Hines v. D'Artois

• Decision Date: 13 May 1976
• Docket Number: No. 74--3673,74--3673
• Citation: 531 F.2d 726
• Parties: 12 Fair Empl.Prac.Cas. 1276, 11 Empl. Prac. Dec. P 10,918 William B. HINES and Marvin Thomas et al., etc., Plaintiffs-Appellants, v. George D'ARTOIS, T. P. Kelly and City of Shreveport, Defendants-Appellees, v. John C. RUNYON, State Examiner of the Municipal Fire and Police Civil Service, State of Louisiana, Movant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 726

531 F.2d 726

12 Fair Empl.Prac.Cas. 1276,

11 Empl. Prac. Dec. P 10,918

William B. HINES and Marvin Thomas et al., etc., Plaintiffs-Appellants, v. George D'ARTOIS, T. P. Kelly and City of Shreveport, Defendants-Appellees, v. John C. RUNYON, State Examiner of the Municipal Fire and Police Civil Service, State of Louisiana, Movant-Appellant.

No. 74--3673.

United States Court of Appeals,

Fifth Circuit.

May 13, 1976.

Henry C. Walker, Shreveport, La., George M. Strickler, Jr., New Orleans, La., for W. B. Hines.

John L. Avant, Sp. Counsel, Baton Rouge, La., for J. C. Runyon.

John Gallagher, Charles C. Grubb, Neil Dixon, Shreveport, La., for defendants-appellees.

Appeals from the United States District Court for the Western District of Louisiana.

Before GOLDBERG, DYER and SIMPSON, Circuit Judges.

GOLDBERG, Circuit Judge:

The plaintiffs in this employment discrimination case, brought under 42 U.S.C. §§ 1981 and 1983, have taken an appeal from a district court order staying the litigation until the plaintiffs file with the Equal Employment Opportunity Commission a complaint based on the same alleged discrimination, and pursue that complaint to final EEOC action. A separate appeal has been taken by a would-be intervenor in the same litigation, who was initially permitted to intervene but then was dismissed as an intervenor by the district court at the same time it entered the stay order. We find that we have jurisdiction over both appeals, and that both are meritorious. We reverse.

I. Factual and Procedural Background.

This suit was filed in November, 1973, by the 32 black members of the Shreveport Police force, one black who had been discharged from the force, and one unsuccessful black applicant. Named defendants included the Shreveport Commissioner of Public Safety and the Chief of Police. ¹ The plaintiffs brought their suit under 42 U.S.C. §§ 1981, 1983, and the Fourteenth Amendment, and sought to obtain redress for a broad range of alleged racially discriminatory practices in the Shreveport Police force.

During December, 1973, and early 1974, pretrial discovery proceeded expeditiously. In February, 1974, John Runyon, State Examiner for the Municipal Fire & Police Civil Service, moved to intervene as a defendant and, without opposition, was permitted to do so by the court. Thereafter, the parties made various motions and all sought an early trial date.

In July, 1974, the trial court entered an order disposing of the parties' motions, and, in addition, reaching two matters sua sponte. Without being requested to do so by any party, the court 1) ordered that the case would be stayed pending the filing by the plaintiffs of Title VII proceedings before the Equal Employment Opportunity Commission, and that plaintiffs would be required to 'carry their application for relief to final conclusion by the Commissioner before undertaking any further proceedings herein,' ² and, 2) vacated its earlier order permitting Runyon to intervene, and dismissed him as an intervenor.

On motions for modification by all parties, the district court essentially adhered to its original order in an amended order issued in October, 1974. The district court's opinion accompanying this amended order is published at 383 F.Supp. 184. Plaintiffs attempt to appeal from the portion of the order mandating a stay of the proceedings until an action with the EEOC is initiated and pursued to completion. See id. at 191. Mr. Runyon attempts to appeal from the order denying his intervention. See id. at 189.

II. Waiting for the E.E.O.C.

A. Appellate Jurisdiction.

An initial question we must face is whether the order appealed from here is subject to appellate review. Superficially, the order staying the proceedings would seem not to be a 'final decision' under 28 U.S.C. § 1291, in that the court below retained jurisdiction for a later disposition of the merits. There exist, however, at least four possible routes from a district court stay order directly to the court of appeals, and we examine them each in turn. ³

1. The Action-at-Law Avenue.

Orders granting stays are appealable in some circumstances under 28 U.S.C. § 1292(a)(1), which gives the courts of appeals jurisdiction of appeals from

(i)nterlocutory orders of . . . district courts . . . granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions . . ..

The general test has been stated thusly:

(a)n order staying or refusing to stay proceedings in the District Court is appealable under § 1292(a)(1) only if (A) the action in which the order was made is an action which, before the fusion of law and equity, was by its nature an action at law; and (B) the stay was sought to permit the prior determination of some equitable defense or counterclaim.

Wallace v. Norman Industries, Inc., 5 Cir. 1972, 467 F.2d 824, 826--27, citing Jackson Brewing Co. v. Clarke, 5 Cir. 1962, 303 F.2d 844, cert. denied, 1962, 371 U.S. 891, 83 S.Ct. 190, 9 L.Ed.2d 124. Accord, Anderson v. United States, 5 Cir. 1975, 520 F.2d 1027; Cobb v. Lewis, 5 Cir. 1974, 488 F.2d 41. The present day validity of this seemingly artifactual rule is derived from the Supreme Court's 1955 decision in Baltimore Contractors, Inc. v. Bodinger, 1955, 348 U.S. 176, 75 S.Ct. 249, 99 L.Ed. 233. ⁴

The stay order before us would appear not to meet this strict two-part test for appealability under § 1292(a)(1). Conceivably, the action could be characterized in part as one 'at law,' since the relief sought included a prayer for back pay. The stay, however, was not 'sought,' and its function cannot be properly characterized as 'to permit the prior determination of some equitable defense or counterclaim.' Literally read, then, the Jackson Brewing rule suggests that § 1292(a)(1) is not available to these plaintiffs as an avenue of appeal.

2. The Injunction Denied Road.

Another line of cases in this circuit indicates that § 1292(a)(1) appellate jurisdiction over stay orders is somewhat broader than the strict two part test quoted above would indicate. Specifically, it has been held that a stay order is appealable when it is the practical equivalent of a denial of a motion for a preliminary injunction. Glen Oaks Utilities v. City of Houston, 5 Cir. 1960, 280 F.2d 330. See also Gray Line Motor Tours, Inc. v. City of New Orleans, 5 Cir. 1974, 498 F.2d 293; Mercury Motor Express v. Brinke, 5 Cir. 1973, 475 F.2d 1086. This second avenue of appeal also seems to be unavailable in this case, however, since there was no motion by plaintiffs for a preliminary injunction, and no other indication that the stay order can be construed as having the practical effect of a denial of a preliminary injunction. ⁵

3. Cohen-Bon Voyage: The River Styx.

The unavailability of the two specific § 1292(a)(1) roads described above does not necessarily condemn the plaintiffs to stay where they were stayed. Two more general routes leading to this Court remain to be examined. A number of cases have found certain stay orders appealable because the orders have operated in practical effect as 'final' orders under § 1291. In Idlewild Bon Voyage Liquor Corp. v. Rohan, S.D.N.Y.1960, 188 F.Supp. 434, the district court denied a motion to convene a three-judge court and stayed the federal proceedings until the state courts ruled on the central issue in the case. No state court litigation was then pending. The plaintiffs appealed to the Second Circuit, 1961, 289 F.2d 426, and, as the Supreme Court subsequently noted in remanding on another ground,

(t)he Court of Appeals properly rejected the argument that the order of the District Court 'was not final and hence unappealable under 28 U.S.C. §§ 1291, 1292,' pointing out that '(a)ppellant was effectively out of court.' 289 F.2d at 428.

Idlewild Bon Voyage Liquor Corp. v. Epstein, 1962, 370 U.S. 713, 715 n.2, 82 S.Ct. 1294, 1296, 8 L.Ed.2d 794, 796.

Our authority to treat a stay order as appealable under § 1291 when the effect of that order is to place the litigant 'out of court' in reinforced by Supreme Court cases dealing more generally with the question of what district court orders are 'final'. Relying primarily on Cohen v. Beneficial Industrial Loan Corp., 1949, 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528, the Supreme Court in Gillespie v. United States Steel Corp., 1964, 379 U.S. 148, 152--53, 85 S.Ct. 308, 311, 13 L.Ed.2d 199, 203, discussed § 1291 as follows:

(a) decision 'final' within the meaning of § 1291 does not necessarily mean the last order possible to be made in a case . . . And our cases long have recognized that whether a ruling is 'final' within the meaning of § 1291 is frequently so close a question that decision of that issue either way can be supported with equally forceful arguments, and that it is impossible to devise a formula to resolve all marginal cases coming within what might well be called the 'twilight zone' of finality. Because of this difficulty this Court has held that the requirement of finality is to be given a 'practical rather than a technical construction.' . . . (i)n deciding the question of finality the most important competing considerations are 'the inconvenience and costs of piecemeal review on the one hand and the danger of denying justice by delay on the other.' (citations omitted)

A 'practical' construction requires that when a plaintiff's action is effectively dead, the order which killed it must be viewed as final. Effective death should be understood to comprehend any extended state of suspended animation.

The applicability of the general Cohen-Gillespie principles to stay orders is clear from Bon Voyage and from several appeals court decisions. This Court, in Glen Oaks, supra, while reaching the narrow holding described above, added the following language:

Whether the (stay) order is subject to appeal depends upon its effect rather than its terminology. . . . The order has such attributes of finality as will permit an...