Chisholm v. United States Postal Service Brief of Appellants

    No. 79-1236

In The

Cfourt nf tfy? United i^tata
OCTOBER TERM, 1980

FRANK L. CARSON, LAWRENCE HATCHER, AND 
STUART E. MINES,

Petitioners,

vs.

AMERICAN BRANDS, INC., T /A  THE AMERICAN 
TOBACCO COMPANY, LOCAL 182, TOBACCO 

WORKERS INTERNATIONAL UNION, and 
TOBACCO WORKERS INTERNATIONAL UNION,

Respondents.

ON W RIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF OF RESPONDENT AMERICAN BRANDS, INC.

Henry T. Wickham 
D. Eugene Webb, Jr.
Robert D. Seabolt 
Mays, Valentine, Davenport 

& Moore
23rd Floor, F&M Center 
P. O. Box 1122 
Richmond, Virginia 23208 
804-644-6011

Counsel for American Brands, Inc.

Paul G. Pennoyer, Jr.
Bernard W. McCarthy 
Peter N. H illman 
Chadbqurne, Parke, Whiteside 

& Wolff
30 Rockefeller Plaza
New York, New York 10112
212-541-5800



QUESTION PRESENTED

Whether the District Court’s order refusing to enter 
a proposed consent decree is an appealable interlocutory 
order under either 28 U.S.C. § 1291 or § 1292(a)(1).



TABLE OF CONTENTS

QUESTION PRESENTED ............................................................. i

TABLE OF AUTHORITIES...... .. ................................................ iii

STATEMENT OF THE CASE ...................................................  1

SUMMARY OF ARGUMENT .................................................... 5

ARGU M EN T....................................................................................  8

I. The District Court’s Order Refusing Entry of a Proposed 
Consent Decree Is Not Appealable Under the Judicially 
Created Collateral Order Exception to 28 U.S.C. § 1291 . . 8

A. The order did not conclusively determine the disputed
question................................................................   10

B. The order did not resolve an important issue completely
separate from the m erits .......................     12

C. The order is not effectively unreviewable............. 18

D. The Ninth Circuit’s reasoning in Norman v. McKee is
not persuasive..................................................................... 23

II. The District Court’s Order Refusing Entry of the Consent 
Decree Is Not Appealable Under the Congressionally 
Created Exception to the Finality Rule, 28 U.S.C. § 1292 
(a )(1 ) ......................................................................................  26
A. As a narrow exception to the final judgment rule, sec­

tion 1292(a)(1) should be strictly construed...............  26
B. The rejection of the tendered consent decree did not

cause irreparable consequences which can be alleviated 
only through allowance of interlocutory appeal . ...........  28
1. The order could be reviewed both prior to and 

after final judgment ......................................... - ..........  28

u

Page



Page

2. The order did not affect or pass on the legal 
sufficiency of any claims for injunctive relief. . . . . . .

3. The Fifth Circuit City of Alexandria case was
wrongly decided............................................................

C. The burden on the judicial system from allowing 
interlocutory appeals from orders rejecting consent 
decrees outweighs any consequences of postponing 
judicial review ...................................................................

CONCLUSION 42

TABLE OF AUTHORITIES 

Cases
Page

Adickes v. S. H. Kress & Co., 398 U.S. 144 (1 9 7 0 ) ...................  9

Alexander v. Gardner-Denver Co., 415 U.S. 36 (1 9 7 4 ) .............  16

Autera v. Robinson, 419 F.2d 1197 (D.C. Cir. 1 9 6 9 ) ...............  17

Axinn & Sons Lumber Co. v. Long Island Rail Road Co.,
No. 79-3082 slip op. (2d Cir., August 11, 1980) ........... 20

Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176
(1955) ......................................................................... 26 ,27,33,41

Carson v. American Brands, Inc., 446 F. Supp. 780 (E.D. Va.
1 9 7 ']') ......................................................................................passim

Carson V. American Brands, Inc., 606 F.2d 420 (4th Cir.
1979), cert, granted, —  U.S. — , 100 S.Ct. 1643 (1980) . .passim

City of Morgantown, W. Va. v. Royal Insurance Co., 337 U.S.
254 (1949)  ................... ................................................... .27, 35

Cobbledick v. United States, 309 U.S. 323 (1940) ...................  9

iii



Page

Cohen v. Beneficial Industrial Loan Corp.,
337 U.S. 541 (1949) ......................................... .......... 9, 11, 14, 32

Coopers & Lybrand v. Livesay, 437 U.S. 463 (1 9 7 8 ) ...........passim

Dent v. St. Louis-San Francisco Railway Co., 406 F.2d 399
(5th Cir. 1969) ...........................................................................  16

Dickinson v. Petroleum Conversion Corp., 338 U.S. 507
(1950) ........................................................................................... 22

Risen v. Carlisle & Jacquelin, 417 U.S. 156 (1974)................. 8, 11

Emporium Capwell Co. v. Western Addition Community
Organization, 420 U.S. 50 (1 9 7 5 ) .............................................  17

Flinn v. FMC Corp., 528 F.2d 1169 (4th Cir. 1975), cert.
denied, 424 U.S. 967 (1976) ............................................... 14,34

Gardner v. Westinghouse Broadcasting Co., 437 U.S. 478
(1978) ....................................................................................... passim

General Electric Co. v. Marvel Rare Metals Co., 287 U.S. 430 
(1932) ....................................................................................... 31,36

In re General Motors Corp. Engine Interchange Litigation, 594 
F.2d 1106 (7th Cir. 1979) .......................    25

In re International House of Pancakes Franchise Litigation, 487 
F.2d 303 (8th Cir. 1973) ..........................................................  14

International Brotherhood of Teamsters v. United States, 431
U.S. 324 (1 9 7 7 ) .............................    5 ,38

Mercantile National Bank v. Langdeau, 371 U.S. 555 (1963). . 14

Myers v. Gilman Paper Corp., 544 F.2d 837 (5th Cir.), cert, 
denied sub nom., Local 741 International Brotherhood of 
Electrical Workers v. Myers, 434 U.S. 801 (1977).................  37

Norman v. McKee, 431 F.2d 769 (9th Cir. 1970), cert, denied,
401 U.S. 912 (1971) ..................................................23, 24, 25, 26

IV



Page

Peter Pan Fabrics, Inc. v. Dixon Textile Corp., 280 F.2d 800
(2d Cir. 1960) .............................................      40

Rodgers v. US. Steel Corp., 541 F.2d 365 (3d Cir. 1976). . .20, 30 
Ruiz v. Estelle, 609 F.2d 118 (5th Cir. 1980) ........................20, 30
Russell v. American Tobacco Co., 528 F.2d 357 (4th Cir.

1975) ......................................  5
Sampson V. Murray, 416 U.S. 61 (1974) ..................................... 28
Sagers v. Yellow Freight Systems, Inc., 529 F.2d 721 (5th Cir.

1976) .........................................................................       38
Seigal v. Merrick, 590 F.2d 35 (2d Cir.

1978) ........................................   3 ,1 0 ,14 ,23 ,25 ,29
Shelley v. Kraemer, 344 U.S. 1 (1947) .........................................  14
Speed Shore Corp. v. Denda, 605 F.2d 469 (9th Cir. 1979) . . . .  17
Stateside Machinery Co. V. Alperin, 526 F.2d 480 (3d Cir.

1975) ............................................................................................. 38
Switzerland Cheese Association, Inc. v. E. Horne’s Market, Inc.,

385 U.S. 23 (1966) ............................................... ............ .. .27, 35

Tacon v. Arizona, 410 U.S. 351 (1973).........................................  9

United Founders Life Insurance Co. V. Consumers National Life 
Insurance Co., 447 F.2d 647 (7th Cir. 1971).............................  14

United States v. City of Alexandria, 614 F.2d 1358 (5th Cir.
1980) .................  . . . . . . . . . 2 7 , 3 6

United States v. T.l.M.E.-D.C., 517 F.2d 299 (5th Cir. 1975), 
vacated and remanded on other grounds sub nom., Inter­
national Brotherhood of Teamsters v. United States, 431 
U.S. 324 (1 9 7 7 ) ...........................................................................  38

United Steelworkers of America, AFL-CIO-CLC v. Weber, 443 
U.S. 193 (1979) ........................................  passim

Virginia Petroleum Jobbers Association v. Federal Power 
Commission, 259 F.2d 921 (D.C. Cir. 1958).............................  28

v



Page

W. J. Perryman & Co. v. Penn Mutual Fire Insurance Co., 324 
F.2d 791 (5th Cir. 1963) ............................................... .. 17

West Virginia v. Chas. Pfizer & Co., 440 F.2d 1079 (2d Cir.), 
cert, denied sub. nom., Cotter Drugs, Inc. v. Chas. Pfizer &
Co., 404 U.S. 871 (1971) . ........................................................  14

Williams v. First National Bank, 216 U.S. 582 (1910)...............  17

Statutes

28 U.S.C. § 1291 ..........................................................................passim

28 U.S.C. § 1292(a)(1) ........................................................ .. .passim

28 U.S.C. § 1292(b) .......................................................... .. 20, 26, 30

28 U.S.C. § 1651 .................................................................... .. 20

42 U.S.C. § 1981 ................................................. ...........................  2

Title VII, Civil Rights Act 
of 1964, as amended, 42 U.S.C.
§ 2000e et seq.  ............... ....................................................... passim

Rules

Fed. R. Civ. P. 23 (e) ......................................................14, 15, 28, 29

Fed.R .A pp.P . 21(a) ..................................................................... 20

Fed. R. App. P. 41 ........................................................ 4

Treatise

16 C. Wright, A. Miller, E. Cooper & E. Gressman,
Federal Practice and Procedure, § 3924 (1977) .....................  38

VI



No. 79-1236

In The

&upr?tn? (Emtrt of tljp Imtefc States
OCTOBER TERM, 1980

FRANK L. CARSON, LAWRENCE HATCHER, AND 
STUART E. MINES,

Petitioners,

vs.
AMERICAN BRANDS, INC., T /A  THE AMERICAN 

TOBACCO COMPANY, LOCAL 182, TOBACCO 
WORKERS INTERNATIONAL UNION, and 

TOBACCO WORKERS INTERNATIONAL UNION,
Respondents,

ON WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF OF RESPONDENT AMERICAN BRANDS, INC.

STATEMENT OF THE CASE

Petitioners Frank L. Carson, Lawrence Hatcher and 
Stuart E. Mines filed this action against respondents Ameri­
can Brands, Inc. t'/a The American Tobacco Company 
(“American”), Local 182, Tobacco Workers International 
Union, and Tobacco Workers International Union on Oc­
tober 24, 1975, in the United States District Court for the 
Eastern District of Virginia, Richmond Division. Petitioners 
brought the suit on behalf of themselves and an alleged



2

class consisting of “all black persons who have sought 
employment and who are employed or might in the future 
be employed by the Company's [American’s] Richmond 
Leaf Department. . . They alleged violations by respon­
dents of Title VII of the Civil Rights Act of 1964, as 
amended, 42U.S.C. § 2Q00e etseq. (“Title VII”) and of 42 
U.S.C. § 1981 (J.A. la-12a). In their respective answers, 
respondents denied any violation of the cited statutes (J.A. 
13a-23a).

On January 27, 1976, at a pre-trial conference, an order 
was entered by the District Court allowing time for dis­
covery and setting the case for trial to begin on May 2, 
1977. By letter dated March 25, 1977, counsel for peti­
tioners informed the Court that the parties would present 
a consent decree at the final pre-trial conference on April 
1, 1977, and that they wished to discuss the entry of the 
proposed decree at that conference.

During the course of the April 1 conference, the Court 
expressed concern about the effect of the proposed decree 
on individuals other than the parties before the Court and 
questioned whether certain provisions of the tendered decree 
might be violative of tire law. The District Court noted that 
the parties were jointly seeking entry of the decree and to 
that extent were no longer in an adversary posture, and re­
quested that the parties submit memoranda in support of 
entry.

After receiving the requested memoranda, the Court, 
by order dated June 1, 1977, declined to enter the tendered 
decree. Carson v. American Brands, Inc., 446 F. Supp. 780 
(E.D. Va. 1977). On June 24, 1977, petitioners filed a 
notice of appeal from the order to the Court of Appeals for 
the Fourth Circuit (J.A. 57a-58a).

By order dated October 12, 1977, the Court of Appeals 
established a briefing schedule. However, on January 10,



3

1978, before briefs were due, respondents informed the 
clerk of the Court of Appeals that they had no position on 
the merits of the appeal and that the appeal was not an 
adversary proceeding as required by Article III of the United 
States Constitution. Respondents stated that under these 
circumstances, they would not submit briefs unless so 
ordered by the Court (J.A. 59a-60a).

Petitioners then filed a motion in the Court of Appeals for 
summary reversal of the District Court’s order, and the 
Court of Appeals ordered respondents to brief a position 
in opposition to the motion for summary reversal. The 
brief was submitted and the Court of Appeals denied peti­
tioners’ motion by order entered on January 31, 1978, an 
order which was rescinded on February 8, 1978. On March 
27, 1978, the Court of Appeals again denied the motion 
for summary reversal and directed the clerk to invite re­
spondents to file a brief addressing the merits of the appeal 
(J.A. 62a-64a).

A panel of the Court of Appeals heard oral argument 
on October 3, 1978. While the matter was under advise­
ment, the clerk informed the parties by letter dated January 
25, 1979, of the panel’s concern as to whether it had 
jurisdiction to entertain the appeal in light of a recent 
opinion, Seigal v. Merrick, 590 F.2d 35 (2d Cir. 1978), 
and requested that counsel file supplemental memoranda ad­
dressing this concern by February 9 (J.A. 65a-66a). After 
the filing of the requested memoranda, the Court of Appeals, 
sua sponte, agreed to en banc consideration of the case with­
out oral argument on June 5, 1979.

On September 14, 1979, the Court of Appeals, three 
judges dissenting, dismissed the appeal holding that the 
District Court’s refusal to enter the proposed consent decree 
was not an appealable order under 28 U.S.C. § 1292(a)



4

(1). Carson v. American Brands, Inc., 606 F.2d 420, 425 
(4th Cir. 1979). The mandate of the Court of Appeals is­
sued on October 5, 1979, in accordance with Fed. R. App. 
P. 41. Petitioners made no attempt to obtain a stay of the 
mandate.

After informing petitioners’ counsel by letter that respon­
dents no longer consented to the entry of the proposed de­
cree, the respondents, by motion filed with the District 
Court on October 10, 1979, requested the Court to hold 
a pre-trial conference for the purpose of establishing a new 
trial date. In the motion, respondents stated that they no 
longer consented to the entry of the proposed decree (J.A. 
67a-68a). Petitioners filed no response to this motion, nor 
did they at any time lodge an objection to respondents’ with­
drawal of consent with either the Court or counsel.1

By notice dated November 2, 1979, the parties were ad­
vised that the case had again been placed on the docket for 
trial (J.A. 69a-70a), and at a pre-trial conference on No­
vember 15, 1979, the District Court set the case for trial 
to begin on February 4, 1980. Petitioners made no objec­
tion.

Two weeks after the conference at which the case was set 
for trial, respondents were served with petitioners’ applica­
tion for an extension of time in which to file a petition for 
writ of certiorari. On December 5, 1979, petitioners moved

1 Respondents suggested in their Brief in Opposition to Petition for 
Writ of Certiorari that there was no “case or controversy” within 
the meaning of Article III of the United States Constitution and that 
the issue on this appeal should be considered moot in view of re­
spondents’ withdrawal of consent to the proposed decree, which oc­
curred without objection by petitioners when the case was back before 
the District Court for the first time in 28 months, there having been 
no stay of the mandate (Resp. Br. in Opp. at 4-10). Certiorari 
having been granted, American will brief here only the merits of the 
issue on appeal.



5

the District Court for a stay of all further proceedings pend­
ing disposition of their petition. The District Court granted 
this request by order dated December 17, 1979.

This Court granted the petition for writ of certiorari 
on June 16, 1980, and expressly limited the appeal to the 
question of whether an order refusing to enter a proposed 
consent decree is an appealable order under 28 U.S.C. 
§ 1291 or § 1292(a)(1).2

SUMMARY OF ARGUMENT

I.
The finality requirement of 28 U.S.C. § 1291 represents a 

legislative judgment that a succession of separate appeals 
from interlocutory orders would have a debilitating effect on 
judicial administration. The District Court’s order rejecting 
a proposed consent decree does not come within the small 
class of exceptions to the final judgment rule established by 
the judicially-created “collateral order” doctrine.

2 Petitioners’ Statement of the Case (Pet. Br. at 5-21) contains few 
citations to the joint appendix or record in the case to support their 
factual allegations, particularly with respect to the description of em­
ployment practices and policies at American’s Richmond Leaf Plant. 
Petitioners’ description of such practices and policies is largely in­
accurate, but those practices and policies are not relevant to the 
limited issue of appealability before this Court.

American is compelled to comment on petitioners’ referring the 
Court to Russell v. American Tobacco Co., 528 F.2d 357 (4th Cir. 
1975), for a description of “the operation of the American Tobacco 
Company” (Pet. Br. at 8 n .l) . The Russell case has no relevance 
here whatsoever. First, the merits of American’s operations are not 
at issue on this appeal. Second, even if the merits were at issue, the 
Russell case concerns an entirely different facility, in a different state, 
and thus the facts stated in Russell (not part of the record in this 
case) are irrelevant. Moreover, the Russell action is presently pend­
ing in the Middle District of North Carolina on reconsideration in 
light of International Bhd. of Teamsters v. United States, 431 U.S. 
324 (1977), and other recent Supreme Court cases.



6

The District Court’s order does not satisfy any element 
of this Court’s three-part collateral order test. Coopers & 
Lybrand v. Livesay, 437 U.S. 463 (1978). First, the order 
did not conclusively determine any disputed question. 
Even assuming that there is a general right to settle litiga­
tion, nothing in the District Court’s order precluded settle­
ment at another time by the tendered decree or some alter­
native consent decree.

Second, the District Court’s order did not resolve an 
important issue completely separate from the merits. Pe­
titioners contend that the important collateral issue is 
the right to settle a Title ¥11 class action under Weber 
( United Steelworkers of America, AFL-CIO-CLC v. 
Weber, 443 U.S. 193 (1979)). The Weber opinion, how­
ever, was delivered two years after the District Court’s order, 
was not considered by the courts below, and is encompassed 
within the questions denied review by the Court in this case. 
Even assuming that Weber is applicable to settlement 
of litigation, the District Court’s order in this case of 
necessity involved considerations that were enmeshed in 
the factual and legal issues comprising petitioners’ claims, 
and so no “collateral” rights were injured by the District 
Court’s order. Furthermore, the importance of the right 
to settle Title VII actions is no different from the right to 
settle any other litigation, and there is no reason for creating 
a special exception to the final judgment rule for Title VII 
cases.

Third, the District Court’s order is effectively reviewable, 
both before and after possible trial, and therefore fails 
to satisfy the final prong of the collateral order test. The 
same or alternative consent decree proposals could be pre­
sented by the parties for the District Court’s consideration at 
any stage of the litigation. If none are accepted and the



7

parties go to trial, any party could advocate on appeal there­
from the settlement alternative most favorable to its position. 
In situations where actual final determinations are made to 
the detriment of legitimate rights, immediate appellate re­
view is available through certification or mandamus. In sum, 
no irreparable harm would flow from a decision holding 
the collateral order doctrine inapplicable and postponing 
appellate review until final judgment.

n.
28 U.S.C. § 1292(a)(1), the statutory exception to the 

rule of finality held by the Court of Appeals below to be 
inapplicable to the District Court’s order rejecting a pro­
posed consent decree, has always received a narrow inter­
pretation by this Court. Postponing appellate review in this 
case presents no serious, irreparable consequences such as 
would warrant expansion of § 1292(a) (1).

After rejection of the tendered decree, petitioners re­
mained fully able to obtain injunctive relief through alter­
native settlement proposals, a motion for injunctive relief, an 
award of injunctive relief following trial, or through im­
position of such relief on appeal. Nothing in the opinions 
of the courts below foreclosed any of these opportunities 
to seek and obtain injunctive relief. The District Court’s 
order thus produced no irreparable effect because it could be 
reviewed both prior to and after final judgment. Gardner v. 
Westinghou.se Broadcasting Co., 437 U.S. 478 (1978).

Denial of entry caused no serious or irreparable harm 
for the further reason that it did not dispose of any claims 
for injunctive relief. The District Court may have expressed 
an opinion concerning the lawfulness of the tendered decree, 
but it did not pass on the legal sufficiency of petitioners’



8

claims for injunctive relief in any other form and under any 
other factual circumstances.

The narrow interpretation accorded § 1292(a)(1) by 
this Court has often followed from weighing the conse­
quences of postponing appeal against the vital judicial in­
terests militating against piecemeal review. The result urged 
here by petitioners would create the potential for multiple 
and unnecessary appeals, injecting appellate courts indis­
criminately into the trial process. The consequences of 
postponing appeal of an order rejecting a consent decree, on 
the other hand, are minimal and remediable both prior to 
and after final judgment.

ARGUMENT

I.
The District Court’s Order Refusing Entry Of A Proposed Consent 

Decree Is Not Appealable Under The Judicially Created 
“Collateral Order” Exception To 28 U.S.C. § 1291

The finality requirement of 28 U.S.C. § 1291s embodies a 
long-standing legislative judgment that “ ‘[Restricting appel­
late review to ‘final decisions’ prevents the debilitating effect 
on judicial administration caused by piecemeal appeal dis­
position of what is, in practical consequence, but a single 
controversy.’ ” Coopers & Lybrand v. Livesay, 437 U.S. 
463, 471 (1978), quoting from Eisen v. Carlisle & Jacque- 
lin, 417 U.S. 156, 170 (1974). The policy of finality serves 
to avoid the “obstruction to just claims that would come 
from permitting the harassment and cost of a succession of 
separate appeals from the various rulings to which a litiga- 3

3 28 U.S.C. § 1291 permits appellate review only from “final de­
cisions of the district courts of the United States,” except where a 
direct review may be had in the Supreme Court.



9

tion may give rise.” Cobbledick v. United States, 309 U.S. 
323,325 (1940).

No one here contends that the District Court’s order 
refusing to enter a proposed consent decree was a “final 
decision” within the literal dictates of § 1291. Appealability 
of an order refusing entry, therefore, lies only if the order 
comes within an appropriate exception to the final judgment 
rule.

Petitioners now contend that appealability of the District 
Court’s order under § 1291 may be premised on the col­
lateral order doctrine of Cohen v. Beneficial Industrial 
Loan Corp., 337 U.S. 541 (1949).4 This Court recently 
articulated a strict test for application of the doctrine when 
it held in Coopers & Lybrand v. Livesay, supra, 437 U.S. at

4 There is some confusion as to whether petitioners’ “collateral 
order” theory of appealability was properly presented to the Court 
of Appeals. At one point in the appeal, petitioners explicitly denied 
that the collateral order doctrine was an issue in the case. In petition­
ers’ Supplemental Memorandum to the Fourth Circuit Court of Ap­
peals, filed February 9, 1979, they stated (at 2):

Because this case does not invoke the “collateral order doctrine” 
of Cohen [v. Beneficial Indus. Loan Corp., 337 U.S. 541 
(1949)], Seigal [v. Merrick, 590 F.2d 35 (2d Cir. 1978)] is 
inapplicable.

Petitioners maintain in their brief to this Court (Pet. Br. at 20 n. 
9), however, that they intended the Court of Appeals to consider this 
theory as an alternative to 28 U.S.C. § 1292(a)(1). The opinion of 
the Court of Appeals does not address the collateral order issue, and 
it is clear from the statement of the issue before the Court of Appeals 
that it was not considering § 1291 (606 F.2d at 421):

Plaintiffs seek an interlocutory appeal under 28 U.S.C. 
§ 1292(a)(1) of the district court’s refusal to enter a consent 
decree agreed to by the named parties in a Title VII class action.

Should this Court decide that the collateral order doctrine was not 
properly submitted to the Court of Appeals, it should not now con­
sider this issue. Tacon v. Arizona, 410 U.S. 351 (1973); Adickes 
v. S. H. Kress & Co., 398 U.S. 144 (1970).



10

468, that a trial court’s denial of class certification is not 
appealable as a collateral order:

To come within the “small class” of decisions ex­
cepted from the final-judgment rule by Cohen, the 
order must conclusively determine the disputed ques­
tion, resolve an important issue completely separate 
from the merits of the action, and be effectively un- 
reviewable on appeal from a final judgment. (Footnote 
and citations omitted.)5

Application of the Coopers & Lybrand test to this case 
demonstrates that no prong of the three-part conjunctive test 
can be met with respect to the order refusing to enter the 
proposed consent decree.

A. The Order Did Not Conclusively Determine 
The Disputed Question

The District Court’s order does not satisfy this Court’s re­
quirement that the order “must conclusively determine the 
disputed question.. . . ” Id. Petitioners claim that the “dis­
puted question” is the “right to reach a lawful settlement of 
a Title VII employment discrimination case pursuant to the 
guidelines set forth by this Court in Weber. . . ” 6 (Pet. 
Br. at 30).

Even assuming the existence of such a right, the plain 
fact is that there was nothing in the District Court’s opin­
ion which precluded the possibility of settlement. This was

5 The articulation of this test has prompted the Second Circuit to 
observe that the Coopers & Lybrand decision evidences that “'[t]he 
Supreme Court has recently given an even firmer direction. . to 
that Circuit’s “disinclination to erode the finality doctrine by indi­
rection.” Seigal v. Merrick, 590 F.2d 35, 37 (2d Cir. 1978).

6 “Weber” refers to United Steelworkers of America, AFL-CIO- 
CLC v. Weber, 443 U.S. 193 (1979).



11

clearly recognized by the Court of Appeals when it ob­
served (606 F.2d at 424):

Under the Flinn [v. FMC Corp., 528 F.2d 1169 (4th 
Cir. 1975), cert, denied, 424 U.S. 967 (1976)] analy­
sis, the named parties may present a proposed decree 
to the district court in any form and at any stage in the 
proceedings. If one decree is refused another may be 
proposed. At any time the district court can reconsider 
its refusal to enter a decree. See Cohen v. Beneficial 
Industrial Loan Corporation, 337 U.S. at 547, 69 S.Ct. 
1221.

When a district court objects to the terms of a de­
cree, alternative provisions can be presented, and per­
haps a disapproved decree may be entered with further 
development of the record.

Accordingly, in contrast to an order of a trial court deny­
ing to a party the right to security for reasonable expenses 
that might otherwise be unrecoverable, Cohen v. Bene­
ficial Industrial Loan Corp., supra, or one that purports to 
make final disposition of a claimed right to notice costs 
that might otherwise be irretrievable, Eisen v. Carlisle & 
Jacquelin, supra, the District Court’s order in this case was 
inherently tentative and incomplete. A decision to allow 
immediate appellate review of such an inconclusive order 
(Coopers & Lybrand v. Livesay, supra, 437 U.S. at 476):

thrusts appellate courts indiscriminately into the trial 
process and thus defeats one vital purpose of the final- 
judgment rule—“that of maintaining the appropriate 
relationship between the respective courts. . . .  This 
goal, in the absence of most compelling reasons to the 
contrary, is very much worth preserving.” [Citing 
Parkinson v. April Industries, Inc., 520 F.2d 650, 654 
(2d Cir. 1975)]

This admonition is applicable here notwithstanding peti­
tioners’ weak claim that the “tenor of the district court’s



12

opinion below tended to indicate that a final determination 
had been made,” (Pet. Br. at 41; emphasis added.) Peti­
tioners’ speculation about the District Court having made a 
“final determination” of their alleged right to settle, a right 
premised on a case which had not been decided at the time 
of the District Court’s decision and which is, in any event, 
of questionable applicability,7 cannot serve as a workable 
test for appealability, nor does it present a compelling 
reason for thrusting an appellate court into the trial process. 
The courts of appeals should not have to examine whether 
a district court’s refusal to enter a proposed consent decree 
conclusively determined the disputed question by having to 
assess something as nebulous as the “tenor” of its opinion.

The right to reach a settlement in this case having re­
mained open to petitioners in many forms, including re­
questing reconsideration by the District Court of the ten­
dered decree, there was no “conclusive determination of the 
disputed question.” Coopers & Lybrand v. Livesay, supra, 
437 U.S. at 468.

B. The Order Did Not Resolve An Important Issue 
Completely Separate From The Merits

Nor can this order satisfy the second prong of the col­
lateral order test of “resolv[ing] an important issue com­
pletely separate from the merits of the action. . . .” Coopers 
& Lybrand v. Livesay, id. Here again, that “issue,” as 
framed by petitioners, is their alleged right to settle “pur­
suant to the guidelines set forth by this Court in Weber” 
(Pet. Br. at 30). They claim that such a “right” is “separate 
and anterior to the merits of the claims in the Title VII ac­
tion” (id.) and “not enmeshed in the issues of a Title VII 
suit” (id. at 32).

7 See discussion infra, at 13-14.



13

It is first noted that the existence of the “right” to settle 
pursuant to the tendered decree, as now articulated by pe­
titioners, is an issue encompassed within the “abuse of dis­
cretion” questions expressly excluded from the grant of cer­
tiorari in this case.8 Such a “right” is not a part of the nar­
row procedural question as to which certiorari was granted, 
particularly when the issue was not briefed or argued in 
the courts below. As the majority in the Court of Appeals 
properly observed (606 F.2d at 424):

Such argument is vital when appellate courts must 
authoritatively opine about important unsettled legal 
issues of the highest social concern in the amorphous 
context of reviewing a trial court’s exercise of discre­
tion.

This observation is even more pertinent in reviewing such 
an issue in the context of a narrow procedural question.

Further, there is no such thing as a Weber right to settle 
in a litigation context. Weber did not involve settlement by 
parties in litigation. The limited crafts training affirmative 
action plan agreed to in Weber by the employer and the

8 The questions presented in the petition and excluded by this 
Court’s order issuing the writ of certiorari were the following:

2. Whether the federal district court below erred in holding 
that the due process clause of the Fifth Amendment to the 
Constitution of the United States and Title VII of the Civil 
Rights Act of 1964, prohibit federal courts from judicially ap­
proving, in the absence of discrimination by defendants against 
plaintiffs and other class members, proposed consent decrees 
providing for remedial use of race-conscious affirmative action 
program in accordance with requirements set forth in United
Steelworkers of America, AFL-ClO-CLC v. W eber,------ U.S.
------ 61 L. Ed. 2d 480 (1979)?

3. Whether the district court below applied proper criteria, 
or otherwise abused its discretion, under Federal Rules of Civil 
Procedure 23(e) in refusing to approve a proposed settlement 
by the parties of a Title VII class action?



14

union in a collective bargaining setting did not involve 
judicial intervention in any form, either under Fed.R.Civ.P. 
23 (e) or through imposition of a remedy following trial. The 
constitutionality of such judicial intervention was not at 
issue. Cf., Shelley v. Kraemer, 344 U.S. 1 (1947).

In any event, whether Weber is or is not involved, a right 
to settle in a Title VII action is not “completely separate 
from the merits of the action” (emphasis added) as required 
by the Coopers & Lybrand test. Fed.R.Civ.P. 23(e) and the 
appellate abuse of discretion test for review of trial court 
approval or rejection of consent decrees require that a dis­
trict court make a preliminary assessment of the merits of 
the positions of the parties in considering a proposed con­
sent decree. See, e.g., Seigal v. Merrick, supra, 590 F.2d at 
38; Flinn v. FMC Corp., 528 F.2d 1169 (4th Cir. 1975), 
cert, denied, 424 U.S. 967 (1976).9 Unlike the situation 
posed in Mercantile National Bank v. Langdeau, 371 U.S. 
555 (1963), wherein the trial court’s order determined the 
ancillary but vital issue of proper forum, or that presented 
by Cohen v. Beneficial Industrial Loan Corp., supra, where­
in the trial court ruled on the collateral but critical ques­
tion of whether a shareholder was required to post security 
for costs, the District Court’s order in this case of necessity 
involved considerations that were “enmeshed in the factual 
and legal issues comprising the plaintiff’s cause of action.” 
Mercantile National Bank v. Langdeau, supra, 371 U.S. at 
558.

Such involvement with the factual and legal issues com­

9 See also West Virginia v. Chas. Pfizer & Co., 440 F.2d 1079, 
1085 (2d Cir.), cert, denied sub. nom., Cotter Drugs, Inc. v. Chas. 
Pfizer & Co., 404 U.S. 871 (1971); In re International House of 
Pancakes Franchise Litigation, 487 F.2d 303, 304 (8th Cir. 1973); 
United Founders Life Ins. Co. v. Consumers Nat’l Life Ins. Co., 447 
F.2d 647, 655 (7th Cir. 1971).



15

prising petitioners’ cause of action would in all likeli­
hood have been even greater had the Weber issue been 
presented to the District Court. Petitioners’ reliance on 
the language in Weber indicating that because the plan 
there was voluntary, the Court was “not concerned with 
what Title VII requires or with what a court might order 
to remedy a past proved violation of the Act,” (Pet. Br. at 
32), is inappropriate to a matter in litigation, especially 
where a court must meet its Rule 23(e) responsibilities.

The petitioners and all of the Amici also argue that the 
right to settle a Title VII action is such an “important issue” 
that to deny appealability of an order refusing entry of a 
consent decree in a Title VII action will undercut the policy 
of Title VII favoring voluntary conciliation and settlement. 
Although that argument has some surface appeal, it does 
not withstand examination.

Title VII does favor conciliation and the avoidance of 
litigation,10 but as this Court has recognized, that policy,

10 42 U.S.C. § 2000e-5 (1976) contains the only language in 
Title VII with respect to conciliation, and that applies only to the 
Equal Employment Opportunity Commission. Section 2000e-5(b) 
provides:

* * * ❖

If the Commission determines after such investigation that there 
is reasonable cause to believe that the charge is true, the Com­
mission shall endeavor to eliminate any such alleged unlawful 
employment practice by informal methods of conference, con­
ciliation, and persuasion. (Emphasis added.)

Section 2000e-5 (f) (1) provides:
If within thirty days after a charge is filed with the Commis­

sion or within thirty days after expiration of any period of 
reference under subsection (c) or (d) of this section, the Com­
mission has been unable to secure from the respondent a con­
ciliation agreement acceptable to the Commission, the Commis­
sion may bring a civil action against any respondent not a gov­
ernment, governmental agency, or political subdivision named in 
the charge. . . .



16

to the extent it is expressed in the Act itself, is applicable 
only to the agency proceedings level (Alexander v. Gardner- 
Denver Co., 415 U.S. 36, 44 (1974)):

Cooperation and voluntary compliance were selected 
as the preferred means for achieving this goal. To this 
end, Congress created the Equal Employment Oppor­
tunity Commission and established a procedure 
whereby existing state and local equal employment op­
portunity agencies, as well as the Commission, would 
have an opportunity to settle disputes through con­
ference, conciliation, and persuasion before the ag­
grieved party was permitted to file a lawsuit. (Emphasis 
added.)

Even the dicta from Dent v. St. Louis-San Francisco Rail­
way Co., 406 F.2d 399 (5th Cir. 1969), cited by petitioners 
for the proposition that “efforts should be made to resolve 
these employment rights by conciliation both before and 
after court action” (Pet. Br. at 35), was premised on a 
specific provision of Title VII applicable only to the Equal 
Employment Opportunity Commission and not to Title VII 
litigation generally.* 11

Accordingly, to the extent there is a policy promoting 
settlement of Title VII cases once they are in litigation, it
(Cont. from preceding page)

* * ❖

Upon request, the court may, in its discretion, stay further 
proceedings for not more than sixty days pending the termina­
tion of State or local proceedings described in subsections (c) 
or (d) of this section or further efforts of the Commission to 
obtain voluntary compliance. (Emphasis added.)

11 Dent v. St. Louis— San Francisco Ry., supra, 406 F.2d at 402:
Section 706(e) further provides:

Upon request, the court may, in its discretion, stay further 
proceedings for not more than sixty days pending. . .the efforts 
of the Commission to obtain voluntary compliance. (Emphasis 
added.)



17

is no different from the general judicial policy favoring 
settlement in any litigation. See, e.g., Williams v. First 
National Bank, 216 U.S. 582, 595 (1910) (“Compromises 
of disputed claims are favored by the courts. . . .” ); Speed 
Shore Corp. v. Denda, 605 F.2d 469, 473 (9th Cir. 1979) 
(“It is well recognized that settlement agreements are ju­
dicially favored as a matter of sound public policy”); 
Autera v. Robinson, 419 F.2d 1197, 1199 (D.C. Cir. 
1969) (“Voluntary settlement of civil controversies is in 
high judicial favor”) ; W. J. Perryman & Co. v. Penn Mutual 
Fire Insurance Co., 324 F.2d 791, 793 (5th Cir. 1963) 
(“The law favors and encourages compromises”). The im­
portance of a right to settle in Title VII actions is thus the 
same as in any other litigation and there is no reason for 
carving out a special exception to the final-judgment rule 
for settlement agreements in Title VII cases, just as this 
Court has held that there is no reason for carving out a 
limited exception to the exclusive bargaining principle under 
the National Labor Relations Act to accommodate the pub­
lic policy purposes of Title VII in the curing of discrimina­
tion. Emporium Capwell Co. v. Western Addition Com­
munity Organization, 420 U.S. 50 (1975).

This Court has also observed in an analogous context 
relative to special rules in class actions that (Coopers & Ly- 
brand v. Livesay, supra, 437 U.S. at 470):

Those rules do not, however, contain any unique 
provisions governing appeals. The appealability of any 
order entered in a class action is determined by the 
same standards that govern appealability in other types 
of litigation.

This reasoning is every bit as applicable here, there being no 
unique provisions covering appeals in Title VII cases. 
Directly apropos, also, is this Court’s observation (id.):



18

Respondents, on the other hand, argue that the class 
action serves a vital public interest and, therefore, 
special rules of appellate review are necessary to ensure 
that district judges are subject to adequate supervision 
and control. Such policy arguments, though proper for 
legislative consideration, are irrelevant to the issue we 
must decide.

For all these reasons, the order in the case now before 
this Court cannot meet the second prong of the collateral 
order test of “resolv[ing] an important issue completely 
separate from the merits of the action. . . .” Coopers & 
Lybrand v. Livesay, supra, 437 U.S. at 468.

C. The Order Is Not Effectively Unreviewable

The third prong of the collateral order doctrine is that 
the order “be effectively unreviewable on appeal from a 
final judgment.” Coopers & Lybrand v. Livesay, supra, 437 
U.S. at 468.

As the Court of Appeals indicated, after final judgment 
either party to the proposed consent decree may ask for re­
view of the District Court’s order denying entry of the de­
cree, or, for that matter, of several alternative decrees. The 
parties could then argue (606 F.2d at 424):

the importance of the law and facts as they appeared 
when the decree was proposed. Where alternative 
or revised decrees have been presented, the parties 
could advocate on appeal the alternative most favorable 
to their positions in light of the law and facts appearing 
when it was presented.

The availability of such final judgment review takes the 
denial of entry of a proposed decree out of the rubric of 
the third prong of the collateral order test.



19

Petitioners, in addressing this aspect of the collateral 
order rule, state that the test is that “the order must be one 
whose review cannot be postponed until final judgment 
because delayed review will cause irreparable harm by 
causing the rights conferred to be irretrievably lost” (Pet. 
Br. at 29). In their very short treatment of this third prong 
of the test (Pet. Br. at 43), however, they simply refer to 
“the reasons previously mentioned [in petitioners’ brief] . . . 
with respect to why the district court’s order in this case was 
a final determination of petitioners’ collateral rights [and] 
. .. caused petitioners’ irreparable injury.” Id. Those rea­
sons are three in number, and none of them constitute the 
claimed irreparable harm justifying immediate appellate 
review.

Petitioners’ first reason is “[t]he right to reach a lawful 
settlement . . . pursuant to the guidelines set forth by this 
Court in Weber . . .” (Pet. Br. at 30). As is discussed, 
supra, at 13-14, there is no such right. Its possible existence 
is not a part of the narrow issue as to which certiorari was 
granted. Even if there were such a right, there was nothing 
in the District Court’s order which precluded the right to set­
tle, including reconsideration of the proposed consent de­
cree, as facts were further developed or as changes in the law 
occurred after the order was entered.

The second reason advanced is the alleged “tenor of the 
district court’s opinion below [which] tended to indicate 
that a final determination had been made” with respect to 
the so-called Weber right to settle (Pet. Br. at 41; emphasis 
added). This reason has been treated, supra, at 10-12. It is 
simply too speculative to support a claim of irreparable- 
harm. Indeed, this reason does not comport with reality be­
cause the opinion of the District Court is dated June 1, 
1977, more than two years before this Court announced



20

the Weber decision on June 27, 1979. Given this fact, it is 
hard to see how petitioners can seriously maintain that the 
district judge made a “final determination” as to their 
alleged Weber right to settle.

Assuming, arguendo, that the District Court’s order was 
a final determination as claimed by petitioners, immediate 
remedies were available which negate any claim of irrep­
arable harm in having to await post-judgment review. 
Where a district court clearly abuses its discretion in re­
jecting a proposed consent decree, a writ of mandamus 
under 28 U.S.C. § 1651 (1976) and Fed.R.App.P. 21 (a) 
provides interlocutory review. See Axim & Sons Lumber 
Co. v. Long Island Rail Road Co., No. 79-3082 slip 
op. (2d Cir., August 11, 1980); Rodgers v. U. S. Steel 
Corp., 541 F.2d 365, 372 (3d Cir. 1976). Another means 
of obtaining prompt review exists under the Interlocutory 
Appeals Act of 1958, 28 U.S.C. § 1292(b), which permits 
interlocutory review of a controlling and unsettled question 
of law where “an immediate appeal from the order may 
materially advance the ultimate termination of the litiga­
tion, . . .” 28 U.S.C. § 1292(b) (1976).12 See, e.g., Ruiz v. 
Estelle, 609 F.2d 118, 119 (5th Cir. 1980). 12

12 28 U.S.C. § 1292(b) provides:
When a district judge, in making in a civil action an order 

not otherwise appealable under this section, shall be of the 
opinion that such order involves a controlling question of law 
as to which there is substantial ground for difference of opinion 
and that an immediate appeal from the order may materially 
advance the ultimate termination of the litigation, he shall so 
state in writing in such order. The Court of Appeals may there­
upon, in its discretion, permit an appeal to be taken from such 
order, if application is made to it within ten days after the entry 
of the order: Provided, however, That application for an ap­
peal hereunder shall not stay proceedings in the district court 
unless the district judge or the Court of Appeals or a judge 
thereof shall so order.



21

The final reason stated by petitioners in support of their 
claim of irreparable harm is that “there would be no way in 
which the parties, despite whatever might be done upon re­
view of final judgment, could retrieve the advantages which 
a settlement would have brought” (Pet. Br. at 42). It is 
unclear what petitioners mean by “advantages,” but what­
ever is intended, this reason does not rise to the level of 
irreparable harm as claimed by petitioners and, in fact, when 
analyzed, shows why there should be no exception to the 
finality rule for an order denying entry of a consent decree.

“Advantages” may mean the injunctive relief which was 
contemplated by the decree. If so, and the District Court 
did abuse its discretion in declining to enter the order, that 
advantage would be retrievable on post-judgment review.

On the other hand, if “advantages” means the loss of the 
opportunity to avoid the time and expense of further liti­
gation, the facts of this case show that allowing immediate 
appeal from an order denying entry of a consent decree 
does not assure preservation of that advantage. Had the 
matter remained with the District Court, it could have been 
tried as early as June 1977. The parties’ time and expense 
would be considerably less than has been incurred through 
the appellate procedure. This is also true had the matter 
been tried at the second trial date, February 4, 1980, fol­
lowing remand from the Court of Appeals. As it is, what­
ever decision is made on the procedural issue before this 
Court, resolution of the matter is still a long way off and 
at much greater expenditure of time and money than if the 
case had gone to trial or been resolved otherwise at a 
much earlier date.

These observations are particularly significant here 
where the theory now advocated by petitioners—a Weber 
right to settle—only arose during the course of the appellate



22

process. This highlights the danger that allowing immediate 
appeals from refusals to enter consent decrees will stimulate 
parties to take appeals, in the hope that future developments 
in the law will help their cause. Such tactics will clog appel­
late calendars, delay resolution of cases, and force appellate 
courts to “authoritatively opine about important unsettled 
legal issues of the highest social concern” (Carson v. Amer­
ican Brands, Inc., supra, 606 F.2d at 424) without de­
velopment of proper factual records and argument. These 
results would bring to realization the concern of this Court 
in Coopers & Lybrand V. Livesay, supra, 437 U.S. at 476, 
that allowing immediate appeal from non-final orders 
“thrusts appellate courts indiscriminately into the trial proc­
ess” and “defeats one vital purpose of the final judgment 
rule,” that is, preserving the dichotomy of trial and appellate 
functions established for the respective courts and critical to 
the smooth operation of any judicial system.

In sum, the order here is effectively reviewable on ap­
peal. There is no irreparable harm in postponing appellate 
review until after final judgment. To the extent there is 
any doubt about the effectiveness of post-judgment review, 
it must be resolved against appealability in this case when 
examined in the light of the important competing interests 
of weighing “the inconvenience and costs of piecemeal re­
view on the one hand and the danger of denying justice by 
delay on the other.” Dickinson v. Petroleum Conversion 
Corp., 338 U.S. 507, 511 (1950).

Accordingly, the District Court’s order refusing entry of 
the proposed consent decree meets none of the prongs of the 
test for applicability of the collateral order doctrine. To 
allow an interlocutory appeal here would strip § 1291 of all 
significance. The Court of Appeals was correct in deter­
mining (606 F.2d at 424):



23

We think this Title VII interlocutory appeal should 
be dismissed. Our review of this pretrial order has 
halted the litigation for over two years pending review 
of the district court’s exercise of discretion. Given this 
disruption and the difficult burden on appeal of demon­
strating an abuse of discretion, plaintiffs have identified 
no consequence requiring appellate review before final 
judgment. We perceive none. Instead, we think our 
review is best left to follow final judgment.

D. The Reasoning Of The Ninth Circuit In 
Norman v. McKee Is Not Persuasive

Petitioners and the Amici urge that the Ninth Circuit’s 
opinion in Norman v. McKee, 431 F.2d 769 (1970), cert, 
denied, 401 U.S. 912 (1971), is in conflict with the decision 
of the Court of Appeals below and with Seigal v. Merrick, 
590 F.2d 35 (2d Or. 1978), and they argue that Norman 
states the better rale, i.e., that orders refusing settlements of 
class action cases are appealable collateral orders.13 Norman 
is not persuasive here for a number of reasons.

First of all, the Norman case was decided in 1970, some 
eight years before this Court’s decision in Coopers & Ly­
brand v. Livesay, supra, 437 U.S. 463, and the Ninth 
Circuit did not have the benefit of this Court’s further ex­
planation of the collateral order doctrine as set forth in that 
case. The Second Circuit’s decision in Seigal was thus better 
reasoned than Norman because it considered the Coopers & 
Lybrand decision.

Secondly, this Court’s focus in Coopers & Lybrand was 
on the subjective economic factors which had evolved in

13 As noted, supra, n.4, the Court of Appeals below did not pass 
upon the applicability of the collateral order doctrine to the District 
Court’s June 1, 1977 order refusing entry of the tendered consent 
decree.



24

the courts below for determining under the “death knell” 
doctrine when a refusal to certify a class action was or was 
not appealable. The concern was that “[ujnder the ‘death 
knell’ doctrine, appealability turns on the court’s perception 
of [the economic] impact in the individual case.” Coopers & 
Lybrand v. Livesay, supra, 437 U.S. at 470-71. The Court 
observed (id. at 473):

A threshold inquiry of this kind may, it is true, iden­
tify some orders that would truly end the litigation prior 
to final judgment; allowing an immediate appeal from 
those orders may enhance the quality of justice af­
forded a few litigants. But this incremental benefit is 
outweighed by the impact of such an individualized 
jurisdictional inquiry on the judicial system’s overall 
capacity to administer justice.

Norman turned on just such an economic, “individualized 
jurisdictional inquiry.” Having noted that “stockholder de­
rivative suits and class actions generally present complex 
questions and involve large numbers of exhibits and wit­
nesses,” the Norman court then concluded (431 F.2d at 
779):

The present case is a good example. The trial would 
be lengthy and expensive. In this situation, therefore, 
we think that the cost and delay of the piecemeal re­
view, as balancing factors, are diminished in impor­
tance. . ..

Based on such economic factors, the Norman court ruled 
in favor of immediate appeal from an order denying entry 
of a consent decree. Had the matter in Norman not involved 
a “lengthy and expensive” trial, the result could well have 
been different. Such an individualized, economic approach



25

to appealability runs contrary to the Coopers & Lybrand 
analysis.14

The decision in Norman has also been properly criticized 
for its failure to recognize that judicial review of a pro­
posed settlement is not devoid of some examination of the 
underlying cause of action, In re General Motors Corp. 
Engine Interchange Litigation, 594 F.2d 1106, 1119 (7th 
Cir. 1979).15 As the Court of Appeals below stated, quot­
ing Seigal v. Merrick, supra, 590 F.2d at 37 (Carson v. 
American Brands, Inc., 606 F.2d at 423):

[A]n order disapproving a settlement. . .is based, in 
part, upon an assessment of the merit of the positions 
of the respective parties, and permits the parties to 
proceed with the litigation or to propose a different 
settlement.

14 The Court of Appeals for the Second Circuit focused on this 
length of trial-cost factor analysis in explaining, in part, why they 
“must differ with our friends on the Ninth Circuit,” by observing 
(Seigal v. Merrick, 590 F.2d at 39):

In Norman v. McKee, the court emphasized that a trial would 
be expensive and lengthy and that, hence, the cost and delay of 
piece-meal review, as balancing factors, were diminished in im­
portance.

15 This decision allowed an appeal from a district court order 
approving a settlement and turned on facts peculiar to that case. 
Further, the Seventh Circuit correctly recognized the distinction 
between an approval of a settlement and a disapproval for purposes 
of appealability under the collateral order doctrine (id. at 1119, n. 
15):

In the case at bar, the trial court’s approval of the subclass 
settlement does not lead directly to final judgment. But unlike 
a disapproval of a settlement, the trial court’s order looks 
toward neither a renewal of settlement negotiations nor a trial 
on the merits. Thus, the danger of appellate court interference 
with proceedings before the trial court is small in comparison 
with the danger of denying justice by delay. (Emphasis added.)



For these reasons, the Ninth Circuit’s decision in Norman
is unpersuasive here.

II.

The District Court’s Order Refusing Entry Of The Consent Decree 
Is Not Appealable Under The Congressionally Created 

Exception To The Finality Sale, 28 U.S.C. § 1292 (a)(1)

A. As A Narrow Exception To The Final Judgment Rule, 
Section 1292(a)(1) Should Be Strictly Construed

When the pressure for appealability of certain interlocu­
tory orders “rises to a point that influences Congress, legis­
lative remedies are enacted.” Baltimore Contractors, Inc. 
v. Bodinger, 348 U.S. 176, 181 (1955). These legislative 
remedies, such as the device of certification under § 1292 
(b), explored, supra, at 20, create exceptions to the “long- 
established policy against piecemeal appeals, which this 
Court is not authorized to enlarge or extend.” Gardner v. 
Westinghouse Broadcasting Co., 437 U.S. 478, 480 (1978).

The Court of Appeals dismissed this appeal on the 
ground that the District Court’s order was not appealable 
under one of these legislative remedies, 28 U.S.C. § 1292 
(a)(1) ,  which allows appeal from “[ijnterlocutory orders 
. . . granting, continuing, modifying, refusing or dissolving 
injunctions, or refusing to dissolve or modify injunc­
tions. . . . ”

Petitioners and Amici contend, however, that the order 
rejecting the consent decree is appealable under this statu­
tory exception because some terms of the decree involved 
injunctive-type relief, bringing the order within the literal 
“refusing . . . injunctions” language of § 1292(a) (1). Even 
if this were so, however, a literal interpretation of an order 
as one “refusing” an “injunction” simply because it involves



27

injunctive relief only begins the inquiry into appealability 
under § 1292(a) (1). As the Court of Appeals below prop­
erly observed, “[a] mere labelling of relief is not sufficient.” 
606 F.2d at 422 (citing City of Morgantown, W. Va. v. 
Royal Insurance Co., 337 U.S. 254, 258 (1949)).

Rather than apply a literal approach to § 1292(a)(1) 
that could make immediately appealable any pre-trial order 
involving claims for injunctive relief, this Court has cau­
tioned that the statute should be approached “somewhat 
gingerly lest a floodgate be opened that brings into the 
exception many pre-trial orders.” Switzerland Cheese Asso­
ciation v. E. Horne’s Market, Inc., 385 U.S. 23, 24 (1966). 
Thus, its scope is “a narrow one . . . keyed to the ‘need to 
permit litigants to effectually challenge interlocutory orders 
of serious, perhaps irreparable, consequence’.” Gardner v. 
Westinghouse Broadcasting Co., supra, 437 U.S. at 480, 
quoting from Baltimore Contractors, Inc. v. Bodinger, 
supra, 348 U.S. at 181.

The decision of the Court of Appeals below was the first 
which analyzed the issue of appealability of an order deny­
ing a consent decree under § 1292(a)(1), and in holding 
such an order to be outside the statute, the Court of Ap­
peals was cognizant of this Court’s cautious approach to 
expanding appealability. While this matter was pending on 
petition for writ of certiorari, however, the Court of Ap­
peals for the Fifth Circuit seems to have reached a contrary 
result. United States v. City of Alexandria, 614 F,2d 1358, 
1361 n.5 (5th Cir. 1980). Analysis demonstrates that no 
“serious, perhaps irreparable, consequence[s]” flow from 
postponing review of the District Court’s order in this case 
and that the better view was that followed by the Court of 
Appeals below, not that of the Fifth Circuit.18 16

16 The Fifth Circuit’s opinion in City of Alexandria is treated, 
infra, at 36-39.



28

B. The Rejection Of The Tendered Decree Did Not Cause 
Irreparable Consequences Which Can Be Alleviated 
Only Through Allowance Of Interlocutory Appeal

In Gardner v. Westinghouse Broadcasting Co., supra, 
this Court held that an order denying class certification 
under Rule 23 was not appealable under § 1292(a)(1), 
even though the practical effect of the order was to tenta­
tively refuse a portion of the injunctive relief sought in the 
complaint. The order in Gardner did not have the direct or 
irreparable effect necessary for § 1292(a) (1) appealability 
because (437 U.S. at 480-81):

[i]t could be reviewed both prior to and after final 
judgment; it did not affect the merits of petitioner’s 
own claim; and it did not pass on the legal sufficiency 
of any claims for injunctive relief. (Footnote omitted.)

The District Court’s order refusing entry of the proposed 
consent decree was precisely of the same effect as the order 
denying class certification in Gardner, and is therefore also 
not appealable under § 1292(a) (1).

1. The Order Could Be Reviewed Both Prior To And 
After Final Judgment

The District Court’s rejection of the tendered consent 
decree did not affect petitioners’ ability to obtain injunctive 
relief at a later stage in the proceedings. As the Court of 
Appeals for the District of Columbia has stated, in 
a case cited with approval by this Court in Sampson v. 
Murray, 416 U.S. 61, 90 (1974), “[t]he possibility that 
adequate . . . corrective relief will be available at a later 
date . . . weighs heavily against a claim of Irreparable 
harm.” Virginia Petroleum Jobbers Association v. Federal 
Power Commission, 259 F.2d 921, 925 (D.C. Cir. 1958). 
In this case, petitioners remained fully able to obtain in­



29

junctive relief at any of three later stages—prior to trial, at 
trial or through a post-judgment appeal.

The most immediate means of obtaining injunctive relief 
short of trial would have been an alternative consent decree. 
The District Court’s order simply rejected the particular 
consent decree which was tendered. The parties could have 
tendered another consent decree, either admitting different 
facts or awarding different relief, which may well have 
been approved by the District Court. As the Court of Ap­
peals for the Second Circuit has noted, “the denial of one 
compromise does not necessarily mean that a ‘sweetened’ 
compromise may not be approved.” Seigal v. Merrick, supra, 
590F.2d at 39.

The contention that the “tenor” of the District Court’s 
opinion (Pet. Br. at 41) “effectively deniefd] petitioners and 
respondents alike the opportunity to settle their dispute vol­
untarily” (Br. of U.S. at 10) is unavailing. As the Court of 
Appeals observed, the parties could have presented the same 
or alternative proposals at any stage in the proceedings 
(606 F.2d at 424):

When a district court objects to the terms of a de­
cree, alternative provisions can be presented, and per­
haps a disapproved decree may be entered with further 
development of the record. If the district court refuses 
a decree because it is presented too early in the litiga­
tion, it may be later approved, perhaps following a 
decisive vote by class members. Whatever the district 
court’s reasons for refusing a decree, appeals of right 
from those refusals would encourage an endless string 
of appeals and destroy the district court’s supervision 
of the action as contemplated by Fed.R.Civ.Proc. 
23(e).

Thus, petitioners’ assumption that all possibility of set­
tlement was foreclosed is mere speculation. Even assuming,



30

however, that the parties were unable to negotiate an al­
ternative settlement, there remained other means of obtain­
ing injunctive relief short of trial and post-judgment review. 
If the trial court clearly abused its discretion, a writ of 
mandamus would provide immediate review. Rodgers v. 
U.S. Steel Corp., 541 F.2d 365, 372 (3d Cir. 1976). If one 
or more of the parties believed that the District Court’s de­
termination involved controlling and unsettled questions of 
law, resolution of which might materially advance the litiga­
tion, a request for certification under 28 U.S.C. § 1292(b) 
could have been made. Ruiz v. Estelle, 609 F.2d 118, 119 
(5th Cir. 1980). Petitioners attempted neither mandamus 
nor § 1292(b) certification. However, accepting as true the 
alleged errors of the District Court set forth by petitioners, 
either mandamus or § 1292(b) could have provided effec­
tive avenues of relief.

Further, although petitioners contend that the District 
Court’s rejection of the decree “precluded a subsequent mo­
tion” by them for “a preliminary injunction granting all, 
or part, of the relief specified in the proposed consent de­
cree,” (Pet. Br. at 64), nothing in the District Court’s opin­
ion precluded any such application. Had petitioners made 
application for preliminary injunctive relief, the District 
Court would necessarily have undertaken de novo con­
sideration of the grounds alleged in support. The stipulations 
that had been of special concern to the District Court 
when it reviewed the proposed decree17 would have merited 
no consideration in the Court’s assessment of “the existence 
of a substantial likelihood that [petitioners] will ultimately

17 For example, the District Court noted in rejecting the decree 
that it was particularly concerned with respondents’ express denial 
of unlawful conduct and petitioners’ failure to deny respondents’ 
assertion (see 446 F.Supp. at 788-89) and with the decree’s addi­
tional stipulation that “the Court finds . . . that there are no dis­
criminatory hiring practices at [Leaf]” (id. at 783).



31

prevail on the merits” (Pet. Br. at 64-65). Since nothing 
foreclosed petitioners from applying for injunctive relief 
and establishing any facts necessary for such relief, the 
District Court’s order did not once and for all deny peti­
tioners “the protection of the injunction prayed . . .” Gen­
eral Electric Co. v. Marvel Rare Metals Co., 287 U.S. 430, 
433 (1932). Rather, “[h]ere, injunctive relief was not fi­
nally denied; it was merely not granted at this stage in the 
proceedings.” Carson v. American Brands, Inc., supra. 606 
F.2d at 423.

The combination of District Court reconsideration of the 
proposed order, consideration of an application for a pre­
liminary injunction or of another settlement proposal, the 
opportunities noted above for expedited interlocutory re­
view, and effective appellate review after final judgment 
renders unsupportable any claim herein of “irreparable in­
jury.” It is not necessary to open the floodgates by judicial 
expansion of § 1292(a)(1). Like the denial of class cer­
tification in Gardner, the District Court’s initial rejection of 
a consent decree produces no “ ‘irreparable’ effect” because 
its order “could be reviewed both prior to and after final 
judgment.” Gardner v. Westinghouse Broadcasting Co., 
supra, 437 U.S. at 478.

2. The Order Did Not Affect Or Pass On The Legal 
Sufficiency Of Any Claims For Injunctive Relief

Nor can it be established that the District Court’s order 
caused a direct or irreparable effect by “affectfing] the 
merits” of petitioners’ claims for injunctive relief and “pass- 
ting] on the legal sufficiency” of any such claims. Gardner 
v. Westinghouse Broadcasting Co., supra, 437 U.S. at 481. 
In an effort to show the necessary “serious, perhaps ir­
reparable” effect, petitioners, as they submit under their 
collateral order argument, again maintain that the District



32

Court’s order “concerns [their] right under Title VII as 
well as the parties’ right to institute an affirmative action 
plan” in conformance with the Weber decision (Pet. Br. at 
66-67 n.21), and that “the order of the district court was 
based entirely upon its misapprehension of applicable legal 
principles.” (Id. at 71).ls

18 Petitioners’ argument of irreparable injury by denial of a 
“Weber-type” right in support of their claim of appealability under 
§ 1292(a)(1) seriously undermines their alternative position that 
the District Court’s order was a “collateral order” under Cohen v. 
Beneficial Indus. Loan Corp., supra, and its progeny. Petitioners 
must meet the almost impossible task of establishing that one court 
order “passfed] on the legal sufficiency of [their] claims” (Gardner, 
supra) (§ 1292(a)(1)) and was at the same time “separate and 
independent” of their claims (collateral order) (§ 1291). They 
attempt to reconcile these “apparently inconsistent positions” by 
stating that the two appealability positions “involve different rights,” 
(Pet. Br. at 66-67 n.21):

With respect to the appealability of the order below as a 
collateral order, the right affected is the parties’ right to settle 
the case, prior to trial, in accordance with standards set forth 
in Weber, supra. This right is, of course, separate and inde­
pendent of the right sued upon pursuant to Title VII.

On the other hand, the right affected with respect to the 
refusal of an injunction concerns petitioner’s [sic] right under 
Title VII as well as the parties’ right to institute an affirmative 
action plan. The former, of course, is exactly the right sued 
upon and therefore an order adversely affecting it touches on the 
merits of the action. (Emphasis in original.)

This attempt at reconciliation fails. Since the proposed consent de­
cree was rejected in part because of the District Court’s preliminary 
determination that the petitioners’ claims would not support the pro­
posed relief under Title VII, it is obvious that the decision was in­
extricably linked to the merits of the main claims. Hence the order 
rejecting the consent decree cannot, in this case, be “separate and 
independent” of the Title VII claim for purposes of establishing 
appealability under the collateral order doctrine.

It stands to reason that a single court order cannot simultaneously 
be “collateral to” the claim, as required by the collateral order doc­
trine, while at the same time “affect[ing] the merits” of petitioners’ 
claims and “passing] on the legal sufficiency of any claims for in­
junctive relief,” as required for appealability under § 1292(a)(1).



33

These claims cannot withstand scrutiny for several rea­
sons. First, as noted in the collateral order section, supra, 
at 10-15, whether a right exists under Weber to “institute 
an affirmative action plan” by way of settlement of a Title 
VII action is an issue simply not briefed, argued or ad­
dressed by the courts below, nor yet addressed by this Court, 
and indeed is encompassed within the “abuse of discretion” 
questions specifically denied review in this case.

Second, whatever such Weber “settlement rights” may ul­
timately be discerned, they most certainly did not exist in 
June 1977 when the District Court made Its determination. 
Had petitioners desired reconsideration of this order in light 
of Weber, they were free to so move when the case returned 
to the District Court. Yet they made no attempt to obtain 
reconsideration despite the plain invitation of the Court of 
Appeals to do so.

Third, assuming that such a “right to settle” a Title VII 
case pursuant to Weber came into existence after the District 
Court’s decision, petitioners would have this Court enlarge 
the narrow final judgment statutory exception to encompass 
immediate appeal and review in circumstances where no 
clear mistake of law was made by the District Court but 
subsequent changes in the law become the issue on appeal. 
Such an expansion could open the floodgates to appeal based 
on predicted or anticipated rights and render nugatory the 
strict showing of “serious, perhaps irreparable” injury re­
quired by § 1292(a)(1).

Accordingly, the applicability of Weber to petitioners’

(Cont. from preceding page)
Gardner, supra, 437 U.S. at 480-81 (footnote omitted). Such schizo­
phrenic characterization of a single court order further illuminates 
the wisdom of this Court’s policy of narrowly interpreting the general 
rule of finality and letting “[t]he choices fall in the legislative do­
main.” Baltimore Contractors v. Bodinger, supra, 348 U.S. at 181-82.



34

claim of irreparable injury for purposes of establishing ap­
pealability is dubious. Petitioners, however, further contend 
that denial of interlocutory appeal poses “the danger of 
serious h am ” (Pet. Br. at 72) since the District Court’s 
order “as a practical matter, denied injunctive relief to 
petitioners on the ground that their claim was legally in­
sufficient,” (id. at 73), and “settle[d], or tentatively de­
cide! d], the merits of petitioners’ claims on the merits” (id. 
at 66). This contention confuses the scope of review re­
quired of the District Court in considering a settlement pro­
posal and ignores the tentativeness of any conclusions 
drawn in such a review as compared with the more exacting 
standards appropriate to a judgment on the merits.

Although an order rejecting a consent decree may “touch 
on” the merits of petitioners’ claims to the extent that the 
court must consider the merits of the claims while reviewing a 
settlement proposal, see, e.g., Flinn v. FMC Corp., 528 F.2d 
1169 (4th Cir. 1975), cert, denied, 424 U.S. 967 (1976), 
such a non-determinative, tentative review of the merits, 
like the review of the merits which a district court must make 
in deciding a motion for class certification, “does not other­
wise reflect on the legal sufficiency of the claim for injunc­
tive relief.” Gardner v. Westinghouse Broadcasting Co., 
supra, 437 U.S. at 482 n.9. The District Court’s order did 
not impair petitioners’ ability to prove facts at trial which 
may have entitled them to injunctive relief. The contrary 
conclusion by petitioners and Amici (e.g., Pet. Br. at 65) 
ignores the distinction between findings of fact on the merits 
and the District Court’s review of factual submissions in 
passing on the sufficiency of a proposed consent decree. In 
short, while the District Court may have expressed an 
opinion concerning the lawfulness of the tendered decree, it 
did not pass on the legal sufficiency of petitioners’ claims for



35

injunctive relief in any other form and under any other fac­
tual circumstances. Denial of entry of the particular decree 
presented here thus caused no “serious, perhaps irreparable” 
harm.

While the failure of one negotiated settlement, with its 
attendant benefits such as avoidance of the expense and risk 
of litigation and conservation of judicial resources (e.g., Br. 
of U.S. at 10-11), may well be “serious,” such a failure 
would in no way impair the ability of the petitioners to 
proceed to trial and obtain all available and warranted re­
lief. The District Court’s order may have shelved the first set­
tlement proposed and in that sense appeared “serious” and 
important at the time, yet “[m]any interlocutory orders 
are equally important,. . .  but they are not for that reason 
converted into injunctions.” City of Morgantown, W.Va. v. 
Royal Insurance Co., 337 U.S. 254, 258 (1949).

By its nature inherently tentative and in no way disposi­
tive of the legal sufficiency of petitioners’ claims to injunc­
tive relief, the District Court’s order in this case had the 
same effect as the order found to be outside the scope of 
§ 1292(a)(1) in Switzerland Cheese Association v. E. 
Hornes Market, Inc., 385 U.S. 23 (1966). There, the Dis­
trict Court denied a motion for summary judgment that in­
cluded prayers for permanent injunctive relief. This Court 
denied appealability as of right under § 1292(a)(1) “for 
the reason that the denial of a motion for a summary judg­
ment because of unresolved issues of fact does not settle or 
even tentatively decide anything about the merits of the 
claim.” Id. at 25. The same result is true in this case. 
The District Court’s order “decidefd] only one thing— 
that the case should go to trial.” Switzerland Cheese Associ­
ation V. E. Horne’s Market, Inc., supra, 385 U.S. at 25. It 
did not dispose of any prayers for injunctive relief once and



36

for all, and thus stands in stark contrast to the order dis­
missing a counterclaim that included demands for injunc­
tive relief which was found appealable in General Electric 
Co. v. Marvel Rare Metals Co., 287 U.S. 430 (1932).

3. The F ifth Circuit’s City Of Alexandria Case 
Was Wrongly Decided

As noted, supra, the Court of Appeals for the Fifth Cir­
cuit has rendered a decision seemingly contrary to that of 
the Court of Appeals below. United States v. City of Alex­
andria, 614 F.2d 1358 (5th Cir. 1980). However, what 
little rationale is provided in City of Alexandria is superfi­
cial and based in large part upon cited precedent in that 
Circuit which is of doubtful authority.

The Fifth Circuit explains its position that an order re­
fusing a consent decree containing injunctive relief is ap­
pealable under 1292(a)(1) in only a two-paragraph foot­
note. It determines that, since earlier Fifth Circuit cases 
had (id. at 1361 n .5 ):

held that an order approving a settlement containing 
injunctive provisions relating to recruitment and hiring 
was one “ ‘granting,’ ‘continuing,’ or ‘refusing to dis­
solve’ an injunction,” and was therefore appealable. . . 
an order refusing approval of a consent decree is nec­
essarily one “refusing” an injunction for purposes of 
§ 1292(a), and is therefore appealable. (Emphasis 
added.)

This rationale is mistaken in two respects.
First, the cited precedent relied upon by the Fiftli Circuit 

in City of Alexandria for its initial proposition that orders 
“approving” settlements containing injunctive provisions 
are always appealable under § 1292(a)(1) as orders



37

“granting” injunctions does not in fact support that prop­
osition because appeal in none of those cases was expressly 
premised on § 1292(a)(1). The most recent of the three 
Fifth Circuit cases relied upon is Myers v. Gilman Paper 
Corp., 544 F.2d 837 (5th Cir.), cert, denied, sub. nom., 
Local 741 International Brotherhood of Electrical Workers 
y. Myers, 434 U.S. 801 (1977). There, the consent decree 
which was under review determined not only the issue of 
liability, but also back pay. Id. at 845. Further, the district 
court “gave final approval to the consent decree between 
the plaintiffs and the company . . . ” after there had been a 
trial on the merits as to the union’s liability. Id. at 846. 
Under these facts, the order could very well have been con­
sidered “final” under § 1291. All that was said in Myers on 
the appealability issue consisted of the following (id. at 
847):

Appellants argue that since the court order finally ap­
proved the settlement and thus effected certain changes 
in the collective bargaining agreements retroactive to 
January 1 1975, the order was one “granting,” “con­
tinuing,” or “refusing to dissolve” an injunction under 
section 1292(a). Injunctive provisions of a consent 
decree have recently been held adjudicative and ap­
pealable by this court, and consequently this court has 
jurisdiction in the instant appeal. See Sagers v. Yellow 
Freight System, Inc., 529 F.2d 721, 730 (5th Cir. 
1976); United States V. T.I.M.E.-D.C., Inc., 517 F,2d 
299, 307 n .l l  (5th Cir. 1975), cert, granted, 425 U.S. 
990, 96 S.Ct. 2200, 48 L.Ed.2d 814 (1976).

This reasoning is devoid of any distinctions between 
§§ 1291 and 1292(a)(1). It is also devoid of any distinc­
tion under § 1292(a)(1) between an approval and a re­
fusal of a consent decree. The opinion does not address the 
complicated problems involved and cannot be viewed as any



38

authority on the appealability of an order refusing entry of 
a consent decree. Moreover, the two Fifth Circuit cases cited 
as authority in Myers, i.e., Sagers v. Yellow Freight Sys­
tems, Inc., 529 F.2d 721 (5th Cir. 1976), and United States 
v. T.I.M.E.-D.C., 517 F.2d 299 (5th Cir. 1975), vacated 
and remanded on other grounds sub nom., International 
Brotherhood of Teamsters v. United States, 431 U.S. 324 
(1977), both involved approvals, not refusals, of consent 
decrees and contained no discussion whatsoever of either 
§ 1291 or § 1292(a)(1). Thus, the Fifth Circuit’s casual 
reliance on these cases for the initial proposition that every 
order granting an injunction is immediately appealable 
under § 1292(a) (1) is suspect.

Second, even if the decisions cited by the Fifth Circuit 
had expressly held that approval of a consent decree contain­
ing injunctive provisions is always proper for immediate ap­
pellate review under § 1292 (a )(1 ), they would still lend no 
support to the Fifth Circuit’s unreasoned leap to the con­
verse proposition, i.e., that denial of such a decree is there­
fore “necessarily one ‘refusing’ an injunction” and thus ap­
pealable under § 1292(a)(1). Such literalism has never 
been the approved canon of construction for § 1292(a) (1). 
As another appellate court has properly recognized, “[t]he 
literal characterization of an order as an injunction only 
begins the inquiry into appealability.” Stateside Machinery 
Co. v. Alperin, 526 F.2d 480, 482 (3d Cir. 1975). Were 
literalism the proper approach, a different result would have 
been mandated in Gardner v. Westinghouse Broadcasting 
Co., supra, since the denial of class certification necessarily 
and tentatively foreclosed certain prayers for injunctive re­
lief. What the Fifth Circuit failed to appreciate is that entry 
of consent decrees properly falls within the category of 
motions which “generate an appealable order if granted, but



39

not if denied.” 16 C. W r ig h t , A. M il l e r , E. C o o pe r  & 
E. G r e ssm a n , Federal Practice and Procedure, § 3924, at 
74 (1977).

By failing to consider the policies underlying § 1292(a) 
(1) and the effects which expanding appeals under the sec­
tion may have on the judicial system, the Fifth Circuit 
mistakenly ignored this Court’s construction of the § 1292 
(a )(1 ) exception as “a narrow one” aimed primarily at “in­
terlocutory orders of ‘serious, perhaps irreparable’ con­
sequence.” Gardner v. Westinghouse Broadcasting Co., 
supra, 437 U.S. at 480. The better reasoned opinion is that 
of the Court of Appeals below, and it should be affirmed.

C. The Burden On The Judicial System F rom Allowing
Interlocutory Appeals From Orders Rejecting Consent 

Decrees Outweighs Any Consequences Of Postponing 
Judicial Review

The Court of Appeals stated that decisions regarding the 
availability of § 1292(a)(1) interlocutory appeal should 
turn on a balancing of “the consequence of postponing ap­
pellate review” against “the important judicial interests 
militating against piecemeal review.” 606 F.2d at 422, 
citing Gardner, and Coopers & Lybrand v. Livesay, 437 
U.S. 463, 473 (1978). As demonstrated above, the conse­
quences of postponing appeal of an order rejecting a con­
sent decree are minimal and remediable, both prior to and 
after final judgment.

By contrast, allowing interlocutory appeals as of right 
from such orders would substantially impair the interests 
which the final judgment rule was designed to protect. 
For one thing, availability of interlocutory review will 
lessen the incentive of the parties to work with the trial 
court and quickly resolve the litigation. Parties who spurn 
the invitation of the trial court to submit alternative pro­



40

posals will be rewarded with appellate review before they 
have begun to exhaust the spectrum of remedies available 
at the district court level. Indeed, parties entering into 
settlement negotiations in any action could ensure immedi­
ate appealability of orders denying their particular agree­
ments simply by incorporating one or more terms calling for 
some injunctive relief, however inconsequential to the overall 
settlement scheme such relief might be. Moreover, the result 
urged by petitioners would create the potential for multiple 
appeals in every complex case, a result “quite unpredictable 
in its scope and incidence.” Peter Pan Fabrics, Inc. v. 
Dixon Textile Corp., 280 F.2d 800, 806 (2d Cir. 1960) 
(Clark, J., dissenting).

No summation of the interests and policies militating 
against immediate review in this case can be clearer or more 
apt than that of the Court of Appeals (606 F.2d at 425):

In conclusion, the district court’s discretionary de­
cision to send the parties to trial, in lieu of granting 
immediate injunctive relief before the facts are settled, 
is not a ruling of irreparable consequence. Plaintiffs 
may proceed to trial with no loss of either their claims 
for final injunctive relief or their right of appellate 
review of the Flinn issue. Short of going to trial, the 
parties may propose alternative decrees to the district 
court, one of which may be entered. Appellate review 
of the order is best effected following final judgment. 
Such review preserves the trial court’s exclusive control 
over the progress of the litigation and facilitates its 
supervision of the class action.

It has been the long-standing policy of this Court to defer 
to Congress when novel yet costly expansions of § 1292(a) 
(1) are offered, and this case presents no compelling cir­
cumstances warranting a departure from this policy. As the



41

Court stated in Baltimore Contractors, Inc. v. Bodinger, 
supra (348 U.S. at 181-82):

The Congress is in a position to weigh the competing 
interests of the dockets of the trial and appellate courts, 
to consider the practicability of savings in time and ex­
pense, and to give proper weight to the effect on liti­
gants. . . . This Court. . .  is not authorized to approve 
or declare judicial modification. . . .  Any such ad hoc 
decisions disorganize practice by encouraging attempts 
to secure or oppose appeals with a consequent waste 
of time and money.



42

CONCLUSION

For the reasons presented, the decision of the Court of 
Appeals for the Fourth Circuit should be affirmed and the 
appeal dismissed.

Respectfully submitted,

H en r y  T. W ic k h a m  
D. E u g e n e  W e b b , J r .
R o b er t  D. Sea b o lt  
M ays, V a l e n t in e , D a v en po r t  

& M oore

23rd Floor, F&M Center 
P. O. Box 1122 
Richmond, Virginia 23208 
804-644-6011

P a u l  G. P e n n o y e r , Jr .
B ern a rd  W . M c C a rthy  
P e t e r  N . H il l m a n  
C h a d b o u r n e , P a rk e , W h it esid e  

& W o l f f

30 Rockefeller Plaza
New York, New York 10112
212-541-5800

Counsel for American Brands, Inc.
October 1980