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Penelope Brace on Behalf of Herself and on Behalf of All Others Similarly Situated v. O'Neill

argued: September 8, 1977.



Aldisert, Rosenn and Garth, Circuit Judges. Rosenn, Circuit Judge, dissenting.

Author: Garth

GARTH, Circuit Judge:

Penelope Brace, a member of the Philadelphia Police Department, instituted this action on behalf of herself and other female police officers, alleging sex discrimination in the employment practices of the Department.*fn1 She contended that one facet of the allegedly discriminatory practices was illegal retaliation taken against her by the Department because she opposed the defendants' practices. The district court dismissed her retaliation count with prejudice, and, without having certified a class, dismissed all other charges without prejudice. The district court's Order dated June 4, 1976, which dismissed Brace's claims, reads as follows:

The disposition of

(1) All claims raised by Plaintiff, Penelope Brace in Counts I, II and IV of her complaint alleging discriminatory employment practices based on sex are dismissed without prejudice pending final decision in the related case of United States v. City of Philadelphia, et al., C.A. No. 74-400.

(2) On all remaining Counts, the Court finds in favor of the defendants. Judgment is to be entered in favor of the defendants against the plaintiff.

Because we hold that the June 4 Order is not a final order vesting this Court with appellate jurisdiction, we are obliged to dismiss Brace's appeal.*fn2


Courts of appeals normally review only final orders of the district courts.*fn3 28 U.S.C. ยง 1291;*fn4 Borelli v. City of Reading, 532 F.2d 950, 951 (3d Cir. 1976); In re Grand Jury Proceedings (U.S. Steel - Clairton Works), supra, 525 F.2d at 154-55; see In re Good Deal Supermarkets, Inc., 528 F.2d 710, 712 (3d Cir. 1975). The policy underlying this rule is the prevention of "the debilitating effect on judicial administration caused by piecemeal appellate disposition of what is, in practical consequence, but a single controversy." Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 170, 40 L. Ed. 2d 732, 94 S. Ct. 2140 (1974); accord, In re Grand Jury Proceedings (U.S. Steel - Clairton Works), supra, 525 F.2d at 155. Thus Section 1291

disallow[s] appeal from any decision which is tentative, informal or incomplete. Appeal gives the upper court a power of review, not one of intervention. So long as the matter remains open, unfinished or inconclusive, there may be no intrusion by appeal . . . .

Nor does the statute permit appeals, even from fully consummated decisions, where they are but steps towards final judgment in which they will merge. The purpose is to combine in one review all stages of the proceeding that effectively may be reviewed and corrected if and when final judgment results . . . .

Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 93 L. Ed. 1528, 69 S. Ct. 1221 (1949); accord, Gavlik Construction Co. v. H. F. Campbell Co., 526 F.2d 777, 782-83 (3d Cir. 1975).*fn5 In short, a final district court order is normally a jurisdictional prerequisite to appellate review. RePass v. Vreeland, supra, 357 F.2d at 804-05, and cases cited therein. With these principles in mind, we turn to the facts at bar.


On February 12, 1974, Brace filed her complaint (No. 74-339) in this action.*fn6 She charged four counts of sex discrimination. Counts I, II, and IV alleged broad charges of discriminatory practices by the defendants.*fn7 Count III alleged specific harassment and retaliation in response to Brace's opposition to the defendants' practices. Shortly thereafter, the United States Department of Justice filed a pattern and practice action (No. 74-400) against the City of Philadelphia et al. under Section 707 of Title VII. United States v. City of Philadelphia (E.D. Pa., filed Feb. 19, 1974). The United States also alleged sex discrimination in the employment practices of the Philadelphia Police Department. The district court consolidated the actions brought by Brace and by the United States "for purposes of trial and adjudication."*fn8 Brace neither consented nor objected to the consolidation.*fn9

Trial in the consolidated actions commenced on February 10, 1976. The defendants asserted that the employment of men rather than women was required as a bona fide occupational qualification for certain positions in the Philadelphia Police Department.*fn10 Just prior to the presentation of rebuttal evidence by Brace and the United States, the district court judge aborted the trial. Finding that "a study will be of assistance to the Court in resolving this matter,"*fn11 he ordered interim relief which required the hiring and promotion of a number of qualified women by the Philadelphia Police Department.*fn12 He also ordered that the City of Philadelphia (City) report to the court, within twenty-four months of the date of entry of the order, the results of a study of the performance of these officers.*fn13 "Upon submission of the results of the study," the Order continued, "the parties may submit any additional evidence they have and the Court shall order any further relief that may be appropriate."*fn14 After severing Brace's retaliation claim (Count III) from other issues in the case,*fn15 the Court ordered that it

retai[n] jurisdiction in this matter for all purposes. The issues not addressed by this Order, including the issues of back pay, interest and other emoluments of office, if any, are deferred until twenty-four months from the date of this Order or until the results of the aforementioned study are presented to the Court, whichever is shorter.*fn16

While it is true that Brace is not a signatory to the March 5 Order,*fn16a the record reveals that at no time did Brace ever object to its entry.

On June 4, 1976, the district court judge filed a Memorandum Opinion and Order in the Brace case only.*fn17 That Opinion confirmed the March 5 Order as to the United States, and went on to state:

We had previously decided that the relief sought by the Government and Penelope Brace, based upon charges of discriminatory employment practices, was substantially identical. (Opinion filed January 27, 1975). We believe that our Order entered in U.S. v. City of Philadelphia, C.A. 74-400 (filed March 5, 1976) controls our disposition of the claim under consideration. We shall, therefore, delay our decision pending recipt [ sic ] of all data in the Government's action.*fn18

After concluding that Brace's retaliation claim for damages (Count III) was without merit and accordingly entering judgment for defendants on this Count, the court repeated:

To summarize, we find that the issues raised by plaintiff founded upon alleged discriminatory employment practices [Counts I, II, and IV] are substantially identical to the ones that prevail in United States v. City of Philadelphia, C.A. No. 74-400. For the reasons noted heretofore, we believe that our decision on this issue should be ...

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