Gillespie v. United States Steel Corp., 379 U.S. 148 (1964)

MR. JUSTICE HARLAN, dissenting.

I think that due regard for the "finality" rule governing the appellate jurisdiction of the courts of appeals requires that the judgment below be vacated and the case remanded to the Court of Appeals with instructions to dismiss the appeal because the decision of the District Court was not a "final" one, and hence not reviewable by the Court of Appeals at this stage of the litigation.

Petitioner sought to recover in this action upon two theories: negligence under the Jones Act and unseaworthiness under the general maritime law. The District Court dismissed the unseaworthiness claim in the complaint, and petitioner appealed. Although petitioner seemed to recognize that the order was not appealable,{1} the Court of Appeals, overruling respondent’s motion to dismiss for lack of jurisdiction, affirmed on the merits, and this Court granted certiorari over respondent’s showing that the Court of Appeals should not have entertained the appeal. The Court substantially affirms the judgment of the Court of Appeals, and the parties are remanded to a trial on the merits, but only after they have incurred needless delay and expense in consequence of the loose practices sanctioned by the Court of Appeals and, in turn, by this Court. This case thus presents a striking example of the vice inherent in a system which permits piecemeal litigation of the issues in a lawsuit, a vice which Congress in 28 U.S.C. § 1291 intended to avoid by limiting appeals to the courts of appeals{2} only from "final decisions" of the district courts, with exceptions not here relevant.{3}

Manifestly, the decision of the District Court reviewed by the Court of Appeals lacked the essential quality of finality; it involved but interstitial rulings in an action not yet tried. The justifications given by the Court for tolerating the lower court’s departure from the requirements of § 1291 are, with all respect, unsatisfactory.

1. The Court relies on the discretionary right of a district court to certify an interlocutory order to the court of appeals under § 1292(b) when the "order involves a controlling question of law," but the District Court in its discretion -- and rightly, it turns out -- did not make such a certification in this case,{4} and the Court of Appeals, equally correctly in my judgment, refused to order it to do so. The fact that Congress has provided some flexibility in the final judgment rule hardly lends support to the Court’s attempt to obviate jurisdictional restrictions whenever a court of appeals erroneously entertains a nonappealable order and hardship may result if the substantive questions are not then decided here.{5}

2. Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, does not support a different result. As the Court in that case stated, § 1291 does not permit appeals from decisions

where they are but steps towards final judgment in which they will merge . . . [and are not] 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.

337 U.S. at 546. It is clear in this case that, had petitioner proceeded to trial and won on her Jones Act claim, her asserted cause of action for unseaworthiness would have merged in the judgment. See Baltimore S.S. Co. v. Phillips, 274 U.S. 316. Conversely, her claim would have been preserved for appeal had she lost on her Jones Act claim. Surely the assertion that petitioner is entitled to submit her unseaworthiness theory to the jury is not collateral to rights asserted in her action, so as to entitle her to an appeal before trial.

3. Finally, the Court’s suggestion that

it seems clear now that the case is before us that the eventual costs, as all the parties recognize, will certainly be less if we now pass on the questions presented here rather than send the case back with those issues undecided,

ante, p. 153, furnishes no excuse for avoidance of the finality rule. Essentially, such a position would justify review here of any case decided by a court of appeals whenever this Court, as it did in this instance, erroneously grants certiorari and permits counsel to brief and argue the case on the merits. That, I believe, is neither good law nor sound judicial administration.{6}

I would vacate the judgment of the Court of Appeals and remand the case to that court with directions to dismiss petitioner’s appeal for lack of jurisdiction.

1. After the appeal was filed, petitioner unsuccessfully sought a writ of mandamus to compel the District Court to certify its order to the Court of Appeals under 28 U.S.C § 1292(b), ante, pp. 151-152.

2. The jurisdictional defect in this case arises only from the lack of finality of the District Court’s order. In United States v. General Motors Corp., 323 U.S. 373; Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682; and Land v. Dollar, 330 U.S. 731, all cited in the majority opinion, ante, pp. 153-154, the District Court had entered a final judgment, but the Court of Appeals reversed and remanded the case for further proceedings. Thus, the finality question before this Court was simply whether it should review a nonfinal order of the Court of Appeals, which, of course, the Court clearly has authority to do under 28 U.S.C § 1254(1) (1958 ed.).

3. See 28 U.S.C. § 1292 (1958 ed.).

4. The purpose of § 1292(b) was to permit a district judge, in his discretion, to obtain immediate review of an order which might control the further conduct of the case and which normally involves an unsettled question of law. Cf. 28 U.S.C. § 1254(3) (1958 ed.). In this case, the District Court’s ruling was controlled by Lindgren v. United States, 281 U.S. 38, and the validity of that ruling could only be tested by having certiorari issue from this Court. In that posture, I think the District Court was quite right in not wanting to delay the litigation on the chance that this Court would reevaluate its decision in Lindgren.

5. Compare Schlagenhauf v. Holder, 379 U.S. 104, at 110. The presence of the brother and sisters, ante, p. 153 of the Court’s opinion, cannot somehow serve to make the District Court order final. They were parties only to the mandamus proceeding, Court’s opinion, ante, pp. 151-152, n. 7, their claims were not severable from petitioner’s, id., p. 153, and the merit of their claims likewise depended on a holding that Lindgren was overruled, seen. 4, supra. I can see no "injustice" resulting to the brother and sisters by delaying review of the order until after final judgment which is not also present with respect to petitioner.

6. Understandably, counsel for the respondent, as he explained in oral argument, did not brief the finality point following the grant of certiorari; he assumed that the granting of the petition, despite his having raised the matter in his response thereto, indicated that the Court had no interest in the question.