Motion to dismiss appeal from order entered in the District of Connecticut, Jon O. Newman, District Judge, F. Supp., denying plaintiffs' motion for class certification, the only issue before us being that of our appellate jurisdiction.
Lumbard and Timbers, Circuit Judges, and Whitman Knapp, District Judge.*fn*
This case comes to us pursuant to defendant's motion to dismiss plaintiffs' appeal from an order of the District Court for the District of Connecticut, Jon O. Newman, District Judge, 75 F.R.D. 633 (D. Conn. 1976), which denied plaintiffs' motion for class certification pursuant to Fed. R. Civ. P. 23(c). We hold that the order appealed from is interlocutory and nonappealable. Accordingly, the motion to dismiss the appeal is granted.
Plaintiffs are five employees, one former employee, and the widow of a deceased employee of defendant Wallace Silversmiths, Inc. (the employer). Plaintiffs commenced the action under Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e et seq. (1970), as amended (Supp. II 1972), and 42 U.S.C. § 1981 (1970). They charged the employer with discrimination on the basis of race in its employment policies. Plaintiffs purported to bring the action on their own behalf and on behalf of all others similarly situated. They describe the class as "all black persons who have suffered or will in the future suffer from the pattern of discrimination" alleged. As relief, they sought $300,000 damages for lost wages, $200,000 punitive damages, an injunction permanently enjoining the employer from engaging in discriminatory employment practices, and the imposition of an affirmative action program.
On November 11, 1976 Judge Newman denied plaintiffs' motion for class certification. He found that plaintiffs sought to represent several subclasses, including all black persons who had been deterred or prevented from seeking work with the employer; all black persons who had applied for and been denied employment since July 2, 1965; all black persons who presently were employed by the employer, who would be so employed in the future, and who had been, but no longer were, so employed after July 2, 1965; and all black persons who had been, or in the future would be discharged because of the employer's allegedly discriminatory employment practices. 75 F.R.D. 633 at . Judge Newman found that plaintiffs failed to meet the requirements of commonality, typicality, and adequacy of representation of Fed. R. Civ. P. 23(a) as to all the subclasses. After limiting the putative class to the employer's present and former employees, the judge determined that the class would not satisfy the numerosity requirement of Rule 23(a)(1).*fn1 Id. at. On these grounds he declined to certify a class. He also declined to issue a certificate pursuant to 28 U.S.C. § 1292(b) (1970) to enable plaintiffs to apply to this Court for permission to appeal from the interlocutory order. Plaintiffs nevertheless filed a notice of appeal.
The employer has moved to dismiss plaintiffs' appeal for want of appellate jurisdiction. Plaintiffs claim that the order denying their motion for class certification is appealable pursuant to 28 U.S.C. § 1292(a)(1) (1970), which gives us jurisdiction to review "interlocutory orders . . . granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions. . . ."*fn2 See, e.g., Jones v. Diamond, 519 F.2d 1090 (5 Cir. 1975); Price v. Lucky Stores, Inc., 501 F.2d 1177 (9 Cir. 1974); Yaffe v. Powers, 454 F.2d 1362 (1 Cir. 1972); Brunson v. Board of Trustees, 311 F.2d 107 (4 Cir. 1962) (per curiam), cert. denied, 373 U.S. 933, 10 L. Ed. 2d 690, 83 S. Ct. 1538 (1963).
We decline to hold that § 1292(a)(1) gives us jurisdiction to review the interlocutory order from which plaintiffs appeal. We agree with the Court of Appeals for the District of Columbia Circuit, Williams v. Mumford, 167 U.S. App. D.C. 125, 511 F.2d 363, 369 (D.C.Cir.), cert. denied, 423 U.S. 828, 46 L. Ed. 2d 46, 96 S. Ct. 47 (1975), that to do so would be to effect "an unwarranted expansion of the statutory language." The injunction exception to the final judgment rule should be construed narrowly. "The Supreme Court has characterized [the] history of the injunction exception . . . as reflecting 'a developing need to permit litigants to effectually challenge interlocutory orders of serious, perhaps irreparable consequence.'" Stewart-Warner Corp. v. Westinghouse Electric Corp., 325 F.2d 822, 830 (2 Cir. 1963) (Friendly, J., dissenting), cert. denied, 376 U.S. 944, 84 S. Ct. 800, 11 L. Ed. 2d 767 (1964) (quoting Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176, 181, 99 L. Ed. 233, 75 S. Ct. 249 (1955)). The primary purpose of the exception is to prevent "true hardship", Stewart-Warner, supra, 325 F.2d at 829, by permitting immediate review of orders granting or denying preliminary (interlocutory) injunctions.
Further, we are mindful of the distinction between refusal to grant an injunction which is based on the merits of a case, or lack of jurisdiction or improper venue, and the quite different kind of refusal based "on the wisdom of consolidating certain claims for trial". Id. at 828 (quoting National Machinery Co. v. Waterbury Farrel Foundry & Mach. Co., 290 F.2d 527, 528 (2 Cir. 1961) (per curiam)). As Judge Friendly said in Stewart-Warner :*fn3
"Where the order is of the former type, the danger of serious harm from the court's erroneous belief in the existence of a legal barrier to its entertaining a claim for an injunction has been thought to outweigh the general undesirability of interlocutory appeals." 325 F.2d at 829.
Judge Newman's determination that the instant action is inappropriate for class treatment in no way refuses an injunction. Our cases have so held. City of New York v. International Pipe & Ceramics Corp., 410 F.2d 295 (2 Cir. 1969); Lipsett v. United States, 359 F.2d 956, 958 (2 Cir. 1966); All American Airways v. Elderd, 209 F.2d 247 (2 Cir. 1954); cf. Male v. Crossroads Associates, 469 F.2d 616, 619 n.3 (2 Cir. 1972) (class action determination not reviewable absent "extraordinary circumstances", citing Eisen and referring to the death knell doctrine, "with no discussion of the possibility of jurisdiction under section 1292(a)(1) although it would seem to be an appropriate case for it", Marguiles, Appealability of Class Action Determinations, 44 Ford. L. Rev. 548, 567 n.7 (1975)).
Build of Buffalo v. Sedita, 441 F.2d 284 (2 Cir. 1971), is not to the contrary. There we held appealable, under § 1292(a)(1), an order of the district court which dismissed plaintiffs' civil rights complaint as to three defendants for failure to state a claim upon which relief could be granted. The three defendants were the Mayor, the Commissioner of Police, and the Department of Human Relations of the City of Buffalo. The allegations of the complaint against the individual police officers remained.
Build of Buffalo is distinguishable from the instant case in several material respects. First, the complaint in that case was supplemented by "a motion for a preliminary injunction to restrain defendants pendente lite from committing a formidable list of specific kinds of abusive police practices." 441 F.2d at 286. "By granting the motion of the [three defendants] to dismiss, the district court effectively denied at the same time plaintiffs' motion for a preliminary injunction as against those defendants." Id. This is just the kind of "interlocutory [order] of serious, perhaps irreparable consequence", Baltimore Contractors, supra, 348 U.S. at 181, to which § 1292(a)(1) was directed. See also Jenkins v. Blue Cross Mutual Hospital Ins. Co., 522 F.2d 1235 (7 Cir. 1975); Rodgers v. United States Steel Corp., 508 F.2d 152, 160 (3 Cir.) (dictum), cert. denied, 423 U.S. 832, 46 L. Ed. 2d 50, 96 S. Ct. 54 (1975).
Second, the dismissal of the complaint in Build of Buffalo was on the merits. "The court necessarily decided that upon the facts alleged in the [complaint] [plaintiffs] were not entitled to an injunction." General Electric Co. v. Marvel Rare Metals Co., 287 U.S. 430, 433, 77 L. Ed. 408, 53 S. Ct. 202 (1932). In Build of Buffalo, our Court specifically referred, 441 F.2d at 287, to Judge Friendly's dissent in Stewart-Warner and emphasized that the district court had determined "that plaintiffs were entitled to no relief under federal law, including preliminary relief. . . ."
Finally, the majority and dissenting opinions in Build of Buffalo agreed that "jurisdiction should be denied unless it can be shown that for all practical purposes the dismissal of these defendants effectively terminates the litigation or that it fully nullifies any potential injunctive relief by contracting the scope of the injunctive relief originally sought." 441 F.2d at 294 (Anderson, J., dissenting). Judge Kaufman, for the ...