Wisher v. Coverdell

• Court: Court of Appeals for the First Circuit
• Decided: May 14, 1992
• Docket: 92-1273
• Status: Published

Opinion

USCA1 Opinion

        May 14, 1992            [NOT FOR PUBLICATION]

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No. 92-1273

                                    DORIS WISHER,

                                Plaintiff, Appellant,

                                          v.

                           PAUL COVERDELL, IN HIS OFFICIAL
                      CAPACITY AS DIRECTOR OF THE UNITED STATES
                                     PEACE CORPS,

                                 Defendant, Appellee.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                     [Hon. Robert E. Keeton, U.S. District Judge]
                                             ___________________

                                 ____________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________
                           Campbell, Senior Circuit Judge,
                                     ____________________
                               and Cyr, Circuit Judge.
                                        _____________

                                 ____________________

            Harold L.  Licthen and  Angoff, Goldman, Manning,  Pyle, Wanger  &
            __________________      __________________________________________
        Hiatt, P.C.,  on  Opposition to  Defendant's  Motion to  Dismiss,  for
        ___________
        appellant.
            Wayne A. Budd,  United States Attorney,  and Susan  M. Poswistilo,
            _____________                                ____________________
        Assistant  United States  Attorney, on  Motion to  Dismiss Appeal  and
        Memorandum  of Law  in Support  of Appellee's  Motion to  Dismiss, for
        appellee.

____________________

____________________

Per Curiam.   The issue  before us  is whether  the
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            district  court's  dismissal  of  less  than all  plaintiff's

            claims for relief, coupled with its remand for further agency

            proceedings  on another  claim, constituted a  final judgment

            for  purposes of  appeal within  the meaning  of 28  U.S.C.  

            1291.

                                          I

                      Plaintiff brought this action  under    501 and 504

            of the  Rehabilitation Act,  29 U.S.C.     791, 794,  seeking

            damages and equitable  relief.   She claimed  that the  Peace

            Corps   illegally   discriminated   against   her   when   it

            disqualified  her from  participation in  the  United Nations

            Volunteer  program   because she  was diagnosed  with chronic

            hepatitis,  type B.     Ten days  before the  scheduled trial

            date, defendant moved to dismiss the complaint on  the ground

            of failure to state a claim  for relief.  The district  court

            proceeded  to   conduct  a  one-day  bench   trial  and  then

            considered the  issues raised by defendant's  motion in light

            of  the  evidence,  closing   arguments,  and  the   parties'

            extensive post-trial briefs addressing the issues.

                      The  district  court  concluded   that  plaintiff's

            Rehabilitation  Act  claims should  be dismissed  because (1)

            plaintiff was not an  "employee" within the meaning of    501

            of the Act and, (2) under   504 of the Act, plaintiff did not

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have an implied private cause of action, Cousins v. Secretary
                                                     _______    _________

            of the U.S. Dep't of Transp., 880 F.2d 603 (1st Cir. 1989). 
            ____________________________

                     However,  the  district   court  further  held  that

            plaintiff's complaint could be read as including a claim  for

            review  of  the Peace Corps' medical  determination under the

            Administrative   Procedure   Act,   5   U.S.C.        701-706

            [hereinafter  "APA"].    Under that  alternative  claim,  the

            district court held, it had jurisdiction to determine whether

            the  Peace Corps' decision  violated the  Rehabilitation Act.

            But in light of the evidence presented at trial, the district

            court found it was unable to engage in a meaningful review of

            the  agency's action.    The court  found  that the  agency's

            "skeleton"  record  did  not  support  the  agency's  medical

            determination,  that  the  agency   had  not  considered  all

            relevant factors, and that  the court "simply cannot evaluate

            the Peace Corps'  decision on the basis of the bare record of

            the agency's decision."  Citing  Florida Power & Light Co. v.
                                             _________________________

            Lorion, 470  U.S. 729 (1985), the  district court accordingly
            ______

            remanded  the   case  to  the  Peace   Corps  for  additional

            investigation and evaluation.   Plaintiff appealed. 

                                         II

                      Defendant has moved to dismiss  the appeal, arguing

            that  the district  court's order  was not  a final  judgment

            under our holding in Mall Properties, Inc. v. Marsh, 841 F.2d
                                 _____________________    _____

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440 (1st Cir.), cert. denied, 488 U.S. 848 (1988).  We agree.
                            ____________

The  district court's  disposition  of this  matter

            does not meet the traditional definition of a final  judgment

            under 28 U.S.C.    1291:  one  which "ends the  litigation on

            the merits and leaves nothing for the court to do but execute

            the judgment."  Catlin v. United States, 324 U.S. 229 (1945).
                            ______    _____________

            The litigation before the district  court has not ended.  "It

            has  simply gone to another forum and may well return again,"

            Mall Properties, 841 F.2d  at 441.  See also  American Hawaii
            _______________                     ___ ____  _______________

            Cruises  v. Skinner, 893 F.2d 1400 (D.C. Cir. 1990) (district
            _______     _______

            court's remand to agency for further proceedings coupled with

            administrative dismissal  of case did not  end the litigation

            on the merits within meaning of 28 U.S.C.   1291).

                      Plaintiff urges  that this case  is distinguishable

            from  Mall  Properties because  there  the  plaintiff had  an
                  ________________

            opportunity  to  obtain  all  the relief  desired  on  remand

            whereas  here  dismissal  of plaintiff's  Rehabilitation  Act

            claims means  that "remand cannot bring  plaintiff any closer

            to  her goal  of  obtaining damages  [and] attorney's  fees."

            (Pl's.  Br.   p.5).    The  district   court's  dismissal  of

            plaintiff's  claim under  the Rehabilitation  Act effectively

            dismissed plaintiff's demand for damages.  Under the APA, the

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plaintiff's  remedy  necessarily  would  be  limited  to  the

            equitable relief demanded, 5 U.S.C.   702.1  

                      This  distinction,  however,  does not  affect  the

            operation  of  the final  judgment rule  in  this case.   The

            primary purpose of  the rule, to protect  effective review by

            avoiding unnecessary  and piecemeal determinations,  would be

            undermined by defining finality  so narrowly. See 15A Charles
                                                          ___

            A. Wright,  Arthur  R. Miller  &  Edward H.  Cooper,  Federal
                                                                  _______

            Practice and Procedure,   3907 (1992).
            ______________________

                      First,  the  district  court's  dismissal  of  some

            claims  and remand of the  other did not  finally resolve the

            controversy on the merits nor plaintiff's right to all of the

            relief  she demanded.   In  addition to  damages, plaintiff's

            complaint demands  an injunction reinstating her,  along with

            relevant promotions, "to an appropriate position in the Peace

            Corps  or the  United Nations  Volunteers with  seniority and

            credit  retroactive to March  of 1985."   This remedy remains

            available to plaintiff under the APA claim if she prevails on

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            1.  As it is not necessary to reach the issue, we do not here
            determine whether plaintiff is  correct in her assertion that
            she  cannot obtain  attorney's fees  in her  APA  action, but
            merely point  out that  "one can sometimes  obtain attorneys'
            fees  in an  ordinary APA  action under  the Equal  Access to
            Justice Act, 28 U.S.C.    2412(b), 2412 (d)(1)(A),"  Cousins,
                                                                 _______
            880 F.2d  at 606.  Plaintiff's  complaint requests attorney's
            fees in this action under both the Rehabilitation Act and the
            Equal  Access to Justice Act.  The district court's order did
            not address  the latter request directly,  although the court
            awarded   plaintiff  reasonable  costs   connected  with  the
            action.)

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the merits.   Thus,  the district court's  judgment remanding

            the action was not a final appealable order under 28 U.S.C.  

            1291.  Mall  Properties, 841 F.2d 440.  See  also Giordano v.
                   ________________                 ___  ____ ________

            Roudebush,  565 F.2d  1015  (8th Cir.  1977) (district  court
            _________

            order ruling that plaintiff was  not entitled to a full-trial

            type   procedure  but   remanding  to   agency  for   further

            consideration  of plaintiff's  arguments neither  granted nor

            denied the ultimate relief plaintiff  wanted -- reinstatement

            and  back pay  --  and was  not  a final  appealable  order);

            Transportation-Communication Div.-Brotherhood of  Ry. v.  St.
            _____________________________________________________     ___

            Louis-San Francisco Ry.,  419 F.2d 933, 935 (8th  Cir. 1969),
            _______________________

            cert. denied, 400 U.S. 818 (1970) (district court order which
            ____________

            neither enforced nor denied enforcement of Board's award, but

            rather  decided   some  issues   and  remanded   for  further

            proceedings, made no final determination of the merits of the

            entire controversy and is not appealable).

                      While plaintiff urges here that  reinstatement now,

            seven years  after her  initial disqualification, would  be a

            hollow  victory,  she did  not amend  her pleadings  below to

            delete this claim  but in fact vigorously pursued  it through

            the  trial  and  beyond.    Plaintiff  testified  before  the

            district court just a few months  ago that if the court ruled

            in her favor she would "like to get back in that pipeline and

            apply  for UNV...and  also  Peace Corps  Volunteer and  Peace

            Corps Staff positions." (Transcript, pp 116-17).  Even later,

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in her  post-trial brief, plaintiff expanded  her request for

            relief, urging the  district court to enjoin the  Peace Corps

            from disqualifying  her, and any  others similarly  situated,

            solely because "they  are asymptomatic carriers  of Hepatitis

            B" and allowing her  to "reapply" for service with  the Peace

            Corps.

                      To allow plaintiff, who has been represented by the

            same counsel throughout this case, to recharacterize here the

            relief  she demands,  solely for  the purpose of  seeking the

            jurisdiction of this court,  would run counter to  the strong

            policy  discouraging  fragmentary  appeals.    Cobbledick  v.
                                                           __________

            United States, 309 U.S. 323, 324-25 (1940).  Cf. USM Corp. v.
            _____________                                ___ _________

            GKN Fasteners, Ltd., 578 F.2d 21 (1st Cir. 1978) (after court
            ___________________

            ruled that there  was no jurisdiction to  entertain an appeal

            from  an order  staying proceedings  on legal  claims pending

            arbitration  of  an  equitable  claim,  later   amendment  to

            pleadings  dropping prayer  for  equitable relief  solely for

            purpose of  seeking jurisdiction of  this court could  not be

            permitted  to  validate   jurisdiction  of  appellate   court

            retrospectively).2

                      Second,  policy  reasons  also lead  us  to  reject

            plaintiff's argument that  this appeal  should be  considered

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            2.  Since  plaintiff  has  not  unequivocally  abandoned  her
            request  for  injunctive relief,  we  need  not consider  the
            circumstances under  which a  good-faith relinquishment  of a
            claim for injunctive  relief might make the dismissal  of her
            other claims final and immediately appealable.

                                         -7-

now under the exception to the  finality requirement known as

            the  Cohen collateral  order doctrine,   Cohen  v. Beneficial
                 _____                               _____     __________

            Industrial Loan  Corp., 337 U.S. 541  (1949).   We  have held
            ______________________

            that  in exceptional  cases an order  that does  not entirely

            terminate  an action  may be  appealable if  it reflects  the

            following:  "(1) an issue essentially unrelated to the merits

            of the main dispute, capable of review without disrupting the

            main trial; (2) a  complete resolution of the issue,  not one

            that is 'unfinished' or 'inconclusive'; (3) a right incapable

            of  vindication on appeal from  a final judgment;  and (4) an

            unsettled question of controlling  law, not merely a question

            of  the proper  exercise  of the  trial court's  discretion."

            United States v. Sorren, 605 F.2d 1211, 1213 (1st Cir. 1979);
            _____________    ______

            see also United States v. Alcon Labs., 636 F.2d 876, 884 (1st
            ___ ____ _____________    ___________

            Cir.), cert. denied, 451 U.S. 1017 (1981); In  re Continental
                   ____________                        __________________

            Inv. Corp., 637 F.2d 1, 4 (1st Cir. 1980). 
            __________

                      "[B]oth the policy considerations  underlying Cohen
                                                                    _____

            and  the internal  logic  of its  criteria  suggest that  the

            possibility  of irreparable  harm resulting  from a  delay in

            appellate   review   is   the   dispositive    criterion   of

            interlocutory appealability."  In re Continental  Inv. Corp.,
                                           _____________________________

            637 F.2d at  6.   Where an opportunity  for effective  review

            exists at the  conclusion of the proceedings  below, there is

            no irreparable harm within the meaning of this exception.  To

            hold  otherwise  could  obliterate  the  distinction  between

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interlocutory  and final  orders.  Id.   See also  Occidental
                                               ___   ___ ____  __________

            Petroleum  Corp.  v. S.E.C.,  873  F.2d  325 (D.C.Cir.  1989)
            ________________     ______

            (exception to the  rule that remand order  is not immediately

            appealable is usually allowed only where agency to which case

            is remanded  would have  no opportunity  to appeal  after the

            proceedings on remand);  Colon v. Secretary of Health & Human
                                     _____    ___________________________

            Servs., 877 F.2d 148  (1st Cir. 1989) (although remand orders
            ______

            normally  are  not immediately  appealable,  appeal  would be

            allowed either under Cohen  exception or under All Writs  Act
                                 _____

            where it is doubtful whether Secretary, required to implement

            district court  decision on  remand, could later  appeal from

            agency decision).

                      Our  deferral   of  the  appeal  until   after  the

            remaining  claims are  finally  adjudicated  in the  district

            court  will not  foreclose effective  review of  the district

            court's dismissal of  plaintiff's Rehabilitation Act  claims.

            As  the challenged order is  not a final  judgment within the

            meaning  of 28  U.S.C.    1291, plaintiff  may file  a timely

            notice  of  appeal from  the  final  district court  judgment

            entered  after  any review  of  the  agency  action taken  on

            remand.3

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            3.  Plaintiff expresses concern about safeguarding against an
            untimely appeal from the dismissed claims once the agency has
            completed the proceedings on remand  and about the method for
            bringing another appeal should the agency grant the requisite
            reinstatement.   Under Fed. R. App. P. 4(a)(1), the notice of
            appeal to  this court in  a case in  which the United  States
            agency  is a party must be filed  within 60 days of the entry

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Moreover,  allowance  of  plaintiff's appeal  might

            invite  the very inefficiency  condemned by  policies against

            piecemeal  appeals.    The   most  plaintiff  could  hope  to

            accomplish   in  an   appeal  at   this  juncture   would  be

            reinstatement of her Rehabilitation  Act claims and remand to

            the  lower  court for  a determination  on  the merits.   The

            district    court's    remand   of    plaintiff's   remaining

            Administrative  Procedure  Act  claim, however,  sufficiently

            assures that plaintiff will  receive a review on the  merits.

            Under the APA,  the district  court's task is  to review  the

            agency's  action to see if  it acted "in  accordance with the

            law," which  law includes the  Rehabilitation Act.   5 U.S.C.

            706(2); Cousins v.  Secretary of the  U.S. Dep't of  Transp.,
                    _______     ________________________________________

            880  F.2d  at 608.   As  the  district court's  opinion below

            shows,   it  was  precisely  so  that   it  could  make  this

            determination  on the  merits  of plaintiff's  claim that  it

            remanded the case to the agency for further proceedings.  The

            court instructed the agency  to create an adequate record  of

            its  reasons for  disqualifying plaintiff  in  particular and

            those with hepatitis B generally, and to consider, apparently

____________________

            of  the  order  from which  the  appeal  is taken.    Even if
            plaintiff were  not to challenge  the final agency  action on
            remand,  plaintiff would  be entitled  to appeal  the earlier
            district court order dismissing her other claims, by filing a
            timely  notice of  appeal, see  Fed. R.  App. P.  4(a)(1), as
                                       ___
            measuredfrom the entry of the final district court judgment. 

                                         -10-

for the  first time,  what, if any,  reasonable accommodation

            could be made for plaintiff.   

                      Thus allowance of plaintiff's appeal here would not

            speed-up the case, for whether plaintiff's claim is styled  a

            Rehabilitation Act claim or a claim for APA review, its final

            resolution must await further proceedings by the agency.   An

            appeal  on one issue now would only  add an extra step to the

            litigation, consuming judicial resources without any apparent

            advantage to the proceedings as a whole.         

                      For these reasons, this appeal must be dismissed. 
                                                             _________

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