Taylor v. BOARD OF EDUCATION, ETC., 26901.

• Citation: 288 F.2d 600
• Decision Date: 13 April 1961
• Docket Number: No. 26901.,26901.
• Parties: Leslie TAYLOR and Kevin Taylor, minors, by Wilbert Taylor and Hallie Taylor, their parents and next friends, et al., Plaintiffs-Appellees, v. BOARD OF EDUCATION OF the CITY SCHOOL DISTRICT OF the CITY OF NEW ROCHELLE et al., Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

288 F.2d 600 (1961)

Leslie TAYLOR and Kevin Taylor, minors, by Wilbert Taylor and Hallie Taylor, their parents and next friends, et al., Plaintiffs-Appellees, v. BOARD OF EDUCATION OF the CITY SCHOOL DISTRICT OF the CITY OF NEW ROCHELLE et al., Defendants-Appellants.

No. 26901.

United States Court of Appeals Second Circuit.

Argued March 20, 1961.

Decided April 13, 1961.

Thurgood Marshall, New York City (Paul B. Zuber, Constance Baker Motley and Jack Greenberg, New York City, on the brief), for plaintiffs-appellees.

Murray C. Fuerst, New Rochelle, N. Y. (Julius Weiss, New York City, on the brief), for defendants-appellants.

Before MOORE, FRIENDLY and SMITH, Circuit Judges.

FRIENDLY, Circuit Judge.

In this action, eleven Negro children, proceeding through their parents, seek declaratory and injunctive relief against the Board of Education of New Rochelle, New York, and the Superintendent of Schools. On January 24, 1961, Judge Kaufman signed an opinion, 191 F.Supp. 181, stated to constitute the District Court's findings of fact and conclusions of law, which held that various acts of the defendants violated plaintiffs' constitutional rights as defined in Brown v. Board of Education, 1954, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, and later decisions of the Supreme Court. The opinion ended with two paragraphs, quoted in the margin,¹ in which the District Judge stated, among other things, that he deemed it "unnecessary at this time to determine the extent to which each of the items of the relief requested by plaintiffs will be afforded," 191 F.Supp. 198 but would defer such determination until the Board had presented, on or before April 14, 1961, "a plan for desegregation in accordance with this Opinion, said desegregation to begin no later than the start of the 1961-62 school year."

Pursuant to authorization by a 5-3 vote at a meeting of the Board of February 7, 1961, defendants appealed to this Court on February 20, 1961. On March 7, 1961, the District Judge denied an application by them to extend the date for filing a plan pending determination of the appeal, as well as a motion by plaintiffs for an order directing defendants immediately to assign plaintiffs to elementary schools other than the Lincoln School. Thereupon, defendants moved this Court for a stay of the direction to file a plan, pending the appeal. At the hearing on that motion, the Court questioned whether the appeal had not been prematurely taken and was not, therefore, beyond the appellate jurisdiction conferred upon the Court by Congress. Later we directed the filing of briefs on this issue and extended the Board's time to file the plan pending the Court's decision on the question of jurisdiction and in any event to May 3, 1961. Appellees now challenge our power to hear an appeal at this stage, but the question is one this Court was obliged to raise in any event, Mitchell v. Maurer, 1934, 293 U.S. 237, 244, 55 S.Ct. 162, 79 L.Ed. 338, and it is better that this be determined now rather than after further time has elapsed. Upon full consideration, we conclude that we have no power to entertain the Board's appeal until the District Court has finished its work by directing the Board to take or refrain from action.

Familiar decisions of the Supreme Court establish the controlling principles. "Finality as a condition of review is an historic characteristic of federal appellate procedure. It was written into the first Judiciary Act and has been departed from only when observance of it would practically defeat the right to any review at all." Cobbledick v. United States, 1940, 309 U.S. 323, 324-325, 60 S.Ct. 540, 541, 84 L.Ed. 783. "The foundation of this policy is not in merely technical conceptions of `finality.' It is one against piecemeal litigation. `The case is not to be sent up in fragments * * *' Luxton v. North River Bridge Co., 147 U.S. 337, 341 13 S.Ct. 356, 358, 37 L.Ed. 194. Reasons other than conservation of judicial energy sustain the limitation. One is elimination of delays caused by interlocutory appeals." Catlin v. United States, 1945, 324 U.S. 229, 233-234, 65 S.Ct. 631, 634, 89 L.Ed. 911.

A "final decision" within 28 U.S.C. § 1291, the basic statute authorizing appeals to the courts of appeals, and its predecessors going back to §§ 21 and 22 of the Act of Sept. 24, 1789, c. 20, 1 Stat. 73, 83-84, "is one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Catlin v. United States, supra, 324 U.S. at page 233, 65 S.Ct. at page 633. Plainly Judge Kaufman's decision of January 24, 1961 does not fit that description. It constituted only a determination that plaintiffs were entitled to relief, the nature and extent of which would be the subject of subsequent judicial consideration by him. What remained to be done was far more than those ministerial duties the pendency of which is not fatal to finality and consequent appealability, Ray v. Law, 1805, 3 Cranch 179, 180, 2 L.Ed. 404. An order adjudging liability but leaving the quantum of relief still to be determined has been a classic example of non-finality and non-appealability from the time of Chief Justice Marshall to our own, The Palmyra, 1825, 10 Wheat. 502, 6 L.Ed. 375; Barnard v. Gibson, 1849, 7 How. 650, 12 L.Ed. 857; Leonidakis v. International Telecoin Corp., 2 Cir., 1953, 208 F.2d 934; 6 Moore, Federal Practice (1953 ed.), p. 125 and fn. 5, although in all such cases, as here, this subjects the defendant to further proceedings in the court of first instance that will have been uncalled for if that court's determination of liability is ultimately found to be wrong. Recognizing that this may create hardship, Congress has removed two types of cases from the general rule that appeals may not be taken from decisions that establish liability without decreeing a remedy — namely, decrees "determining the rights and liabilities of the parties to admiralty cases in which appeals from final decrees are allowed," 28 U.S.C. § 1292(a) (3), added by the Act of April 3, 1926, c. 102, 44 Stat. 233, and "judgments in civil actions for patent infringement which are final except for accounting"; 28 U.S.C. § 1292(a) (4), added by the Act of Feb 28, 1927, c. 228, 44 Stat. 1261. Congress' specification of these exceptions, manifestly inapplicable here, underscores the general rule.

This salutary Federal rule requiring finality as a condition of appealability has become subject, over the years, to exceptions other than those just mentioned, some fashioned by the courts and others enacted by Congress. The instant appeal does not come within any.

Of the judicially created exceptions, the one referred to in Dickinson v. Petroleum Conversion Corporation, 1950, 338 U.S. 507, 70 S.Ct. 322, 94 L.Ed. 299, namely, that under some circumstances a decree may be final as to one party although the litigation proceeds as to others, is so manifestly inapplicable that we would not mention it if appellants had not. Similarly inapplicable is the rule in Forgay v. Conrad, 1848, 6 How. 201, 12 L.Ed. 404, that a judgment directing a defendant to make immediate delivery of property to a plaintiff is appealable despite a further provision for an accounting. The scope of this doctrine is narrow and rests upon "the potential factor of irreparable injury," 6 Moore, Federal Practice (1953 ed.), p. 129 — just how narrow is shown by decisions refusing to apply it to a decree that adjudged rights in property but made no disposition of the property pending a further hearing relating to its precise identification, Rexford v. Brunswick-Balke-Collender Co., 1913, 228 U.S. 339, 33 S.Ct. 515, 57 L.Ed. 864, or to a decree awarding possession to the United States under eminent domain but reserving the question of compensation, Catlin v. United States, supra, 324 U.S. at page 232, 65 S.Ct. at page 633, overruling our contrary decision in United States v. 243.22 Acres of Land, 2 Cir., 1942, 129 F.2d 678. See Republic Natural Gas Co. v. State of Oklahoma, 1948, 334 U.S. 62, 68 S.Ct. 972, 92 L.Ed. 1212. Here, while we understand defendants' dislike of presenting a plan of desegregation and attending hearings thereon that would be unnecessary if the finding of liability were ultimately to be annulled, and also the possibly unwarranted expectations this course may create, this is scarcely injury at all in the legal sense and surely not an irreparable one. Equally inapposite is the doctrine of Cohen v. Beneficial Industrial Loan Corp., 1949, 337 U.S. 541, 545-547, 69 S.Ct. 1221, 1225, 93 L. Ed. 1528, also advanced by appellants, permitting review of orders "which finally determine claims of right separable 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 consideration be deferred until the whole case is adjudicated." Here the issue sought to be reviewed, far from being collateral to the main litigation, represents the very findings and conclusions upon which any final judgment against the defendants must rest.

Turning to statutory exceptions, the only one that could be, and is, claimed to be applicable is 28 U.S.C. § 1292(a) (1). That gives us jurisdiction over "Interlocutory orders of the district courts * * * granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions, except where a direct review may be had in the Supreme Court." The term "injunction" includes not only an order prohibiting certain conduct during the pendency of litigation but also one that commands it. Societe Internationale, etc. v. McGrath, 1950, 86 U.S. App.D.C. 157, 180 F.2d 406.

Appellants contend Judge Kaufman's decision granted both a prohibitory and a mandatory injunction. They say the order "in effect" prohibited them from proceeding with their plans to reconstruct the Lincoln School and commanded them to submit a plan. If the former...