Transportation-Com. Div. v. St. Louis-San Francisco Ry. Co., 19685.

• Decision Date: 16 February 1970
• Docket Number: No. 19685.,19685.
• Citation: 419 F.2d 933
• Parties: TRANSPORTATION-COMMUNICATION DIVISION — BROTHERHOOD OF RAILWAY, AIRLINE AND STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES and Frisco System Division 32, Transportation-Communication Division — Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employes, Appellants, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

419 F.2d 933 (1969)

TRANSPORTATION-COMMUNICATION DIVISION — BROTHERHOOD OF RAILWAY, AIRLINE AND STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES and Frisco System Division 32, Transportation-Communication Division — Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employes, Appellants, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Appellee.

No. 19685.

United States Court of Appeals Eighth Circuit.

December 19, 1969.

Rehearing Denied February 16, 1970.

Milton Kramer, Washington, D. C., for appellants, John H. Haley, Jr., St. Louis, Mo., on brief and reply brief.

Paul R. Moody, St. Louis, Mo., for appellee, John E. McCullough, St. Louis, Mo., on the brief.

Before VAN OOSTERHOUT, Chief Judge, and MATTHES and HEANEY, Circuit Judges.

VAN OOSTERHOUT, Chief Judge.

Plaintiffs, Transportation-Communication Employees Union and Transportation-Communication Employees Union, Frisco System Division 32 (TCU), have taken a timely appeal from judgment entered by the District Court on August 8, 1968, and from order of January 16, 1969, denying plaintiffs' motion to amend the judgment.

The threshold issue is whether either of such judgments are final decisions upon which an appeal will lie. We hold that neither of such judgments are final decisions and that plaintiffs' appeal must be dismissed for want of jurisdiction.

The issues involved and the factual background of this litigation are fairly stated in the trial court's memorandum opinion reported at 296 F.Supp. 507. It is sufficient for our present purposes to state that TCU sought enforcement of certain arbitration awards made by Public Board No. 34, which Board was created by agreement of the parties to this litigation pursuant to the provisions of 45 U.S.C.A. § 153, Second. The defendant railway has sought review of such awards. Each of the parties made motions for summary judgment. No ruling was made on such motions. The awards of the Public Board were neither enforced nor rejected, nor was the action dismissed. The court in its memorandum opinion, after ruling upon several of the issues raised, concluded its opinion as follows:

"This Court is of the opinion that the Board cannot make a proper determination of the matter unless it also reviews the contracts with Frisco of the other unions who may have an interest in this matter. * * * "These awards will be remanded to the Board for a determination of the other unions who may have an interest. After this determination has been made and the other unions have been given an opportunity to be heard, the Board shall then review the other union contracts for the purpose of making an interpretation of the scope of all the contracts and what effect they may have on these awards, if any." 296 F.Supp. 507, 511.

The judgment entered August 8, 1968, reads:

"A memorandum dated this day is hereby incorporated in and made a part of this judgment.

"It is Hereby Ordered, Adjudged and Decreed that the cause be and the same is remanded to Public Law Board No. 34 for a further determination in accordance with the memorandum."

Subsequently on January 11, 1969, the trial court denied TCU's motion to amend the judgment to enforce the awards or in the alternative, to grant an evidentiary hearing upon the jurisdictional dispute issue. This appeal is from the judgment entries just described.

The trial court properly determined that it had jurisdiction over the controversy under 45 U.S.C.A. § 153, First, (p) and (q), and § 153, Second as amended. Included in § 153, First, is the following:

"The Adjustment Board shall file in the court the record of the proceedings on which it based its action. The court shall have jurisdiction to affirm the order of the division or to set it aside, in whole or in part, or it may remand the proceeding to the division for such further action as it may direct. * * *"

See Transportation-Communication Employees Union v. Union Pacific Railroad Co., 385 U.S. 157, 165, n. 4, 87 S.Ct. 369, 17 L.Ed.2d 264, for an interpretation of this provision.

Courts of Appeals have only such jurisdiction as is conferred by statute. The pertinent statute here involved, 28 U.S.C.A. § 1291, provides: "The courts of appeals shall have jurisdiction of appeals from all final decisions of the district courts of the United States, * *."¹

"A `final decision' generally is one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911. To like effect, see Stewart v. Bishop, 8 Cir., 403 F.2d 674, 678; Bohms v. Gardner, 8 Cir., 381 F.2d 283, 285; Smith v. Sherman, 8 Cir., 349 F.2d 547, 551.

A remand order for further proceedings is not a final decision contemplated by § 1291. Bohms v. Gardner, supra; Marshall v. Celebrezze, 3 Cir., 351 F.2d 467; Mayersky v. Celebrezze, 3 Cir., 353 F.2d 89; Stathatos v. Arnold Bernstein S.S. Corp., 2 Cir., 202 F.2d 525.

We are convinced that when the law is applied to the facts of this case, the conclusion must follow that the judgments appealed from are not final decisions. The trial court has neither enforced nor denied enforcement of the Board's awards. It has made no final determination of the merits of the controversy and it has not...