Braden v. University of Pittsburgh
| Decision Date | 10 December 1975 |
| Docket Number | No. 75-1657,75-1657 |
| Citation | 552 F.2d 948 |
| Parties | 14 Fair Empl.Prac.Cas. 897, 13 Empl. Prac. Dec. P 11,584 Dr. Ina BRADEN on behalf of herself and all others similarly situated v. The UNIVERSITY OF PITTSBURGH and Wesley W. Posvar, Appellants. |
| Court | U.S. Court of Appeals — Third Circuit |
This appeal raises two perplexing problems, one procedural and one jurisdictional. First, we are required to consider whether a district judge may vacate and reenter a certification order so as to allow an interlocutory appeal, when the appellants initially failed to proceed in a timely manner because they lacked notice of the original certification order. 1 If that question is answered affirmatively, we then must determine whether the trial court erred when it declined to dismiss the complaint on the ground that "state action," the essential predicate for jurisdiction under § 1983 of the Civil Rights Act, 2 was absent.
CERTIFICATION ORDER SO AS TO ALLOW AN INTERLOCUTORY APPEAL.
This employment discrimination suit was instituted by Dr. Ina Braden, on behalf of herself and other women similarly situated, against the University of Pittsburgh ("University" or "Pitt") and against Dr. Wesley W. Posvar, the Chancellor of the University. 3
The district court, however, dismissed the complaint. It did so, with respect to the § 1983 claim, on the ground that the relationship between the Commonwealth and the University was not such as to render the alleged discrimination "state action." 4 On initial appeal to this Court, the dismissal was vacated and the case remanded for further consideration of the § 1983 issue more particularly, the state action question. 5
After extensive discovery had been concluded in the district court, and an evidentiary hearing held solely on the issue of state action, at the directive of this Court, the trial judge denied the defendants' renewed motions to dismiss the § 1983 claim for lack of jurisdiction. Rather, the district court indicated that state action might well exist. 6 It proceeded, pursuant to 28 U.S.C. § 1292(b), to certify the order denying the motion to dismiss. 7
A panel of this Court then granted the defendants permission to appeal under Appellate Rule 5, 8 and referred the interlocutory appeal to a second panel for disposition on the merits. At that point, Dr. Braden challenged our jurisdiction, alleging that the defendants had not filed their application for an appeal within ten days of the district court certification, as prescribed by Rule 5. Since resolution of that issue required reexamination of a decision of a prior panel, we elected to consider the question en banc.
The problem confronting us here stems from the failure of the district court to give the defendants notice of its certification order, as provided by Fed.R.Civ.P. 77(d). 9 It was only after expiration of the ten-day filing period that the defendants learned of the entry of the order. Immediately thereafter, the defendants moved this Court for permission to appeal out of time, simultaneously obtaining a similar extension from the district court. Although the defendants were informed that this Court lacked authority to extend the time to appeal by virtue of Appellate Rule 26(b), 10 we suggested that they request the district judge to vacate his earlier certification order and to enter another. Upon submission of such a request, the district court vacated its original order and entered a new one containing the requisite § 1292(b) certification. Defendants thereupon filed their petition for permission to appeal within the time specified in Rule 5, and the new petition was granted.
Dr. Braden now maintains that we lack authority to permit the present interlocutory appeal. She claims that the district court's reentry of the certificate was ineffective to cure the defendants' failure to pursue their appeal within ten days of the original order.
It is well-settled that the neglect of a party to petition for leave to appeal within ten days of the entry of the certification order deprives an appellate court of jurisdiction to consider the petition, 11 and that Rule 26(b) forbids appellate courts to enlarge the time for filing such a petition. Nevertheless, the present appeal poses a different and more difficult question namely, whether a trial judge may vacate and reenter his own certification order so as to start the ten-day period running again. When, as here, a party has received no notice of the certification order and, therefore, has been prevented from asserting its right to appeal by an error of the trial court, the ability of such court to correct its own mistake might seem manifest. Yet, on cursory examination, there would appear to be no remedy available to an innocent party who fails to receive the requisite notice.
Fed.R.Civ.P. 77(d) expressly provides:
Lack of notice of the entry by the clerk does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed, except as permitted in Rule 4(a) of the Federal Rules of Appellate Procedure.
Rule 4(a), which allows a district court to extend the time to appeal for thirty days upon a showing of "excusable neglect," applies at least on its face only to appeals as of right. By contrast, Rule 5 which deals with permissive appeals contains no comparable provision. Nor are permissive appeals referred to in Rule 77(d). If Rule 77(d) had specified that Rule 4(a) were the sole vehicle by which a district court may provide relief from lack of notice, 12 it might well follow that a § 1292(b) petitioner would have no remedy for failure to receive notice. 13 The proviso of Rule 77(d), applicable only to appeals as of right, contains no authorization for relief in permissive appeals, such as the one at hand.
The question thus arises whether a district court may accomplish indirectly what it may not do directly. At least one court of appeals has sanctioned such a procedure. In In re La Providencia Development Corp., the First Circuit upheld a district court which had vacated and reentered its certificate " 'in order that the parties not be deprived of a timely appellate decision.' " 14
On the other hand, two courts appear to have indicated that vacation and recertification are tantamount to enlarging the time for appeal, and that such a maneuver is proscribed by Rule 77(d). In Woods v. Baltimore & Ohio Railroad, 15 the appealing party neglected to file a timely petition, even though he apparently had received adequate notice. After the district court had vacated and reentered its certification order, the appellate court held that such action could not confer jurisdiction over the interlocutory appeal because a district court has no power to extend the time for appeal, either directly or indirectly.
The reasoning of the Woods court was embraced in Nakhleh v. Chemical Construction Corp. 16 There the appellant was not aware that an interlocutory order had been entered, because the order had been listed under the wrong initial letter in the local law journal. The district judge stated that, while he could vacate his order should new facts or new decisional law necessitate reconsideration, 17 he could not vacate and refile a certification order merely to extend the time for appeal. It should be noted however, that no attempt was made by the Nakhleh court to distinguish between the plight of the hapless party who, through inadvertence, received no notice, and that of the neglectful party, such as the party in Woods, who simply is remiss in pursuing his appeal. Nakhleh thus did not explore the outer limits of the rules which do not literally authorize extension of the time for appeal in the latter context, nor did it even purport to consider whether a remedy may be found in the former situation.
In addition to Woods and Nakhleh, Dr. Braden refers to this Court's decision in Milbert v. Bison Laboratories, Inc., 18 to support the proposition that a district court has no authority to vacate and reenter a certification order. Yet, any attempted reliance on Milbert would appear to be misplaced. That case concerned the timeliness of the grant by a court of appeals of permission to appeal from an interlocutory order, the petition for leave to appeal having been filed within the prescribed time period. Moreover, whatever applicability Milbert might once have had to the present situation has been subverted by the subsequent amendment of Rule 5, a change which now expressly allows a grant of permission to appeal by a court of appeals "at any time" after entry of the interlocutory order. 19
In short, in support of her thesis, Dr. Braden proffers only two cases which even deal with the problem of reentry of a § 1292(b) certificate by a district court Woods and Nakhleh. Nonetheless, we believe that both of these cases are distinguishable from that at hand. This is so because neither Woods nor Nakhleh concerned a situation in which an appealing party, solely because of dereliction on the part of a court officer, failed to receive the requisite notice of a certification order that had been entered by the Court.
It may be contended, on behalf of the position advanced by Dr. Braden, that the restricted time authorized for launching an interlocutory appeal reflects an interest in the speedy determination of such appeals. After all, the district court grants certification...
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