Dow Chemical Co. v. Taylor

• Decision Date: 01 July 1975
• Docket Number: I,AFL-CIO-CL,No. 75-1031,75-1031
• Citation: 519 F.2d 352
• Parties: 90 L.R.R.M. (BNA) 2692, 36 A.L.R.Fed. 757, 77 Lab.Cas. P 10,963 The DOW CHEMICAL COMPANY, Plaintiffs, The Chamber of Commerce of the United States of America, Plaintiff-Appellant, v. S. Martin TAYLOR, Director of the Michigan Employment Security Commission, et al., Defendant, United Steelworkers of America,ntervenor-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 352

519 F.2d 352

90 L.R.R.M. (BNA) 2692, 36 A.L.R.Fed. 757,

77 Lab.Cas. P 10,963

The DOW CHEMICAL COMPANY, Plaintiffs, The Chamber of Commerce of the United States of America, Plaintiff-Appellant, v. S. Martin TAYLOR, Director of the Michigan Employment

Security Commission, et al., Defendant,

United Steelworkers of America, AFL-CIO-CLC, Intervenor-Appellee.

No. 75-1031.

United States Court of Appeals, Sixth Circuit.

July 1, 1975.

Robert Finkel, Detroit, Mich., Roy E. Browne, Hershey, Browne, Wilson, Steel, Cook & Wolfe, Akron, Ohio, Simon Lazarus, Jr., Paxton & Seasongood, Cincinnati, Ohio, Gerard C. Smetana, Jerry Kronenberg, Chicago, Ill., Alan Raywid, Burt Braverman, Washington, D.C., Borovsky, Smetana, Ehrlich & Kronenberg, Chicago, Ill., Richard Berman, Labor Relations Counsel, Chamber of Commerce of U. S., Washington, D.C., for plaintiff-appellant.

Rudolph L. Milasich, Jr., Asst. Gen. Counsel, United Steelworkers of America, Pittsburgh, Pa., Jeffrey S. Goldman, Lederer, Fox & Grove, Chicago, Ill., for intervenor-appellee.

Before WEICK, LIVELY and ENGEL, Circuit Judges.

ENGEL, Circuit Judge.

Appellant Chamber of Commerce of America (Chamber) and Dow Chemical Company (Dow) instituted this action in the district court on July 25, 1972 against the individual members of the Michigan Employment Security Commission (MESC) for a declaratory judgment and an injunction against enforcement of the Michigan Employment Security Act to the extent it is construed to authorize payment of unemployment benefits to striking employees. On September 5, 1972, United Steelworkers of America, AFL-CIO (Steelworkers) was granted leave to intervene as a defendant to protect the interests of their members who are employees of Dow. The complaint alleged that such payments contravene the nation's labor policy by disrupting the scheme of free collective bargaining and are thus in violation of the Supremacy Clause of Article VI of the Constitution.

In the course of pretrial discovery, the Steelworkers served upon the Chamber several interrogatories, including Interrogatory Number 1 which reads:

1. List the name, principal office address and Michigan address of each "underlying" member business firm of the Chamber who is now or who at any time since January 1, 1968 has been an employer subject to the Michigan Employment Security Act, 12 M.S.A. § 17.501, et seq. (hereafter "MESA").

The Chamber filed objections to several of the interrogatories particularly Number 1. It claimed that the Chamber's members enjoy a First Amendment freedom of association which will be "chilled" if the Chamber is required to turn over a membership list to the Steelworkers and that irreparable injury will occur upon disclosure. The Chamber further claims that its members' identities are of no relevance to the action and are not needed by the Steelworkers.

On October 8, 1974, the district court ordered the Chamber to answer Interrogatory No. 1 and on November 4, 1974, the Chamber filed a notice of appeal. No certification under 28 U.S.C. § 1292(b) was issued by the district judge.

The Chamber here has alleged two alternative bases for this court's jurisdiction to hear its appeal. ¹ Its main contention is that the district court order was a "final decision" and thus appealable under 28 U.S.C. § 1291. ² In Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783 (1940), the Supreme Court discussed the requirement, now embodied in § 1291, that a district court decision be final before it becomes appealable.

For purposes of appellate procedure, finality the idea underlying 'final judgments and decrees' in the Judiciary Act of 1789 and now expressed by 'final decisions' in § 128 of the Judicial Code is not a technical concept of temporal or physical termination. It is the means for achieving a healthy legal system. As an instrument of such policy the requirement of finality will be enforced not only against a party to the litigation but against a witness who is a stranger to the main proceeding. Neither a party nor a non-party witness will be allowed to take to the upper court a ruling where the result of review will be 'to halt in the orderly progress of a cause and consider incidentally a question which has happened to cross the path of such litigation . . .' . 309 U.S. at 326, 60 S.Ct. at 541.

In Catlin v. United States, 324 U.S. 229, 65 S.Ct. 631, 89 L.Ed. 911 (1945), the court further noted that "A 'final decision' generally is one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." 324 U.S. at 233, 65 S.Ct. at 633.

It is clear that the order here appealed from does not terminate the litigation. Appellant contends, however, that under the "collateral order doctrine" enunciated in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), this order is appealable under § 1291 because it falls within the small class of orders " . . . which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated." 337 U.S. at 546, 69 S.Ct. at 1225.

Several courts of appeals have considered the question of whether a discovery order is appealable under the "collateral order doctrine" of Cohen, supra. Most circuit courts which have considered the question have rejected the applicability of Cohen to discovery orders. Gialde v. Time, Inc., 480 F.2d 1295 (8th Cir. 1973); Borden Company v. Sylk, 410 F.2d 843 (3rd Cir. 1969); American Express Warehousing, Ltd. v. Transamerica Ins. Co., 380 F.2d 277 (2nd Cir. 1967); Paramount Film Distributing Corp. v. Civic Center Theatre, 333 F.2d 358 (10th Cir. 1964). We follow these cases and hold that the district court's discovery order is not appealable as a final decision under § 1291. To accept appellant's view that such discovery orders are appealable would ". . . invite the inundation of appellate dockets with what have heretofore been regarded as nonappealable matters." Borden Company v. Sylk, 410 F.2d 843, 846. We decline to do so.

Nothing in our decision here is inconsistent with this court's decision in Ochsner v. Millis, 382 F.2d 618 (6th Cir. 1967). In Ochsner, an interference proceeding was being conducted in the United States Patent Office. For use in the interference proceeding, the junior parties took the deposition of the senior party, who refused to answer certain questions propounded to him. The junior parties filed a motion in the district court to compel the testimony, but the motion was denied.

This court in Ochsner held the district court order appealable under § 1291. The court reasoned that the junior parties had no other means of obtaining...