Wisher v. Coverdell, 1st Cir. (1992)
Wisher v. Coverdell, 1st Cir. (1992)
____________________
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
Pyle, Wanger
__________________
_______________________________________
Hiatt, P.C., on Opposition to Defendant's Motion to Dismiss,
___________
appellant.
Wayne A. Budd, United States Attorney, and Susan M. Poswisti
_____________
__________________
Assistant United States Attorney, on Motion to Dismiss Appeal
Memorandum of Law in Support of Appellee's Motion to Dismiss,
appellee.
____________________
____________________
Per Curiam.
__________
district
court's
The issue
dismissal
of
before us
less
is whether
than all
the
plaintiff's
claims for relief, coupled with its remand for further agency
proceedings
for
on another
purposes of
claim, constituted a
appeal within
the meaning
final judgment
of 28
U.S.C.
1291.
I
Plaintiff brought this action
of the
Rehabilitation Act,
29 U.S.C.
relief.
under
791, 794,
She claimed
that the
seeking
Peace
Corps
illegally
disqualified
Volunteer
her from
program
hepatitis,
discriminated
against
participation in
because she
type B.
her
the
before the
with chronic
scheduled trial
to
considered the
of
the
conduct
for relief.
one-day
closing
court
trial
then
bench
arguments,
the ground
The district
evidence,
it
United Nations
was diagnosed
Ten days
when
and
motion in light
and
the
parties'
district
Act
court
concluded
claims should
that
plaintiff's
be dismissed
because (1)
501
-2-
However,
the
district
court
further
held
of
Administrative
[hereinafter
Procedure
"APA"].
Act,
that
for
Under that
U.S.C.
701-706
alternative
claim,
the
violated the
Rehabilitation Act.
agency's action.
"skeleton"
record
determination,
The court
did
that
not
the
remanded
the
that the
the
had
agency's
agency's
not
medical
considered
all
support
agency
found
Citing
to
the
Peace
Corps
for
additional
Plaintiff appealed.
II
the district
court's order
was not
judgment
-3-
The
district court's
disposition
We agree.
of this
1291:
one
matter
judgment
litigation on
the merits and leaves nothing for the court to do but execute
the judgment."
"It
at 441.
See also
___ ____
American Hawaii
_______________
opportunity
whereas
here
to
obtain
dismissal
all
there
the
the relief
of plaintiff's
on
an
remand
Rehabilitation
Act
claims means
to
of
her goal
(Pl's.
Br.
obtaining damages
p.5).
plaintiff's
The
claim under
[and] attorney's
district
court's
the Rehabilitation
fees."
dismissal
of
Act effectively
-4-
plaintiff's
remedy
necessarily
would
of
distinction,
the final
primary purpose of
however,
judgment rule
Arthur
R. Miller
to
the
does not
affect
the
in
this case.
the
The
effective review by
limited
702.1
avoiding unnecessary
be
would be
Edward H.
Cooper,
Federal
_______
3907 (1992).
district
court's
dismissal
of
some
claims
she demanded.
complaint demands
In
addition to
damages, plaintiff's
along with
or the
United Nations
retroactive to March
Volunteers with
of 1985."
seniority and
____________________
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,
judgment remanding
1291.
Roudebush,
_________
565 F.2d
1015
(8th Cir.
procedure
consideration
but
remanding
of plaintiff's
back pay
--
and was
also Giordano v.
____ ________
1977) (district
court
agency
for
arguments neither
See
___
not
further
granted nor
wanted -- reinstatement
a final
appealable
order);
St.
___
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
after her
victory,
trial
and
reinstatement now,
she did
not amend
her pleadings
Plaintiff
testified
be a
below to
it through
before
the
in her favor she would "like to get back in that pipeline and
apply
for UNV...and
also
Peace Corps
Volunteer and
Peace
Even later,
-6-
in her
from disqualifying
Peace Corps
others similarly
situated,
of Hepatitis
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
discouraging
the purpose of
seeking the
fragmentary
appeals.
the strong
Cobbledick
__________
v.
GKN Fasteners, Ltd., 578 F.2d 21 (1st Cir. 1978) (after court
___________________
ruled that there
from
an order
arbitration
pleadings
purpose of
of
was no jurisdiction to
staying proceedings
an
equitable
dropping prayer
for
entertain an appeal
on legal
claim,
later
claims pending
amendment
equitable relief
seeking jurisdiction of
to
solely for
not be
permitted
to
validate
jurisdiction
of
appellate
court
retrospectively).2
Second,
policy
reasons
also lead
this appeal
us
to
should be
reject
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-
Cohen collateral
_____
order doctrine,
Cohen
_____
(1949).
that
that does
in exceptional
terminate
following:
an action
cases an order
may be
appealable if
v. Beneficial
__________
We
have held
not entirely
it reflects
the
not one
of
a final judgment;
the proper
exercise
of the
and (4) an
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
and
the internal
possibility
appellate
logic
of its
of irreparable
review
is
637 F.2d at
6.
exists at the
harm resulting
the
interlocutory appealability."
criteria
dispositive
underlying Cohen
_____
suggest that
from a
delay in
criterion
otherwise
Where an opportunity
for effective
could
of
below, there is
the
obliterate
-8-
the
distinction
To
between
interlocutory
and final
Petroleum Corp.
________________
orders.
v. S.E.C.,
______
(exception to the
873
Id.
___
See also
___ ____
F.2d
325 (D.C.Cir.
Occidental
__________
1989)
is not immediately
would have
proceedings on remand);
Servs., 877 F.2d 148
______
normally
are
no opportunity
to appeal
after the
not immediately
appealable,
appeal
would be
Act
decision on
appeal from
agency decision).
Our
remaining
court
deferral
claims are
will not
finally
notice
entered
of 28
of
U.S.C.
appeal from
after
appeal
until
adjudicated
after
in the
review of
not a final
any review
final
of
the
district
claims.
1291, plaintiff
the
the
the district
meaning
the
foreclose effective
court's dismissal of
As
of
may file
a timely
district court
judgment
agency
action taken
on
remand.3
____________________
3. Plaintiff expresses concern about safeguarding against an
untimely appeal from the dismissed claims once the agency has
Moreover,
invite
allowance
of
piecemeal
appeals.
accomplish
in
an
plaintiff's appeal
condemned by
The
most
appeal
at
lower
district
a determination
court's
remand
Procedure
Act
880
F.2d
shows,
As
was
precisely
determination
hope
to
would
be
the merits.
plaintiff's
court's task is
it acted "in
The
remaining
sufficiently
merits.
to review
the
Rehabilitation Act.
5 U.S.C.
at 608.
it
on
claim, however,
706(2); Cousins v.
_______
juncture
the district
action to see if
law," which
of
could
court for
Administrative
policies against
plaintiff
this
might
on the
the
merits
district court's
so
that
it
opinion below
could
of plaintiff's
make
claim that
this
it
reasons for
disqualifying plaintiff
in
The
of
particular and
____________________
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
An
-11-