Wisher v. Coverdell

USCA1 Opinion




May 14, 1992 [NOT FOR PUBLICATION]






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No. 92-1273

DORIS WISHER,

Plaintiff, Appellant,

v.

PAUL COVERDELL, IN HIS OFFICIAL
CAPACITY AS DIRECTOR OF THE UNITED STATES
PEACE CORPS,

Defendant, Appellee.


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APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Robert E. Keeton, U.S. District Judge]
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Before

Breyer, Chief Judge,
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Campbell, Senior Circuit Judge,
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and Cyr, Circuit Judge.
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Harold L. Licthen and Angoff, Goldman, Manning, Pyle, Wanger &
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Hiatt, P.C., on Opposition to Defendant's Motion to Dismiss, for
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appellant.
Wayne A. Budd, United States Attorney, and Susan M. Poswistilo,
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Assistant United States Attorney, on Motion to Dismiss Appeal and
Memorandum of Law in Support of Appellee's Motion to Dismiss, for
appellee.


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Per Curiam. The issue before us is whether the
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district court's dismissal of less than all plaintiff's

claims for relief, coupled with its remand for further agency

proceedings on another claim, constituted a final judgment

for purposes of appeal within the meaning of 28 U.S.C.

1291.

I

Plaintiff brought this action under 501 and 504

of the Rehabilitation Act, 29 U.S.C. 791, 794, seeking

damages and equitable relief. She claimed that the Peace

Corps illegally discriminated against her when it

disqualified her from participation in the United Nations

Volunteer program because she was diagnosed with chronic

hepatitis, type B. Ten days before the scheduled trial

date, defendant moved to dismiss the complaint on the ground

of failure to state a claim for relief. The district court

proceeded to conduct a one-day bench trial and then

considered the issues raised by defendant's motion in light

of the evidence, closing arguments, and the parties'

extensive post-trial briefs addressing the issues.

The district court concluded that plaintiff's

Rehabilitation Act claims should be dismissed because (1)

plaintiff was not an "employee" within the meaning of 501

of the Act and, (2) under 504 of the Act, plaintiff did not





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have an implied private cause of action, Cousins v. Secretary
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of the U.S. Dep't of Transp., 880 F.2d 603 (1st Cir. 1989).
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However, the district court further held that

plaintiff's complaint could be read as including a claim for

review of the Peace Corps' medical determination under the

Administrative Procedure Act, 5 U.S.C. 701-706

[hereinafter "APA"]. Under that alternative claim, the

district court held, it had jurisdiction to determine whether

the Peace Corps' decision violated the Rehabilitation Act.

But in light of the evidence presented at trial, the district

court found it was unable to engage in a meaningful review of

the agency's action. The court found that the agency's

"skeleton" record did not support the agency's medical

determination, that the agency had not considered all

relevant factors, and that the court "simply cannot evaluate

the Peace Corps' decision on the basis of the bare record of

the agency's decision." Citing Florida Power & Light Co. v.
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Lorion, 470 U.S. 729 (1985), the district court accordingly
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remanded the case to the Peace Corps for additional

investigation and evaluation. Plaintiff appealed.

II

Defendant has moved to dismiss the appeal, arguing

that the district court's order was not a final judgment

under our holding in Mall Properties, Inc. v. Marsh, 841 F.2d
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440 (1st Cir.), cert. denied, 488 U.S. 848 (1988). We agree.
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The district court's disposition of this matter

does not meet the traditional definition of a final judgment

under 28 U.S.C. 1291: one which "ends the litigation on

the merits and leaves nothing for the court to do but execute

the judgment." Catlin v. United States, 324 U.S. 229 (1945).
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The litigation before the district court has not ended. "It

has simply gone to another forum and may well return again,"

Mall Properties, 841 F.2d at 441. See also American Hawaii
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Cruises v. Skinner, 893 F.2d 1400 (D.C. Cir. 1990) (district
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court's remand to agency for further proceedings coupled with

administrative dismissal of case did not end the litigation

on the merits within meaning of 28 U.S.C. 1291).

Plaintiff urges that this case is distinguishable

from Mall Properties because there the plaintiff had an
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opportunity to obtain all the relief desired on remand

whereas here dismissal of plaintiff's Rehabilitation Act

claims means that "remand cannot bring plaintiff any closer

to her goal of obtaining damages [and] attorney's fees."

(Pl's. Br. p.5). The district court's dismissal of

plaintiff's claim under the Rehabilitation Act effectively

dismissed plaintiff's demand for damages. Under the APA, the







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plaintiff's remedy necessarily would be limited to the

equitable relief demanded, 5 U.S.C. 702.1

This distinction, however, does not affect the

operation of the final judgment rule in this case. The

primary purpose of the rule, to protect effective review by

avoiding unnecessary and piecemeal determinations, would be

undermined by defining finality so narrowly. See 15A Charles
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A. Wright, Arthur R. Miller & Edward H. Cooper, Federal
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Practice and Procedure, 3907 (1992).
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First, the district court's dismissal of some

claims and remand of the other did not finally resolve the

controversy on the merits nor plaintiff's right to all of the

relief she demanded. In addition to damages, plaintiff's

complaint demands an injunction reinstating her, along with

relevant promotions, "to an appropriate position in the Peace

Corps or the United Nations Volunteers with seniority and

credit retroactive to March of 1985." This remedy remains

available to plaintiff under the APA claim if she prevails on



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1. As it is not necessary to reach the issue, we do not here
determine whether plaintiff is correct in her assertion that
she cannot obtain attorney's fees in her APA action, but
merely point out that "one can sometimes obtain attorneys'
fees in an ordinary APA action under the Equal Access to
Justice Act, 28 U.S.C. 2412(b), 2412 (d)(1)(A)," Cousins,
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880 F.2d at 606. Plaintiff's complaint requests attorney's
fees in this action under both the Rehabilitation Act and the
Equal Access to Justice Act. The district court's order did
not address the latter request directly, although the court
awarded plaintiff reasonable costs connected with the
action.)

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the merits. Thus, the district court's judgment remanding

the action was not a final appealable order under 28 U.S.C.

1291. Mall Properties, 841 F.2d 440. See also Giordano v.
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Roudebush, 565 F.2d 1015 (8th Cir. 1977) (district court
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order ruling that plaintiff was not entitled to a full-trial

type procedure but remanding to agency for further

consideration of plaintiff's arguments neither granted nor

denied the ultimate relief plaintiff wanted -- reinstatement

and back pay -- and was not a final appealable order);

Transportation-Communication Div.-Brotherhood of Ry. v. St.
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Louis-San Francisco Ry., 419 F.2d 933, 935 (8th Cir. 1969),
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cert. denied, 400 U.S. 818 (1970) (district court order which
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neither enforced nor denied enforcement of Board's award, but

rather decided some issues and remanded for further

proceedings, made no final determination of the merits of the

entire controversy and is not appealable).

While plaintiff urges here that reinstatement now,

seven years after her initial disqualification, would be a

hollow victory, she did not amend her pleadings below to

delete this claim but in fact vigorously pursued it through

the trial and beyond. Plaintiff testified before the

district court just a few months ago that if the court ruled

in her favor she would "like to get back in that pipeline and

apply for UNV...and also Peace Corps Volunteer and Peace

Corps Staff positions." (Transcript, pp 116-17). Even later,



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in her post-trial brief, plaintiff expanded her request for

relief, urging the district court to enjoin the Peace Corps

from disqualifying her, and any others similarly situated,

solely because "they are asymptomatic carriers of Hepatitis

B" and allowing her to "reapply" for service with the Peace

Corps.

To allow plaintiff, who has been represented by the

same counsel throughout this case, to recharacterize here the

relief she demands, solely for the purpose of seeking the

jurisdiction of this court, would run counter to the strong

policy discouraging fragmentary appeals. Cobbledick v.
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United States, 309 U.S. 323, 324-25 (1940). Cf. USM Corp. v.
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GKN Fasteners, Ltd., 578 F.2d 21 (1st Cir. 1978) (after court
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ruled that there was no jurisdiction to entertain an appeal

from an order staying proceedings on legal claims pending

arbitration of an equitable claim, later amendment to

pleadings dropping prayer for equitable relief solely for

purpose of seeking jurisdiction of this court could not be

permitted to validate jurisdiction of appellate court

retrospectively).2

Second, policy reasons also lead us to reject

plaintiff's argument that this appeal should be considered


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2. Since plaintiff has not unequivocally abandoned her
request for injunctive relief, we need not consider the
circumstances under which a good-faith relinquishment of a
claim for injunctive relief might make the dismissal of her
other claims final and immediately appealable.

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now under the exception to the finality requirement known as

the Cohen collateral order doctrine, Cohen v. Beneficial
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Industrial Loan Corp., 337 U.S. 541 (1949). We have held
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that in exceptional cases an order that does not entirely

terminate an action may be appealable if it reflects the

following: "(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 a final judgment; and (4) an

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);
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see also United States v. Alcon Labs., 636 F.2d 876, 884 (1st
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Cir.), cert. denied, 451 U.S. 1017 (1981); In re Continental
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Inv. Corp., 637 F.2d 1, 4 (1st Cir. 1980).
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"[B]oth the policy considerations underlying Cohen
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and the internal logic of its criteria suggest that the

possibility of irreparable harm resulting from a delay in

appellate review is the dispositive criterion of

interlocutory appealability." In re Continental Inv. Corp.,
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637 F.2d at 6. Where an opportunity for effective review

exists at the conclusion of the proceedings below, there is

no irreparable harm within the meaning of this exception. To

hold otherwise could obliterate the distinction between



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interlocutory and final orders. Id. See also Occidental
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Petroleum Corp. v. S.E.C., 873 F.2d 325 (D.C.Cir. 1989)
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(exception to the rule that remand order is not immediately

appealable is usually allowed only where agency to which case

is remanded would have no opportunity to appeal after the

proceedings on remand); Colon v. Secretary of Health & Human
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Servs., 877 F.2d 148 (1st Cir. 1989) (although remand orders
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normally are not immediately appealable, appeal would be

allowed either under Cohen exception or under All Writs Act
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where it is doubtful whether Secretary, required to implement

district court decision on remand, could later appeal from

agency decision).

Our deferral of the appeal until after the

remaining claims are finally adjudicated in the district

court will not foreclose effective review of the district

court's dismissal of plaintiff's Rehabilitation Act claims.

As the challenged order is not a final judgment within the

meaning of 28 U.S.C. 1291, plaintiff may file a timely

notice of appeal from the final district court judgment

entered after any review of the agency action taken on

remand.3


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3. Plaintiff expresses concern about safeguarding against an
untimely appeal from the dismissed claims once the agency has
completed the proceedings on remand and about the method for
bringing another appeal should the agency grant the requisite
reinstatement. Under Fed. R. App. P. 4(a)(1), the notice of
appeal to this court in a case in which the United States
agency is a party must be filed within 60 days of the entry

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Moreover, allowance of plaintiff's appeal might

invite the very inefficiency condemned by policies against

piecemeal appeals. The most plaintiff could hope to

accomplish in an appeal at this juncture would be

reinstatement of her Rehabilitation Act claims and remand to

the lower court for a determination on the merits. The

district court's remand of plaintiff's remaining

Administrative Procedure Act claim, however, sufficiently

assures that plaintiff will receive a review on the merits.

Under the APA, the district court's task is to review the

agency's action to see if it acted "in accordance with the

law," which law includes the Rehabilitation Act. 5 U.S.C.

706(2); Cousins v. Secretary of the U.S. Dep't of Transp.,
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880 F.2d at 608. As the district court's opinion below

shows, it was precisely so that it could make this

determination on the merits of plaintiff's claim that it

remanded the case to the agency for further proceedings. The

court instructed the agency to create an adequate record of

its reasons for disqualifying plaintiff in particular and

those with hepatitis B generally, and to consider, apparently





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of the order from which the appeal is taken. Even if
plaintiff were not to challenge the final agency action on
remand, plaintiff would be entitled to appeal the earlier
district court order dismissing her other claims, by filing a
timely notice of appeal, see Fed. R. App. P. 4(a)(1), as
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measuredfrom the entry of the final district court judgment.

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for the first time, what, if any, reasonable accommodation

could be made for plaintiff.

Thus allowance of plaintiff's appeal here would not

speed-up the case, for whether plaintiff's claim is styled a

Rehabilitation Act claim or a claim for APA review, its final

resolution must await further proceedings by the agency. An

appeal on one issue now would only add an extra step to the

litigation, consuming judicial resources without any apparent

advantage to the proceedings as a whole.

For these reasons, this appeal must be dismissed.
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