State of Missouri v. Stupp Bros. Bridge & Iron Co.
| Decision Date | 10 January 1966 |
| Docket Number | No. 142771-1.,142771-1. |
| Citation | 249 F. Supp. 111 |
| Court | U.S. District Court — Western District of Missouri |
| Parties | STATE OF MISSOURI and State Highway Commission of Missouri, Plaintiffs, v. STUPP BROS. BRIDGE & IRON CO. et al., Defendants. |
Norman H. Anderson, Atty. Gen., State of Missouri, Jefferson City, Mo., James C. Wilson, Kansas City, Mo., for plaintiffs.
Brown, Douglas & Brown, St. Joseph, Mo., for St. Joseph Structural Steel Co.
Spencer, Fane, Britt & Browne, Kansas City, Mo., for K. C. Structural Steel Co.
Watson, Ess, Marshall & Enggas, Kansas City, Mo., for Havens Structural Steel Co.
E. C. Hartman, R. H. McRoberts, Stuart Symington, Jr., St. Louis, Mo., Watson, Ess, Marshall & Enggas, Kansas City, Mo., for Stupp Bros. Bridge & Iron Co.
F. Russell Millin, U. S. Atty., and Calvin K. Hamilton, Asst. U. S. Atty., for the Government.
Defendants filed joint motions praying that our order of November 22, 1965 be certified for interlocutory appeal to the Court of Appeals pursuant to Section 1292(b), Title 28, United States Code.
Defendants suggest that our order of November 22, 1965 presents a classic case for the application of Section 1292(b); that there is substantial ground for difference of opinion in regard to three questions of law involved in our order denying defendants' motions for summary judgment; and that an immediate appeal from the order may materially advance the ultimate termination of the litigation. We do not agree for reasons we shall state in some detail.
Defendants do not cite a single case involving Section 1292(b) in support of what amounts to a request for certification. Under the particular circumstances presented by this case, the questions presented by our ruling of defendants' motions for summary judgment cannot be said to be controlling questions unless all of defendants' separate theories, both factual and legal, rejected as untenable in our memorandum opinion of November 22, 1965 are accepted in totality.
It is further apparent that defendants would have us predicate the required finding that "a substantial ground for difference of opinion" exists on the basis of defendants' disagreement with our decision, as distinguished from a difference of judicial opinion expressed by some other court or courts.
And, finally, defendants' argument that an immediate appeal "may materially advance the termination of the litigation" rests upon the assumption that defendants are certain that our adverse determination of defendants' motions for summary judgment cannot be sustained.
The increasing frequency with which requests for Section 1292(b) certifications are being requested suggests that we set forth the principles we believe control the exercise of the discretion vested in a District Court by that statute.
Di Bella v. United States, 369 U.S. 121, at 124, 82 S.Ct. 654, at 656, 7 L.Ed.2d 614 (1962), teaches that "the general principle of federal appellate jurisdiction, derived from the common law and enacted by the First Congress, requires that review of nisi prius proceedings await their termination by final judgment." That case noted that Congress has from time to time recognized the need of exceptions that would permit interlocutory appeals in particular cases and added that the passage of Section 1292(b) was the most recent example creating such an exception.
That case, however, made clear that Andrews v. United States, 373 U.S. 334, at 340, 83 S.Ct. 1236, at 1240, 10 L.Ed.2d 383 (1963), in not dissimilar manner, recognized that "the long-established rule against piecemeal appeals in federal cases and the overriding policy considerations upon which that rule is founded have been repeatedly emphasized by this Court." See also Brandt v. Renfield Importers, Ltd., 8 Cir. 1959, 269 F.2d 14, at 16, and compare Evans Electrical Const. Co. v. McManus, 8 Cir. 1964, 338 F.2d 952.
The point of beginning, therefore, is recognition that Section 1292(b) involves a Congressional exception to the long established and dominant rule against piecemeal appeals in federal appellate practice.
The legislative history of Section 1292 (b), its construction by both circuit and district courts, and the actual operational experience of the statute since its 1958 enactment were fully and carefully reviewed by Judge M. C. Matthes at the 1962 Eighth Circuit Judicial Conference. His remarks are published in 11 Nebraska State Bar Journal No. 4 (October 1962) 125.
Examination of the subsequent cases and of later Annual Reports of the Director of the Administrative Office of the United States Courts demonstrates that the pattern established by 1958-1962 experience described by Judge Matthes has been substantially the same since that time. A total of 171 applications were filed in 1963 and 1964 and only 89 were allowed by all eleven Courts of Appeals. The figures for 1958 to 1962, and the significance to be attached to those figures, will be stated below.
Judge Matthes reviewed the full historical background of Section 1292(b), both in the Judicial Conference of the United States and in the Congress. He then stated that:
The legislative history makes it compellingly clear that § 1292(b) was designed and meant to have limited application.
In addition to directing attention to Dearborn Stove Co. v. Farmers Union Coop. Gas & Oil Co., 8 Cir. 1962, 304 F.2d 273, then most recently decided, for the purpose of shedding light on the view of the Court of Appeals for the Eighth Circuit, Judge Matthes focused the attention of the members of the Eighth Circuit Conference on the 1953 warning given by the United States Judicial Conference Committee that wrote Section 1292(b). In that connection he stated that:
The committee warned, however, that saving of time...
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In re Midwest Milk Monopolization Litigation
...Title 28, United States Code. We discussed the standards applicable to § 1292(b) certifications in State of Missouri v. Stupp Bros. Bridge & Iron Co. (W.D.Mo.1966) 249 F.Supp. 111. Having given appropriate consideration to the matter, we have concluded that it would be neither proper nor ap......