APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 78-1108)
Before Seitz, Chief Judge, and Van Dusen and Higginbotham, Circuit Judges.
This alleged price fixing case, involving five titanium metal products, comes to us on appeal from an interlocutory order of the district court granting partial summary judgment in favor of Martin Marietta Aluminum, Inc., as to three of the products and three years of the alleged conspiracy. The Government asserts that we have appellate jurisdiction under 28 U.S.C. § 1292(a)(1) because the partial summary judgment has the effect of denying the Government the injunctive relief it requested in its complaint against Martin Marietta Aluminum, Inc., one of the defendants.*fn1 We conclude that we do not have appellate jurisdiction to review the merits of the district court's summary judgment order, because the district court's order is not final and denying review will not result in irreparable harm to the Government, nor will the court's order be lost for review when the entire case is concluded.*fn2 We will, therefore, order the appeal dismissed without prejudice to the Government's right to file an appeal contesting the summary judgment when the district court enters a final order disposing of the entire case.
On September 28, 1978, the Government filed a civil complaint seeking permanent injunctive relief against five corporations which had allegedly conspired to fix the prices of five specified titanium mill products.*fn3 These products are defined in the complaint as titanium plate, sheet, strip, billet and bar.*fn4 The Government claimed that the price fixing scheme had begun in 1970 and terminated sometime in 1976. Either before or during the trial, all of the corporations except Martin Marietta entered into a consent decree which was approved by the district court on July 29, 1980. The consent decree of the other defendants involves all five titanium products and the entire period of the alleged conspiracy. A companion criminal indictment as to all five products was also filed in September of 1978 which resulted in pleas of nolo contendere to the original indictment by all of the defendants except Martin Marietta. A negotiated plea agreement was agreed to by Martin Marietta whereby it pleaded nolo contendere to a felony information charging it with conspiring to fix prices on only two of the products, titanium bar and billet, from December 1973 until 1976.
The civil action proceeded against Martin Marietta and on April 9, 1980, it filed a motion for partial summary judgment. The basis of the motion was that Martin Marietta was not a producer of titanium plate, sheet or strip. Furthermore, it argued that the Government had failed to allege any facts pertaining to Martin Marietta's involvement in any conspiracy prior to 1973. In its memorandum in support of its motion for partial summary judgment, Martin Marietta stated:
In an effort to dispose of this civil case, therefore, (Martin Marietta Aluminum) has offered to consent to a decree which parallels the same charges of (the criminal) Information as to the products and time period involved (i. e., bar and billet, beginning in December 1973), and which would include all the other provisions contained in the proposed (civil) consent decrees with the other defendants to which the government has already agreed, and which are now before this Court for approval.
App. at 93. The Government apparently rejected this offer.
After conducting a hearing on the motion, the district court granted partial summary judgment insofar as the complaint "alleges violations related (1) to titanium plate, sheet and strip, and (2) to activities occurring prior to December 1973." Unpublished Judgment Order of the District Court dated August 19, 1980; App. at 354. Thus, the district court's order did not dispose of the Government's complaint insofar as it alleges the price fixing of titanium billet and bars from December 1973 until 1976.
The Supreme Court has long cautioned against adopting a standard of appealability under § 1292(a)(1) that would undermine the congressional policy against piecemeal appeals.*fn5 See Carson v. American Brands, Inc., 450 U.S. 79, 101 S. Ct. 993, 67 L. Ed. 2d 59 (1981); Switzerland Cheese Association, Inc. v. E. Horne's Market, Inc., 385 U.S. 23, 87 S. Ct. 193, 17 L. Ed. 2d 23 (1966); Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176, 75 S. Ct. 249, 99 L. Ed. 233 (1955). We must "approach this statute somewhat gingerly lest a floodgate be opened that brings into the exception many pretrial orders." Switzerland Cheese Association, Inc., 385 U.S. at 24, 87 S. Ct. at 194.*fn6 However, to avoid the harshness of the final order rule certain exceptions, one of which is embodied in § 1292(a)(1), have been grafted onto the rule. Carson, 101 S. Ct. at 996; Gardner v. Westinghouse Broadcasting Co., 437 U.S. 478, 98 S. Ct. 2451, 57 L. Ed. 2d 364 (1978).
Recently the Supreme Court in Carson elucidated the scope of the § 1292(a)(1) exception as follows:
For an interlocutory order to be immediately appealable under § 1292(a)(1), however, a litigant must show more than that the order has the practical effect of refusing an injunction. Because § 1292(a)(1) was intended to carve out only a limited exception to the final judgment rule, we have construed the statute narrowly to ensure that appeal as of right under § 1292(a)(1) will be available only in circumstances where an appeal will further the statutory purpose of "permit(ting) litigants to effectually challenge interlocutory orders of serious, perhaps irreparable, consequence." Baltimore Contractors, Inc. v. Bodinger, supra, 348 U.S., at 181, 75 S. Ct., at 252. Unless a litigant can show that an interlocutory order of the District Court might have "serious, perhaps ...