself now. I can find it in the list of available where it is located.
Robert N. Hackett: The next subject I would like to move to is the strong policy, that this Court has recognized --
William H. Rehnquist: Before you move to that, let me ask you one more question. Supposing again in a hypothetical case, you have six defendants hearing on a preliminary injunction. The District Court grants a preliminary injunction as to five of the defendants, says he reserves ruling as to the sixth defendant will not issue a preliminary injunction does not dismiss him and puts the home ad over for hearing on a final injunction, appealable?
Robert N. Hackett: There is authority that a delay for continuance in the granting of a preliminary injunction is appealable. I do not believe this Court?
William H. Rehnquist: On authority from this Court?
Robert N. Hackett: No sir, it is not from this Court. I would like the Court to look at the strong public policy that was announced in this Court in Albamaro case by Mr. Justice Stewart, citing the 1972 amendments to Title 7 and saying that those amendments were not to do anything that would discourage private Class Actions. It is important to realize that the Class Action tool is the catalyst tool to enforce Title 7 by plaintiffs and this Court in looking at the Class Action in almost all of their decision in Franks v. Bowman, Albamaro and in Teamsters v. US has recognized that strong public policy not to deteriorate use of the Class Action device, and I think, one of the reason that should not deteriorate the use of the class Action is one of the very purposes of Rule 23 was to prevent from multiplicity of suits. That is that if you are suing a corporation and you are asking a broad injunctive relief on wide basis there is then no need to have individual suits and this particular use of the device is exactly what is meant to be used in Title 7 and the decisions of this Court in Title 7 have really focused on stating the vast difference in the burden of proof and the vast differences in the presumptions that are available to class plaintiffs when a decision has been made on the stage one or liability proceeding of Class Actions in Title 7,Now the answer -- the first 10 pages of the respondent?s argument and the questions that came from this Court in the previous argument focused a good deal on the floodgate problem. Will we have a floodgate of appeals if we allow this? I think it is very interesting to look the annual reports of the director of the administrative of office of the United States Courts. We have done that. We have taken the average percentage of a appeals excluding bankruptcy which are civil rights appeals. Now for the years 1965 to 1977 only 6.17% of the appeals were civil rights appeals. That is the average of all circuits.
Warren E. Burger: By civil rights appeals, you mean under the statue under that?
Robert N. Hackett: Not just under just Title 7 but it also includes 1983 and other statutes that are civil rights related. I am not sure of just every statute that it covers.
Warren E. Burger: It is boarder than just under the 1964 Act as amended?
Robert N. Hackett: Plus, yes. For example and, then it is interesting to note, is it not logical, if we are going to have a floodgate of appeals that if we went to the Fourth Circuits and we went to Bronson v. Board of Trustees which we decided in 1962 that since that time in the Fourth Circuit, the appeals would have greatly increased percentage wise compared to circuits that did not have this doctrine. That is not true. If we look at the Fourth Circuit from 1966 to 1977, we see that they had an average increase of 21.14% but in D C circuit which never had the doctrine and still does not have it because Williams v. Mumford denied the doctrine in ?75, they had an increase of 42.89%.
John Paul Stevens: Is that all appeals or?
Robert N. Hackett: That is all appeals sir. Obviously, though if this opened the floodgate, there would be some increase in percentage because you could not factor that percentage increase out Mr. Justice Stevens. I do not believe so it is important to realize that we are only talking about roughly 6% of all appeals in the civil rights area and that there is no indication that the decisions of the Ninth Circuit, the Fifth Circuit, the Fourth Circuits and the First Circuit have increased the appeals percentage wise when they switched to this doctrine. Some of them go down, therefore, I think the floodgate of appeal argument is not only factually wrong but also I believe that Mr. Justice Burger in US v. Abne(ph) indicated that under 1291 and under the whole court?s philosophy in looking at appeals that whether you have to do in essence more work does not make a legal reason not to have an appeal if as a matter of right you have it under 1292(a)(1) or under any statute. The philosophy has always been, we give the practical and non-technical approach and I do not think it is a legal argument to argue that an increase in load is a legal reason for refusing the appeal and in closing of course, I would like to say that in any event, the floodgate statistics presented in the respondent?s brief are not well founded and I believe an analysis of the administrative court will show that they are not correct.
Warren E. Burger: Very well Mr. Hackett. Mr. Scheinholtz?
Leonard L. Scheinholtz: Mr. Chief Justice and May it please the Court. This case presents the narrow question as to whether the denial of class certification in a lawsuit seeking permanent but not preliminary injunctive relief is immediately appealable as of right under 28 US code 1292(a)(1) as an interlocutory order refusing an injunction. It is undisputed that Congress in adopting 1292 intended a very limited exception to the final judgment rule embodied in 1291 which since the first Judiciary Act has been the dominant rule of appellate practice. Congress has determined that with respect to certain specific categories of interlocutory orders set forth in sub section A, an immediate appeal should be allowed as of right and is also provided for discretionary appellate review of other interlocutory orders under 1292b provided the conditions set forth in that sub section are met. This Court has recognized in a number of decisions that appeal rights cannot depend upon the facts of a particular case. Congress has necessarily had to draw the jurisdictional statutes in terms of categories. Thus the issue in any given case including this one is whether the particular order appealed from fits within the category of appeals allowed by Congress or whether the appeal is not permissible in the light of the principles and the history concerning appellate jurisdiction and in particular, the longstanding congressional policy against piecemeal appeals. Section 1292 does not expressly provide a right of appeal with respect to orders either granting or denying Class Action status. Not withstanding that fact, Mrs. Gardner sought to appeal the District Courts denial of certification and argues the her appeal comes within the narrow exception to the final judgment rule set forth in 1292(a)(1) which permits an appeal from an interlocutory order granting or refusing an injunction. In that connection, it is significant that no application for a preliminary injunction was ever made and preliminary injunctive relief was not even requested in the compliant. While the complaint does contain a prayer for permanent injunctive relief, the District Court in refusing to remit this case to proceed as a Class Action did not state that the claim for permanent injunctive relief had no merit nor that it lacked jurisdiction to grant that injunction nor did it even express any opinion as to whether injunctive relief might be warranted at any particular point in the proceeding.
Thurgood Marshall: If they had asked for a preliminary injunction, you would be making the same argument would you not?
Leonard L. Scheinholtz: We would have made the same argument and our position is the same. As Mr. Hackett indicated Judge Marshall, there is a question as to whether 1292(a)(1) applies to the denial and grant of permanent injunctions as well preliminary injunction. I think that it is clear that what Congress really intended to reach here were denials of preliminary injunctions and in Switzerland Cheese when this Court had that issue before it, it expressly decided that it would not decide whether 1292 (a)(1) did or did not apply to a permanent as well as preliminary injunctions. However, I think our position for the reasons that I would state would be the same, regardless of whether this Court decides that 1292(a)(1) applies to permanent as well as preliminary injunctions.
John Paul Stevens: What would you say if the complaint does ask for preliminary injunction and for class certification than if the judge denies the class certification, you would still be making the same argument?
Leonard L. Scheinholtz: Absolutely. Certainly. The District Court in this case however made no order with respect to the merits of the suit. The District Court simply decided that Mrs. Gardner had failed to satisfy the requirements of Rule 23 a 2, 3, and 4 and concluded that for that reason she was an inadequate class representative and that the case could not proceed as a Class Action. This class determination order was wholly procedural and did not in any way determine the merits of the controversy.
William H. Rehnquist: Would Judge McCune's order rule out the possibility of Mrs. Gardner?s ultimately obtaining on her own an injunction?
Leonard L. Scheinholtz: Not at all, not at all Justice Rehnquist. Not only did it not rule that out but it is in entirely possible that if she proved the kind of case that she alleged in her complaint that the relief that she might get in her individual case might read down to the benefit of the putative class. In other words, the fact that this case would proceed only as an individual action in and of itself would not determine the total scope of possible injunctive relief. That would not be known and could not be known until a final hearing on the merits.
John Paul Stevens: What about four plaintiffs all of them ask for preliminary relief, the judge grants preliminary relief for two and refuses it for two and the two want to appeal? Now that is under 1292, I suppose.
Leonard L. Scheinholtz: I do not believe that they would have the right appeal it under 1292 (a)(1) Your Honor.
John Paul Stevens: Because?
Leonard L. Scheinholtz: Because I think that with respect to the, I am sorry, you are saying if these cases are heard on the merits --
John Paul Stevens: No, he just grants a preliminary injunction for two of the plaintiffs and denies if for the two of the others.
Leonard L. Scheinholtz: I think that that would be appealable, yes. By the other two yes. I misunderstood your question. I think that however here of course?
John Paul Stevens: I suppose, if on the preliminary injunction hearing, the judge with respect to two of the parties says, you just do not have any claim anyway so I am dismissing your claim?
Leonard L. Scheinholtz: That would the same but the difference between that case and this case is that there the action of the Court has an immediate impact. The injunction is denied. It is expressly denied. In this case, that has not happened and may not happen. That is the difference.
John Paul Stevens: But you are determining that there are a lot of unnamed plaintiffs who cannot have an injunction?
Leonard L. Scheinholtz: No sir Your Honor, we are not doing that.
John Paul Stevens: Or there is a lot of unnamed plaintiffs who cannot have any relief at all?
Leonard L. Scheinholtz: No all we are saying is that this case cannot proceed as a Class Action. Those people would have the right of intervention. They could come in as interveners. The only thing that the Court decides is a procedural question that this case could not proceed as Class Action. It made no determination with respect to the merits of the case with respect to unnamed members of the class. Not only that but as Justice Rehnquist recognized that decision that this case could not proceed as a Class Action is subject to subsequent alteration or amendment at any time prior to final judgment both with respect to rule 23(c)(1) and of course, the Court?s inherent power to modify any order that is not a final order and Mr. Hackett, if he were persuasive enough, might have convinced Judge McCune at some future date that he was wrong and that the case should proceed as a Class Action in the same way as in the Coopers & Lybrand case. That judge changed his mind and said that the case that he originally thought should proceed as a Class Action should be de-certified and not proceed as a Class Action. So it was simply, by its term a tentative provisional order. It decided nothing except that for now and until the judge changed his mind that this would be an individual action in which others could intervene to assert their rights but that it could not be a Class Action. Now Ms. Gardner argues that she has a right to appeal under 1292(a)(1) because the denial of class certification amounted to the effective denial of broad injunctive relief sought an behalf of the clients and therefore constituted an order of immediate and irreparable consequences within the meeting of Baltimore contractors. That is her argument. The contention is without merit for a number of reasons.Section 1292(a)(1) is clearly as I have indicated intended to provide interlocutory appellate review only for those orders which directly and immediately either grant or refuse injunctive relief. Congress recognized that unless an immediate appeal were permitted that there could be no effective review of an order for example, granting or refusing a preliminary injunction and that to delay review until after a final decision on the merits would be the practical equivalent of no review at all. It would be impossible to review the grant or denial of a preliminary injunction after the case had proceeded to a merits determinations and the Court had made a decision so consequently, it adopted 1292(a)(1). The order Ms. Gardner appealed from here does not posses this characteristic which is essential to a right of appeal under 1292 (a) (1). The denial of class certification does not amount to the denial of an injunction and it has no immediate impact or effect. It is strictly a procedural pretrial order which in no way attaches on the merits of the claim. As a matter of fact, even if this case were appealable and if the Court of Appeals were to reverse the class certification, this note would not result in an automatic injunction. The case would be sent back to the District Court and the District Court would have to decide whether an injunction was appropriate in this case.
John Paul Stevens: I filed a complaint asking for a permanent injunction and there is a motion to dismiss it for want of jurisdiction, granted. Is that appealable?
Leonard L. Scheinholtz: I would say that is appealable under 1291.
John Paul Stevens: What if I am a defendant and I file a counterclaim and ask for an injunction? Dismissed from want of jurisdiction.
Leonard L. Scheinholtz: Again I think that that would be appealable before the reason as a final order with respect to the counterclaim.
John Paul Stevens: That is what this Court held.
Leonard L. Scheinholtz: That is what this Court held in GE vs. Marvel.
John Paul Stevens: It held it was appealable under the predecessor of 1292.
Leonard L. Scheinholtz: Well, you maybe right on that Your Honor, it did but the different between the GE v. Marvel case, in this case is there when the Court dismisses the counterclaim seeking injunctive relief, it is acting now and immediately. That is the denial of an injunction when it dismisses a counterclaim. That is the different between that case and this case is that there it operates immediately, it operate now, whereas here, it may never operate. Now even if we were to assume arguendo, as I have indicated that the denial of a Class Action status may narrow the scope of injunctive relief which may ultimately be awarded and that is her claim, this effect will occur if it occurs at all only after a decision on the merits and that is the difference between this case and the GE v. Marvel case and at that time, when there has been a determination on the merits, that action is fully reviewable along with the final decision on the merits, regardless of whether Mrs. Gardner wins or loses with respect to her individual claim and that is the United Airlines vs. McDonald Douglas case recognizes that. Moreover, and quite apart from that, many types of interlocutory orders of a Trial Court have a significant impact on a litigants ability to obtain equitable relief and this consideration has never been viewed as a sufficient ground for contravention of the strong and explicit congressional policy against piecemeal or appeals. As a typical example, an order granting or refusing discovery or an evidentiary ruling may have a vital affect on the scope of the relief ultimately obtained and yet that does not covert them into appealable orders.
William H. Rehnquist: Do think that an order granting a preliminary injunction and requiring the plaintiff to post a $50,000.00 bonds is appealable by the plaintiff as to the question of the amount of the bond?
Leonard L. Scheinholtz: That is the collateral order doctrine or something like the collateral order doctrine. It would not come up under 1292(a)(1). It would come up under the Cohen vs. Beneficial Insurance Company rule, I believe. Now we have talked about the matter of Docket of the Appellate Courts and I think that it is a matter of concern to this Court. We have the statistics set forth in pages 13 to 14 of our brief but briefly, in the 15 year period from 1962 to 1977, the number of actions filed increased by 300 percent in the number and this on the appellate docket and the number of appeals pending increased by 400 percent and in over a half of the circuits, the number of pending cases have increased, appeals have increased by 600%. That is an alarming statistic and if this appeal that Mrs. Gardner has were allowed that there will be no limitation on the number of appeals that you could have because what would happen is that in every case where it is possible, a plaintiff would include a prayer for injunctive relief. He would be foolish if he did not and then if there is any order that he says might affect the scope of relief then he could take an interlocutory appeal under 1292(a)(1) because their argument is not limited to class certification questions. The statute does not deal with that. The principle that he is attempting to assert is that any time there is an order which might affect the scope of injunctive relief then that is the practical equivalent of the denial of an injunction and appealable under 1292(a)(1) and there would be many, many more appeals under that type of rationale than we have now as bad as the current docket it is. Now --
William H. Rehnquist: It is not you argument in giving us those figures that those figures themselves are the result of?
Leonard L. Scheinholtz: Not at all, what we are saying is that they are bad. But they would be much worse. That is right. All I am saying is that as bad as they hardly would be, much, much worse if we did not have that.
John Paul Stevens: Are there some cases on the appealability of orders denying intervention in injunctive suits? Are there some decisions on the appealability of orders denying intervention in injunction suits?
Leonard L. Scheinholtz: Yes there are.
Speaker: Are there figures I think.
Leonard L. Scheinholtz: No, there is no figures.
John Paul Stevens: Are there some decisions holding appealable or un-appealable?
Leonard L. Scheinholtz: Yes, there are three circuits that hold that the denial of certification is not appealable under 1292(a)(1). That would be the Third Circuit, the DC Circuits and the Second Circuit. The Seventh Circuit says where there is no prayer for injunctive relief and no hearing on preliminary injunctive relief, no right to appeal the adverse class determination under 1292(a)(1) and there are four circuits that go the other way.
William H. Rehnquist: How about just a plain prayer to intervene by a denied, is that appealable?
Leonard L. Scheinholtz: I would not think that that would be appealable.
John Paul Stevens: Have you found some cases on it?
Leonard L. Scheinholtz: I have not seen any cases on that your Honor. I do not know of any.
William H. Rehnquist: How about the Utah?
Thurgood Marshall: Prayer to intervene is appealable? It used to be.
Leonard L. Scheinholtz: It is permissible.
John Paul Stevens: Was that an injunction suit?
Thurgood Marshall: If it is granted, it is not appealable?
Leonard L. Scheinholtz: You may be correct on that and I am sure I must be in error on it. A rule of appealability based upon the eventual effect of an order has of course no easily definable limit and would provide the plaintiffs with more than one opportunity to obtain piecemeal review of a wide variety of interlocutory orders and which would mean that the final judgment rule would eventually be swallowed up by what Congress intended to be a narrow exception. Moreover, such a rule of appealability, we believe is clearly inconsistent with Justice Rehnquist?s decision in Wetzel which showed that an order granting judgment on the merits for the plaintiff without ruling on the request for injunctive relief was not appealable by the defendants under 1292(a)(1) despite its inherent effect on the ultimate availability of injunctive relief. A rule of appealability such as that advocated by Ms. Gardner would further burden the appellate courts with a task of determining in each case the jurisdictional question of whether the order appealed from, had the effect of granting or denying an injunction and it would have to do so on the basis of a record which might well be inadequate for that purpose. Now Ms. Gardner also argues that the 1292(a)(1) should be extended to interlocutor orders denying class status because immediate review might avoid an unnecessary trial and expense. It would have done the same thing in Baltimore Contractors as Mr. Justice Black mentioned in his dissent but that consideration really is not to remain. It is the function of Congress to determine whether the time and expense that might be say, by permitting interlocutory appeals sufficiently out weighs the impact of the effect of permitting those appeals on the docket of the Appellate Court. That is the function of the Congress. This Court has repeatedly said that it is not authorized to approve or declare judicial modification of the jurisdictional statutes regardless of the importance of the issue or other considerations. We have to look at the statute. Does it permit an appeal or does it not? This statute does not say that an order which directly or indirectly grants an injunction nor does it say that which effectively grants or denies an injunction is appealable. It says interlocutory order granting or refusing an injunction.
William H. Rehnquist: Counsel in Wetzel, it was Liberty Mutual was appealing and Liberty Mutual had not sought any injunction. Was that not the reason we said that that was not appealable as an order to deny an injunction?
Leonard L. Scheinholtz: Your Honor that is true, on the other hand, it was dictum in that case and you were?
William H. Rehnquist: But you referred to it, and I thought perhaps you have referred to - ?
Leonard L. Scheinholtz: Yes, you are right but of course the ultimate impact if you adopted their argument, they could have said that the effect of that order granting liability was to effectively grant an injunction even though, the only thing that was left to be done by Judge Webber was to issue the injunction. That is what we mean by the statement, so if you followed an effective standard, you would have permitted an appeal in Wetzel we believe. Now for those reasons, we believe that the Third Circuit was clearly correct in its conclusion that Ms. Gardner?s theory of appealability would represent an unwarranted expansion of 1292(a)(1). Now I would like to go to the second point that we would argue and that is even if the effective denial of an injunction standard is a correct standard under 1292(a)(1), that standard has no application here because the denial of class certification cannot constitute the effective denial of an injunction. We say that for three reasons. First, because the order was tentative and provisional under Rule 23c1. It could be altered at any time. Secondly, because it is by no means clear what relief if any Ms. Gardner could get in her lawsuit. That fact would not be known until after a final hearing on the merits and to ask an Appellate Court on a 1292(a)(1) appeal to speculate as to what relief she might able to get if she proves her case on the basis of an inadequate record, I think is an unworkable standard and places an impossible burden on the Court of Appeals. The plain fact of the matter is that that will not be known until she puts in her proof. Now third, of course is the fact that at any time there could be intervention by other persons in the putative class and if those persons appeal then the scope of the relief might be different than if she proceeds with an individual action or it might not. But again that is something that will occur at some time in the future but the fact of the matter is that intervention by other people, in this lawsuit might make a difference with respect to the injunctive relief that might ultimately be attained and obtained. So for all three of those reasons, we say that the denial of class certification cannot possibly constitute the effective denial of an injunction. Now Ms. Gardner makes a point in her brief that if she has not permitted to appeal now, that it is likely that this case will never be appealed and she says that for two reasons. She says first, if I lose on the merits, I have no right to appeal the adverse class determination under Rodriguez and she says if I win on the my individual case, I will have no incentive to appeal. Now the first is incorrect as a matter of law. The second is purely speculative irrelevant at best. First Rodriguez as we read it says nothing about her right to appeal the adverse class determination after final judgment if she loses her case. United Airlines says that. Secondly you cannot fashion a rule of law?
John Paul Stevens: If she wins her case, do you think she would get an appeal?
Leonard L. Scheinholtz: Yes, American Airlines says that as well because there the Court referred to and there are two cases that they referred Galvin v. Lavigne and Esplin v. Hershey where the plaintiff won below and where notwithstanding the fact that she won, she was permitted to appeal the adverse class determination question. I think there is a good reason for that.
William J. Brennan, Jr.: Are those Court of Appeal?
Leonard L. Scheinholtz: Those are Court of Appeal decisions.
William J. Brennan, Jr.: Which one?
Leonard L. Scheinholtz: Both them.
William J. Brennan, Jr.: I know, which Court of Appeal, do not bother. Its alright.
Leonard L. Scheinholtz: They are in brief, Justice Brennan.
Warren E. Burger: They were cited in the opinion in...
Leonard L. Scheinholtz: They were cited in the opinion in United Airlines and I think there is good reason for that. For one thing attorney?s fees. Attorneys fees would be greater obviously if they were Class Action and than if the case proceeded as an individual action. Secondly plaintiff as she regards herself or he regards herself as a private Attorney General, they will feel that they have an institutional interest in attempting to protect the putative class so even though they win their case, they will want to appeal the adverse class determination and there may well be other considerations but the critical fact is not that she may not, she may decide for herself that she does not want to appeal. The critical fact is that she has the right to do so and if she fails to do so for whatever reason under United Airline, the putative members of the class could intervene at that time for the purpose of appealing the adverse class determination so there is no question?
Warren E. Burger: But so long as they act promptly.
Leonard L. Scheinholtz: Promptly within the time that she could have done so herself, so that there is no question that they are protected in that respect. Now if you have somebody who is unaware of dependency of this Class Action and who has not filed charges, I think that the answer to the first part is if they are unaware of this action, they certainly have not relied upon its existence in refraining from prosecuting a claim and if they have not filed charges, I suggest it is because they believe that they have not been injured. But in any event, they would not be barred by principles of res judicata by anything that happened in this case. Now we have other arguments in the case policy considerations, I think they are amply?
Warren E. Burger: You said they may not be injured. They maybe aided however. You said they would not injured but they might conceivably be aided by the results of first case.
Leonard L. Scheinholtz: Possibly or possibly not.
Warren E. Burger: Do you have anything further, Mr. Hackett?
Robert N. Hackett: Yes. In answer to Justice White?s question, the Ninth Circuit case Spangler v. US held that the striking of intervention allegations was a denial of an injunction. It is cited in out brief. In general, I would like to narrow the grounds of our appeal to say that they are based on the first argument in our brief. That is the argument that the immediate result of this order means that a person who had applied for a job at a Westinghouse Broadcasting Station in Los Angeles is not going to get injunctive relief in this case if there is no class. The immediacy is not the immediate harm to a person, the named plaintiff. The immediacy argument is not relevant to the appeal under 1292(a)(1). There is no legislative history or cases that say the harm must be immediate. They say that the harm must be irreparable to the case. Now there is no defendant that I know that is going to say that I can have an injunction giving me an affirmative action program in Los Angeles Westinghouse Broadcasting Station if I do not have a Class Action. If I lose the Class Action, I am never going to get that in this case.
William H. Rehnquist: You say your client is never going to get an injunction?
Robert N. Hackett: No my client sir. My client Mr. Justice Rehnquist it is possible she alone will get it but the scope of the injunction will not be like under Teamsters v. US, unless that is a perforce case. That is if it is an unconstitutionality or illegality use of the test and the test is being used everywhere. Perforce I would get relief but in this particular case which is an across the board situation, there is no way that the people in various radio stations or people who are discriminated because they use all male salesmen if they do are going to relieved. The injunctive relief as Mr. Justice Stevens pointed out would only flow to the individual plaintiff.
Thurgood Marshall: Assuming the final judgment is made, the Class Action has been reinstated what happens?
Robert N. Hackett: That is true Mr. Justice Marshall. If it is reinstated, it would have to go down and be tried all over again as a Class Action.
Thurgood Marshall: If you had not stopped it when you did stop it, will it go on and tried it as an individual?
Robert N. Hackett: Yes sir.
Thurgood Marshall: Just before the judgment, the judge says look I have decided I was wrong about that Class Action. Bring the class in here.
Robert N. Hackett: Yes that could be happen.
Thurgood Marshall: Could he do that?
Robert N. Hackett: I believe that under Mr. Justice Stewarts language in United Airlines vs. McDonald, there is some doubt that after you strip that class of its character?
Thurgood Marshall: I thought the rule said specifically, the rule says that it can be.
Speaker: Rule 23c2.
Robert N. Hackett: Yes rule c2 says that it is conditional.
Thurgood Marshall: You want me to ignore that rule?
Robert N. Hackett: No I do not want you to sir but any interlocutory order is conditional.
Thurgood Marshall: What does this particular rule says that this can be changed?
Robert N. Hackett: Absolutely.
Thurgood Marshall: So the judge could have changed this one?
Robert N. Hackett: The judge can change it but the order as it stands and as was said in Yaffe vs. Powers?
Thurgood Marshall: But you would point and say there was no way that this woman in Los Angeles can get any relief, is that not what you said?
Robert N. Hackett: That is correct sir.
Thurgood Marshall: You would not change that?
Robert N. Hackett: Yes sir I do. If the judge changes his mind absolutely, they can get relief. I call your attention to 1292(a)(1) itself which says that any order granting, continuing, modifying refusing or dissolving injunctions or refusing to dissolve, or modified injunctions now?
Thurgood Marshall: What is in this order used the word injunction?
Robert N. Hackett: In the class denial sir?
Thurgood Marshall: Yes. It did not say one word about injunction.
Robert N. Hackett: He did not use it. The effect of?
Thurgood Marshall: Then you had not reached the injunction point of the case yet had you?
Robert N. Hackett: That is correct Justice Marshall.
Thurgood Marshall: How can you use that language?
Robert N. Hackett: Because the case is interpreting the denial of injunction saying you do not have to use the word. If the interlocutory order has the effect of substantiate denying an injunction then the law applies. In the Enlow Edison rule and in all the affirmative decisions under 1292(a)(1), there was no actual use of the word injunction in many of those cases.
Thurgood Marshall: It could have in this case, that this woman is a wrong woman so then you appeal on that matter?
Robert N. Hackett: It is possible.
Thurgood Marshall: Because they would deny her an injunction.
Robert N. Hackett: It is possible that she is the wrong woman although I do not think that is really the relevant inquiry to the effectiveness of the order.
Thurgood Marshall: But it could have been denied because she moved to Timbuktu? We are talking about when the case is finished which could be three years from now. I cannot project that far off.
Robert N. Hackett: Yes, but I think 1292 (a) (1) says you have to if the effect just like you would dismiss for jurisdiction in General Electric. I think it has that effect.
William H. Rehnquist: What if it is the result of a refusal to make discovery on the part of the plaintiff? The District Court enters an order that a particular paragraph in the plaintiffs request for instruction will be deemed denied. Is that appealable under your theory?
Robert N. Hackett: You have to use the test of having the Court see if the substantial effect of the order was to deny an injunction. It is a substantial effect of test.
William H. Rehnquist: Why is not counsels argument in response to my question in Liberty Mutual a perfectly good one that Judge Webber in that case had come right down to the wire and had all but granted an injunction against Liberty Mutual?
Robert N. Hackett: Because it was a pure stage one proceeding. He only found liability. He did not do anything to move forward and they did not comply with 1292 (a)(1).
William H. Rehnquist: It seems to me give he was a lot further along the road towards granting an injunction against Liberty Mutual than your case was here.
Robert N. Hackett: No I do not believe because I think his order only found that a certain procedure was the illegal. He may found that any injunctive relief was appropriate in that case nor was there a request by the plaintiff or the right party for injunctive relief.
William H. Rehnquist: But Judge McCune might have found not injunctive relief was available here in this case even though he had ruled the other way on your class certification questions.
Robert N. Hackett: He could find it but by throwing the class out he has effectively found it already as to the class that the gist of the argument because they now have no class --
Speaker: May I ask, why would there be any irreparable injury in your case of employees in other radio stations. They could bring suit themselves later.
Robert N. Hackett: They can but I think the whole idea of Title 7 in Class Actions is to have a Class Actions and prevent a multiplicity of suits.
Speaker: But is it not possible that one of these other employees would be recognized by a court as being an appropriate class representative?
Robert N. Hackett: I think it possible but I do not think in the class situation we are under a legal duty could go out and look for them and also the Class Action, remember hold their statute of limitations, after the denial the substantive statute of limitations continues to run and they may lose their rights simply by the fact that the statute runs and not know about the fact that their right of a discharged employee that his statute has run. The Class Action device is meant to head that off and I believe it does that. I would like to say of course that any interlocutory order can be modified. I do not think there is any question about that and I would like to say that the Class Action device has Spotswood Robinson said in the DC circuit is a very necessary device to Title 7 cases. Any restriction of the Class Action device will work as a detriment to the enforcement of Title 7. Thank you.
Warren E. Burger: Thank you, gentlemen. The case is submitted.