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
-2-
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
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-
-3-
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
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).
-4-
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
-5-
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).
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).
-6-
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
3 The renewed motion for a preliminary injunction was later withdrawn.
-7-
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.
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.
-8-
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:
-9-
(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
-10-
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
-11-
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.
-12-