Bachowski v. Usery, No. 76-1802

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Writing for the CourtBefore ADAMS and WEIS; ADAMS
Citation545 F.2d 363
Parties93 L.R.R.M. (BNA) 2689, 79 Lab.Cas. P 11,729 Walter BACHOWSKI v. W. J. USERY, Secretary of Labor, United States Department of Labor, Appellant in, and United Steelworkers of America, Appellant in
Docket NumberNo. 76-1802,No. 76-1820,Nos. 76-1802 and 76-1820
Decision Date03 November 1976

Page 363

545 F.2d 363
93 L.R.R.M. (BNA) 2689, 79 Lab.Cas. P 11,729
Walter BACHOWSKI
v.
W. J. USERY, Secretary of Labor, United States Department of
Labor, Appellant in No. 76-1802,
and
United Steelworkers of America, Appellant in No. 76-1820.
Nos. 76-1802 and 76-1820.
United States Court of Appeals,
Third Circuit.
Argued Oct. 8, 1976.
Decided Nov. 3, 1976.

Page 364

Joseph L. Rauh, Jr., Rauh, Silard & Lichtman, Joseph A. Yablonski, Charles R. Both, Daniel B. Edelman, Yablonski, Both & Edelman, Washington, D.C., Kenneth J. Yablonski, Washington, Pa., for appellee Walter Bachowski.

Rex E. Lee, Asst. Atty. Gen., Blair A. Griffith, U.S. Atty., Robert E. Kopp, Michael H. Stein, Attys., Dept. of Justice, Washington, D.C., for appellant W. J. Usery.

Robert M. Weinberg, Michael H. Gottesman, George H. Cohen, Bredhoff, Cushman, Gottesman & Cohen, Washington, D.C., for appellant United Steelworkers of America; Bernard Kleiman, Chicago, Ill., James D. English, Pittsburgh, Pa., of counsel.

Before ADAMS and WEIS, Circuit Judges. *

OPINION OF THE COURT

ADAMS, Circuit Judge.

The present appeal, marking the second time this litigation comes before this Court, 1 is taken by the Secretary of Labor and the United Steelworkers of America from an order of the district court on remand from the judgment of the Supreme Court in Dunlop v. Bachowski. 2 The appellants contend that the district court transgressed the boundaries established by the Supreme Court for permissible review of a decision by the Secretary not to bring suit under 29 U.S.C. § 482(b) to overturn a union election. As a threshold matter, however, it is necessary to determine whether the order of the district court constitutes a final judgment, appealable under 28 U.S.C. § 1291.

I.

Walter Bachowski was one of three candidates for the office of Director of District 20 of the United Steelworkers of America in an election held on February 13, 1973. He was defeated by the incumbent, Kay Kluz, by a margin of 907 votes out of approximately 24,000 votes cast. 3 After exhausting his internal union remedies, Mr. Bachowski filed a complaint with the Secretary of Labor, alleging that there had been violations of Title IV of the Labor-Management Reporting and Disclosure Act which affected the outcome of the election. The Secretary declined to bring suit, and did not set forth the reasons for his decision.

Mr. Bachowski then initiated an action against the Secretary and the Steelworkers in the district court, seeking to compel the Secretary to file a complaint to upset the election. The district court dismissed the action for lack of subject matter jurisdiction,

Page 365

concluding that it was without authority to review the Secretary's determination.

In Bachowski v. Brennan, 4 a panel of this Court reversed the district court's order of dismissal, holding that the decision of the Secretary in refusing to file suit was subject to judicial review. The panel also held that the scope of review encompassed a challenge to the factual basis for the Secretary's conclusion, an inquiry that might necessitate a trial-type hearing. Finally, the Secretary was ordered to provide Mr. Bachowski with a detailed statement of reasons for not bringing suit.

The Supreme Court granted certiorari, 5 and in Dunlop v. Bachowski, 6 reversed the judgment of this Court. It agreed with the holding that the Secretary's determination not to bring suit under Title IV is judicially reviewable and that he must submit a statement of reasons to serve as a basis for judicial review. 7 However, the Court found the conclusions regarding the proper scope of this judicial review to be unacceptably broad. The Supreme Court noted that one of Congress' chief concerns in shaping the mechanisms of Title IV was " 'to settle as quickly as practicable the cloud on the incumbents' titles to office' ", 8 and that the procedures envisioned by this Court could serve only to prolong Title IV disputes. Thus, the Supreme Court held that review should ordinarily "be confined to examination of the reasons statement, and the determination whether the statement, without more, evinces that the Secretary's decision is so irrational as to constitute the decision arbitrary and capricious." 9

On remand, Mr. Bachowski filed a motion with the district court for further proceedings, alleging that he was entitled to a trial-type hearing under the limited circumstances established by the Supreme Court 10 and, in the alternative, that the Secretary's statement was arbitrary and capricious on its face.

In an opinion filed on December 19, 1975, 11 the district judge, the Honorable Edward Dumbauld, rejected Mr. Bachowski's request for a trial-type hearing. However, he ordered the Secretary to submit a supplemental statement of reasons, ruling that the initial statement did not adequately explain the basis for not bringing suit. In particular, Judge Dumbauld expressed dissatisfaction with certain aspects of the methodology employed by the Secretary to determine the possible effect of violations on the outcome of the election.

After receiving the supplemental statement, the district court ruled that the standard utilized by the Secretary in deciding whether to bring suit was "irrational," and remanded the cause to him for a "recount"

Page 366

to be conducted pursuant to guidelines established in the district court's opinion. 12 The district judge, however, did not direct the Secretary to file suit. Both the Secretary and the Steelworkers appealed from the second order that was entered by Judge Dumbauld.

On June 17, 1976, Mr. Bachowski filed a motion to dismiss the appeals for want of an appealable order. This motion was denied without prejudice on July 2, 1976. Mr. Bachowski's contention that this Court lacks statutory jurisdiction has been raised anew before this panel. We have concluded that the order of the district court is not a final order, appealable under Section 1291, and that the appeals, accordingly, must be dismissed.

II.

Section 1291 is the sole basis relied upon by the Secretary and the Steelworkers to establish our jurisdiction. The cases are clear in their command that only final decisions of the district court are appealable under this statute. 13 Courts have recognized that the precepts forming the bulwark of this historic doctrine are the realization that piecemeal appeals are costly and inefficient and do not serve the cause of a just and speedy resolution of controversies. 14 Yet, the cases also admonish us to give section 1291 a "practical rather than a technical construction." 15

Mr. Bachowski maintains that the district court's order is not final because it does not bring about a final resolution of all the claims and defenses in this matter. He notes that the ultimate relief requested in his complaint was a decree ordering the secretary to file suit. Judge Dumbauld did not address himself to the demand that the Secretary file suit; instead, he merely remanded the cause to the Secretary for further proceedings.

If we were to affirm the district court and remand to the Secretary for the mandated recount, Mr. Bachowski argues, the Secretary might continue in his refusal to bring suit. He claims that such a course would necessitate a further round of proceedings in the district court, this Court, and perhaps the Supreme Court, dealing with the difficult constitutional issue whether a court may order the Secretary to bring suit. The consequence of such a splitting of appeals, Mr. Bachowski insists, would result in a significant delay in the final resolution of the litigation, the paradigmatic evil that the final order doctrine seeks to avoid.

The Secretary and the Steelworkers have countered with two lines of argument. They claim that the district court's judgment is final because it conclusively resolves what they characterize as the ultimate issue in this lawsuit namely, whether the statement of reasons provided by the Secretary is arbitrary and capricious.

Page 367

Alternatively, they contend that the judgment below is final in its effect on the Secretary. If the Secretary cannot appeal the judgment of Judge Dumbauld at this point, they maintain that the Secretary may never be able to do so, since the question of the propriety of Judge Dumbauld's decision would be overtaken by events. For example, if the Secretary would decide to bring suit after undertaking the mandated recount, the issue whether Judge Dumbauld deviated from the teachings of Dunlop would clearly be moot. Thus, the Secretary and the Steelworkers advocate that we entertain the present appeal lest the Secretary be burdened with an allegedly incorrect and disruptive precedent in this rapidly-evolving area of law.

In support of their position, the Secretary and the Steelworkers have directed our attention to a number of opinions that have found appealable orders by district courts that remanded cases to administrative agencies for further consideration. Chief among these authorities is Cohen v. Perales. 16 In Perales, the district court had ruled that physicians' affidavits did not constitute the substantial evidence required to support a denial of social security disability benefits, and remanded the action for a new hearing. The Fifth Circuit held such an order appealable, invoking the Supreme Court's statement in Cohen v. Beneficial Industrial Loan Co. 17 that the concept of finality must be interpreted in a practical manner. "Unless the Secretary is allowed to appeal from this order," the Fifth Circuit reasoned, "he will never be able to reach the questions involved, because on the next appeal, if there is one, the sole question may be the substantiality of the evidence, and not its admissibility." 18

III.

The requirement that only final judgments are reviewable in the federal courts dates back to the beginnings of the federal judicial system. The Judiciary Act of 1789 provided for review only of final judgments and decrees,...

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  • In re Adoption of Y.E.F., No. 2019-0420
    • United States
    • United States State Supreme Court of Ohio
    • December 22, 2020
    ...temptation.' " Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 440, 105 S.Ct. 2757, 86 L.Ed.2d 340 (1985), quoting Bachowski v. Usery, 545 F.2d 363, 373 (3d Cir.1976). Moreover, ignoring the jurisdictional requirements in those cases " 'where the merits of the dispute may attract the deep......
  • Horizons Intern., Inc. v. Baldrige, No. 86-
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • January 28, 1987
    ...Thus finality holdings in one such context may shed very little light on another. The plaintiffs rely heavily on Bachowski v. Usery, 545 F.2d 363 (3d Cir.1976). In that case an unsuccessful candidate for election to office in a labor organization filed a complaint with the Secretary of Labo......
  • Carr v. American Red Cross, Nos. 93-1392
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • March 4, 1994
    ...1291 may be appropriate). 8 See also Horizons International, Inc. v. Baldrige, 811 F.2d 154, 159-60 (3d Cir.1987); Bachowski v. Usery, 545 F.2d 363, 372-73 & n. 62 (3d Cir.1976); Daviess County Hospital v. Bowen, 811 F.2d 338, 342 (7th Cir.1987). The finality rule "reflects federal policy a......
  • Marshall v. Lansing, No. 86-5737
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • April 13, 1988
    ...v. Union R.R. Co., 648 F.2d 905, 909 (3d Cir.1981); Marshall v. Celebrezze, 351 F.2d 467 (3d Cir.1965); see also Bachowski v. Usery, 545 F.2d 363 (3d Cir.1976). Plainly, a right to appeal cannot be waived if no appeal could have been taken in the first The Commission's challenge to the seco......
  • Request a trial to view additional results
140 cases
  • In re Adoption of Y.E.F., No. 2019-0420
    • United States
    • United States State Supreme Court of Ohio
    • December 22, 2020
    ...temptation.' " Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 440, 105 S.Ct. 2757, 86 L.Ed.2d 340 (1985), quoting Bachowski v. Usery, 545 F.2d 363, 373 (3d Cir.1976). Moreover, ignoring the jurisdictional requirements in those cases " 'where the merits of the dispute may attract the deep......
  • Horizons Intern., Inc. v. Baldrige, No. 86-
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • January 28, 1987
    ...Thus finality holdings in one such context may shed very little light on another. The plaintiffs rely heavily on Bachowski v. Usery, 545 F.2d 363 (3d Cir.1976). In that case an unsuccessful candidate for election to office in a labor organization filed a complaint with the Secretary of Labo......
  • Carr v. American Red Cross, Nos. 93-1392
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • March 4, 1994
    ...1291 may be appropriate). 8 See also Horizons International, Inc. v. Baldrige, 811 F.2d 154, 159-60 (3d Cir.1987); Bachowski v. Usery, 545 F.2d 363, 372-73 & n. 62 (3d Cir.1976); Daviess County Hospital v. Bowen, 811 F.2d 338, 342 (7th Cir.1987). The finality rule "reflects federal policy a......
  • Marshall v. Lansing, No. 86-5737
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • April 13, 1988
    ...v. Union R.R. Co., 648 F.2d 905, 909 (3d Cir.1981); Marshall v. Celebrezze, 351 F.2d 467 (3d Cir.1965); see also Bachowski v. Usery, 545 F.2d 363 (3d Cir.1976). Plainly, a right to appeal cannot be waived if no appeal could have been taken in the first The Commission's challenge to the seco......
  • Request a trial to view additional results

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