
USCA1 Opinion

	




        May 14, 1992            [NOT FOR PUBLICATION]                                 ____________________        No. 92-1273                                    DORIS WISHER,                                Plaintiff, Appellant,                                          v.                           PAUL COVERDELL, IN HIS OFFICIAL                      CAPACITY AS DIRECTOR OF THE UNITED STATES                                     PEACE CORPS,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Robert E. Keeton, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                           Campbell, Senior Circuit Judge,                                     ____________________                               and Cyr, Circuit Judge.                                        _____________                                 ____________________            Harold L.  Licthen and  Angoff, Goldman, Manning,  Pyle, Wanger  &            __________________      __________________________________________        Hiatt, P.C.,  on  Opposition to  Defendant's  Motion to  Dismiss,  for        ___________        appellant.            Wayne A. Budd,  United States Attorney,  and Susan  M. Poswistilo,            _____________                                ____________________        Assistant  United States  Attorney, on  Motion to  Dismiss Appeal  and        Memorandum  of Law  in Support  of Appellee's  Motion to  Dismiss, for        appellee.                                 ____________________                                 ____________________                      Per Curiam.   The issue  before us  is whether  the                      __________            district  court's  dismissal  of  less  than all  plaintiff's            claims for relief, coupled with its remand for further agency            proceedings  on another  claim, constituted a  final judgment            for  purposes of  appeal within  the meaning  of 28  U.S.C.              1291.                                          I                      Plaintiff brought this action  under    501 and 504            of the  Rehabilitation Act,  29 U.S.C.     791, 794,  seeking            damages and equitable  relief.   She claimed  that the  Peace            Corps   illegally   discriminated   against   her   when   it            disqualified  her from  participation in  the  United Nations            Volunteer  program   because she  was diagnosed  with chronic            hepatitis,  type B.     Ten days  before the  scheduled trial            date, defendant moved to dismiss the complaint on  the ground            of failure to state a claim  for relief.  The district  court            proceeded  to   conduct  a  one-day  bench   trial  and  then            considered the  issues raised by defendant's  motion in light            of  the  evidence,  closing   arguments,  and  the   parties'            extensive post-trial briefs addressing the issues.                      The  district  court  concluded   that  plaintiff's            Rehabilitation  Act  claims should  be dismissed  because (1)            plaintiff was not an  "employee" within the meaning of    501            of the Act and, (2) under   504 of the Act, plaintiff did not                                         -2-            have an implied private cause of action, Cousins v. Secretary                                                     _______    _________            of the U.S. Dep't of Transp., 880 F.2d 603 (1st Cir. 1989).             ____________________________                     However,  the  district   court  further  held  that            plaintiff's complaint could be read as including a claim  for            review  of  the Peace Corps' medical  determination under the            Administrative   Procedure   Act,   5   U.S.C.        701-706            [hereinafter  "APA"].    Under that  alternative  claim,  the            district court held, it had jurisdiction to determine whether            the  Peace Corps' decision  violated the  Rehabilitation Act.            But in light of the evidence presented at trial, the district            court found it was unable to engage in a meaningful review of            the  agency's action.    The court  found  that the  agency's            "skeleton"  record  did  not  support  the  agency's  medical            determination,  that  the  agency   had  not  considered  all            relevant factors, and that  the court "simply cannot evaluate            the Peace Corps'  decision on the basis of the bare record of            the agency's decision."  Citing  Florida Power & Light Co. v.                                             _________________________            Lorion, 470  U.S. 729 (1985), the  district court accordingly            ______            remanded  the   case  to  the  Peace   Corps  for  additional            investigation and evaluation.   Plaintiff appealed.                                          II                      Defendant has moved to dismiss  the appeal, arguing            that  the district  court's order  was not  a final  judgment            under our holding in Mall Properties, Inc. v. Marsh, 841 F.2d                                 _____________________    _____                                         -3-            440 (1st Cir.), cert. denied, 488 U.S. 848 (1988).  We agree.                            ____________                      The  district court's  disposition  of this  matter            does not meet the traditional definition of a final  judgment            under 28 U.S.C.    1291:  one  which "ends the  litigation on            the merits and leaves nothing for the court to do but execute            the judgment."  Catlin v. United States, 324 U.S. 229 (1945).                            ______    _____________            The litigation before the district  court has not ended.  "It            has  simply gone to another forum and may well return again,"            Mall Properties, 841 F.2d  at 441.  See also  American Hawaii            _______________                     ___ ____  _______________            Cruises  v. Skinner, 893 F.2d 1400 (D.C. Cir. 1990) (district            _______     _______            court's remand to agency for further proceedings coupled with            administrative dismissal  of case did not  end the litigation            on the merits within meaning of 28 U.S.C.   1291).                      Plaintiff urges  that this case  is distinguishable            from  Mall  Properties because  there  the  plaintiff had  an                  ________________            opportunity  to  obtain  all  the relief  desired  on  remand            whereas  here  dismissal  of plaintiff's  Rehabilitation  Act            claims means  that "remand cannot bring  plaintiff any closer            to  her goal  of  obtaining damages  [and] attorney's  fees."            (Pl's.  Br.   p.5).    The  district   court's  dismissal  of            plaintiff's  claim under  the Rehabilitation  Act effectively            dismissed plaintiff's demand for damages.  Under the APA, the                                         -4-            plaintiff's  remedy  necessarily  would  be  limited  to  the            equitable relief demanded, 5 U.S.C.   702.1                        This  distinction,  however,  does not  affect  the            operation  of  the final  judgment rule  in  this case.   The            primary purpose of  the rule, to protect  effective review by            avoiding unnecessary  and piecemeal determinations,  would be            undermined by defining finality  so narrowly. See 15A Charles                                                          ___            A. Wright,  Arthur  R. Miller  &  Edward H.  Cooper,  Federal                                                                  _______            Practice and Procedure,   3907 (1992).            ______________________                      First,  the  district  court's  dismissal  of  some            claims  and remand of the  other did not  finally resolve the            controversy on the merits nor plaintiff's right to all of the            relief  she demanded.   In  addition to  damages, plaintiff's            complaint demands  an injunction reinstating her,  along with            relevant promotions, "to an appropriate position in the Peace            Corps  or the  United Nations  Volunteers with  seniority and            credit  retroactive to March  of 1985."   This remedy remains            available to plaintiff under the APA claim if she prevails on                                            ____________________            1.  As it is not necessary to reach the issue, we do not here            determine whether plaintiff is  correct in her assertion that            she  cannot obtain  attorney's fees  in her  APA  action, but            merely point  out that  "one can sometimes  obtain attorneys'            fees  in an  ordinary APA  action under  the Equal  Access to            Justice Act, 28 U.S.C.    2412(b), 2412 (d)(1)(A),"  Cousins,                                                                 _______            880 F.2d  at 606.  Plaintiff's  complaint requests attorney's            fees in this action under both the Rehabilitation Act and the            Equal  Access to Justice Act.  The district court's order did            not address  the latter request directly,  although the court            awarded   plaintiff  reasonable  costs   connected  with  the            action.)                                         -5-            the merits.   Thus,  the district court's  judgment remanding            the action was not a final appealable order under 28 U.S.C.              1291.  Mall  Properties, 841 F.2d 440.  See  also Giordano v.                   ________________                 ___  ____ ________            Roudebush,  565 F.2d  1015  (8th Cir.  1977) (district  court            _________            order ruling that plaintiff was  not entitled to a full-trial            type   procedure  but   remanding  to   agency  for   further            consideration  of plaintiff's  arguments neither  granted nor            denied the ultimate relief plaintiff  wanted -- reinstatement            and  back pay  --  and was  not  a final  appealable  order);            Transportation-Communication Div.-Brotherhood of  Ry. v.  St.            _____________________________________________________     ___            Louis-San Francisco Ry.,  419 F.2d 933, 935 (8th  Cir. 1969),            _______________________            cert. denied, 400 U.S. 818 (1970) (district court order which            ____________            neither enforced nor denied enforcement of Board's award, but            rather  decided   some  issues   and  remanded   for  further            proceedings, made no final determination of the merits of the            entire controversy and is not appealable).                      While plaintiff urges here that  reinstatement now,            seven years  after her  initial disqualification, would  be a            hollow  victory,  she did  not amend  her pleadings  below to            delete this claim  but in fact vigorously pursued  it through            the  trial  and  beyond.    Plaintiff  testified  before  the            district court just a few months  ago that if the court ruled            in her favor she would "like to get back in that pipeline and            apply  for UNV...and  also  Peace Corps  Volunteer and  Peace            Corps Staff positions." (Transcript, pp 116-17).  Even later,                                         -6-            in her  post-trial brief, plaintiff expanded  her request for            relief, urging the  district court to enjoin the  Peace Corps            from disqualifying  her, and any  others similarly  situated,            solely because "they  are asymptomatic carriers  of Hepatitis            B" and allowing her  to "reapply" for service with  the Peace            Corps.                      To allow plaintiff, who has been represented by the            same counsel throughout this case, to recharacterize here the            relief  she demands,  solely for  the purpose of  seeking the            jurisdiction of this court,  would run counter to  the strong            policy  discouraging  fragmentary  appeals.    Cobbledick  v.                                                           __________            United States, 309 U.S. 323, 324-25 (1940).  Cf. USM Corp. v.            _____________                                ___ _________            GKN Fasteners, Ltd., 578 F.2d 21 (1st Cir. 1978) (after court            ___________________            ruled that there  was no jurisdiction to  entertain an appeal            from  an order  staying proceedings  on legal  claims pending            arbitration  of  an  equitable  claim,  later   amendment  to            pleadings  dropping prayer  for  equitable relief  solely for            purpose of  seeking jurisdiction of  this court could  not be            permitted  to  validate   jurisdiction  of  appellate   court            retrospectively).2                      Second,  policy  reasons  also lead  us  to  reject            plaintiff's argument that  this appeal  should be  considered                                            ____________________            2.  Since  plaintiff  has  not  unequivocally  abandoned  her            request  for  injunctive relief,  we  need  not consider  the            circumstances under  which a  good-faith relinquishment  of a            claim for injunctive  relief might make the dismissal  of her            other claims final and immediately appealable.                                         -7-            now under the exception to the  finality requirement known as            the  Cohen collateral  order doctrine,   Cohen  v. Beneficial                 _____                               _____     __________            Industrial Loan  Corp., 337 U.S. 541  (1949).   We  have held            ______________________            that  in exceptional  cases an order  that does  not entirely            terminate  an action  may be  appealable if  it reflects  the            following:  "(1) an issue essentially unrelated to the merits            of the main dispute, capable of review without disrupting the            main trial; (2) a  complete resolution of the issue,  not one            that is 'unfinished' or 'inconclusive'; (3) a right incapable            of  vindication on appeal from  a final judgment;  and (4) an            unsettled question of controlling  law, not merely a question            of  the proper  exercise  of the  trial court's  discretion."            United States v. Sorren, 605 F.2d 1211, 1213 (1st Cir. 1979);            _____________    ______            see also United States v. Alcon Labs., 636 F.2d 876, 884 (1st            ___ ____ _____________    ___________            Cir.), cert. denied, 451 U.S. 1017 (1981); In  re Continental                   ____________                        __________________            Inv. Corp., 637 F.2d 1, 4 (1st Cir. 1980).             __________                      "[B]oth the policy considerations  underlying Cohen                                                                    _____            and  the internal  logic  of its  criteria  suggest that  the            possibility  of irreparable  harm resulting  from a  delay in            appellate   review   is   the   dispositive    criterion   of            interlocutory appealability."  In re Continental  Inv. Corp.,                                           _____________________________            637 F.2d at  6.   Where an opportunity  for effective  review            exists at the  conclusion of the proceedings  below, there is            no irreparable harm within the meaning of this exception.  To            hold  otherwise  could  obliterate  the  distinction  between                                         -8-            interlocutory  and final  orders.  Id.   See also  Occidental                                               ___   ___ ____  __________            Petroleum  Corp.  v. S.E.C.,  873  F.2d  325 (D.C.Cir.  1989)            ________________     ______            (exception to the  rule that remand order  is not immediately            appealable is usually allowed only where agency to which case            is remanded  would have  no opportunity  to appeal  after the            proceedings on remand);  Colon v. Secretary of Health & Human                                     _____    ___________________________            Servs., 877 F.2d 148  (1st Cir. 1989) (although remand orders            ______            normally  are  not immediately  appealable,  appeal  would be            allowed either under Cohen  exception or under All Writs  Act                                 _____            where it is doubtful whether Secretary, required to implement            district court  decision on  remand, could later  appeal from            agency decision).                      Our  deferral   of  the  appeal  until   after  the            remaining  claims are  finally  adjudicated  in the  district            court  will not  foreclose effective  review of  the district            court's dismissal of  plaintiff's Rehabilitation Act  claims.            As  the challenged order is  not a final  judgment within the            meaning  of 28  U.S.C.    1291, plaintiff  may file  a timely            notice  of  appeal from  the  final  district court  judgment            entered  after  any review  of  the  agency  action taken  on            remand.3                                            ____________________            3.  Plaintiff expresses concern about safeguarding against an            untimely appeal from the dismissed claims once the agency has            completed the proceedings on remand  and about the method for            bringing another appeal should the agency grant the requisite            reinstatement.   Under Fed. R. App. P. 4(a)(1), the notice of            appeal to  this court in  a case in  which the United  States            agency  is a party must be filed  within 60 days of the entry                                         -9-                      Moreover,  allowance  of  plaintiff's appeal  might            invite  the very inefficiency  condemned by  policies against            piecemeal  appeals.    The   most  plaintiff  could  hope  to            accomplish   in  an   appeal  at   this  juncture   would  be            reinstatement of her Rehabilitation  Act claims and remand to            the  lower  court for  a determination  on  the merits.   The            district    court's    remand   of    plaintiff's   remaining            Administrative  Procedure  Act  claim, however,  sufficiently            assures that plaintiff will  receive a review on the  merits.            Under the APA,  the district  court's task is  to review  the            agency's  action to see if  it acted "in  accordance with the            law," which  law includes the  Rehabilitation Act.   5 U.S.C.            706(2); Cousins v.  Secretary of the  U.S. Dep't of  Transp.,                    _______     ________________________________________            880  F.2d  at 608.   As  the  district court's  opinion below            shows,   it  was  precisely  so  that   it  could  make  this            determination  on the  merits  of plaintiff's  claim that  it            remanded the case to the agency for further proceedings.  The            court instructed the agency  to create an adequate record  of            its  reasons for  disqualifying plaintiff  in  particular and            those with hepatitis B generally, and to consider, apparently                                            ____________________            of  the  order  from which  the  appeal  is taken.    Even if            plaintiff were  not to challenge  the final agency  action on            remand,  plaintiff would  be entitled  to appeal  the earlier            district court order dismissing her other claims, by filing a            timely  notice of  appeal, see  Fed. R.  App. P.  4(a)(1), as                                       ___            measuredfrom the entry of the final district court judgment.                                          -10-            for the  first time,  what, if any,  reasonable accommodation            could be made for plaintiff.                         Thus allowance of plaintiff's appeal here would not            speed-up the case, for whether plaintiff's claim is styled  a            Rehabilitation Act claim or a claim for APA review, its final            resolution must await further proceedings by the agency.   An            appeal  on one issue now would only  add an extra step to the            litigation, consuming judicial resources without any apparent            advantage to the proceedings as a whole.                               For these reasons, this appeal must be dismissed.                                                              _________                                         -11-
