Brace v. O'Neill, No. 76-2207

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Writing for the CourtBefore ALDISERT, ROSENN and GARTH; GARTH; ROSENN
Citation567 F.2d 237
Decision Date10 November 1977
Docket NumberNo. 76-2207
Parties16 Fair Empl.Prac.Cas. 99, 15 Empl. Prac. Dec. P 7932 Penelope BRACE on behalf of herself and on behalf of all others similarly situated, Appellant, v. Joseph O'NEILL, Hillel S. Levinson, Foster B. Roser, Frank Rizzo, and City of Philadelphia, Appellees.

Page 237

567 F.2d 237
16 Fair Empl.Prac.Cas. 99, 15 Empl. Prac.
Dec. P 7932
Penelope BRACE on behalf of herself and on behalf of all
others similarly situated, Appellant,
v.
Joseph O'NEILL, Hillel S. Levinson, Foster B. Roser, Frank
Rizzo, and City of Philadelphia, Appellees.
No. 76-2207.
United States Court of Appeals,
Third Circuit.
Argued Sept. 8, 1977.
Decided Nov. 10, 1977.

Page 238

Kathleen Willert Peratis, Susan Deller Ross, Jill Laurie Goodman, American Civil Liberties Union Foundation, New York City, Helen T. M. McCaffrey, Philadelphia, Pa., for appellant.

Sheldon L. Albert, City Sol., Stephen Arinson, Chief Deputy City Sol., Mark Jurikson, Asst. City Sol., Philadelphia, Pa., for appellees.

J. Stanley Pottinger, Asst. Atty. Gen., David W. Marston, U. S. Atty., William B. Fenton, Richard S. Ugelow, Sarah T. Cameron, Attys., Dept. of Justice, Washington, D. C., for the United States as amicus curiae.

Susan Cary Nicholas, Alice M. Price, Women's Law Project, Philadelphia, Pa., on the brief; Sandra Swenson, Geraldine F. Prusko, Philadelphia, Pa., for the amicus curiae Philadelphia Chapter of the National Organization for Women, et al.

Before ALDISERT, ROSENN and GARTH, Circuit Judges.

OPINION OF THE COURT

GARTH, Circuit Judge.

Penelope Brace, a member of the Philadelphia Police Department, instituted this action on behalf of herself and other female police officers, alleging sex discrimination in the employment practices of the Department. 1 She contended that one facet of the allegedly discriminatory practices was illegal retaliation taken against her by the Department because she opposed the defendants' practices. The district court dismissed her retaliation count with prejudice, and, without having certified a class, dismissed all other charges without prejudice. The district court's Order dated June 4, 1976, which dismissed Brace's claims, reads as follows:

The disposition of

(1) All claims raised by Plaintiff, Penelope Brace in Counts I, II and IV of her complaint alleging discriminatory employment practices based on sex are dismissed without prejudice pending final decision in the related case of United States v. City of Philadelphia, et al., C.A. No. 74-400.

(2) On all remaining Counts, the Court finds in favor of the defendants. Judgment is to be entered in favor of the defendants against the plaintiff.

Because we hold that the June 4 Order is not a final order vesting this Court with

Page 239

appellate jurisdiction, we are obliged to dismiss Brace's appeal. 2

I.

Courts of appeals normally review only final orders of the district courts. 3 28 U.S.C. § 1291; 4 Borelli v. City of Reading, 532 F.2d 950, 951 (3d Cir. 1976); In re Grand Jury Proceedings (U.S. Steel Clairton Works), 525 F.2d 151, 154-55 (3d Cir. 1975); see In re Good Deal Supermarkets, Inc., 528 F.2d 710, 712 (3d Cir. 1975). The policy underlying this rule is the prevention of "the debilitating effect on judicial administration caused by piecemeal appellate disposition of what is, in practical consequence, but a single controversy." Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 170, 94 S.Ct. 2140, 2149, 40 L.Ed.2d 732 (1974); accord, In re Grand Jury Proceedings (U.S. Steel Clairton Works), supra, 525 F.2d at 155. Thus Section 1291

disallow(s) appeal from any decision which is tentative, informal or incomplete. Appeal gives the upper court a power of review, not one of intervention. So long as the matter remains open, unfinished or inconclusive, there may be no intrusion by appeal. . . .

Nor does the statute permit appeals, even from fully consummated decisions, where they are but steps towards final judgment in which they will merge. The purpose is to combine in one review all stages of the proceeding that effectively may be reviewed and corrected if and when final judgment results. . . .

Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949); accord, Gavlik Construction Co. v. H. F. Campbell Co., 526 F.2d 777, 782-83 (3d Cir. 1975). 5 In short, a final district court order is normally a jurisdictional prerequisite to appellate review. RePass v. Vreeland, 357 F.2d 801, 804-05 (3d Cir. 1966), and cases cited therein. With these principles in mind, we turn to the facts at bar.

Page 240

II.

On February 12, 1974, Brace filed her complaint (No. 74-339) in this action. 6 She charged four counts of sex discrimination. Counts I, II, and IV alleged broad charges of discriminatory practices by the defendants. 7 Count III alleged specific harassment and retaliation in response to Brace's opposition to the defendants' practices. Shortly thereafter, the United States Department of Justice filed a pattern and practice action (No. 74-400) against the City of Philadelphia et al. under Section 707 of Title VII. United States v. City of Philadelphia (E.D.Pa., filed Feb. 19, 1974). The United States also alleged sex discrimination in the employment practices of the Philadelphia Police Department. The district court consolidated the actions brought by Brace and by the United States "for purposes of trial and adjudication." 8 Brace neither consented nor objected to the consolidation. 9

Trial in the consolidated actions commenced on February 10, 1976. The defendants asserted that the employment of men rather than women was required as a bona fide occupational qualification for certain positions in the Philadelphia Police Department. 10 Just prior to the presentation of rebuttal evidence by Brace and the United States, the district court judge aborted the trial. Finding that "a study will of assistance to the Court in resolving this matter," 11 he ordered interim relief which required the hiring and promotion of a number of qualified women by the Philadelphia Police Department. 12 He also ordered that the City of Philadelphia (City) report to the court, within twenty-four months of the date of entry of the order, the results of a study of the performance of these officers. 13 "Upon submission of the results of the study," the Order continued, "the parties may submit any additional evidence they have and the Court shall order any further relief that may be appropriate." 14 After severing Brace's retaliation claim (Count III) from other issues in the case, 15 the Court ordered that it

retai(n) jurisdiction in this matter for all purposes. The issues not addressed by this Order, including the issues of back pay, interest and other emoluments of office, if any, are deferred until twenty-four months from the date of this Order or until the results of the aforementioned study are presented to the Court, whichever is shorter. 16

While it is true that Brace is not a signatory to the March 5 Order, 16a the record reveals

Page 241

that at no time did Brace ever object to its entry.

On June 4, 1976, the district court judge filed a Memorandum Opinion and Order in the Brace case only. 17 That Opinion confirmed the March 5 Order as to the United States, and went on to state:

We had previously decided that the relief sought by the Government and Penelope Brace, based upon charges of discriminatory employment practices, was substantially identical. (Opinion filed January 27, 1975). We believe that our Order entered in U. S. v. City of Philadelphia, C.A. 74-400 (filed March 5, 1976) controls our disposition of the claim under consideration. We shall, therefore, delay our decision pending recipt (sic ) of all data in the Government's action. 18

After concluding that Brace's retaliation claim for damages (Count III) was without merit and accordingly entering judgment for defendants on this Count, the court repeated:

To summarize, we find that the issues raised by plaintiff founded upon alleged discriminatory employment practices (Counts I, II, and IV) are substantially identical to the ones that prevail in United States v. City of Philadelphia, C.A. No. 74-400. For the reasons noted heretofore, we believe that our decision on this issue should be held in abeyance pending our disposition of United States v. City of Philadelphia. 19

Rather than stay decision on these counts, however, the district court judge cryptically ordered that:

(T)he disposition of

(1) All claims raised by Plaintiff, Penelope Brace in Counts I, II and IV of her complaint alleging discriminatory employment practices based on sex are dismissed without prejudice pending final decision in the related case of United States v. City of Philadelphia, et al., C.A. No. 74-400. 20

To compound the confusion, on June 9, 1977, a "Civil Judgment" was entered, which glossed the seemingly "final" June 4 Order. 21 It stated:

AND NOW, this 9th day of June 1976, in accordance with the Memorandum Opinion and Order filed June 4, 1976,

IT IS ORDERED that Judgment be and the same is hereby entered in favor of the defendants against the plaintiff.

No events transpired between June 4th and June 9th which made the June 9 Judgment any more complete or final an adjudication than the June 4 Order. 21a

III.

Recitation of these facts reveals an inconsistency in the district court's disposition of Brace's claims. On the one hand, the language in the court's order dismissed without prejudice Counts I, II, and IV. A dismissal is final and hence appealable where, as here, plaintiff cannot amend or stands on her complaint. Borelli v. City of Reading, supra, 533 F.2d at 951-52. 22 On the

Page 242

other hand, the district court specifically stated in its opinion supporting the order that its disposition of Counts I, II, and IV was "held in abeyance" pending disposition of United States v. City of Philadelphia ; 23 that this latter case controlled its disposition of the Brace claims; and that it would "delay . . . decision pending recipt (sic ) of all data in the Government's action." 24 These directions were consistent with the district court's earlier determination that it would "retai(n) jurisdiction in this matter for all purposes (other than Brace's...

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11 practice notes
  • Marcus v. Township of Abington, No. 94-1139
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • October 27, 1994
    ...jurisdiction where it would not otherwise exist. Hoots v. Pennsylvania, 587 F.2d 1340, 1347 (3d Cir.1978) (quoting Brace v. O'Neill, 567 F.2d 237, 243 n. 27a (3d Cir.1977)). For that reason, we have consistently held in circumstances similar to this that a stay order having only the effect ......
  • Cervase v. Office of Federal Register, No. 77-1392
    • United States
    • U.S. Court of Appeals — Third Circuit
    • January 5, 1978
    ...has frequently held that the first question that must be determined by a federal court is that of jurisdiction. E. g., Brace v. O'Neill, 567 F.2d 237, 239 n.2 (3d Cir. 1977); See In re Grand Jury Proceedings (U. S. Steel-Clairton Works), 525 F.2d 151, 154 (3d Cir. 1975). Once having found t......
  • Hoots v. Com. of Pa., No. 78-1224
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • October 27, 1978
    ...rule, 39 "the mere prospect of delay" may not create appellate jurisdiction where a final order has not been entered. Brace v. O'Neill, 567 F.2d 237, 243 n.27a (3d Cir. 1977). To place such a gloss on the final judgment rule in order to bring within its ambit cases in which the district cou......
  • Hovsons, Inc. v. Secretary of Interior of U.S., No. 81-2580
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • July 13, 1983
    ...was authority in this circuit to the effect that such orders are not final and appealable under 28 U.S.C. § 1291. See Brace v. O'Neill, 567 F.2d 237 (3d Cir.1977); Cotler v. Inter-County Orthopaedic Ass'n, P.A., 526 F.2d 537 (3d Cir.1975); Arny v. Philadelphia Transport Company, 266 F.2d 86......
  • Request a trial to view additional results
11 cases
  • Marcus v. Township of Abington, No. 94-1139
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • October 27, 1994
    ...jurisdiction where it would not otherwise exist. Hoots v. Pennsylvania, 587 F.2d 1340, 1347 (3d Cir.1978) (quoting Brace v. O'Neill, 567 F.2d 237, 243 n. 27a (3d Cir.1977)). For that reason, we have consistently held in circumstances similar to this that a stay order having only the effect ......
  • Cervase v. Office of Federal Register, No. 77-1392
    • United States
    • U.S. Court of Appeals — Third Circuit
    • January 5, 1978
    ...has frequently held that the first question that must be determined by a federal court is that of jurisdiction. E. g., Brace v. O'Neill, 567 F.2d 237, 239 n.2 (3d Cir. 1977); See In re Grand Jury Proceedings (U. S. Steel-Clairton Works), 525 F.2d 151, 154 (3d Cir. 1975). Once having found t......
  • Hoots v. Com. of Pa., No. 78-1224
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • October 27, 1978
    ...rule, 39 "the mere prospect of delay" may not create appellate jurisdiction where a final order has not been entered. Brace v. O'Neill, 567 F.2d 237, 243 n.27a (3d Cir. 1977). To place such a gloss on the final judgment rule in order to bring within its ambit cases in which the district cou......
  • Hovsons, Inc. v. Secretary of Interior of U.S., No. 81-2580
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • July 13, 1983
    ...was authority in this circuit to the effect that such orders are not final and appealable under 28 U.S.C. § 1291. See Brace v. O'Neill, 567 F.2d 237 (3d Cir.1977); Cotler v. Inter-County Orthopaedic Ass'n, P.A., 526 F.2d 537 (3d Cir.1975); Arny v. Philadelphia Transport Company, 266 F.2d 86......
  • Request a trial to view additional results

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