Garzaro v. University of Puerto Rico

575 F.2d 335
Court of Appeals for the First Circuit·Decided May 17, 1978·No. Nos. 77-1304, 77-1305·Published·Cited by 19 cases

Opinion

LEVIN H. CAMPBELL, Circuit Judge.

Rafael Garzaro and his wife, Maria A. Garcia de Garzaro, both professors at the University of Puerto Rico, Rio Piedras Campus, are plaintiffs in a civil rights action which is still pending in the district court against Mercedes Sarraga de Sampayo, the Director of the Humanities Department at the University; and Dr. Wilfredo Miranda Irlanda, the Dean of General Studies. Plaintiffs allege that the defendants 1 violated their constitutional rights by [337] arbitrarily terminating Mrs. Garzaro’s assignment to teach two extra course sections, which had provided her with additional compensation. Allegedly they acted in retaliation for Rafael Garzaro’s criticism of the appointment of Miranda Irlanda as Dean of General Studies at the University.

Soon after suit was brought, defendants were defaulted for failure to file a timely answer and otherwise to comply with a pre-trial order of the district court. Thereafter, without holding a trial, the court ruled in favor of plaintiffs, taking as proven the facts alleged in the complaint and in certain submitted documents. The court’s rulings are embodied in the following order from which this appeal is taken:

“Defendant Wilfredo Miranda Irlanda is hereby found to be personally liable to plaintiffs Rafael Garzaro and Maria A. Garcia de Garzaro. Defendant Mercedes Sarraga de Sampayo is found to be personally liable to plaintiff Maria A. Garcia de Garzaro.
“Injunctive remedy is hereby issued and we thus order defendants, in their official capacity, to grant plaintiffs all the rights and privileges to which they are entitled as tenured professors in the University of Puerto Rico, and to abstain from further hindering plaintiffs in the exercise of their constitutionally protected rights.
“In order to determine the amount and nature of the damages suffered by plaintiffs herein, we hereby refer the case to the Honorable U.S. Magistrate for the holding of a hearing after which he shall submit his findings and recommendations for this Court’s approval.”

The above order, which leaves open the monetary liability of defendants, is not a “final” order such as to confer appellate jurisdiction upon this court under 28 U.S.C. § 1291. Liberty Mutual Insurance Co. v. Wetzel, 424 U.S. 737, 744, 96 S.Ct. 1202, 47 L.Ed.2d 435 (1976); Williams v. Ezell, 531 F.2d 1261 (5th Cir. 1976); Wrist-Rocket Mfg. Co., Inc. v. Saunders Archery Co., 516 F.2d 846, 849 (8th Cir.), cert. denied, 423 U.S. 870, 96 S.Ct. 134, 46 L.Ed.2d 100 (1975); Western Geophysical Co. of America, Inc. v. Bolt Associates, Inc., 463 F.2d 101 (2d Cir.), cert. denied, 409 U.S. 1040, 93 S.Ct. 523, 34 L.Ed.2d 489 (1972); Haverhill Gazette v. Union Leader, 333 F.2d 798 (1st Cir.), cert. denied, 379 U.S. 931, 85 S.Ct. 329, 13 L.Ed.2d 343 (1964); Baetjer v. Garzot Fernandez, 329 F.2d 798 (1st Cir. 1964) (per curiam); International Brotherhood of Teamsters, Local 25 v. W. L. Mead, Inc., 230 F.2d 576, 579 (1st Cir. 1956), appeal dismissed per stipulation, 352 U.S. 802, 77 S.Ct. 21, 1 L.Ed.2d 37 (1956); see Catlin v. United States, 324 U.S. 229, 65 S.Ct. 631, 89 L.Ed. 911 (1945); 9 Moore’s Federal Practice 1110.11, at 138 (1975). As the order being appealed from is not “final,” our appellate jurisdiction can only rest upon such review power as Congress has conferred with respect to the injunction in the middle paragraph. Courts of appeals are granted jurisdiction by 28 U.S.C. § 1292(a)(1), over “appeals from: (1) Interlocutory orders of the district courts . . . granting . injunctions . . . Under § 1292, however, appellate courts may only review “that part of such [interlocutory] judgments as have to do with the injunctive relief afforded,” Loew’s Drive-In Theatres, Inc. v. Park-In Theatres, Inc., 174 F.2d 547, 550 (1st Cir.), cert. denied, 338 U.S. 822, 70 S.Ct. 68, 94 L.Ed. 499 (1949); see Pauls v. Sec’y of Air Force, 457 F.2d 294, 298 (1st Cir. 1972).

The interlocutory injunction in the instant case directs no particularized action by the defendants. It does not order them, for example, to restore Mrs. Garzaro to any teaching assignments. Rather it simply directs defendants to grant to plaintiffs — and refrain from hindering them in the exercise of — such rights as they are entitled to. Such an order could have been entered specifically as a preliminary “protective order” to discourage any retaliatory acts against [338] the plaintiffs pendente lite. Here, however, the court entered it after making what it apparently considered to be a final determination of liability, though before assessment of damages and entry of any ap-pealable final judgment. While “interlocutory” — in the sense that it may still be altered or terminated by the district court at any time prior to the entry of final judgment — the injunction is evidently not just meant to last for the duration of the lawsuit, but seems likely to be incorporated in the final judgment, when entered, as a “permanent” injunction. At least, this seems to have been the district court’s intention when it acted although, as noted, the order may still be changed.

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Garzaro v. University of Puerto Rico, 575 F.2d 335 (1st Cir. 1978).

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