Knable v. Wilson
| Decision Date | 04 September 1975 |
| Docket Number | Nos. 75-1655,75-1656,s. 75-1655 |
| Citation | 570 F.2d 957 |
| Parties | In re Jeffrey L. Knable et al., Petitioners. Jeffrey L. KNABLE et al., Appellants, v. Jerry V. WILSON, Chief, Metropolitan Police Department, et al. . Order Denying Petition for Writ of Mandamus and Granting Motion to Dismiss Filed |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
James H. Heller and John H. Quinn, Jr., Washington, D.C., were on the brief for petitioner in No. 75-1655 and appellants in No. 75-1656.
C. Francis Murphy, Corp. Counsel, Louis P. Robbins, Richard W. Barton and Leo N. Gorman, Asst. Corp. Counsels, Washington, D.C., were on the brief for appellees in No. 75-1656.
Robert E. Kopp and John K. Villa, Washington, D.C., were on the brief for appellees Richard G. Kleindienst and John N. Mitchell in No. 75-1656.
Before LEVENTHAL and ROBINSON, Circuit Judges.
Opinion for the Court filed by Circuit Judge SPOTTSWOOD W. ROBINSON, III.
Petitioners-appellants brought an action in the District Court for the District of Columbia for damages attributed to allegedly unlawful acts by respondents-appellees, the District of Columbia and federal and local officials, 1 in the course of the 1971 May Day demonstrations in Washington, D.C. 2 A judge of that court denied a motion for certification of the case as a class action 3 and, a day later, dismissed the complaint against the District of Columbia on the ground of failure to give timely statutory notice of the injuries sued for. 4
The litigation then came to this court on a petition for a writ of mandamus 5 directing the District Judge to vacate the order of dismissal, and on an appeal 6 seeking reversal of the order refusing class-certification. We have heretofore denied the petition and dismissed the appeal, 7 and in this opinion we elucidate the bases of those dispositions. 8
" The peremptory writ of mandamus," the Supreme Court cautions, "has traditionally been used in the federal courts only 'to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.' " 9 And "(w)here the right of the petitioner is not clear, and the duty of the officer, performance of which is to be commanded, is not plainly defined and peremptory," the Court instructs, "mandamus is not an appropriate remedy." 10 It is well settled that while particular kinds of judicial obligations may be enforced by mandamus, 11 the remedy cannot be invoked as a substitute for appeal. 12 Petitioners' resort to mandamus in an endeavor to force reinstatement of the District of Columbia as a party defendant to their suit does not surmount these prohibitions.
By statute, no action can be maintained against the District for unliquidated damages sustained to person or property unless within six months thereafter a written notice descriptive of the injurious event is given to the District. 13 Petitioners, conceding lack of personal notices of their alleged injuries, urge that the District was adequately informed thereof by the complaint in another lawsuit against the District officials instituted on behalf of a class which includes the present petitioners. 14 That suit, however, on unindividualized allegations of the precipitating events, sought declaratory and injunctive relief against infliction of future injuries and continued prosecution of criminal proceedings. By our appraisal, petitioners' concept of constructive specification of the statutorily-required details is not so compelling as to necessitate unhesitating acceptance. 15 We need not consider whether in the long run petitioners can prevail on their thesis; 16 it suffices for purposes of mandamus that the District Judge had no "plainly defined and peremptory" duty to permit continuance of petitioners' action against the District. 17 Nor should the argument that the notice statute cannot constitutionally be applied here 18 be considered unless and until in due course of judicial review it is determined that the statute was operative in the situation presented. 19
Moreover, to award a writ of mandamus in these circumstances is to usurp the function of an appeal. As the Supreme Court has observed, "(a)ll our jurisprudence is strongly colored by the notion that appellate review should be postponed, except in certain narrowly defined circumstances, until after final judgment has been rendered by the trial court." 20 Mandamus "does not 'run the gauntlet of reversible errors' "; 21 it "may not be used to thwart the congressional policy against piecemeal appeals." 22 "Only where an appeal can promise no more than 'a clearly inadequate remedy' may the remedy of mandamus be resorted to." 23
We perceive nothing suggesting the incapability of an appropriate appeal to rectify the dismissal order should it be found erroneous. Indeed, petitioners might have garnered the alternative of an early appeal had they vied for it instead of mandamus. To be sure, an order dismissing one of several parties cannot normally be appealed immediately because it does not dispose of the litigation. 24 But Federal Civil Rule 54(b) authorizes district courts in multiparty actions to "direct the entry of a final judgment as to one or more but fewer than all of the . . . parties . . . upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment . . ."; 25 and when that is done an appeal may be taken at once. 26
The record discloses no effort by petitioners to pursue that course, 27 and we are not at liberty to remediate the omission by awarding a writ of mandamus. 28 We realize that, as the matter is thus left, review of the dismissal order may await the conclusion of proceedings in the District Court against remaining parties. That, however, is precisely what Rule 54(b) afforded petitioners an unused opportunity to avoid. 29 At any rate, the resulting "inconvenience is one which we must take it Congress contemplated in providing that only final judgments should be reviewable." 30
The appeal from the order denying class-action certification confronts at the outset this court's recent decision in Williams v. Mumford. 31 There it was held that such an order generally falls outside the purview of the statute 32 conferring appealability on final orders:
It does not dispose of litigation. It is purely procedural in nature, in that it determines merely the parties to the action without expressing any judgment as to the merits of the case. Moreover, the correctness of the District Court's determination does not evade review since it, along with other procedural decisions, is brought up on appeal after final disposition on the merits. 33
It was further held that orders of that type are not appealable either as final collateral determinations 34 or as interlocutory rulings commanding immediate review. 35
Williams recognized, however, "that in some types of cases the refusal to certify a classification, as a practical matter, does dispose of the action." 36 That would occur in instances where "the plaintiff has such a small monetary or other interest to be vindicated in the action that it would not be worth the plaintiff's time to continue the action." 37 In such circumstances, withholding of class-action certification is obviously likely, as the difficulty is commonly expressed, to sound the "death knell" of the litigation, 38 but that clearly is not the situation here. Each of the 41 named plaintiffs 39 seeks damages exceeding $50,000, more than $2 million in the aggregate. Even if another's appraisal of damages runs much lower for example, $2,000 on the average or $82,000 in toto there remains a sufficient prospect of recovery to insure the viability of the litigation. 40
Nonetheless, two variants of the "death knell" theory are advanced in an endeavor to impart present appealability to the noncertification order. It is first contended that the order effectively vitiates the damage claims of nonlitigating members of the class, who otherwise, it is said, are now time-barred from instituting their own lawsuits. 41 This position rests on the supposition that a one-year statute of limitations in the District of Columbia governs assertion of causes of action for constitutional violations of the character complained of here. 42 We do not intimate any view on the validity of that premise 43 for in any event it leaves us unpersuaded.
To begin with, we are unable to detect any threat of extinction to the named plaintiffs' individual damage claims attributable to a possible time barrier for those who may have slept on their rights. Beyond that, the real crux of any problem associated with the statute of limitations is not the nonappealability of the noncertification order but the delay in getting into court until one day shy of the expiration of the one-year limitation period. 44 Even assuming, without deciding, that the class-action feature of the complaint tolled the period until the District Judge ruled on the matter of certification, 45 the one day of the period remaining thereafter had already elapsed when the appeal reached this court. The consequences thereof cannot be rectified by accelerating review of the noncertification order, but only by a reversal enabling unjoined claimants to come in as members of the class. 46 Since that could occur, if proper, later as well as now, deferment to an appeal following conclusion of the District Court proceedings hardly implicates the death knell doctrine.
It is further argued, in support of immediate appealability of the noncertification order, that if the named plaintiffs prevail individually and satisfactorily on their demands for damages, there will be no incentive to appeal from the denial of class-action status, and thus the unnamed claimants will be left remediless....
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