Gray Line Motor Tours, Inc. v. City of New Orleans

• Decision Date: 05 August 1974
• Docket Number: No. 73-3791.,73-3791.
• Citation: 498 F.2d 293
• Parties: GRAY LINE MOTOR TOURS, INC., and Toye Bros. Airport Service, Inc., Plaintiffs-Appellants, v. CITY OF NEW ORLEANS et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

498 F.2d 293 (1974)

GRAY LINE MOTOR TOURS, INC., and Toye Bros. Airport Service, Inc., Plaintiffs-Appellants, v. CITY OF NEW ORLEANS et al., Defendants-Appellees.

No. 73-3791.

United States Court of Appeals, Fifth Circuit.

August 5, 1974.

Ralph L. Kaskell, Jr., Eberhard P. Deutsch, Charles F. Seemann, Jr., Frederick B. Alexius, New Orleans, La., for plaintiffs-appellants.

Maury A. Herman, Russ M. Herman, New Orleans, La., Blake Arata, City Atty., New Orleans, La., for City of New Orleans.

Benjamin J. Trombatore, H. A. Vondenstein, Kenner, La., for City of Kenner and Officials.

Herbert W. Christenberry, Jr., New Orleans, La., for defendants-appellees.

Before GOLDBERG, SIMPSON and MORGAN, Circuit Judges.

LEWIS R. MORGAN, Circuit Judge.

Plaintiff-appellant, Toye Brothers, for over 30 years was the exclusive local ground carrier of air passengers at the New Orleans International Airport by virtue of a franchise agreement requiring payment of 10% of the gross revenues, with a minimum guarantee. There was no competitive bidding involved in Toye Brothers obtaining this original franchise. In 1972, when Toye Brothers' franchise contract expired, the New Orleans Aviation Board announced that in the future the ground carrier franchise would be awarded on the basis of competitive bidding. Following such bidding, the transportation franchise was awarded to the New Orleans Transportation Service, Inc., who now has the benefit of preferential parking and access at the airport, in addition to being exempt from a 15% gross receipts use charge imposed on non-franchised carriers. Toye Brothers, although a non-franchised carrier, had refused to pay the 15% charge up to the date of the district court proceedings.

On July 5, 1973, Toye Brothers filed suit in the United States District Court for the Eastern District of Louisiana against the Airport Aviation Board, and others, alleging: (1) that various burdens imposed on Toye Brothers by the Airport Authority, such as restricted parking area and restricted access to the terminal, constitutes interference with interstate commerce, and (2) that the 15% charge on Toye Brothers' gross receipts was illegally passed under state law and that it violates both the Airport Development Acceleration Act of 1973 and the United States Constitution, Article I, § 8.

After extensive preliminary proceedings, the defendants, New Orleans Aviation Board, and others, moved for a judgment on the pleadings in favor of the defendants under 12(c) of the Federal Rules of Civil Procedure. A hearing was held on September 20, 1973. The district court ruled that the portion of defendants' motion to dismiss relating to Toye Brothers' allegations of burdens on interstate commerce and harassment be granted and that considerations for that court of the legality of the 15% gross revenue charge be stayed until the state courts have had an opportunity to determine its legality under state law.

Toye Brothers then appealed that order to the Fifth Circuit, alleging: (1) that the partial dismissal in the lower court was error, and (2) that the stay order was improper.

Before either of these contentions of error can be met, however, this court is faced with the question of whether the district court's order of September 21, 1973, is such an order as is appealable to this court at this time.

I

Section 1291 of Title 28 of the United States Code provides:

The Courts of Appeals shall have jurisdiction of appeals from all final decisions of the district courts of the United States . . . except where a direct review may be had in the Supreme Court.

This final judgment rule is the dominant rule in federal appellate practice. Di Bella v. United States, 369 U.S. 121, 82 S.Ct. 654, 7 L.Ed.2d 614 (1962). Generally, an order granting a partial summary judgment is not final and therefore not appealable unless it contains a Rule 54(b) certification.¹ Coulter v. Sears, Roebuck & Co. (5th Cir. 1969), 411 F.2d 1189; Campbell v. Westmoreland Farm, Inc. (2nd Cir. 1968), 403 F.2d 939; Moore's Federal Practice, Vol .9, § 110.08 1, pp. 112-113. The finality rule is not, however, without exception. Title 28 U.S.C. § 1292(a)(1) describes interlocutory orders that are appealable as of right. It states: "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 by the Supreme Court; . . ." are appealable as of right.

Was this partial summary judgment tantamount to the denial of an injunction? We find that it was not, and therefore it did not fall under any of the exceptions of the finality rule. This court then has no jurisdiction to consider the question raised as to the first issue presented by the plaintiffs.

The plaintiffs had alleged that because various burdens were placed on them, interference with interstate commerce occurred. The lower court's order held that although many of the plaintiffs' passengers were in interstate commerce, plaintiffs' allegation raised issues purely local in nature which should be properly left to the Aviation Board and the Louisiana state courts for resolution.

The scope of review under 1292(a)(1) exercisable by Courts of Appeals is very limited. As was stated in United States Steel Corporation v. Fraternal Association of Steel Haulers (3rd Cir. 1970), 431 F.2d 1046, at 1048:

This limited review is necessitated because the grant or denial of a preliminary injunction is almost always based on an abbreviated set of facts, requiring a delicate balancing of the probabilities of ultimate success at final hearing with the consequences of immediate irreparable injury which could possibly flow from the denial of preliminary relief. Weighing these considerations is the responsibility of the district judge; only a clear abuse of his discretion will justify appellate reversal.

The test, then, is whether or not the action of the district court was clearly erroneous. We find this not to be a denial of an injunction, but rather the lower court properly controlling what issues it would have before it in trying a specific cause. No jurisdiction exists for this court to consider the partial dismissal. Di Bella, supra.

II

The next question before this court is whether the stay order concerning pending state litigation involving the validity of the 15% gross receipts charge amounts to an injunction and is therefore appealable.

Whether a district court has rendered a decision relating to an injunction for purposes of an interlocutory appeal under the statute is not always easy to determine. However, a district court may not avoid immediate review of its determination simply by failing to characterize or label its decision as one denying or granting injunctive relief. If, for example, an action has the effect of denying the requested relief without actually making a formal ruling, then the refusal of the district court to issue a specific order will be treated as equivalent to the denial of a preliminary injunction and will be appealable. McCoy v. Louisiana State Board of Education (5th Cir. 1964), 332 F.2d 915; United States v. Lynd (5th Cir. 1952), 301 F.2d 818, cert. den., 371 U.S. 893, 83 S.Ct. 187, 9 L.Ed.2d 125.

The fact that injunctive relief is being sought is not sufficient in and of itself to bring a court order issued during the course of an action within the scope of the interlocutory appeals statute. For example, the denial of a summary judgment motion in an action seeking injunctive relief is not appealable as is an order denying an injunction because the only determination that has been made is that there are genuine issues of material fact to be decided at trial. Goldstein v. Cox, 396 U.S. 471, 90 S.Ct. 671, 24 L.Ed.2d 663 (1970); Switzerland Cheese Association, Inc. v. E. Horne's Market, Inc., 385 U.S. 23, 87 S.Ct. 193, 17 L.Ed.2d 23 (1966); Madry v. Sorel (5th Cir. 1971), 440 F.2d 1329. But, however, it has been held that where a district court grants a defendant's motion for partial summary judgment which in effect constitutes a final denial of the injunctive relief requested by the plaintiff, then such an order is appealable. Abercrombie & Fitch Co. v. Hunting World, Inc. (2nd Cir. 1972), 461 F.2d 1040.

Whether the order of the district court comes under 1292(a)(1) is, however, not so clear. Considering first the district court's stay order, with few exceptions, the federal courts have rejected the contention that an order staying an action is appealable under 1292(a)(1).

One exception is for an action in which the plaintiff seeks injunctive relief, including a preliminary injunction, and a stay is granted pending other litigation. It would appear that this circuit has held that in such a situation the stay acts as a denial of an injunction and is appealable under 1292(a)(1). The cases which establish this exception are, however, limited in scope and procedural posture. Furthermore, an inclusion by this court of the present case under this exception, which would broaden the exception even further and do violence to the policy against piecemeal review, should be avoided. See, Wright, The Interlocutory Appeals Act of 1958, 23 F.R.D. 199 (1959).

The Fifth Circuit cases cited to substantiate this exception are Jackson Brewing Company v. Clarke, 303 F.2d 844 (5th Cir. 1962), cert. den., 371 U.S. 891, 83 S.Ct. 190, 9 L.Ed.2d 124 (1962), reh. den., 371 U.S. 936, 83 S.Ct. 305, 9 L.Ed.2d 272 (1962); Wirtz v. Mississippi Publishers Corporation, 364 F.2d 603 (5th Cir. 1966), and Glen Oaks Utilities, Inc. v. Houston, 280 F.2d 330 (5th Cir. 1960). In Jackson, Judge Tuttle stated:

Though the appellant is perhaps correct in asserting, in its brief, that "it is literally impossible to reconcile everything that has been written on this subject by the various Circuits," we think the rule which has emerged from the various decisions can be stated thus: An

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