496 F.2d 1094 (2nd Cir. 1974), 375, Kohn v. Royall, Koegel and Wells

Docket Nº:375, 73-2049.
Citation:496 F.2d 1094
Party Name:Margaret KOHN, Individually and on behalf of all persons similarly situated, Plaintiff-Appellee, v. ROYALL, KOEGEL & WELLS, Defendant-Appellant.
Case Date:May 03, 1974
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 1094

496 F.2d 1094 (2nd Cir. 1974)

Margaret KOHN, Individually and on behalf of all persons similarly situated, Plaintiff-Appellee,


ROYALL, KOEGEL & WELLS, Defendant-Appellant.

No. 375, 73-2049.

United States Court of Appeals, Second Circuit.

May 3, 1974

Argued April 15, 1974.

Norman Ostrow, New York City, (Rogers & Wells, New York City, on the brief; Caesar L. Pitassy, Paul M. Hopkins, William Haney, III, New York City, of counsel), defendant-appellant pro se.

Harriet Rabb, New York City, (George Cooper, New York City, on the brief), for plaintiff-appellee.

Before KAUFMAN, Chief Judge, CLARK, [*] Associate Justice, and SMITH, Circuit Judge.


Whether an order granting or denying class action status is an appealable 'final' order, 28 U.S.C. § 1291, is a question that has received an inordinate amount of scrutiny by circuit courts, 1

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and may, we hope, soon be resolved with some measure of certainty by the Supreme Court. 2 Although such orders are interlocutory in nature, we have sustained the appealability of those denying confirmation of the class where that denial, because of the relatively small amount of the individual claim, would for all practical purposes be the 'death knell of the action.' Eisen I, supra, 370 F.2d at 121. And compare Korn v. Franchard, supra (order appealable where individual claim for $386) with Shayne v. Madison Square Garden Corp., supra (appeal dismissed where individual claim for $7,482). Aside from Eisen III, supra, with its rather exceptional circumstances, 3 no circuit court, however, had permitted an appeal from an order granting class standing until we did so, only one month ago, in Herbst v. International Telephone and Telegraph Corp., supra. Bolstered by that recent decision, appellant Royall, Koegel & Wells 4 (Royall, Koegel) seeks review of Judge Lasker's order granting class action status to Margaret Kohn's Title VII 5 claim of sex discrimination in that law firm's hiring and internal employment practices. Without questioning the validity of Herbst, 6 we find it clear beyond cavil that neither our so-called 'death knell' doctrine nor the more general rubric of the Cohen collateral order doctrine apply, in the factual context of this case, to transform this interlocutory order granting class standing into an appealable 'final' order. Accordingly, and without, of course, expressing any views on the merits of the litigation, we conclude that this appeal must be dismissed.


The complaint and the affidavits submitted to Judge Lasker in connection with the motions before him provide the sparse factual record for this appeal. Margaret Kohn is a graduate of the Columbia Law School class of 1972. On November 17, 1970, during the Fall semester of her second year in law school, Kohn was among approximately 40 Columbia law students interviewed for legal positions by two members of the firm of Royall, Koegel & Wells. During the week following these preliminary interviews, Royall, Koegel invited five Columbia

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law students to visit its offices to continue the interviewing process. Kohn received no such invitation, nor was she offered employment by Royall, Koegel.

On May 27, 1971, Kohn filed a complaint with the New York City Commission on Human Rights alleging that Royall, Koegel's failure to hire her resulted from sex discrimination. Some six months later, on November 19, 1971, Kohn filed a similar complaint with the Equal Employment Opportunity Commission (EEOC). Finally, on June 26, 1972, Kohn received a permission to sue letter from the EEOC and, on the same day, filed this action on behalf of herself and all those similarly situated. In her complaint, she claimed the Royall, Koegel had refused her employment because of her sex, as part of an ongoing pattern and practice of sex discrimination in violation of Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e et seq. She sought mandatory injunctive relief to correct past discriminatory practices in both recruitment and internal employment procedures, as well as damages for herself caused by the refusal to hire her.

In response to the complaint, Royall, Koegel moved to dismiss on the ground that Kohn had not filed a timely complaint with the EEOC, as required by statute. 7 Two days later, on September 28, 1972, Kohn moved pursuant to Rule 11A of the Local Rules of the Southern District of New York for a determination whether the suit could proceed as a class action.

Judge Lasker denied the motion to dismiss and granted Kohn's motion for class action status. Kohn v. Royall, Koegel & Wells, supra. He found that although Kohn had not filed her EEOC complaint within the 210-day statutory period commencing December 15, 1970, the date her failure to gain employment with Royall, Koegel became a virtual certainty, 8 the refusal to hire attacked by Kohn represented an allegedly 'continuing violation' of Title VII. Thus, the district court concluded, 'the discriminatory pattern of which plaintiff complains (was) by definition 'fresh," Kohn v. Royall, Koegel & Wells, supra, 59 F.R.D. at 518, and, accordingly, the policy behind a statute of limitations-- to bar stale claims-- did not apply.

Turning to Kohn's motion for a class action determination, Judge Lasker concluded that Kohn's class action allegations satisfied the four-part test of Fed.R.Civ.P. 23(a). He also determined that Kohn's claim for injunctive relief fell within Fed.R.Civ.P. 23(b)(2) because Royall, Koegel had allegedly 'acted . . . on grounds generally applicable to the class (defined in the complaint as 'all women qualified for legal positions at Royall, Koegel & Wells who have been or would be denied employment because of their sex'), thereby making appropriate final injunctive relief . . . with respect to the class as a whole.' Fed.R.Civ.P. 23(b)(2).

Royall, Koegel promptly moved to amend Judge Lasker's order to permit certification as an interlocutory appeal, pursuant to 28 U.S.C. § 1292(b), of the denial of Royall, Koegel's motion to dismiss for untimely filing of the EEOC complaint. 9 In addition, Royall, Koegel

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moved for reargument of the motion to grant class action status, questioning for the first time whether Kohn, an unsuccessful employment applicant, had standing to allege discrimination in the firm's internal employment practices-- e.g. work allocation and promotion-- which arguably affects current employees only. Judge Lasker denied both motions, Kohn v. Royall, Koegel & Wells, supra, 59 F.R.D. at 523-525-- a response apparently expected by Royall, Koegel for it had already commenced processing its appeal from the district court's class action determination. 10


Since we find the threshold question of appealability to be dispositive, we turn immediately to an elucidation of the reasons for our holding. It is undisputed that an order granting or denying class standing is not a 'final' order as that term has generally been construed. Nevertheless, in Eisen I, supra, we denied a motion to dismiss an appeal from an order denying class standing to a plaintiff whose individual claim amounted to only $70. The rationale for our decision rested on the deceptively simple premise that the effect of the order denying class standing would be to terminate that lawsuit. We could not conceive of a lawyer pressing a suit where victory would mean the paltry recovery of $70. Thus, we concluded in Eisen I that the 'interlocutory' order at issue was tantamount to an order of...

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