Brace v. O'Neill

567 F.2d 237, 16 Fair Empl. Prac. Cas. (BNA) 99, 1977 U.S. App. LEXIS 10823, 15 Empl. Prac. Dec. (CCH) 7932

• Court: Court of Appeals for the Third Circuit
• Decided: November 10, 1977
• Docket: No. 76-2207
• Status: Published

Opinions

OPINION OF THE COURT

GARTH, Circuit Judge.

Penelope Brace, a member of the Philadelphia Police Department, instituted this action on behalf of herself and other female police officers, alleging sex discrimination in the employment practices of the Department.¹ She contended that one facet of the allegedly discriminatory practices was illegal retaliation taken against her by the' Department because she opposed the defendants’ practices. The district court dismissed her retaliation count with prejudice, and, without having certified a class, dismissed all other charges without prejudice. The district court’s Order dated June 4, 1976, which dismissed Brace’s claims, reads as follows:

The disposition of

(1) All claims raised by Plaintiff, Penelope Brace in Counts I, II and IV of her complaint alleging discriminatory employment practices based on sex are dismissed without prejudice pending final decision in the related case of United States v. City of Philadelphia, et al, C.A. No. 74 — 400.

(2) On all remaining Counts, the Court finds in favor of the defendants. Judgment is to be entered in favor of the defendants against the plaintiff.

Because we hold that the June 4 Order is not a final order vesting this Court with appellate jurisdiction, we are obliged to dismiss Brace’s appeal.²

I.

Courts of appeals normally review only final orders of the district courts.³ 28 U.S.C. § 1291;⁴ Borelli v. City of Reading, 532 F.2d 950, 951 (3d Cir. 1976); In re Grand Jury Proceedings (U.S. Steel — Clair-ton Works), 525 F.2d 151, 154-55 (3d Cir. 1975); see In re Good Deal Supermarkets, Inc., 528 F.2d 710, 712 (3d Cir. 1975). The policy underlying this rule is the prevention of “the debilitating effect on judicial administration caused by piecemeal appellate disposition of what is, in practical consequence, but a single controversy.” Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 170, 94 S.Ct. 2140, 2149, 40 L.Ed.2d 732 (1974); accord, In re Grand Jury Proceedings (U.S. Steel — Clairton Works), supra, 525 F.2d at 155. Thus Section 1291

disallow[s] appeal from any decision which is tentative, informal or incom-píete. Appeal gives the upper court a power of review, not one of intervention. So long as the matter remains open, unfinished or inconclusive, there may be no intrusion by appeal. .

Nor does the statute permit appeals, even from fully consummated decisions, where they are but steps towards final judgment in which they will merge. The purpose is to combine in one review all stages of the proceeding that effectively may be reviewed and corrected if and when final judgment results.

Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949); accord, Gavlik Construction Co. v. H. F. Campbell Co., 526 F.2d 777, 782-83 (3d Cir. 1975).⁵ In short, a final district court order is normally a jurisdictional prerequisite to appellate review. RePass v. Vreeland, 357 F.2d 801, 804-05 (3d Cir. 1966), and cases cited therein. With these principles in mind, we turn to the facts at bar.

II.

On February 12, 1974, Brace filed her complaint (No. 74-339) in this action.⁶ She charged four counts of sex discrimination. Counts I, II, and IV alleged broad charges of discriminatory practices by the defendants.⁷ Count III alleged specific harassment and retaliation in response to Brace’s opposition to the defendants’ practices. Shortly thereafter, the United States Department of Justice filed a pattern and practice action (No. 74-400) against the City of Philadelphia et al. under Section 707 of Title VII. United States v. City of Philadelphia (E.D.Pa., filed Feb. 19, 1974). The United States also alleged sex discrimination in the employment practices of the Philadelphia Police Department. The district court consolidated the actions brought by Brace and by the United States “for purposes of trial and adjudication.”⁸ Brace neither consented nor objected to the consolidation.⁹

Trial in the consolidated actions commenced on February 10,1976. The defendants asserted that the employment of men rather than women was required as a bona fide occupational qualification for certain positions in the Philadelphia Police Department.¹⁰ Just prior to the presentation of rebuttal evidence by Brace and the United States, the district court judge aborted the trial. Finding that “a study will of assistance to the Court in resolving this matter,” ¹¹ he ordered interim relief which required the hiring and promotion of a number of qualified women by the Philadelphia Police Department.¹² He also ordered that the City of Philadelphia (City) report to the court, within twenty-four months of the date of entry of the order, the results of a study of the performance of these officers.¹³ “Upon submission of the results of the study,” the Order continued, “the parties may submit any additional evidence they have and the Court shall order any further relief that may be appropriate.”¹⁴ After severing Brace’s retaliation claim (Count III) from other issues in the case,¹⁵ the Court ordered that it

retai[n] jurisdiction in this matter for all purposes.. The issues not addressed by this Order, including the issues of back pay, interest and other emoluments of office, if any, are deferred until twenty-four months from the date of this Order or until the results of the aforementioned study are presented to the Court, whichever is shorter.¹⁶

While it is true that Brace is not a signatory to the March 5 Order,

16a the record reveals that at no time did Brace ever object to its entry.

On June 4, 1976, the district court judge filed a Memorandum Opinion and Order in the Brace case only.¹⁷ That Opinion confirmed the March 5 Order as to the United States, and went on to state:

We had previously decided that the relief sought by the Government and Penelope Brace, based upon charges of discriminatory employment practices, was substantially identical. (Opinion filed January 27, 1975). We believe that our Order entered in U. S. v. City of Philadelphia, C.A. 74-400 (filed March 5, 1976) controls our disposition of the claim under consideration. We shall, therefore, delay our decision pending recipt [sic ] of all data in the Government’s action.¹⁸

After concluding that Brace’s retaliation claim for damages (Count III) was without merit and accordingly entering judgment for defendants on this Count, the court repeated:

To summarize, we find that the issues raised by plaintiff founded upon alleged discriminatory employment practices [Counts I, II, and IV] are substantially identical to the ones that prevail in United States v. City of Philadelphia, C.A. No. 74-400. For the reasons noted heretofore, we believe that our decision on this issue should be held in abeyance.pending our disposition of United States v. City of Philadelphia,¹⁹

Rather than stay decision on these counts, however, the district court judge cryptically ordered that:

[T]he disposition of

(1) All claims raised by Plaintiff, Penelope Brace in Counts I, II and IV of her complaint alleging discriminatory employment practices based on sex are dismissed without prejudice pending final decision in the related case of United States v. City of Philadelphia, et al., C.A. No. 74-400.²⁰

To compound the confusion, on June 9, 1977, a “Civil Judgment” was entered, which glossed the seemingly “final” June 4 Order.²¹ It stated:

AND NOW, this 9th day of June 1976, in accordance with the Memorandum Opinion and Order filed June 4, 1976,

IT IS ORDERED that Judgment be and the same is hereby entered in favor of the defendants against the plaintiff.

No events transpired between June 4th and June 9th which made the June 9 Judgment any more complete or final an adjudication than the June 4 Order.21a

III.

Recitation of these facts reveals an inconsistency in the district court’s disposition of Brace’s claims. On the one hand, the language in the court’s order dismissed without prejudice Counts I, II, and IV. A dismissal is final and hence appealable where, as here, plaintiff cannot amend — or stands on — her complaint. Borelli v. City of Reading, supra, 533 F.2d at 951-52.²² On the other hand, the district court specifically-stated in its opinion supporting the order that its disposition of Counts I, II, and IV was “held in abeyance” pending disposition of United States v. City of Philadelphia;²³ that this latter case controlled its disposition of the Brace claims; and that it would “delay . . . decision pending recipt [sic] of all data in the Government’s action.”²⁴ These directions were consistent with the district court’s earlier determination that it would “retaifn] jurisdiction in this matter for all purposes [other than Brace’s retaliation claim].”²⁵ Thus, determination of the finality — and therefore the appealability — of the June 4 Order and the June 9 Judgment first requires that we determine the substance of what was intended.25a See Evans v. Buchanan, 555 F.2d 373, 380 (3d Cir. 1977) (en banc) (court of appeals modified district court opinion “to remove possibility of inconsistency or ambiguity”); cf. Resident Advisory Board v. Rizzo, 564 F.2d 126, 153 (3d Cir. 1977) (modifying district court order).

Scrutiny of the relevant opinions and orders of the district court reveals that the district court intended to retain jurisdiction over Counts I, II, and IV, and not to dismiss those counts. First, the district court provided that all parties may offer evidence on all claims (except Brace’s retaliation claim) after the conclusion of the City’s study.²⁶ Second, the district court consolidated the-Brace and the United States cases “for purposes of trial and adjudication ” (emphasis added). Third, the similarity between the two cases and their subject matter, the joint conduct of their proceedings, and the identity in part of the relief sought make it likely, and in fact it was so expressed, that a simultaneous and consistent disposition was intended. Fourth, the district court never specifically ruled on Brace’s motions relating to defendants’ hiring and promotion practices²⁷ but rather delayed decision on all questions of liability and damages (except for Brace’s retaliation claim) until the completion of the City’s study. In short, the proceedings below remain “open,” “unfinished,” and “inconclusive,” see Cohen v. Beneficial Industrial Loan Corp., supra, 337 U.S. at 546, 69 S.Ct. 1221, with regard to the complaints of both the United States and Brace. Thus, although the district court judge labelled his disposition of Counts I, II, and IV of Brace’s complaint as a “dismissal without prejudice,” it is clearly evident to us that what he intended was not a “dismissal” but a “stay” of those claims pending final disposition of United States v. Philadelphia. Construed in this fashion, we achieve consistency within the June 4 Order of the district court, as well as between the June 4 Order and its Opinion of the same date and its later June 9 Judgment. See Evans v. Buchanan, supra, 555 F.2d at 300.

So read, the conclusion inevitably follows that the district court’s disposition of Counts I, II, and IV of Brace’s complaint is not final, hence not appealable under Section 1291. See p. 239 supra. Our holding is reinforced by the Supreme Court’s admonition that “the requirement of finality is to be given a ‘practical rather than a technical construction.’ ” Eisen v. Carlisle & Jacque-lin, supra, 417 U.S. at 171, 94 S.Ct. at 2149, quoting Cohen v. Beneficial Industrial Loan Corp., supra, 337 U.S. at 546, 69 S.Ct. 1221.27a

We recognize that Counts I, II, and IV may be the subject of appeal at final disposition of United States v. Philadelphia, or at any earlier stage, if the requisites of appellate jurisdiction are satisfied.²⁸ We also stress that our disposition here does not preclude Brace from seeking whatever relief she deems appropriate in the district court.28a While we do not reach and hence do not pass upon the arguments addressed to the merits on this appeal, we nevertheless are cognizant of the problems raised by Brace with respect to class actions, timing of relief, and other matters which have been either delayed or confused because of the procedural irregularities of which she complains. While we do not suggest any particular approach which could be taken by Brace, we are aware of the problems that have arisen concerning consolidation and its effect on some aspects of the relief sought by her. Whether these matters are amenable to adjustment by motion in the district court will of course be a matter for Brace’s and that court’s determinations. We emphasize only that nothing here expressed should prevent Brace from seeking whatever relief she may deem available in the district court. Nor does anything we have said here indicate any views with respect to the merits of her argument. We are satisfied that by interpreting the lower court order as a stay and by modifying that order accordingly, we have obviated any statute of limitations problem which may have been posed by the ambiguous dismissal language of the June 4 Order and the June 9 Judgment.28b We are also satisfied that in the absence of a Fed.R.Civ.P. 54(b) certification,²⁹ the retaliation claim dismissed with prejudice by the district court is not final for purposes of appeal. Hence until the district court proceedings have concluded by the entry of a final order, or until a proper Rule 54(b) certification has been made or other procedure utilized which may properly invoke appellate jurisdiction, review will not be lost of Brace’s Count III claim.29a

IV.

Having determined that the June 4 Order and the June 9 Judgment (to the extent that the June 9 Judgment is predicated upon the June 4 Order) are ambiguous and inconsistent with the June 4 Opinion rendered by the district court, we will modify the June 4 Order to read as follows:³⁰

(1) Disposition of all claims raised by plaintiff Penelope Brace in Counts I, II and IV of her complaint alleging discriminatory practices based on sex be and are hereby stayed and held in abeyance pending the final decision in United States v. City of Philadelphia, No. 74-400, being of the view that the order entered in United States v. City of Philadelphia, No. 74 — 400, filed March 5, 1976, controls the disposition of the claims under consideration. Decision on the claims set forth in Counts I, II and IV shall be delayed pending receipt of all data in the Government’s case at C.A. No. 74-400, as more specifically set forth in the Memorandum Opinion filed June 4, 1976. (2) On all remaining counts, the court finds in favor of the defendants. Judgment is to be entered in favor of the defendants against the plaintiff on the claim asserted in Count III only. As so modified,³¹ we have determined that the order of the district court is not final for purposes of appellate review, and this appeal will accordingly be dismissed. Each party will bear its own costs.

1 . The challenged practices were alleged to violate, inter alia, the fourteenth amendment to the United States Constitution, Title VII of the Civil Rights Act of 1964, as amended (codified at 42 U.S.C. §§ 2000e et seq.), 42 U.S.C. § 1983, and the Pennsylvania Equal Rights Amendment.

2 . Although the appellees adverted in their brief to the prematurity of Brace’s appeal, no issue was expressly raised in the initial briefs as to the propriety of our exercise of appellate jurisdiction. Recognizing that jurisdiction is a threshold issue, see In re Grand Jury Proceedings (U.S. Steel — Clairton Works), 525 F.2d 151, 154 (3d Cir. 1975); RePass v. Vreeland, 357 F.2d 801, 804 (3d Cir. 1966); Two Guys From Harrison-Alien Town, Inc., 266 F.2d 427, 433 (3d Cir. 1959), that it is unaffected by the consent or understanding of the parties, Haberem v. Lehigh & N.E. Ry. Co., 554 F.2d 581, 584 (3d Cir. 1977), and that it may accordingly be raised on our own motion, Tye v. Hertz Drivurself Stations, Inc., 173 F.2d 317, 318 (3d Cir. 1949); cf. Moore v. Sylvania Electric Products, Inc., 454 F.2d 81, 84 n. 1 (3d Cir. 1972) (federal circuit court may inquire into district court jurisdiction sua sponte); Kane v. Ford Motor Co., 450 F.2d 315, 317 n. 1 (3d Cir. 1971) (per curiam) (same), we requested supplemental briefing on the jurisdictional posture of the case prior to oral argument. The oral argument was confined wholly to this issue. Although the dissent would apparently give weight to the understanding of the parties that the district court order would be final, see Dissenting Op. at 245-246, that “understanding” is irrelevant to any jurisdictional determination.

3 . See note 5 infra.

4 . Section 1291 provides:

The courts of appeals shall have jurisdiction of appeals from all final decisions of the district courts of the United States, the United States District Court for the District of the Canal Zone, the District Court of Guam, and the District Court of the Virgin Islands, except where a direct review may be had in the Supreme Court.

5 . In rare instances, “the danger of denying justice by delay” may outweigh “the inconvenience and costs of piecemeal review.” See Ei-sen v. Carlisle & Jacquelin, supra, 417 U.S. at 171-72, 94 S.Ct. at 2149, quoting Dickinson v. Petroleum Conversion Corp., 338 U.S. 507, 511, 70 S.Ct. 322, 94 L.Ed. 299 (1950). Nonfinal orders may therefore be subject to appellate review where, inter alia, the challenged order is a final ruling on an issue collateral to the main claim, and delayed appellate adjudication will result in irreparable injury, Cohen v. Beneficial Industrial Loan Corp., supra, 337 U.S. at 544-45, 69 S.Ct. 1221; Rodgers v. United States Steel Corp., 508 F.2d 152, 159 (3d Cir.), cert, denied, 423 U.S. 832, 96 S.Ct. 54, 46 L.Ed.2d 50 (1975), or where a district court enters final judgment as to fewer than all extant claims or parties and expressly certifies that “there is no just reason for delay.” Fed.R.Civ.P. 54(b); In re Good Deal Supermarkets, Inc., supra, 528 F.2d at 712. See also 28 U.S.C. § 1292 (authorizing appeals from certain interlocutory orders, including injunctions).

6 . An earlier complaint filed by Brace (No. 73-2246) which alleged the same unlawful retaliation challenged here was dismissed without prejudice by an order dated March 5, 1975. That order is not challenged on this appeal.

7 . Named defendants include Joseph O’Neill, Philadelphia Police Commissioner; Hillel S. Le-vinson, Philadelphia Managing Director; Foster B. Roser, Philadelphia Personnel Director; Frank L. Rizzo, Mayor; and the City of Philadelphia.

8 . Order of Consolidation of Civil Action Nos. 74-339 & 74-400 (E.D.Pa. Dec. 18, 1974).

9 . Appellant’s Supplemental Brief at 8; see Order of Consolidation.

An order granting or denying consolidation is a nonappealable interlocutory order. See Nolfí v. Chrysler Corp., 324 F.2d 373, 374 (3d Cir. 1963) (per curiam). We note, however, that Brace has not challenged or sought to set aside the Order of Consolidation on this appeal from the district court’s dismissal of her claims.

10 . See Memorandum Opinion & Order, Brace v. O’Neill, No. 74-339, at 2-3 (E.D.Pa. June 4, 1976) (hereinafter June 4 Opinion & Order).

11 . Order, United States v. City of Philadelphia, and Brace v. O’Neill, Nos. 74-400 & 74-339, at 1 (E.D.Pa. Mar. 5, 1976) (hereinafter March 5 Order).

12 . Id. ¶¶ 2, 4.

13 . Id. ¶ 3.

14 . Id.

15 . Id. ¶ 10.

16 . Id. ¶ 11 (emphasis added).

. The caption of the March 5 Order pertains to the actions instituted by both Brace and the United States. Additionally, the Order recited that “[t]he parties hereby consent to the entry of this Order.” Id. at 1-2. However, appellant Brace maintains, and the district court subsequently acknowledged, that Brace was not a signatory to the court-approved consent agreement. Appellant’s Supplemental Brief at 6-7 (noting lack of consent); see June 4 Opinion & Order, at 2.

17 . Cited note 10 supra.

18 . June 4 Opinion & Order, at 3-4.

19 . Id. at 7 (emphasis added).

20 . June 4 Order, at 1.

21 . Civil Judgment, Brace v. O’Neill, No. 74-339 (E.D.Pa. June 9, 1977) (hereinafter June 9 Judgment).

. Despite this profusion of district court orders, and contrary to the dissent’s assertion that “it appears that as of [March 15, 1976], Brace’s case was severed from the Government’s case,” Dissenting Op. at 246, n. 2, at no time after consolidation, to which Brace did not object, did the district court ever sever her case from the Government’s. Nor has any order entered at any time in the consolidated case ever given finality to either the Government’s or Brace’s case, either singly or as consolidated. Numerous orders, some of which affect Brace herself, have been entered by the district court; some presently await appellate disposition.

22 . Had the dismissal without prejudice of Counts I, II, and IV been ordered, without the qualification “pending final decision in . . C.A. No. 74-400,” we would undoubtedly have felt free to review the district court’s orders of June 4 and June 9. The presence of the qualifying provisions, however, brings into serious question the district court’s intended disposition of the Brace claims, implicating the consistency of its June 4 Opinion with its subsequent orders.

23 . June 4 Order & Opinion, at 7.

24 . Id. at 3-4.

25 . March 5 Order fill.

. Judge Rosenn in Part II of his dissent charges that we in effect are not reviewing the district court’s order of June 4, but rather its opinion. (Dissenting Op. at 247-248). His reasoning, however, is based on the incorrect premise that the June 4 Order is clear and unambiguous on its face. To the contrary, that Order emits mixed messages: on the one hand it directs a “dismiss[al] without prejudice”; on the other hand, the dismissal is subject to and “pending [a] final decision in the related case of United States v. City of Philadelphia et al., C.A. No. 74-400.” Recognizing that ambiguity in the June 4 Order we were obliged to glean from the district court’s June 4 Opinion the meaning of its order appended to that opinion. We believe we have succeeded in correctly ascertaining the district court’s intent, and in so doing have also harmonized the district court’s language in its June 4 Order to comport with that intent. Indeed, the dissent necessarily acknowledges the ambiguity in the June 4 Order when it states: “The district court’s orders of March 5 and June 4 are, to say the least, unclear.” (Dissenting Op. at 247).

It thus appears that the basic difference between this opinion and Part II of the dissent does not implicate any legal principle, nor does it involve any exercise of appellate activism. Rather we differ only in the interpretation of the meaning of the June 4th district court order.

²⁶

27 . E. g., Plaintiff’s Amended Motion dated June 18, 1975 (to restrain conduct of promotional examinations which barred female applicants).

. The dissent is properly concerned with court-imposed delays which may affect Brace’s rights. (Dissenting Op. at 246-247). However, the mere prospect of delay cannot create appellate jurisdiction where no appropriate appeala-ble district court order has been entered. We, too, are aware of the “danger of denying justice by delay,” Gillespie v. United States Steel Corp., 379 U.S. 148, 153, 85 S.Ct. 308, 311, 13 L.Ed.2d 199 (1964), but we are also cognizant that there are comparable if not greater dangers present were we to exercise appellate jurisdiction over nonappealable orders entered in live and continuing controversies such as Brace’s continuing dispute with the City of Philadelphia. See, e. g., n. 29a infra.

28 . E. g., 28 U.S.C. §§ 1292 (authorizing appeals from certain interlocutory orders, including injunctions), 1651 (the All Writs Act); Fed.R.Civ.P. 54(b), quoted in full in note 29 infra; Fed.R.App.P. 21 (extraordinary writs directed to judges).

. In appealing from a nonappealable order, Brace has misconceived the forum which can afford her relief at this time. If, as the dissent claims, Brace has been delayed in achieving relief and has been improperly thwarted by rulings of the district court (and we expressly pass no judgment on the correctness of the district court rulings), there is nothing to prevent Brace, for example, from applying to the district court for a Rule 54(b) Order or for an order vacating the stay, or vacating the order of consolidation, as well as any other relief she may deem appropriate.

. Contrary to the dissent’s assertion that our reference to the statute of limitations indicates a recognition of the finality of the June 4 Order, see Dissenting Op. at 248 n. 6, it is apparent from our discussion that all we recognize is that the June 4 Order, and hence the June 9 Judgment, are ambiguous, and, when properly clarified, nonfinal. Our reference to the statute of limitations does no more than treat with a problem raised at oral argument and thus forestall the possibility of still another defense being inappropriately raised in the district court at some later date.

29 . Rule 54(b) provides in full:

(b) Judgment Upon Multiple Claims or Involving Multiple Parties. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

. While the dissent correctly states that a stay may be appealable under extraordinary circumstances if tantamount to a dismissal of the action, see Haberern v. Lehigh & N. E. Ry. Co., 554 F.2d 581, 584 (3d Cir. 1977) (stay order held appealable under “unique” circumstances whereby Congress expressly disallowed stay of personal injury damage claims pending railroad reorganization proceedings); In re Grand Jury Proceedings (U.S. Steel-Clairton Works), 525 F.2d 151, 155-56 (3d Cir. 1975) (vacated stay of federal grand jury proceeding pending state litigation where state proceeding would last beyond the date of grand jury expiration, federal proceedings totally ground to a halt, and the stay encroached the plenary historical authority of the grand jury), this case does not present those extraordinary circumstances and hence is not governed by that principle. The proceedings instituted by Brace which allege sex discrimination have not “ground to a halt,” as in Haberern and Grand Jury (U.S. Steel). Rather, since June 4th, 1976, the date of the district court order which the dissent reads as finally dismissing her action, the class sought to be represented by Brace has been the beneficiary of at least four district court orders entered in 74-400 which direct preliminary relief for the class, and which fall within the scope of Brace’s complaint. See Order of July 13, 1977 (directing that 20% of the 350 new hirees of the Philadelphia Police Department be women); Order of April 25, 1977, amending Order of April 15, 1977 (ordering that 20 of 120 new employees of the Department be women); Order of March 24, 1977 (compelling transfer of women police officers to formerly all-male departments); Order of March 4, 1977, amending Order of February 10, 1977 (same). Police Officer Brace herself has been ordered transferred to a previously all-male department. See Order of March 24, 1977; Order of Feb. 10, 1977, as amended, March 4, 1977. Thus, rather than being “suspended” or “comatose,” the relief requested in Brace’s case is ongoing. Furthermore, the study proposed in the March 5 Order is continuing and by its terms, slated for completion within five months, and jurisdiction has been retained for the taking of further evidence. In sum, this case, rather than being governed by the principles in the cases cited by the dissent, by virtue of its continuing vitality comes within the familiar doctrine that a stay as imposed here is not an appealable order. Arny v. Philadelphia Transp. Co., 266 F.2d 869 (3d Cir. 1959); accord, Cotler v. Inter-County Orthopaedic Ass’n, 526 F.2d 537, 540 (3d Cir. 1975) (expressly reaffirming the precedential value of Arny); cf. Lyons v. Westinghouse Electric Corp., 222 F.2d 184, 192 (2d Cir. 1955) (Medina, J., dissenting in part) (emphasizes that a stay is normally an action which a court “may grant in a cause pending before it by virtue of its inherent power to control the progress of the cause”).

For similar reasons, use of the extraordinary writ of mandamus is here inappropriate and unavailable. See Will v. United States, 389 U.S. 90, 95-98 & n. 6, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967).

30 . Because the June 9 Judgment does no more than incorporate the provisions of the June 4 Order without adding to its substance, the June 9 Judgment will be deemed modified accordingly.

31 . Evans v. Buchanan, supra, 555 F.2d at 380; see Resident Advisory Board v. Rizzo, supra, 564 F.2d at 153.