Jo-Ann Evans GARDNER, Appellant, v. WESTINGHOUSE BROADCASTING COMPANY

occurred, verdicts, except as admittedly Rockwell, be should not defendant

to the However, we because to stand.

permitted led of fraud which lacking the element

find complaint, Court to dismiss District was unwar- that its dismissal

we conclude

ranted.6 from are reversed appealed

The orders the com- they with costs dismiss

insofar Pre- the defendants Standard against

plaint

cision, Division of Electronic Communica- Communications, Inc.

tions, Inc., Electronic Register Company. The National Cash parties except to all verdicts as jury vacated, and matter is are

Rockwell District Court for retrial

remanded remaining defendants. Costs

as to party. are allowed neither GARDNER, Appellant, Evans

Jo-Ann BROADCASTING

WESTINGHOUSE

COMPANY. 76-1410.

No. of Appeals,

United States Circuit.

Third Third Circuit Rule Under

Submitted 28,

12(6) 1977. March June

Decided 22, 1977.

Rehearing July Denied Banc Inc., Esquire, guilty (2d Cir.), cert. Appellee IAI also asserts that was denied, agreed champerty 95 L.Ed. and maintenance because litigation expenses, (1951); and such employees’ its arise to advance repaid relationship if the suc- servant suit was master and advance adopted by Champerty argument was not herein. & This existed C.J.S. cessful. 368; Court, completely page it to Am.Jur.2d we find at Maintenance District 847; Champerty Thall cannot' & Maintenance Maintenance without merit. Brinckerhoff, 623, 647-48, having charged against himer an interest in the 3 Cow. one Roth, suit, H. Inc. Chester subject matter of a Am.Dec. Hackett, Feldman,

Robert N. Joan P. Baskin, Boreman, Wilner, Sachs, Gondel- Craig, Pa., Pittsburgh, appellant. man for & Freeland, Kronz, F. G. Richard Wendell Kronz, Pa., Pittsburgh, ap- & for Freeland pellee. SEITZ, Judge, Chief and ALDI-

Before HUNTER, Judges. Circuit SERT and OF THE COURT OPINION ALDISERT, Judge. Circuit question whether a denial of The immediately ap can be class certification 1292(a)(1)1 28 U.S.C. on the pealed § theory the denial amounts to the denial injunction. circuits are divided question. Although theory on the 1292(a)(1) appealability men has been in this opinions tioned in dictum several circuit, Hackett v. Host especially General 1972), we have permit applied appeal, never such an directly adjudicated we ever its nor have consideration, Upon we believe validity. excep theory unworkable as an rule in limit general this circuit ing appealability class determinations expansion it is and that unwarranted in its purposes Ac narrow reject theory cordingly, we 1292(a)(1) appealability appel and appeal. lee’s to dismiss the motion I. rights action

This civil was commenced Gardner, Jo-Ann plaintiff, Evans her own and on behalf of a class of behalf similarly situated women sex dis- alleging employment in the practices crimination defendant, Westinghouse Broadcasting Company. complaint sought injunctive relief, monetary attorney’s fees. Islands, Interlocutory Virgin decisions District or thereof, granting, continuing, modify- judges jurisdic- appeals (a) shall have courts injunctions, refusing dissolving ing, or re- appeals from: tion of modify injunctions, fusing ex- to dissolve Interlocutory (1) district orders States, cept direct in the where a be had the United States United courts Court; the District of the Canal District Court Zone, Guam, and the Court of the District suggestion cases was the to be action, appli- Ms. found commencing the Shortly after itself, un- re- a class certification cable. Hackett moved Gardner Interrogatories 23(b)(2). of a class determination was view refused. F.R.Civ.P. der to Thus, failed Westinghouse though expressly it has After re- served. were interrogatories, Ms. fully circuit, to certain jected in this neither has Hack- respond discovery. After compel suggestion applied. moved ever been This ett Gardner court denied district argument, directly presents issue whether such an oral no motions, there were ruling of 1292(a)(1) can interpretation both § fact common to of law or questions strong either with the and squared consist- typical, claim not was class, plaintiff’s discouraging in this circuit of policy ent no need to consider was that there and review, appellate spe- or with the piecemeal of light of the denial motion in discovery of purposes and narrow cial § rulings were further No class status. obtaining certificate un- a Without made. A. 1292(b),2Ms. Gardner filed § 28 der U.S.C. ac- of her class the denial appeal from Judge opinion an Following Gibbons’ seminal 1292(a)(1) 28 asserting § U.S.C. Hackett, court,

tion motion bane, again this in and in Westing- predicate. jurisdictional through as Judge Gibbons, speaking enunciat- lack appeal to dismiss moved house principle has become the core of ed what has been re- That motion jurisdiction. of this appealability determination in cir- class us. panel and is now before this ferred determination, “A action cuit. class affirm- in negative, is not this a ative circuit II. appealable order under 28 final U.S.C. . there places primary reliance 1291. . . route § Ms. Gardner [I]f interlocutory grant General Host for the review of a open in Hackett v. dictum 618, 1972), (3d 23(b)(3) 622 Cir. of class action treatment under rule F.2d Corp., 455 circuit, interlocutory only pursuant it is to 28 review in this suggested 1292(b).” had Katz v. might be under Carte Blanche denial U.S.C. a class of (3d 1974). in which the F.2d 752 Corp., “in those cases Cir. adjudicated particular issue designation class action Katz of a refusal granted preliminary injunc- certification under a denial of a class F.R.Civ.P. amounts other 23(b)(3). applications, however, appropriate broader than would not principle was re- Katz has been so limited. suggestion That relief.” individual 1292(b) University requirement of Pitts- certificate Samuel v. in peated 1974), (3d considering the case for prerequisite 358 n.6 Cir. as a F.2d burgh, 506 applied review has been neu- Corp., v. United States Steel Rodgers in grants as as 1975), again trally and in denials well (3d Cir. F.2d case, applied it has been to classes Rodgers same of the status aspect later 23(b)(2) rule as well as Corp., sought 541 F.2d under rule Steel United States 23(b)(3).3 these In none of (3d Cir. 372-73 days entry Interlocutory within ten after order: decisions 1292. Provided, however, application That for an stay proceedings appeal making shall not judge, hereunder (b) in a district When judge appealable court unless the district not otherwise in the district an order civil action section, opinion Appeals judge shall be or a thereof or the Court controlling ques- order involves a that such shall so order. there is substantial law to which tion of Mercedes-Benz, (3d Link v. Cir. opinion ground and that an for difference Corp., 1976); v. Scientific Kramer Control appeal from the order materi- immediate 1976); (3d Ungar Cir. v. Dunkin’ F.2d 1085 ally ultimate termination advance Donuts, (3d 1976); Rodgers writing litigation, in such he so state in shall Corp., Steel United States Appeals may thereupon, Court of order. University Pittsburgh, 1975); Samuel v. discretion, permit be taken in its Corp., supra. supra; Host Hackett General order, application is made to it if from such policy question perceive on this de We

Our irremediable conse- rives, “the balancing from a part, flowing from quences postponement piecemeal costs of inconvenience time, review. At the same envision, we do danger denying and the on the one hand for, in the rule here contended a sure and delay on the Dickinson v. justice by other.” quick evisceration our general policy Conversion Petroleum against interlocutory review of class deter- 322, 329, 94 L.Ed. 299 70 S.Ct. The adoption minations. of the rule would deny importance of the class We do not discourage attempts at interlocutory re- Indeed, many eases. we determination view, it would encourage them. Obviously, recently recognized that action “class prayer injunction for an can easily be significant, practical ef determination most, all, added if purported litigation and aggrieved fects on the Moreover, actions. if we accepted the prop- party very have a real osition a refusal of class status could early securing appellate review.” Link v. to a amount denial of an injunction, there is Mercedes-Benz, 860, (3d 862 Cir. why reason could not argued also be banc) 1976) (in (plurality opinion). But the a grant of class status could amount to ruling possible effects of a are not determi injunction of an under § immediately native of whether it can be Migrant Illinois Pilliod, See Council v. 540 appealed. Evidentiary rulings, for exam F.2d 1072 That, at critically ple, important they can be but are least, would be a neutral application of the proper subject interlocutory not the of concept. that, It is true precise under the question appeal. delay The is whether the Hackett, dictum of not every refusal of a injustice. work review will In the appealable. The refusal must application injunction, for an of an “amount to” a denial of an injunction. But injunction, especially preliminary ur the we would face in each question case the gency matter of the is obvious. The re the particular refusal did or did quest injunction goes for an of merits not amount to the denial injunction. of an delayed the case and review the We would be piecemeal faced with review practical equivalent of no review. aBut of that issue the general rule of § partake class determination does not of and Katz would be effectively up swallowed same A urgency. decision on class status is by exception. § wholly procedural. It is normally within court, of discretion the trial see Link v. Mercedes-Benz, 862; supra, 550 F.2d at B. conditional, subject or alteration purposes The of 1292 are narrow. prior judgment, amendment to final F.R. recognizes The statute the necessity “to 23(c)(1); Civ.P. and it does not implicate litigants permit to effectively challenge in If, merits of the case at all. judg after terlocutory serious, orders of perhaps merits, irrep ment granted on the the relief arable, consequence.” Baltimore unsatisfactory, question deemed Contrac of class tors, Bodinger, Inc. fully delay status is reviewable. The in 249, 252, (1955). volved is the same S.Ct. 99 L.Ed. delay accompanies statute, however, procedural of all rul does not leave the courts case, ings delay in a and the way in no free decide which interlocutory orders power upon appealable. diminishes of court are It sets forth the exception review to full afford relief. specifically.4 al orders (1) exception Interlocutory addition to the relat- orders orders the district ing injunctions, 1292 sets forth States, four other courts of the United United States specific precise exceptions to the final District for the Court District the Canal judgment Zone, rule: Guam, the District Court of and the Interlocutory Islands, § 1292. decisions Virgin District Court of the or of the (a) appeals jurisdic- thereof, judges granting, The courts of shall continuing, modify- appeals ing, refusing dissolving tion of from: injunctions, or re- relating unnecessarily in divorce the meaning for orders exception understandably, has been the junctions, language used its apparent purpose. litigation Morgen before. subject rejected an identical Schering Corp., Co. Chemical stern argument concerning the effect a denial 1950), argued it was judgment summary in Switzerland judgment summary denial Association, Cheese Inc. v. Horne’s Mar- E. injunction of an denial amounted Inc., ket, S.Ct. complaint sought injunctive re where A denial L.Ed.2d of a motion for Hastie, through Judge Speaking lief. summary judgment, Court, said the “is rejected argument: order strictly pretrial only that decides potential below lacks the order [T]he thing one the case go should to trial.” reaching and far effect on the drastic —that generally, More the Court emphasized that parties is characteris- rights way that in no propriety orders which decide touch on the tic of merits “[o]rders injunctions. refusing Such granting only but pretrial claim relate to supplies rational basis potential procedures are in our view ‘interlocuto- general policy pro- incursion ry’ meaning within the of 1292(a)(1).” Id. appeals in the ex- scribing interlocutory 25, 87 at 195. covered situations ceptional expressed by recently This view We understand the conceptual basis statement Supreme Court its theory advanced by Ms. Gardner. purpose “the allow indicates argues that the injunctive She ultimate re than from orders other final appeals lief in successful action may be narrower they when have a final and judgments is if status denied than if class status rights effect on the of the irreparable granted. occur, were But this effect will if Cohen v. Beneficial Indus. parties.” all, after a decision only on the merits Corp., Loan prayer injunctive for the relief. Prior to 1221, 1225 L.Ed. Similar- [93 1528]. time, order denying that an certifi said, we have “The in this circuit ly, cation does not “touch the the merits of is purpose of the statute to en- manifest claim” nor does it have irrepara “final and in litigant prompt seek able rights ble effect on the parties.” the an order de- appellate court from an sum, determination, a class affirmative or in is which most instances effective cree negative, lacks the immediate and drastic its rendition and is drastic and far upon consequences injunction which attend an reaching in effect.” Maxwell Enter- the excepting and which form basis for Cir., Co., Paper prise Wall injunctive rulings judgment from the Thus, final to construe order present the would rule. applicable (b) modify injunctions, judge, fusing making to dissolve or ex- When a district in in a may cept appealable be had the where direct review in civil action an order otherwise Court; section, opinion shall be under this Interlocutory appointing controlling question (2) such order involves orders receiv- ground ers, refusing up law as there is for to wind to which substantial orders receiver- opinion accomplish pur- and ships steps difference of appeal that an immediate or to take thereof, materially directing from the order advance poses sales such as or other litigation, termination of he property; ultimate disposals of writing in Interlocutory shall so in The state Appeals such order. (3) decrees of such district may thereupon, in its discre- judges determining or the thereof courts rights tion, permit appeal to be an taken from such parties liabilities of the admiral- and order, application if is it made to within ten appeals ty in which from final decrees cases Provided, days entry of the after the order: allowed; are however, application appeal That for an here- (4) Judgments patent civil actions in stay proceedings in under shall the district infringement except final which are judge court the district or the Court of unless accounting. judge Appeals aor thereof shall so order. division of the is recognize delay circuits We review will First, Fourth, Fifth, issue. The injustice on this . . [i]f, work . judg- after accepted the proposi- Ninth Circuits5 merits, ment on granted relief is determination, at tion that a class least unsatisfactory, question deemed of class &¡fome instances, may be appealed under fully status is delay reviewable. The in- 1292(a)(1). The and District Second delay volved is the same that accompanies rejected prop- Circuits6 have Columbia review of all procedural rul- align ourselves with Today osition. we case, ings in a the delay way in no holding that a class action latter courts power diminishes the court appealed not be determination review to afford relief.” full only mode of interlocuto- Thus, majority’s analysis depends on will continue ry review in this circuit to be position its refusal is certify 1292(b). pursuant to § always reviewable after final judgment. the appeal The motion to dismiss will be While I position correct, believe that this is granted. explication greater deserves than the ma- jority has given it.1 SEITZ, Judge, concurring. Chief If the district court deny should Ms. argument denial of class Gardner the individual relief she has injunction to an certification amounts could, course, sought, she raise the dis- injunctive relief which might that some trict court’s failure to certify along with in a class action appropriate/! would not be her other assignments of error on appeal individual appropriate suit after final judgment. But the problem Thus, plaintiff. argued, named would be different on the eventuality that to refuse certification effectively decision the district grants her the individual injunctive scope limits the relief which relief she sought. This contingency po- might granted. See Hackett v. General question ses a of Article justiciability, III Host namely, whether Ms. Gardner would have is, majority’s response argument to this standing to district court’s refus- part, at least decision not to al to certify though even she certify does not would foreclose of class- longer personal have injunctive relief in the wide relief because this balance. decision If Ms. Gardner would not always can be reviewed after final to judg- standing ment, application and the class certifica- district court’s refusal certify to tion and class-wide relief renewed in the after she had obtained the individual relief Thus, they say ques- district court. requested, she has the court’s refusal “[t]he R., my 5. Doctor v. Seaboard Coast Line R. 540 F.2d tive relief. In view of conclusion Diamond, (4th 1976); 699 Jones v. appealable Cir. 519 F.2d certification decision after final (5th 1975); Lucky Stores, Price v. judgment, 1090 Cir. pos- reach I need not this alternative Inc., (9th 1974); Cir. 501 F.2d 1177 Yaffe v. ground any sible of decision. But I note that Powers, (1st 1972); Span- 454 F.2d 1362 Cir. argument directly grant that an order must States, (9th gler 415 F.2d v. United 1242 Cir. injunctive appealable to be refuse relief Trustees, 1969); Brunson Board of v. 311 F.2d readily is not reconcilable with (4th 1962); Migrant 107 Illinois Cir. see Coun- General Electric Co. Marvel Rare Metals Pilliod, 1976). cil 540 F.2d Cir. 430, 202, Corp., 287 U.S. S.Ct. 77 L.Ed. 408 (1932), Supreme where the Court sustained Mumford, U.S.App.D.C. 125, 6. Williams v. appealability of an order dismissed City (1975); of New York v. improper counterclaim for venue. Pipe Corp., and Ceramics International complaint I also note that Gardner’s Ms. 1969) (2d (semble). request behalf of herself and the class does not majority’s opinion temporary injunctive 1. Portions of the indicate relief. I need not decide that, apart argument disposition from the the certifi- whether of this be case should judg- cation decision is reviewable after final Corp. different if she had. See Stewart-Warner ment, certify 822, cannot Westinghouse the refusal be deemed Electric injunction J., of an to constitute the denial be- (Friendly, dissenting) 829-30 directly deny injunc- cause this refusal does not opinion Sosna, reducing of its Supreme have the effect of certify could Court apparent general scope injunctive relief. indicated rule is ultimate ironclad: decisions in Sosna v. Supreme Court’s The may be in which the There cases con- 553, 893, 42 L.Ed.2d Iowa, 95 S.Ct. 419 U.S. involving troversy plaintiffs the named Comm’rs v. (1975) and Board School it becomes moot such as them Jacobs, 95 S.Ct. reasonably before the district court can (1975)provide guidance some as L.Ed.2d 74 rule on a expected certification have stand- Ms. Gardner would to whether instances, In such motion. whether the constitutionality involved ing. Sosna can be said to “relate certification back” petitioner that a requirement Iowa’s filing complaint may depend be a resident of the state for action divorce particular circumstances of upon the petition. filing year prior one especially reality case and court had certified the the district After that otherwise the claim issue would action but before the case as a class suit review. evade Court, Supreme the named reached Footnote 11 Sosna was relied on in Ger one year satisfied the resi- plaintiff had Pugh, n.11, stein v. 110 at Court requirement. dence Pugh, 43 L.Ed.2d justicia- held that the suit was nevertheless had plaintiffs named incarcerated III. “When the District under Article ble judicial proba determination of without propriety the class certified the Court The Supreme cause. said ble that: action, persons the class of unnamed de- the complaint filed, At the time was acquired a legal certification scribed respondents the named were members of the interest asserted separate from status persons a class detained without a U.S. at 95 S.Ct. at by appellant.” 419 judicial probable determination, cause but hand, in On the other Jacobs the the record does not indicate any the case moot when Supreme Court held custody awaiting of them were still in personal had lost their plaintiffs the named the District Court trial when certified the the outcome after the district ordinarily a showing class. Such would certify the as a class purported to suit required to avoid mootness under Sos- stressed that the district action. The Court Sosna, supra, na. See [419 U.S.] properly certified or even court had n.ll; (citation omitted). S.Ct. 553] [95 class, adequately and had not identified pretrial length custody cannot be Rule 23 the criteria of determined outset, ascertained at the it may were satisfied. by time release on recogni- ended at appear to general rule which would zance, charges, dismissal of the or a emerge Sosna and Jacobs is that by as well guilty plea, acquittal personal have a live plaintiff must named after trial. It is no means conviction suit at the time the class is in the stake individual, any given certain named Thereafter, the certified. suit properly pretrial plaintiff, custody as would be violating without Arti- may be entertained enough a long judge certify for district to plaintiff Moreover, though no named has cle III even this the class. case the con- stake, long as as the class a personal persons a live existence of class of stant suf- continuing application fering is deprivation a interest. clear. The at- has torney representing respon- the named here would seem to indicate of this rule defender, public a dents is and we can plaintiff could the successful individual safely has assume he other clients class status not refusal to continuing in the with a live interest case. judgment, by since decision after final court, on from this district remand Back Under Footnote 11 1. Relation court, certify, postdate to the class would of Sosna. lost plaintiff the named her the time when original personal purport stake—at time footnote 11 does not to While description cir- give in her favor. But footnote exhaustive judgment determination, agreement in which certification with cumstances all parties, pending ruling a on filing relate back to the the merits. deemed pointed The Government has to no re- expressly allow complaint, it does rela which spect in this would pro- than in circumstances other those tion back if the differently ceeded court had certi- controversy which a has such inher as a action fied this on November cycle short that a district court could ently 16, 1973, than in rather its decision of to rule expected not be on motion for 3,1974. May If as Mr. Justice White said plaintiff’s before named certification justification with some in his dissent in expired. stake But the has Court’s personal Sosna, 419 U.S. at at S.Ct. always has language narrowly been (footnote omitted), specific, “The only Likins, F.2d In Allen v. read.2 with identifiable individual an evident 1975), the court indicated relation continuing in presenting an at- when permissible the district court back upon residency tack requirement unduly delayed its decision certifica and, counsel” appellant’s if the Court had Weinberger, In Frost v. tion. by “legal this overcome fiction” consist- denied, 1975), cert. “the ing of reification of an abstract enti- (1976), Judge 47 L.Ed.2d 364 class’, ty, faceless, ‘the constituted of un- Friendly said that the “apparent force” of named individuals who are deemed to rule general “large stated in Sosna was have a live case against or controversy Frost, by ly drained” footnote appellees,” scarcely consequen- can be widow and two children of a deceased who tial in a case like this whether the named under the Security had been insured Social plaintiff had hearing obtained a in the Security Act claimed that Social Ad which, period the agreement with deprived ministration had them benefits parties, the court took make its class deserved without a they evidentiary full action determination. 515 they hearing. complaint After filed their extent Supreme To the that the Court’s persons of “all who now or may on behalf in opinion fictions, in Sosna legal relies I the future entitled survivors’ benefits agree Judge Friendly with that it cannot be the Act whose benefits have been or identify deemed the real considerations prior be reduced without a hearing,” guide any which must determination of Secretary court ordered the district justiciable case is under Article Health, Education Welfare conduct a III. While Court’s determination that hearing month, on their claims full within brings class certification new interests be- Secretary did so. Subsequently, appear fore the court does not to involve a the court certified the class. defend fiction, legal the device of relation back ants claimed that the case should be dis does, clearly and thus it is important moot, as plain missed because the named identify the real considerations which moti- already given tiffs had the hearing vate the use of this device. they claimed was required by due apparent Court’s concern is when the district process court certified the that if the plaintiff’s named expired stake rejecting argument, class. Judge before the class was certified and thus “ac- Friendly said: quired legal separate status in- generally requiring The reason for plaintiff],” terest asserted there [named controversy be “live” named a hiatus would be in which there would be at time plaintiff the of the class action no live interests the before Use court. of designation is that otherwise the court back the relation device alleviate this would have no assurance that the named by the recasting concern facts so that the represent will plaintiff vigorously the are interests class to deemed when, This little application class. has as presented to the court at a time when here, the court deferred class plaintiff action the named had live stake. Gertrude, Napier But cf. v. again same action is undoubtedly be an relevant might that there concern But the is Article III satisfied. If an to whether live interests are be- no in which interval plaintiff can that individual show there is not, opinion, a com- my is in the fore expectation that “a reasonable [he will] the fact of place, the first one. In pelling again,” to subjected the same action he can in case—such that is matter the personal he continues to have a show that device of relation back which the Pugh —in case, in the despite the outcome of been such an inter- will have used there is hand, mootness. On the other if apparent footnote 11 of Sosna is true val. It question that the is “capa he cannot show allow extension explicitly not does himself, as to repetition” of he will fail ble to cases other than device back relation person that he continues to have a to show to controversy tends dissi- the where those the outcome the al interest in of case. be ex- class certification can before pate Thus, reading my of Bradford indicates footnote states that and that the pected, “capable repetition, doctrine that the of of “may of back de- relation applicability review,” evading when it yet bears reality especially [upon] . . . pend III, demonstrating ofway Article is the issue would that otherwise the claim of requirement the constitutional of “case or to it would appear But review.” evade met, controversy” really despite apparent repetition, yet of “capable extent The doctrine does not mootness. function relevant criterion would be evading review” exception an provide the constitutional on the “dis- would bear justiciability, fact, In requirement. it would seem im to reach the decision whether cretionary an exception to make to the proper require issue, Art. Ill rather than of merits [the] language ments set forth in broad controversy’ requirement.” Franks ‘case or III Article Co., Transp. 424 U.S. Bowman hand, are On the other there circumstanc- (Powell, 47 L.Ed.2d 444 96 S.Ct. “capable es doctrine J., concurring part dissenting repetition, yet evading goes review” to the part). “discretionary decision reach the merits issue, rather than Art. Ill ‘case circumstances, “capable [the] In some Sosna, controversy’ In requirement.” or yet evading review” criterion repetition, Supreme Court mentioned that one fac- Article has been to whether III relevant weighing justiciability favor of was tor Bradford, Weinstein satisfied. year requirement that Iowa’s one residence 347, 349, 147, 149, 46 L.Ed.2d 96 S.Ct. filing so a divorce was short that (1975), Court said: to evade review. But in Franks v. tended decided that in the absence of Sosna Co., Transp. supra, the Bowman Court said: action, “capable repetition, class “nothing opinions in our Sosna [Jacobs ] doctrine was limited evading review” yet holds or even intimates that the fact that where two elements com- situation to the longer person- no has a plaintiff the named (1) challenged action was in its bined: outcome al stake certified fully litigated too short duration the class action renders action moot unless (2) expiration, prior to its cessation ‘capable repeti- an issue there remains expectation ” reasonable there was a tion, evading (citation yet review.’ omit- party would be complaining the same ted) at 96 S.Ct. 1259. Rath- 424 U.S. again. The to the same action subjected er, “capable felt that the of repe- the Court action, case, clearly a class instant tition, evading review” criterion went yet satisfy the latter element. does justicia- discretionary component of Bradford, fact that the context Article III satisfied bility, and that was party might reason complaining solely because the interests of the same subjected to be to the were before court. ably expected Richardson, respon- conferred fact that “if virtue In United States issue, 2940, 2947, 179-80, permitted litigate is not L.Ed.2d dent 94 S.Ct. standing so.” (1974), is not one can do indicated back, why holding to it would reason respect relation case in abeyance With “capable repe- doctrine of that the seem live interests come until before the court be tition, evading only review” would yet mean that should the case will not go for- any requirement constitutional to relevant with the necessary ward concreteness and always be live interests before there that Cohen, Flast adverseness. See way the doctrine is a of demon- court if 83, 99, S.Ct. L.Ed.2d 947 require- such a constitutional strating that any would view I that contention a court fact even where it is in satisfied ment plaintiff must at all times have a live be- appear be. If the might not to doctrine it and cannot fore consider adding new way showing as a that does not serve repair any deficiency interests to as barren live to be interests before continue there This reality. is not to say that the class to goes discretionary court, then may any time, be certified at merely but justiciability, and the fact component Article III not that does divest courts all Supreme Court mentioned the doc- that adding parties— discretion to consider new imply in footnote 11 of Sosna does not trine judgment even after final it appears —after any requirement there is constitutional that parties that former have personal lost their live interests the court there be before that stake.5 of a every moment lawsuit. at presents Moreover, that a case The fact an issue as to discretionary compo- well become moot as to the justiciability, I nent believe that this plaintiff before class certification named court should entertain an from the not expected imply during be does that can district court’s certify refusal to the class respect between with the interval mootness plaintiff aby named who has received all plaintiff the named and class certifica- to the individual relief she requested, at has be be- there continue to live interests least when the named plaintiff made a Thus, the fore the court.4 fact that foot- timely motion for class certification in the question mentions note of Sosna original proceedings. contrary position controversy to dissipate whether tends would insulate appellate review a de- imply class certification does not before reaching cision of far consequences,6 and requirement that there is constitutional might frustrate judicial interests of there live interests before economy since it encourage would a multi- fact, every moment of In lawsuit. plicity of lawsuits in conditions where a since footnote allows relation back and class action would the preferable mode evading since the review consideration does adjudication. III, speak to Article not would seem that implies footnote there no consti- sum, I conclude that footnote 11 in requirement tutional there be in- live be given expansive Sosna should read- every terests before court at moment of ing, Gardner, Ms. so that if even she obtains a lawsuit. all individual relief she requested, argument standing I find that there be would to seek should reversal requirement unconvincing. such There is district court’s decision not to certify. ” Pugh, n.11, assigned 4. Gerstein U.S. at 110-11 class action was as error . . . appeared the Court to look capable repetition the issue was as members, the named 6. Even if we should hold that district’s refusal plaintiffs. certify brought up on an appeal because it cannot be re- Gertrude, agree Napier n.2, supra I with judgment, viewed after final there still would that the fact that the Jacobs appealed be cases which could not be proper application not remand for did of F.R. complaint because does not weigh against my position, 23 does not Civ.P. injunctive relief. See seek Hackett v. General since Court did not rule . . “[t]he . Host power remand, mootness removed its and it appear certify does failure defenses, Continuing or otherwise come Plaintiffs into the ac- The Named tion,” Knuth v. Dairy see Erie-Crawford Interest. Assoc., Co-op. found in foot- back device relation The fiduciary responsibility of representa- on that theory rests the Sosna note also, view, my explains parties why tive certification, class the interests of the representatives ever raise mat- apart But even court. the are before bearing on the interests of mem- ters poses no that footnote my conclusion though they no tangible bers even to, impliedly permits certifica- and barrier interest personal these matters —includ- plaintiff’s claim is the named after question of ing very the class certification. moot, that the successful I believe already I conclude whether on the relation complain dis- could the plaintiff named ,11 theory Sosna, found footnote back the class be- certify failure to trict court’s theory or on the that Ms. Gardner has a personal interest the continued he has cause personal continuing stake stemming from fiduciary responsibilities his exercising she a fiduciary fact that is the behalf of the class he respect to the members of with class, she putative the would be able to sought represent. has district court’s certify the refusal to apparently has never Supreme Court judgment though after final even re- she express, any or been asked to expressed, ceives all the individual relief which she has theory named putative on the view requested. Since district court’s refusal personal class action has a of a plaintiff certify always will appealable be after he from the fact that which stems judgment, hardly can be final said that respect fiduciary with members is a court’s possi- decision foreclosed the are But there several indicia class. of the bility that class could ultimately be filing action with fact of the and certified class-wide relief granted. imposes fidu for class treatment request Thus, court’s refusal does not amount to putative responsibility upon the ciary injunction for purposes 1292(a)(1), of § 1) certi plaintiff: even before class named present interlocutory appeal and must fication, may not be settled or the action dismissed. approval,7 Kahan without court dismissed (3d Cir.), Rosenstiel, cert. de SUR PETITION FOR ON REHEARING 950, 90 1870, 26 nied, L.Ed.2d SEITZ, Judge, Before Chief and ALDI- 2) 23(a)(4) requires as (1970), F.R.Civ.P. SERT, ADAMS, GIBBONS, HUNTER and that “the certification prerequisite GARTH, Judges.* Circuit parties fairly will and ade representative class”, protect interests of quately petition for rehearing filed by Appel- 23(d)(2) gives power the court 3) F.R.Civ.P. in the above case having lant entitled “requiring, protec for the to issue orders the judges participated submitted who or the members of the class other tion of the decision this court and all action, fair conduct of the wise for the judges available circuit other the circuit given in such manner as the court notice service, regular active and no judge who all of the direct to some or members in the having concurred decision asked for action, or of the step proposed in the rehearing, a majority of the circuit judgment, opportu regular extent the circuit in judges of active ser- they signify having of members to nity voted for rehearing by vice banc, representation petition fair and ade rehearing consider court in present claims or quate, to intervene and denied. determining approval Article III does not al- dismissed without require plaintiffs personal ways that a named court.” Sosna, throughout litigation, continue stake * 95 S.Ct. L.Ed.2d Judges partici- Rosenn Weis did not Circuit that “Once suit 532 at n.8 mentioned pate in the consideration of this matter. action, may settled as a class certified

GIBBONS, dissenting. See, Judge, Circuit g., e. Oatis v. Crown Zellerbach Cir. of appellant’s denial I dissent 1968); Shapiro, Bernstein & Co. v. Conti- rehearing peti in banc. That for petition Co., nental Record 386 (2d F.2d 426 Cir. every an issue which meets presents tion 1967); Trustees, Brunson v. Board of 311 in reconsideration criterion banc far for 1962). Cir. This category most cases that this court has of more than appeals adequate, recently Fed.R.App.P. so considered. See we —Corp., think, 35(a); v. Eaton F.2d to protect against Walton most district 18, 1977) (Gibbons, July filed —(3d Cir. court inhospitability to class action litiga- J., dissenting). Moreover, panel opin involving tion civil rights, the elective ion, in which it was not even in a case franchise, protection of the environment question, reach the necessary to has an and the like.” prohibition against review- nounced a broad 455 F.2d at 622. The point made in Hack lite of ability pendente of denials class ac ett, that, point a in my least, view at was rights relief in civil injunctive tion cases. justification the essential rejecting prohibition inconsistent with the a Such Second Circuit’s “death knell” rule as an circuit, this law of inconsistent with prior nounced in Eisen v. & Jacquelin, Carlisle reasoned decisions other circ the better (2d 370 F.2d 1966), Cir. denied, cert. uits,1 as an except and unsound indication 1035, 1487, 87 S.Ct. 18 L.Ed.2d 598 rights hostility underlying being (1967), was that in civil rights litigation, hostility, asserted. unarticulated injunctive relief in single favor of plain a explanation course, lies for the decision. tiff usually would nothing do whatsoever Judge opinion panel Aldisert’s for the As remaining for the members of class. A acknowledges, seminal majority opinion single might black child placed in a reviewability in this on the circuit school, white while all of the child’s fellow action determinations is Hackett v. General black classmates were left a segregated (3d 1972), 455 F.2d Cir. Corp., Host cert. school. In such a case the denial of class denied, 407 U.S. 92 S.Ct. action treatment would the practical (1972), in we L.Ed.2d 812 declined to denying effect of injunctive relief to the adopt the so-called “death knell” rule of the Moreover, key entire class. issue in Circuit, denying that an order Second a case, such a and the key issue in the posi permit proceed motion to a case to as a tion taken panel majority, is may be class action reviewable as a collater availability pendente injunctive lite re ally meaning final order within the of 28 lief. Hackett concluded we did not 1291 and Cohen v. U.S.C. Beneficial In § need the interpretation Eisen of § 1291 Corp., dustrial Loan 69 S.Ct. because of pendente a denial lite relief ben 1221, 93 L.Ed. 1528 But while class, efiting a guise of a denial of negative Hackett declined treat a treatment, class action was reviewable un action determination as a final order it 1292(a)(1). Now, der carefully taking without preserved right to seek appel banc, panel case in majority under 28 late review has overruled U.S.C. very premise where denial of fundamental class certification on which our holding the denial Hackett preliminary so, amounts to in rests. It has done junctive Hackett, relief. we moreover, specifically despite the fact we reiterat referred to premise ed that in Rodgers v. United States “ Corp., (3d Steel 541 F.2d 372-73 . . . those cases in which the Cir. re- 1976); Rodgers v. designation

fusal class action United States Steel preliminary (3d amounts to denial of a in- 1975) junction broader than be appropri- would Samuel v. University Pittsburgh, ate for individual relief. U.S.C. F.2d 358 n. 6 1. See note infra. If class action availability pendente lite relief is also noted we denied

In Hackett review, voting case, rights pass in cases where the de- elections will appellate might relief not amount reaches us on final hearing, of class action before nial relief injunctive benefiting class members will have been the denial disen- 1292(b) 28 U.S.C. class either franchised those elections. If class ac- 54(b). plurality A pendente lite relief is denied in a under Fed.R.Civ.P. school a deter- has demonstrated case, court in banc desegregation class members will re- 1292(b) make the route years segregated classrooms, mination main See Link v. Mer- impossibility. practical suffering permanent psychological ef- Inc., America, of North cedes-Benz inadequate opportuni- educational fects 1977) (Gibbons, J., (3d dissent- 870 Cir. pendente ties. If class action lite relief is major, has also erected a ing). court in an employment denied discrimination useless, disregarded impedi- frequently and case, years go by during will which class Rule 54(b). of the utilization See ment to jobs members remain locked in dead end Philadelphia Elec- Corp. Chalmers Allis lacking stimulation, challenge, opportu- and Thus, 1975). Cir. Co., F.2d 360 tric 521 nity growth. suggest for intellectual To safeguards upon alternative each of the that these would not be irremediable conse- holding Hackett premised we which is to mockery equitable make a of quences substantially or erod- been eliminated now pendente relief, lite principles respecting ed. defy Congress the intention and of when Act, in provided it Act of Evarts March opinion need not have panel majority 3,1891, 26 review appellate Stat. completely overrule the fun- out to reached injunctive or grants denials of relief. holding the Hackett in premise of damental noted, Judge have could this case. It disturbing signals I find most which note does at concurrence Seitz’ gone out this have from court to district complaint request pen- this case did in respect of this circuit courts with class of the proposed relief in favor dente lite action determinations. We seem to be say- could majority have re- class. Thus we ing totally abdicated.all re- rejec- so as to language apply its its stricted sponsibility making Rule 23 serve its 1292(a)(1) appealability to that tion § purposes. remedial This last sig- intended leaving open possibility only, situation all, disturbing is the most because nal putative repre- when the class appeal completely appellate from removes pendente lite relief. In- did seek sentative class lite review of denials of ac- pendente stead, sweeping language, totally re- injunctive rights relief in civil tion cases. well body a and considered jects substantial cases, e. most economic class action g., In recognize appeala- which of authorities 10(b) Act cases under of the Securities bility certification of denials 1934,3 injunction a preliminary favor of the denial to a 1292(a)(1) where amounts will, practical for all plaintiff the individual injunctive lite relief.2 rejection pendente fully class. purposes, protect the entire A deceptive given injunction against we are a only explanation preliminary pronounce- judicial proxy broad false statement will practice of this defense perceive ongoing sentence: “We effect of either. is the brief terminate ment injunc- case a lite consequences flowing pendente such denial of irremediable Op. at individual’s case will Majority of review.” tive relief postponement will inure to faulty indeed a and that perception. appealable, That R., Migrant (4th 1962); Line R. see Illinois Coun 107 Cir. Coast F.2d 2. Doctor Seaboard Diamond, Pilliod, (7th (4th 1976); Jones cil v. F.2d Cir. 540 F.2d Cir. Stores, Lucky 1975); Price v. (5th Cir. Inc., 1974); (9th Cir. Yaffe v. 78j(b); See and Ex- 3. 15 U.S.C. Securities 1972); Span- Powers, (1st 10b-5, change Rule Commission C.F.R. States, gler v. United 240.1 Ob-5 Trustees, Board of 1969); Brunson v. Adams, Judge too, the economic class whether or not Circuit benefit believes that granted class action treat- the district the Court’s in banc at- case warrants Thus, instances in which econom- ment. tention. subjected pendente lite class will ic illegal course of conduct will be

continuing

comparatively rare. law, rights area how- civil

ever, registered voter bemay an individual lite, pendente an indi- allowed vote plaintiff may be transferred child

vidual pendente lite desegregat- enrolled school, pro- an individual ed female ASSOCIATED CONTRACTORS OF ES lite, pendente while the discrimina- moted COUNTY, INC., Sigfried Higgins, SEX he she against Jr., Wall, John Ingrassia, and Archie In continues. If the district was member dividually Employer and as Trustees of favorably disposed the underly- judge the Newark Laborers Welfare Fund and claim, rights ing grants class civil action Fund, Ap Newark Laborers Pension treatment, injunctive and affords relief pellants, class, benefiting defendant will be If, how- able ever, judge unfavorably that district dis- LABORERS INTERNATIONAL UNION panel majority opinion has indi- posed, AMERICA, OF NORTH the Local Union precisely how cated to him to shield from Nos. 699 and Newark Laborers unwillingness his appellate review Fund, Welfare and Frank DiGirolamo lite relief grant pendente class. Brienza, Individually and Paul and as dismantling All opinions opportu- of our alleged Employer thereof, Trustees of district court actions in nities review Mandaglio, Michael James Brown refer, cases way class action one or an- McDonald, Individually James and as other, consequences diluvian thereof, Union Trustees and Michael Gia any closing other door our caseload than colone, Individually alleged and as Union Benz, In Link v. supra, Mercedes I rules. thereof, Trustees and Frank Boscia as 1292(b) actual count of observed thereof, Administrator Newark Laborers belied applications need for such a con- Fund, Pension and Frank DiGirolamo I 873-74. am equally cern. Brienza, Individually and Paul and as dismantling the protec- convinced alleged Employer Trustees thereof. potential tion afforded class members pendente lite appellate availability No. 76-2011. pursuant to § will have Appeals, States United Court of significant an effect on our appel- about Third Circuit. taking a late caseload as bucket of water today out the Delaware River will have Argued Feb. Cape May. on tomorrow’s tide at The real Decided June is this court’s hospitality inhospital- issue actions, ity particularly as- those

serted behalf minorities. vibra- decidedly I feel are

tions hostile. the court’s banc

This warrants If the all

attention. Court is at pendente

interested in the availability

lite injunctive rights relief in civil

actions, it warrants Court’s attention

as well.

Case Details

Case Name: Jo-Ann Evans GARDNER, Appellant, v. WESTINGHOUSE BROADCASTING COMPANY

Court Name: Court of Appeals for the Third Circuit

Date Published: Jul 22, 1977

Citation: 559 F.2d 209

Docket Number: 76-1410

Court Abbreviation: 3rd Cir.