Cullen v. New York State Civil Service Commission

566 F.2d 846, 24 Fed. R. Serv. 2d 618
Court of Appeals for the Second Circuit·Decided November 18, 1977·No. No. 309, Docket 77-7408·Published·Cited by 7 cases

Opinion

KAUFMAN, Chief Judge:

Appellants, named plaintiffs in a certified class action, ask this court to find reversible error in a decision of Chief Judge Mishler because he failed to appoint appellants’ chosen counsel, Jessel Rothman, as attorney for the absent members of the class. Although the parties have not raised the issue, we must first decide whether the order is ap-pealable. We hold that it is not, and dismiss the appeal.

Appellants, representing 22,000 present and former employees of Nassau County, New York, allege in the underlying action that class members have been compelled to contribute to the Nassau County Republican Committee to obtain jobs and promotions, in violation of their federal civil rights. In a memorandum decision dated June 27, 1977, Chief Judge Mishler granted appellants’ motion for class action certification, subject to the court’s designation of an attorney to represent the absent class members. While finding the named plaintiffs themselves met the prerequisites for service as class representatives, Chief Judge Mish-ler expressed concern whether appellants’ attorney — a competent single practitioner apparently lacking experience in the field of civil rights litigation — could adequately serve the interests of the absent class members. See Fed.R.Civ.P. 23(a)(4).

At a hearing on July 15, 1977, appellants’ attorney failed to demonstrate to Judge Mishler’s satisfaction that he had any civil rights litigation experience or that he possessed the legal and manpower resources to prosecute this substantial action effectively without additional experienced counsel. Thereupon the Judge appointed Professor Burt Neuborne to represent the absent members of the class. Professor Neuborne is exceptionally well-qualified in civil rights litigation and has access to student law clinics and the American Civil Liberties Union resources to assist him in conducting this litigation. In a memorandum decision dated July 29, 1977, Judge Mishler concluded: “There is no question, that, in conjunction with the named plaintiffs’ attorney, [Professor Neuborne] will ably and effectively represent the interests of the class.”

[848] The appeal has not been certified under 28 U.S.C. § 1292(b) or Fed.R.Civ.P. 54(b). Accordingly, it must be dismissed unless the order falls within “that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546-47, 69 S.Ct. 1221, 1226, 93 L.Ed. 1528 (1949).

We have on several occasions held that the Cohen doctrine must be kept within narrow bounds. See, e. g., Shakur v. Malcolm, 525 F.2d 1144 (2d Cir. 1975); Kohn v. Royall Koegel & Wells, 496 F.2d 1094 (2d Cir. 1974); Weight Watchers of Philadelphia v. Weight Watchers International, 455 F.2d 770 (2d Cir. 1972). To satisfy the Cohen requirements, a litigant must show that the issue presented is “of broad applicability or involves the deprivation of significant rights.” Shakur v. Malcolm, supra, 525 F.2d at 1147, and that “the danger of denying justice by delay” outweighs the “inconvenience and costs of piecemeal review.” Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 171, 94 S.Ct. 2140, 2149, 40 L.Ed.2d 732 (1974), quoting Dickinson v. Petroleum Conversion Corp., 338 U.S. 507, 511, 70 S.Ct. 66, 94 L.Ed. 299 (1949). The mere inability to secure a review of an interlocutory order on appeal from the final judgment does not warrant permitting immediate review of the order. Indeed, we have recognized that some orders merely regulating the manner of conducting the litigation are best left to the unreviewable discretion of the district court. Levine v. American Export Industries, Inc., 473 F.2d 1008 (2d Cir. 1973) (per curiam); Weight Watchers of Philadelphia v. Weight Watchers International, supra, 455 F.2d at 774.

A decision to deny class action certification is normally not appealable unless the failure to certify would spell the “death knell” of the entire action. Eisen v. Carlisle & Jacquelin, 370 F.2d 119 (2d Cir. 1966), cert. denied, 386 U.S. 1035, 87 S.Ct. 1487, 18 L.Ed.2d 598 (1967). And an order granting class certification is not appealable unless it is so “fundamental to the further conduct of the case” that “if that order were erroneous and therefore reversed on appeal, the action would for all practical purposes be at an end.” Kohn v. Royall Koegel & Wells, supra, 496 F.2d at 1098-99. Moreover we can exercise jurisdiction over such an order only when review of the order is “separable from the merits” and the lower court’s determination “will likely cause irreparable harm.” Handwerger v. Ginsberg, 519 F.2d 1339 (2d Cir. 1975); Kohn v. Royall Koegel & Wells, supra.1 Less drastic issues subsidiary to the class certification determination certainly should not be reviewable prior to judgment unless an equally stringent standard is met. Weight Watchers of Philadelphia v. Weight Watchers International, supra, 455 F.2d at 773. Thus, we held in Handwerger v. Ginsberg, supra, that an order denying a request to disqualify class counsel was not collateral to the main proceeding, and therefore not appealable. In that case, the basis of the request, a purported conflict among class members, was directly relevant to the issue of the propriety of the definition of the class.

Free access — add to your briefcase to read the full text and ask questions with AI

Cullen v. New York State Civil Service Commission, 566 F.2d 846, 24 Fed. R. Serv. 2d 618 (2d Cir. 1977).

566 F.2d 846 (Cullen v. New York State Civil Service Commission) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Computer Programs Lambda, Ltd. v. Commissioner
90 T.C. No. 74 (U.S. Tax Court, 1988)
Key v. Gillette Co.
104 F.R.D. 139 (D. Massachusetts, 1985)
State Ex Rel. Harris v. Scott Circuit Court
437 N.E.2d 952 (Indiana Supreme Court, 1982)
Ruland v. General Electric Co.
94 F.R.D. 164 (D. Connecticut, 1982)
Cullen v. New York State Civil Service Commission
566 F.2d 846 (Second Circuit, 1977)