IRVING R. KAUFMAN, Chief Judge:
Whether an order granting or denying class action status is an appealable "final" order, 28 U.S.C. § 1291, is a question that has received an inordinate amount of scrutiny by circuit courts,
The complaint and the affidavits submitted to Judge Lasker in connection with the motions before him provide the sparse factual record for this appeal. Margaret Kohn is a graduate of the Columbia Law School class of 1972. On November 17, 1970, during the Fall semester of her second year in law school, Kohn was among approximately 40 Columbia law students interviewed for legal positions by two members of the firm of Royall, Koegel & Wells. During the week following these preliminary interviews, Royall, Koegel invited five Columbia
On May 27, 1971, Kohn filed a complaint with the New York City Commission on Human Rights alleging that Royall, Koegel's failure to hire her resulted from sex discrimination. Some six months later, on November 19, 1971, Kohn filed a similar complaint with the Equal Employment Opportunity Commission [EEOC]. Finally, on June 26, 1972, Kohn received a permission to sue letter from the EEOC and, on the same day, filed this action on behalf of herself and all those similarly situated. In her complaint, she claimed that Royall, Koegel had refused her employment because of her sex, as part of an ongoing pattern and practice of sex discrimination in violation of Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e et seq. She sought mandatory injunctive relief to correct past discriminatory practices in both recruitment and internal employment procedures, as well as damages for herself caused by the refusal to hire her.
In response to the complaint, Royall, Koegel moved to dismiss on the ground that Kohn had not filed a timely complaint with the EEOC, as required by statute.
Judge Lasker denied the motion to dismiss and granted Kohn's motion for class action status. Kohn v. Royall, Koegel & Wells, supra. He found that although Kohn had not filed her EEOC complaint within the 210-day statutory period commencing December 15, 1970, the date her failure to gain employment with Royall, Koegel became a virtual certainty,
Turning to Kohn's motion for a class action determination, Judge Lasker concluded that Kohn's class action allegations satisfied the four-part test of Fed.R.Civ.P. 23(a). He also determined that Kohn's claim for injunctive relief fell within Fed.R.Civ.P. 23(b)(2) because Royall, Koegel had allegedly "acted . . . on grounds generally applicable to the class [defined in the complaint as "all women qualified for legal positions at Royall, Koegel & Wells who have been or would be denied employment because of their sex"], thereby making appropriate final injunctive relief . . . with respect to the class as a whole." Fed.R. Civ.P. 23(b)(2).
Royall, Koegel promptly moved to amend Judge Lasker's order to permit certification as an interlocutory appeal, pursuant to 28 U.S.C. § 1292(b), of the denial of Royall, Koegel's motion to dismiss for untimely filing of the EEOC complaint.
Since we find the threshold question of appealability to be dispositive, we turn immediately to an elucidation of the reasons for our holding. It is undisputed that an order granting or denying class standing is not a "final" order as that term has generally been construed. Nevertheless, in Eisen I, supra, we denied a motion to dismiss an appeal from an order denying class standing to a plaintiff whose individual claim amounted to only $70. The rationale for our decision rested on the deceptively simple premise that the effect of the order denying class standing would be to terminate that lawsuit. We could not conceive of a lawyer pressing a suit where victory would mean the paltry recovery of $70. Thus, we concluded in Eisen I that the "interlocutory" order at issue was tantamount to an order of dismissal—the finality of which has, of course, never been questioned—and so, the "death knell" doctrine was born.
The subsequent and rather checkered history of the "death knell" doctrine, in this and other circuits, was documented most recently in two opinions of this Court, Herbst v. International Telephone and Telegraph, supra, and Shayne v. Madison Square Garden Corp., supra. In Shayne, Judge Feinberg recounted that history, in part, in this manner:
Shayne v. Madison Square Garden Corp., supra, 491 F.2d at 400 (footnotes renumbered).
Shayne turned on the appealability of an order denying class standing. Despite the "rumblings" to which Judge Feinberg referred, however, we have not until quite recently been faced with the necessity of determining the appealability of orders granting class standing.
In Herbst v. International Telephone and Telegraph Corp., supra, the question of appealability of an order granting class standing was squarely presented. Judge Blumenfeld had permitted Mrs. Herbst to represent a class of all Hartford Fire Insurance Company [Hartford] shareholders who had exchanged their shares for International Telephone and Telegraph Corporation [ITT] preferred stock pursuant to ITT's 1970 tender offer for Hartford—an exchange allegedly tainted by violations of the securities laws. Herbst, herself, owned only 100 of the 22 million shares of Hartford common stock exchanged. Her class action, as is usual in such cases, rested on Fed.R.Civ.P. 23(b)(3)—the predominant existence of common questions of law or fact—as, indeed, had Mr. Eisen's class action claiming anti-trust violations by the odd-lot brokerage houses.
Judge Lumbard, speaking for the court, though the other members of the panel candidly expressed their doubts over the holding,
See Herbst v. International Telephone and Telegraph, supra, 495 F.2d at 1312.
Although the opinion in Herbst contains little more than a mention of the first factor, Mrs. Herbst's petty share holdings support the conclusion that the order granting class standing was "fundamental to the further conduct of the case." We presume that since Herbst relied on Eisen III, which in turn had adopted Judge Friendly's "equality of treatment" standard for appealability, Judge Lumbard construed this fundamental-to-the-further-conduct requirement as applying in those cases where the denial of class standing would satisfy our "death knell" doctrine of effective dismissal. In such instances, an order granting class standing would also be "fundamental to the further conduct of the case" for, if that order were erroneous and therefore reversed on appeal, the action would for all practical purposes be at an end. We recognize, of course, that a not insubstantial number of interlocutory orders—principally those denying motions to dismiss pursuant to Fed.R.Civ.P. 12(b), or for summary
The second element in the Eisen III-Herbst appealability equation—review which is "separable from the merits of the case"—rests squarely on the collateral order doctrine announced by the Supreme Court in Cohen v. Beneficial Industrial Loan Corp., supra. In formulating that doctrine, the Court faced the necessity of striking the proper balance between the inequities of deferred review, on the one hand, and the unconscionable waste of judicial resources resulting from the duplication of effort in piecemeal review, on the other. Thus, an order appealable under Cohen must not only be "a final disposition of a claimed right which is not an ingredient of the cause of action . . . [but one which] does not require consideration with it [i. e. the cause of action]." Cohen v. Beneficial Industrial Loan Corp., supra, 337 U.S. at 546-547. And, although Herbst does not focus on the degree of separability between the issues involved in the merits of the action and those underlying the propriety of the class action determination, it is reasonable to presume that in sprawling Rule 23(b)(3) class actions, such as Eisen and Herbst, questions of notice and manageability—totally unrelated to the merits of the action—will be in the forefront. Accordingly, legal and factual issues considered at an intermediate stage of appellate review will not likely resurface on appeal from final judgment.
The third factor, "the irreparable harm to a defendant in terms of time and money spent in defending a huge class action," received by far the most attention in Herbst. The enormous damages sought by the class inevitably require a sizeable expenditure for defense purposes and, because of this, will often spur settlement "even though the validity of plaintiff's claims are doubtful." Herbst v. International Telephone and Telegraph Corp., supra, 495 F.2d at 1314. Although large damage claims are not unique to class actions, "the representation features of class actions," as Judge Lumbard noted,
495 F.2d at 1312-1313. We hasten to add that this additional burden, to a large extent, is limited to those class actions brought under subdivision (b)(3) of Rule 23 because it is only in those actions that the court is required to ensure that all members of the potential class are notified of the action's pendency so that they may be afforded the opportunity to opt out. Fed.R.Civ.P. 23(c)(2). Since Herbst, like Eisen, was a Rule 23(b)(3) class action, the costs of satisfying the notice requirement, both monetary and in terms of judicial resources, were of course highly relevant.
Applying to this case the same three criteria which combined to favor appealability in Herbst, we reach the opposite conclusion here. We note that defendant-appellant, appearing pro se, conceded at oral argument that Kohn could reasonably be expected to continue the action in her individual capacity. In short, appellant does not dispute that the class action determination is not "fundamental to the further conduct of the case." This, we might add, was hardly a surprising concession, for the difficulties in finding counsel willing to litigate a small damage claim do not face Kohn in her efforts to remedy the alleged violation of Title VII in the appellant's
Appellant's failure to demonstrate the "fundamental" nature of this class action determination, in our view, virtually requires dismissal of the appeal. Nevertheless, we need not rest our decision on that basis alone. Turning to the second factor, we find that review of Judge Lasker's order would take us far into the merits of Kohn's sex discrimination charge. Indeed, even a cursory glance at the principal points raised by Royall, Koegel in contesting class action status reveals the unavoidable overlap.
Point I of appellant's brief, for instance, proffers the contention that there is no common question of law or fact as required by Fed.R.Civ.P. 23(a)(2). Consideration of this argument, of course, would require us to examine not only the factual strength but the legal relevancy of Kohn's allegation of a discriminatory pattern and practice in Royall, Koegel's hiring and internal employment procedures—a claim which would otherwise seem prima facie to satisfy the common question test. Yet, the pattern and practice issue is at the very heart of the merits of this action.
Appellant also attacks the class action determination (Brief of Appellant, Point II), by claiming that Kohn will not adequately represent the class, as required by Fed.R.Civ.P. 23(a)(4), because, unlike some members of the purported class, she is not a present employee. Once again, however, were we to permit interlocutory review, we would be forced to delve into an issue—Kohn's standing to question the firm's internal employment practices—which is inextricably intertwined with the ultimate merits of Kohn's claim for relief.
Nor, finally, can appellant sustain the contention that it will suffer "irreparable harm" by being forced to defend this suit as a class action. All lawsuits are potentially costly and time-consuming. Attention, therefore, must be directed to the incremental cost and time in defending the particular action if it is maintained as a class action—an insignificant amount in this case.
In contrast to Eisen and Herbst, in which a substantial cost to both the defendant and the district court would arise from compliance with the notice requirement for Rule 23(b)(3) class actions, the instant suit, brought under Rule 23(b)(2), bears, as we have noted, no such notice requirement. Moreover, even the routine litigation costs—e. g. pretrial discovery and trial preparation —should not be substantially greater in this instance whether Kohn proceeds alone or as a class representative. Although appellant insisted at argument that the scope of the relevant evidence would be primarily confined to Kohn's own contact with the firm if she proceeded on an individual basis, we cannot agree with this circumscribed relevancy assessment. The Supreme Court, in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), a private, non-class action challenging employment discrimination, stated:
Id. at 804-805 (footnotes omitted).
The final judgment rule is a salutary principle of long-standing duration. See generally 9 J. Moore, Federal Practice ¶ 110.06 et seq. (2d ed. 1973). At a time when our appellate calendars are overflowing, the incisive words of Mr. Justice Frankfurter are particularly worthy of repetition:
Cobbledick v. United States, 309 U.S. 323, 324-325, 60 S.Ct. 540, 541, 84 L. Ed. 783 (1940).
It is readily apparent that we do not have before us one of those exceptional instances which compels disregard of the sound policy of finality. Accordingly, the appeal is dismissed.