FEINBERG, Circuit Judge:
This "appeal" by Financial Services, Inc. (FSI) had its genesis in an action, brought against it by CT/East in New York Supreme Court, seeking damages for alleged breach of a service contract and for wrongful retention of equipment belonging to CT/East. In September 1971, FSI removed that action ("the first action") to the United States District Court for the Southern District of New York. 28 U.S.C. § 1441. In its answer, FSI generally denied the allegations of the complaint and set up certain counterclaims. In April 1972, CT/East applied to the late Judge McLean for an order of attachment under Article 62 of the New York Civil Practice Law and Rules ("New York C.P.L.R."), available
FSI's motion to vacate the attachment was then heard on May 2 in the motion part of the district court by Judge Lasker. The principal grounds for the motion were that the attachment had been fraudulently obtained and that it was unnecessary to CT/East's security. In the course of a 21-page legal memorandum, FSI also devoted 12 lines to "the questionable constitutional nature" of an attachment order procured ex parte. During oral argument of the motion, Judge Lasker asked FSI whether it claimed that the attachment statute was unconstitutional; he pointed out that, if so, a three-judge court, with consequent delay, might be necessary.
Five weeks later, the Supreme Court issued its opinion in Fuentes, holding invalid on due process grounds Florida and Pennsylvania replevin statutes which allowed chattels to be taken from the possessor without affording him a prior opportunity to be heard. Thereafter, FSI sought to reargue the motion to vacate before Judge Lasker on due process grounds. Counsel claims he was informally told that reargument would be improper;
Undaunted, FSI took another tack. On September 11, 1972, it brought a separate action ("the second action") in the district court against the United States Marshal as sole defendant, seeking an order requiring him to return to FSI all sums already collected under the attachment and enjoining him from serving a writ on any further customers of FSI or from collecting any more funds under the order. One of the bases of the second action was again a lack of due process; this was joined with a new constitutional claim that the attachment statute, by permitting seizure of property on the sole basis of foreign corporate citizenship, also violates the equal protection clause. The second action was assigned to Judge Tenney under the individual calendar system, which had gone into effect in the Southern District.
The first, and ultimately dispositive, issue before us is whether we have jurisdiction over the appeal from Judge Tenney's order. FSI argues that jurisdiction lies under 28 U.S.C. § 1292(a) (1), which allows appeals from interlocutory orders of the district court "refusing ... injunctions...." While the relief denied was injunctive in form, Judge Tenney believed, and CT/East argues to us, that the injunction sought in the second action was no more than a motion to vacate the attachment in the first action by another name. On these facts, there is little doubt that this is so. The second action seeks to prevent any further use of the order of attachment obtained in the first. Moreover, the relief sought includes repayment of any sums already collected under that order.
We have held that denials of motions to vacate attachments are not appealable under the collateral order gloss, see Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), on the "final decision" requirement of 28 U.S.C. § 1291. West v. Zurhorst, 425 F.2d 919 (2d Cir.1970); see Flegenheimer v. General Mills, Inc., 191 F.2d 237 (2d Cir.1951). Were we to permit this appeal under section 1292(a)(1) on these facts, we would sanction wholesale circumvention of the salutary rule of nonappealability reaffirmed in West. So long as subject matter and personal jurisdiction are proper, any defendant whose assets had been attached and who had unsuccessfully moved in federal court to vacate the attachment could readily commence a second, nominally separate, action against the marshal seeking to enjoin collection of revenues under an outstanding writ of attachment; and from any denial of preliminary injunctive relief, such a defendant would always have an appeal. Rules of finality may not be so easily altered,
We do not say that we would never be free to consider the validity of an attachment attacked on constitutional grounds, even though the underlying action was not yet final. Under unusual or compelling circumstances, mandamus may be an appropriate vehicle for interlocutory review.