E.E.O.C. v. Kerrville Bus Co., Inc., 90-5577

• Decision Date: 04 March 1991
• Docket Number: No. 90-5577,90-5577
• Citation: 925 F.2d 129
• Parties: 61 Fair Empl.Prac.Cas. 716, 55 Empl. Prac. Dec. P 40,592 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Counter Defendant-Appellee, v. KERRVILLE BUS COMPANY, INC., Defendant-Counter Plaintiff-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 129

925 F.2d 129

61 Fair Empl.Prac.Cas. 716,

55 Empl. Prac. Dec. P 40,592

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Counter Defendant-Appellee, v. KERRVILLE BUS COMPANY, INC., Defendant-Counter Plaintiff-Appellant.

No. 90-5577.

United States Court of Appeals Fifth Circuit.

March 4, 1991.

Rehearing Denied April 2, 1991.

Shelton E. Padgett and Dewey Poteet, Akin, Gump, Strauss, Hauer & Feld, San Antonio, Tex., for defendant-counterplaintiff-appellant.

Lutecia G.Q. Chacon, Ismael Alvarez, E.E.O.C., San Antonio, Tex., and Samuel A. Marcosson, E.E.O.C., Washington, D.C., for E.E.O.C.

Appeal from the United States District Court for the Western District of Texas.

Before JOHNSON, WILLIAMS, and HIGGINBOTHAM, Circuit Judges.

JOHNSON, Circuit Judge:

The Kerrville Bus Company seeks an immediate appeal from an order of the district court dismissing its counterclaims against the Equal Employment Opportunity Commission. Because the appeal pursued by Kerrville is interlocutory in nature, and Kerrville has not demonstrated that it will suffer any serious or irreparable injury if it must wait to appeal from a final judgment, the appeal will be dismissed for want of jurisdiction.

I. FACTS AND PROCEDURAL HISTORY

In September 1988 the EEOC brought this action against the Kerrville Bus Company (Kerrville) on behalf of Mexican-American mechanics in Kerrville's employ. The EEOC alleges that Kerrville underpaid these mechanics, that it failed to promote them, and that it maintained a harassing work environment. Kerrville answered, denying the allegations of the complaint, alleging several affirmative defenses, and asserting counterclaims against the EEOC.

The gravamen of Kerrville's counterclaims and its first affirmative defense is that the EEOC improperly conducted its investigation of Kerrville. In particular, Kerrville alleges that the EEOC failed adequately to notify Kerrville of its investigation, that the EEOC did not conduct a fair and impartial investigation, and that the EEOC did not engage in good faith conciliation efforts. The first affirmative defense alleges that these asserted improprieties violated Title VII, that they constitute a failure by the EEOC to fulfill certain statutory prerequisites to the jurisdiction of the district court, and that the EEOC's action against it must be dismissed. The counterclaims allege that the improprieties in the investigation constitute violations of Title VII, the Administrative Procedure Act, and the Fifth Amendment. The counterclaims, however, seek no money damages; rather, Kerrville seeks injunctive and declaratory relief. Kerrville demands a permanent injunction 1) dismissing the EEOC's action against Kerrville, and 2) prohibiting future litigation predicated on the same investigation. Kerrville did not seek a preliminary injunction of any sort.

The EEOC moved to dismiss the counterclaims on the grounds that the district court had no subject matter jurisdiction of them, and that they were barred by the doctrine of sovereign immunity. The district court granted the EEOC's motion on both grounds and dismissed the counterclaims without prejudice. Kerrville now attempts to appeal from that ruling.

II. DISCUSSION

Because our jurisdiction of interlocutory appeals is quite limited, the first inquiry in a case such as this must necessarily be whether this Court has jurisdiction of the appeal. Moreover, because the district court has not certified the issue presented by this appeal as involving a controlling question of law, and because this Court has not granted permission to pursue an interlocutory appeal, see 28 U.S.C. Sec. 1292(b), the precise question before this court is whether Kerrville may appeal from the dismissal of its counterclaim as of right. Kerrville advances two theories in support of its position that it has a right to an immediate appeal.

A. Interlocutory Appeals Under Sec. 1292(a)(1)

Kerrville first argues that 28 U.S.C. Sec. 1292(a)(1) confers upon it a right to appeal immediately from the order dismissing its counterclaims. That section provides that a party may appeal as of right from an order that refuses an injunction, ¹ and since Kerrville's counterclaims sought an injunction, Kerrville contends that the order dismissing its counterclaims was an order refusing an injunction. Although plausible, Kerrville's argument ultimately fails.

On one initial point Kerrville is correct: under Sec. 1292(a)(1), the right to an interlocutory appeal does not depend on whether the injunction at issue is a permanent injunction or a preliminary injunction. In Shanks v. City of Dallas, 752 F.2d 1092 (5th Cir.1985), this Court noted that Sec. 1292(a)(1) "functions primarily to allow interlocutory review of orders ... granting or denying preliminary, and not permanent, injunctions," but observed that "denial of a permanent injunction ... [will] on occasion threaten the type and certainty of injury" that makes interlocutory review appropriate. 752 F.2d at 1096, 1097. ² Moreover, the Supreme Court has stated that Sec. 1292(a)(1) may "at times embrace denials of permanent injunctions," Switzerland Cheese Ass'n v. E. Horne's Market, 385 U.S. 23, 87 S.Ct. 193, 195, 17 L.Ed.2d 23 (1966), and this Court has allowed interlocutory appeals from the denial of permanent injunctions. E.g., EEOC v. Int'l Longshoremen's Ass'n, 511 F.2d 273, 276 (5th Cir.1975). Thus, the question is not whether the injunctive relief sought was permanent or preliminary.

Rather, the first question under Sec. 1292(a)(1) is whether the order appealed from specifically denied an injunction (whether permanent or preliminary), or merely had the practical effect of doing so. If the order specifically denied an injunction, then under Sec. 1292(a)(1) that order is appealable as of right, right away. Atwood Turnkey Drilling, Inc. v. Petroleo Brasiliero, S.A., 875 F.2d 1174, 1176 (5th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1124, 107 L.Ed.2d 1030 (1990). See also Justin Indus. v. Choctaw Sec., L.P., 920 F.2d 262, 265 n. 1 (5th Cir.1990) (proper to exercise interlocutory appellate review because district court had specifically denied request for injunction). If, on the other hand, an order only had the practical effect of denying an injunction, then a party may still have a right to an immediate appeal, but only if it can show that the order might have some " 'serious, perhaps irreparable, consequence,' and that the order can be 'effectually challenged' only by immediate appeal." Carson v. American Brands, Inc., 450 U.S. 79, 84, 101 S.Ct. 993, 997, 67 L.Ed.2d 59 (1981) (quoting Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176, 181, 75 S.Ct. 249, 252, 99 L.Ed. 233 (1955)). ³ See also Shanks, 752 F.2d at 1096.

Thus, the question here is whether the order entered by the district court in this case specifically denied an injunction. If it did, no more need be said, as Kerrville can seek immediate interlocutory review as of right. If, however, the order did not specifically deny an injunction, then before Kerrville can invoke the jurisdiction of this Court, it must meet the test established by Carson: it must show both that the order may have serious, perhaps irreparable consequences, and that the order can only be effectively challenged by an immediate appeal.

Kerrville argues that because its counterclaims sought injunctive relief, the order dismissing its counterclaims was necessarily an order specifically denying an injunction. Kerrville's argument is not well taken. The same argument was presented to the Third Circuit in Shirey v. Bensalem Township, 663 F.2d 472 (3d Cir.1981), and that Court rejected it. The dismissal or denial of the claim may be for reasons wholly unrelated to the nature of the relief requested by that claim, and as the Third Circuit observed, "the mere fact that injunctive relief has been requested and is therefore encompassed within the ruling made by the court on other grounds does not transform the ruling into one denying an injunction." 663 F.2d at 477. Moreover, as the Supreme Court has noted, a central principle of appellate jurisdiction is that only final decisions are reviewable, and that Sec. 1292(a)(1) creates only a limited exception to that principle. Carson, 450 U.S. at 83, 84, 101 S.Ct. at 996. It would unduly expand the exception created by Sec. 1292(a)(1) to hold that any order dismissing or denying a claim that seeks equitable relief is immediately appealable, even if that order does not portend any serious or irreparable consequences and can be effectively challenged in the normal course of appeal.

Accordingly, this Court holds that an order that dismisses a claim seeking an injunction is not ordinarily an order specifically denying the injunctive relief sought by that claim. If the important policy of avoiding piecemeal appeals is to be well served, there must be some additional, substantial indication--whether from the language of the order, or the grounds on which it rests, or the circumstances in which it was entered--that the district court was acting specifically to deny injunctive relief. ⁴ Absent such an indication, this Court will not undertake to decide cases one piece at a time.

The case now before the Court illustrates very well the nature of the necessary inquiry. While the order entered by the district court in this case expressly refers to Kerrville's request for injunctive relief, that reference is not by itself sufficient to convince us that the district court was acting specifically to deny injunctive relief. Rather, a review of the entire order makes clear that the result reached had nothing to do with the nature of the relief sought by Kerrville. The concluding portion of the order recites:

In summary, the Court finds no basis for exercising subject [matter] jurisdiction over the counterclaims of Kerrville under any of [the] statutory provisions cited by it in its Third Amended Answer, Second Amended Counterclaim...