Williams v. Mumford

• Decision Date: 04 April 1975
• Docket Number: No. 73--2120,73--2120
• Citation: 511 F.2d 363,167 U.S. App. D.C. 125
• Parties: 10 Fair Empl.Prac.Cas. 487, 9 Empl. Prac. Dec. P 10,063, 9 Empl. Prac. Dec. P 9955, 167 U.S.App.D.C. 125 Joslyn N. WILLIAMS and Robert L. Bostick, Appellants, v. L. Quincy MUMFORD, Librarian of Congress, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 363

511 F.2d 363

10 Fair Empl.Prac.Cas. 487, 9 Empl. Prac.

Dec. P 10,063,

9 Empl. Prac. Dec. P 9955, 167 U.S.App.D.C. 125

Joslyn N. WILLIAMS and Robert L. Bostick, Appellants, v. L. Quincy MUMFORD, Librarian of Congress, et al.

No. 73--2120.

United States Court of Appeals District of Columbia Circuit.

Argued 31 Oct. 1974.

Decided 10 Feb. 1975.

Rehearing En Banc Denied

April 4, 1975.

Michael D. Hausfeld, Washington, D.C., with whom Jerry S. Cohen, Washington, D.C., was on the brief for appellants.

Michael G. Scheininger, Asst. U.S. Atty., with whom Earl J. Silbert, U.S. Atty., John A. Terry and Derek I. Meier, Asst. U.S. Attys., were on the brief for appellees.

Roderic Boggs, Washington, D.C., was on the brief for the Washington Lawyers Committee for Civil Rights Under Law as amicus curiae.

Before ROBB and WILKEY, Circuit Judges, and MARKEY, ^* Chief Judge for the United States Court of Customs and Patent Appeals.

WILKEY, Circuit Judge:

Williams and Bostick are black employees of the Library of Congress. Bostick claims that from the time he began his employment with the Library in 1947 he has been subject to racial discrimination as regards his job classification and promotion. On or about 19 April 1972 Bostick filed a formal complaint alleging discrimination with the Equal Employment Opportunity (EEO) Office of the Library of Congress. Four months later he amended his complaint and alleged discrimination affecting all other black employees of the Library. In November 1972 the EEO Office returned the amended complaint, stating that the office was not equipped to handle broad inquiries into the general policies and practices of the Library.

Williams had been employed as a copyright examiner with the Library since June 1967. Soon after he began his employment with the Library he was elected president of Local 1826 of the American Federation of Government Employees, a union which represents Library employees, and president of a task force named 'Black Employees of the Library of Congress.' Williams alleges he was active in promoting equal employment in the Library and in aiding employees who brought discrimination actions. In June 1972 he was given notice of removal effective 21 July 1972. ¹ The removal was based on charges of material misrepresentations relating to his schooling, made on his 1967 application for the position of copyright examiner. In lieu of removal, on 21 July 1972 the Library accepted a resignation submitted by Williams to be effective on 11 August 1972. However, shortly before the effective date of his resignation, Williams requested that his resignation be withdrawn. After the Library refused to allow the withdrawal, on 11 August Williams filed his administrative complaint with the EEO Office, alleging that his resignation was coerced and that his removal was racially motivated.

Three days later Williams also filed in the District Court an action solely on his own behalf, alleging that his removal was the result of racial discrimination and that his resignation had been coerced. On 20 March 1973 Williams filed an amended complaint, adding an allegation that 180 days had passed without final administrative action on his administrative complaint. At this point Bostick's allegations of discrimination were also added to Williams' complaint. Finally, allegations were added alleging discrimination against all blacks currently employed by the Library, all blacks who had been employed at any time since 1960, and all blacks who had sought employment unsuccessfully since 1960, thus making the complaint on its face a class action.

On 20 August 1973, after a hearing, the District Court denied Williams' and Bostick's request for class certification. The denial was based on two grounds: First, that Williams' and Bostick's claims were not typical of the claims of the class they sought to represent as required by Rule 23(a)(3), Federal Rules of Civil Procedure. Second, given the effective administrative remedies available to federal employees apart from Title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972, ² the class action was not 'superior to other available methods for the fair and efficient adjudication of the controversy' as required by Rule 23(b)(3), Federal Rules of Civil Procedure.

On 25 September 1973 an appeal from the refusal to certify a class action was taken. ³ We are presented with the question whether the refusal by a district court to certify a class action constitutes an appealable order. On the facts of this case, we decide that such an order is not appealable and therefore dismiss this appeal for lack of jurisdiction.

I. APPEALABILITY UNDER 28 U.S.C. § 1291

The principal source of our jurisdiction to hear appeals from the District Court is 28 U.S.C. § 1291 which provides: 'The courts of appeals shall have jurisdiction of appeals from all final decisions of the district courts of the United States . . . except where a direct review may be had in the Supreme Court.' Our task, thus, must be to determine whether the refusal to certify a class action constitutes a final decision. A final decision is not necessarily 'the last order possible to be made in a case . . .'; ⁴ however, to be 'final' it must have the effect of resolving litigation on the merits. We have been instructed by the Supreme Court to give a flexible interpretation to 'final decision' when used in the context of section 1291. As a result, the requirements of finality must be given a 'practical rather than a technical construction.' ⁵ 'The inquiry requires some evaluation of the competing considerations underlying all questions of finality--'the inconvenience and costs of piecemeal review on the one hand and the danger of denying justice by delay on the other.' Dickinson v. Petroleum Conversion Corp., 338 U.S. 507, 511 (70 S.Ct. 322, 324, 94 L.Ed. 299) (1950) (footnote omitted).' ⁶

Applying this analysis, it becomes apparent that an order refusing to certify a class action is generally not a final decision within the meaning of section 1291. ⁷ 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.

Having stated the general rule two qualifications must be made and their relevance considered. First, it must be recognized that in some types of cases the refusal to certify a classification, as a practical matter, does dispose of the action. This is because 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. In a series of recent cases, the Second Circuit has developed a body of law relating to this type of case, commonly referred to as the 'Death Knell' doctrine. Secondly, in some cases a subsidiary controversy develops as an offshoot of the main litigation. A decision disposing of such an offshoot may be held to be a final decision, even if the decision is procedural in nature, if it appears likely that the matter would evade review if taken on appeal after a final disposition of the en tire litigation. This has been called the Collateral Order doctrine. We turn now to examine both doctrines in more detail.

A. The Applicability of the 'Death Knell' Doctrine

The 'Death Knell' doctrine was developed in the Second Circuit in the crucible of Eisen v. Carlisle & Jacquelin. In Eisen I ⁸ the Second Circuit denied a motion to dismiss an appeal from a District Court order refusing to certify a class action. In that case, Eisen sued on behalf of himself and all odd-lot purchasers and sellers on the New York Stock Exchange alleging antitrust and Securities Act violations. Eisen's claim for damages was only for $70.00. Appropriately enough, the court noted:

We can safely assume that no lawyer of competence is going to undertake this complex and costly case to recover $70 for Mr. Eisen. . . . If the appeal is dismissed, not only will Eisen's claim never be adjudicated, but no appellate court will be given the chance to decide if this class action was proper under the newly amended Rule 23 (Federal Rules of Civil Procedure). ⁹

The Second Circuit faced the same issue soon thereafter in Green v. Wolf Corp. Plaintiff Green and the members of the class alleged that they had been required to pay an excessive price for certain publicly held securities. As the court noted, 'Green obviously does not intend to press what will probably be an enormously complex and expensive action to recover less than $1,000.' ¹⁰ In two cases consolidated under the title Korn v. Franchard Corp., ¹¹ the court decided that Mrs. Korn's suit for violations of the federal securities laws and for violations of New York law 'will go no further without class suit designation.' Because Mrs. Korn's losses amounted to $386, the Second Circuit denied a motion to dismiss an appeal denying class action certification. However, in the companion case the actual claims of the representative plaintiffs were for about $8,500. The court concluded, '(t)hat figure is close enough to the federal jurisdictional minimum for certain types of cases to suggest it is sufficient incentive to keep the case alive.' ¹² Accordingly, the 'Death Knell' doctrine was inappropriate in that case and the appeal was dismissed.

In this case, it is clear that both Bostick and Williams have a sufficient incentive to continue this suit. Williams in his original complaint requested reinstatement in his former position. Today Williams in addition would be entitled to approximately two and a half years' back pay should he prevail, ¹³ an amount which we can safely assume is greatly in excess of $10,000.00. As...