Gillis v. U.S. Dept. of Health and Human Services

• Decision Date: 19 April 1985
• Docket Number: No. 82-1860,82-1860
• Citation: 759 F.2d 565
• Parties: Patricia GILLIS, Individually and as a Class Representative; and Citizens for Better Care, Inc., Individually and as a Class Representative, Plaintiffs-Appellants, v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 565

759 F.2d 565

53 USLW 2554

Patricia GILLIS, Individually and as a Class Representative; and Citizens for Better Care, Inc., Individually and as a Class Representative, Plaintiffs-Appellants, v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES,

Defendant-Appellee.

No. 82-1860.

United States Court of Appeals, Sixth Circuit.

Argued Jan. 17, 1985.

Decided April 19, 1985.

Robert Twitty, argued, Waynesboro, Ga., for plaintiffs-appellants.

Shalom Brilliant, Dept. of Justice, Washington, D.C., Leonard R. Gilman, U.S. Atty., Derek I. Meier, Detroit, Mich., for defendant-appellee.

Before KENNEDY, MARTIN and WELLFORD, Circuit Judges.

CORNELIA G. KENNEDY, Circuit Judge.

This is an appeal from an order dismissing the U.S. Department of Health and Human Services (HHS) as a defendant in a suit alleging violations of the Hill-Burton Act, 42 U.S.C. Sec. 291 et seq. Plaintiff-Appellants Patricia Gillis and Citizens for Better Health Care, Inc. (CBC) brought suit individually and as class representatives on behalf of all persons eligible to receive Hill-Burton uncompensated or reduced cost services at several Southeastern Michigan hospitals, alleging that the defendant hospitals had failed to fulfill their obligations relevant to the provision of such services, and that HHS had failed to monitor and enforce the hospitals' performance of those obligations. In their complaint they sought declaratory and injunctive relief, declaring the defendants to have acted unlawfully and ordering them to take corrective steps to remedy past violations and ensure that no future violations occurred.

A number of issues are raised by the parties to this appeal--whether CBC has standing to be a party plaintiff to this suit, whether an implied cause of action exists under the Hill-Burton Act against HHS, and whether a cause of action exists against HHS under the Administrative Procedure Act, 5 U.S.C. Sec. 706(1). Initially, however, we must determine whether the dismissal of HHS as a party defendant while the action continued against the hospitals is an appealable order.

I.

To be appealable, the District Court's order dismissing HHS from this suit must qualify as either a final judgment under 28 U.S.C. Sec. 1291, or an "[i]nterlocutory order[ ] ... granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions" under Sec. 1292(a)(1). ¹ An order that does not specifically refuse an injunction but has the practical effect of doing so may be immediately appealable under Sec. 1292(a)(1). However, because Sec. 1292(a)(1) was intended to carve out only a limited exception to the final judgment rule, "[u]nless a litigant can show that an interlocutory order of the district court might have a 'serious, perhaps irreparable, consequence,' and that the order can be 'effectually challenged' only by immediate appeal, the general congressional policy against piecemeal review will preclude interlocutory appeal." Carson v. American Brands, Inc., 450 U.S. 79, 84, 101 S.Ct. 993, 996, 67 L.Ed.2d 59 (1981).

In discussing the "irreparable consequences" factor, the Court in Carson deemed significant whether the party seeking to appeal had requested and effectively been denied a preliminary injunction. 450 U.S. at 84-86, 101 S.Ct. at 996-998 (distinguishing Switzerland Cheese Ass'n v. E. Horne's Market, 385 U.S. 23, 87 S.Ct. 193, 17 L.Ed.2d 23 (1966), and Gardner v. Westinghouse Broadcasting Co., 437 U.S. 478, 98 S.Ct. 2451, 57 L.Ed.2d 364 (1978), on basis that in those cases no preliminary injunction was sought nor irreparable harm alleged). "Most of the cases dealing with the practical denial of preliminary relief turn on the fact that characteristically, preliminary relief must be granted promptly to be effective." 16 C. Wright, A. Miller, E. Cooper & E. Gressman, Federal Practice and Procedure Sec. 3924, at 70 (1977). However, the logical significance of an effective denial of preliminary relief is undermined if it appears that the request for preliminary relief was included in the complaint as a matter of routine and despite reasonable opportunity is not being pressed. Id. at 69-70.

In the instant case, although plaintiffs requested a TRO and preliminary injunction against both HHS and defendant hospitals in their first amended complaint, no hearing was held on that request, nor is there any indication in the record that plaintiffs requested a hearing or actively pursued preliminary relief. In fact, the specific request for a TRO and preliminary injunction was omitted from plaintiffs' proposed second amended complaint, although in their reply brief to this Court they argue that effective denial of a preliminary injunction against HHS would result in its continued failure to carry out its Hill-Burton duties to the detriment of eligible consumers of health care in Wayne County, Michigan. Since, however, those duties involve oversight, not the actual provision of care, a preliminary injunction against the defendant hospitals, if warranted, would have achieved the desired end prior to final disposition of all claims. Cf. Western Geophysical Co. v. Bolt Associates, 440 F.2d 765, 769-71 (2d Cir.1971) (in case involving multiple claims, dismissal of claim on which preliminary relief was sought was not appealable where claims remained pursuant to which preliminary relief might still be obtained). Because appellants cannot show that dismissal of HHS, although effectively denying injunctive relief, would have serious consequences and can only be effectively challenged by an immediate appeal, this Court is not vested with jurisdiction under 28 U.S.C. Sec. 1292(a)(1) to consider their appeal.

Nor, in the context in which this case was presented to us prior to oral argument, would this Court be vested with jurisdiction under 28 U.S.C. Sec. 1291. Although the relief being sought against the agency is distinct from that sought against defendant hospitals, accord Davis v. Ball Memorial Hospital, 640 F.2d 30, 35 (7th Cir.1980); ² see generally Local P-171, Amalgamated Meat Cutters of N.A. v. Thompson Farms Co., 642 F.2d 1065, 1067-71 (7th Cir.1981) (discussion of when interlocutory order has disposed of separate claim for relief for purposes of rule 54(b) certification), in the absence of "the entry [by the district court] of a final judgment as to one or more but fewer than all of the claims or parties ... upon an express determination that there is no just reason for delay," Fed.R.Civ.P. 54(b), it is clear that there is no final judgment in terms of Sec. 1291 and that this Court is without jurisdiction to consider the appeal. William B. Tanner Co. v. United States, 575 F.2d 101 (6th Cir.1978). However, we learned from plaintiffs' counsel for the first time during oral argument that none of the individual hospital defendants remain in the case. ³ Thus, we are presented with the question of whether a premature notice of appeal is effective to vest this Court with jurisdiction where the remaining elements of the case have been finally disposed of but no new notice of appeal has been filed.

Every circuit that has had occasion to address this question has held that an interlocutory appeal lacking the requisite rule 54(b) certification invokes appellate jurisdiction where judgment becomes final prior to disposition of the appeal. See Pireno v. New York Chiropractic Ass'n, 650 F.2d 387, 389-90 n. 4 (2d Cir.1981), aff'd sub nom. Union Labor Life Insurance Co. v. Pireno, 458 U.S. 119, 102 S.Ct. 3002, 73 L.Ed.2d 647 (1982); Richerson v. Jones, 551 F.2d 918, 922-23 (3d Cir.1977); Tilden Financial Corp. v. Palo Tire Service, Inc., 596 F.2d 604, 606-07 (3d Cir.1979); Cape May Greene, Inc. v. Warren, 698 F.2d 179, 184-85 (3d Cir.1983); Jetco Electronic Industries v. Gardiner, 473 F.2d 1228, 1231 (5th Cir.1973); Tower v. Moss, 625 F.2d 1161, 1164-65 (5th Cir.1980); Alcorn County v. U.S. Interstate Supplies, Inc., 731 F.2d 1160, 1165-66 (5th Cir.1984); Anderson v. Allstate Insurance Co., 630 F.2d 677, 681 (9th Cir.1980); Baker v. Limber, 647 F.2d 912, 916 (9th Cir.1981); Martin v. Campbell, 692 F.2d 112 (11th Cir.1982). ⁴ A contrary holding would create a split in the circuits, which we are reluctant to do on an issue such as this. Although we do not condone plaintiffs' sloppy practice, we conclude that we have jurisdiction to consider the appeal in this instance. Cf. Brandon v. Holt, --- U.S. ----, ----, 105 S.Ct. 873, 879, 83 L.Ed.2d 878, 886-87 (1985) (Burger, C.J., concurring). Therefore, we proceed to the merits.

II.

A. STANDING

In plaintiffs' first amended complaint, the claim against HHS was made only by CBC. For an association to assert representational standing, it must establish that "(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Hunt v. Washington Apple Advertising Comm'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 2441, 53 L.Ed.2d 383 (1977); see Warth v. Seldin, 422 U.S. 490, 511, 515, 95 S.Ct. 2197, 2211, 2213, 45 L.Ed.2d 343 (1975); Sierra Club v. Morton, 405 U.S. 727, 734-41, 92 S.Ct. 1361, 1365-69, 31 L.Ed.2d 636 (1972). Ms. Gillis, as individual plaintiff and in her capacity as representative of the putative class, alleged that she was eligible to receive free or reduced cost care under Hill-Burton and that one of the defendant hospitals had in fact failed to inform her of the existence of the program as it was obliged to do by the Act. However, there was no allegation that she was a member of CBC or that any other CBC member was being individually harmed. Moreover, it is unclear from the description of CBC as an "organization composed of residents of nursing homes, hospitals, relatives, and health professionals concerned with promoting health care," whether CBC's...