Before MOORE, FRIENDLY and SMITH, Circuit Judges.
In this action, eleven Negro children, proceeding through their parents, seek declaratory and injunctive relief against the Board of Education of New Rochelle, New York, and the Superintendent of Schools. On January 24, 1961, Judge Kaufman signed an opinion, 191 F.Supp. 181, stated to constitute the District Court's findings of fact and conclusions of law, which held that various acts of the defendants violated plaintiffs' constitutional rights as defined in Brown v. Board of Education, 1954, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873, and later decisions of the Supreme Court. The opinion ended with two paragraphs, quoted in the margin,*fn1 in which the District Judge stated, among other things, that he deemed it "unnecessary at this time to determine the extent to which each of the items of the relief requested by plaintiffs will be afforded," [191 F.Supp. 198] but would defer such determination until the Board had presented, on or before April 14, 1961, "a plan for desegregation in accordance with this Opinion, said desegregation to begin no later than the start of the 1961-62 school year."
Pursuant to authorization by a 5-3 vote at a meeting of the Board of February 7, 1961, defendants appealed to this Court on February 20, 1961. On March 7, 1961, the District Judge denied an application by them to extend the date for filing a plan pending determination of the appeal, as well as a motion by plaintiffs for an order directing defendants immediately to assign plaintiffs to elementary schools other than the Lincoln School. Thereupon, defendants moved this Court for a stay of the direction to file a plan, pending the appeal. At the hearing on that motion, the Court questioned whether the appeal had not been prematurely taken and was not, therefore, beyond the appellate jurisdiction conferred upon the Court by Congress. Later we directed the filing of briefs on this issue and extended the Board's time to file the plan pending the Court's decision on the question of jurisdiction and in any event to May 3, 1961. Appellees now challenge our power to hear an appeal at this stage, but the question is one this Court was obliged to raise in any event, Mitchell v. Maurer, 1934, 293 U.S. 237, 244, 55 S. Ct. 162, 79 L. Ed. 338, and it is better that this be determined now rather than after further time has elapsed. Upon full consideration, we conclude that we have no power to entertain the Board's appeal until the District Court has finished its work by directing the Board to take or refrain from action.
Familiar decisions of the Supreme Court establish the controlling principles. "Finality as a condition of review is an historic characteristic of federal appellate procedure. It was written into the first Judiciary Act and has been departed from only when observance of it would practically defeat the right to any review at all." Cobbledick v. United States, 1940, 309 U.S. 323, 324-325, 60 S. Ct. 540, 541, 84 L. Ed. 783. "The foundation of this policy is not in merely technical conceptions of 'finality.' It is one against piecemeal litigation. 'The case is not to be sent up in fragments * * *' Luxton v. North River Bridge Co., 147 U.S. 337, 341 [13 S. Ct. 356, 358, 37 L. Ed. 194]. Reasons other than conservation of judicial energy sustain the limitation. One is elimination of delays caused by interlocutory appeals." Catlin v. United States, 1945, 324 U.S. 229, 233-234, 65 S. Ct. 631, 634, 89 L. Ed. 911.
A "final decision" within 28 U.S.C. § 1291, the basic statute authorizing appeals to the courts of appeals, and its predecessors going back to §§ 21 and 22 of the Act of Sept. 24, 1789, c. 20, 1 Stat. 73, 83-84, "is one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Catlin v. United States, supra, 324 U.S. at page 233, 65 S. Ct. at page 633. Plainly Judge Kaufman's decision of January 24, 1961 does not fit that description. It constituted only a determination that plaintiffs were entitled to relief, the nature and extent of which would be the subject of subsequent judicial consideration by him. What remained to be done was far more than those ministerial duties the pendency of which is not fatal to finality and consequent appealability, Ray v. Law, 1805, 3 Cranch 179, 180, 2 L. Ed. 404. An order adjudging liability but leaving the quantum of relief still to be determined has been a classic example of non-finality and non-appealability from the time of Chief Justice Marshall to our own, The Palmyra, 1825, 10 Wheat. 502, 6 L. Ed. 375; Barnard v. Gibson, 1849, 7 How. 650, 12 L. Ed. 857; Leonidakis v. International Telecoin Corp., 2 Cir., 1953, 208 F.2d 934; 6 Moore, Federal Practice (1953 ed.), p. 125 and fn. 5, although in all such cases, as here, this subjects the defendant to further proceedings in the court of first instance that will have been uncalled for if that court's determination of liability is ultimately found to be wrong. Recognizing that this may create hardship, Congress has removed two types of cases from the general rule that appeals may not be taken from decisions that establish liability without decreeing a remedy - namely, decrees "determining the rights and liabilities of the parties to admiralty cases in which appeals from final decrees are allowed," 28 U.S.C. § 1292(A) (3), ADDED BY THE Act of April 3, 1926, c. 102, 44 Stat. 233, and "judgments in civil actions for patent infringement which are final except for accounting"; 28 U.S.C. § 1292(a) (4), added by the Act of Feb 28, 1927, c. 228, 44 Stat. 1261. Congress' specification of these exceptions, manifestly inapplicable here, underscores the general rule.
This salutary Federal rule requiring finality as a condition of appealability has become subject, over the years, to exceptions other than those just mentioned, some fashioned by the courts and others enacted by Congress. The instant appeal does not come within any.
Of the judicially created exceptions, the one referred to in Dickinson v. Petroleum Conversion Corporation, 1950, 338 U.S. 507, 70 S. Ct. 322, 94 L. Ed. 299, namely, that under some circumstances a decree may be final as to one party although the litigation proceeds as to others, is so manifestly inapplicable that we would not mention it if appellants had not. Similarly inapplicable is the rule in Forgay v. Conrad, 1848, 6 How. 201, 12 L. Ed. 404, that a judgment directing a defendant to make immediate delivery of property to a plaintiff is appealable despite a further provision for an accounting. The scope of this doctrine is narrow and rests upon "the potential factor of irreparable injury," 6 Moore, Federal Practice (1953 ed.), p. 129 - just how narrow is shown by decisions refusing to apply it to a decree that adjudged rights in property but made no disposition of the property pending a further hearing relating to its precise identification, Rexford v. Brunswick-Balke-Collender Co., 1913, 228 U.S. 339, 33 S. Ct. 515, 57 L. Ed. 864, or to a decree awarding possession to the United States under eminent domain but reserving the question of compensation, Catlin v. United States, supra, 324 U.S. at page 232, 65 S. Ct. at page 633, overruling our contrary decision in United States v. 243.22 Acres of Land, 2 Cir., 1942, 129 F.2d 678. See Republic Natural Gas Co. v. State of Oklahoma, 1948, 334 U.S. 62, 68 S. Ct. 972, 92 L. Ed. 1212. Here, while we understand defendants' dislike of presenting a plan of desegregation and attending hearings thereon that would be unnecessary if the finding of liability were ultimately to be annulled, and also the possibly unwarranted expectations this course may create, this is scarcely injury at all in the legal sense and surely not an irreparable one. Equally inapposite is the doctrine of Cohen v. Beneficial Industrial Loan Corp., 1949, 337 U.S. 541, 545-547, 69 S. Ct. 1221, 1225, 93 L. Ed. 1528, also advanced by appellants, permitting review of orders "which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated." Here the issue sought to be reviewed, far from being collateral to the main litigation, represents the very findings and conclusions upon which any final judgment against the defendants must rest.
Turning to statutory exceptions, the only one that could be, and is, claimed to be applicable is 28 U.S.C. § 1292(a) (1). That gives us jurisdiction over "Interlocutory orders of the district courts * * * granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions, except where a direct review may be had in the Supreme Court." The term "injunction" includes not only an order prohibiting certain conduct during the pendency of litigation but also one that commands it. Societe Internationale, etc. v. McGrath, 1950, 86 U.S.App.D.C. 157, 180 F.2d 406.
Appellants contend Judge Kaufman's decision granted both a prohibitory and a mandatory injunction. They say the order "in effect" prohibited them from proceeding with their plans to reconstruct the Lincoln School and commanded them to submit a plan. If the former were so, the order would clearly be appealable; we have searched the opinion for substantiation but in vain. To be sure, the opinion says the proposed reconstruction alone might aggravate the problem rather than ameliorate it; and we fully appreciate why the Board may hesitate to proceed in the light of this, as, indeed, it might have if the opinion had not yet been rendered. But as yet we can only conjecture whether the District Court will enjoin the rebuilding or permit this if accompanied by other acts; and a defendant's apprehension that conduct on his part may ultimately be restrained is not an "injunction" within § 1292(a) (1).
Whether Judge Kaufman's direction for the submission of a plan on April 14 is a mandatory injunction requires, in the first instance, interpretation of what was said. It is common practice for an equity judge first to reach a conclusion as to liability and to determine the appropriate relief later in the event of an affirmative finding. If the District Judge had said in his opinion only that a further hearing would be held at which the parties would have an opportunity to express themselves as to relief, by testimony, argument, or both, it would be entirely plain that he had not granted a mandatory injunction, and this would be so even if he had also stated that, in the interest of orderly procedure, he would expect the defendants to take the lead at the hearing. In substance this is what Judge Kaufman did. Although the penultimate paragraph of his opinion is headed "The Decree," the context makes clear that the few sentences that follow were not, themselves, decretal, but simply explained how he planned to fashion his decree. To be sure, the opinion used the word "ordered" with respect to the filing of a plan, just as courts often "order" or "direct" parties to file briefs, findings and other papers. Normally this does not mean that the court will hold in contempt a party that does not do this, but rather that if he fails to file by the date specified, the court may refuse to receive his submission later and may proceed without it. That this was what Judge Kaufman intended is confirmed by his later opinion denying an extension of the April 14 date, in which he spoke of having "specifically requested the Board to submit its plan for desegregation of the Lincoln School" and of having given the Board "an opportunity to submit" such a plan. Moreover, even if the order was intended to carry contempt sanctions, which we do not believe, a command that relates merely to the taking of a step in a judicial proceeding is not generally regarded as a mandatory injunction, even when its effect on the outcome is far greater than here, 6 Moore, Federal Practice (1953 ed.) pp. 46-47.*fn2 For just as not every order containing words of restraint is a negative injunction within 28 U.S.C. § 1292(a) (1), Baltimore Contractors, Inc. v. Bodinger, 1955, 348 U.S. 176, 75 S. Ct. 249, 99 L. Ed. 233; Fleischer v. Phillips, 2 Cir., 1959, 264 F.2d 515, 516, certiorari denied 1959, 359 U.S. 1002, 79 S. Ct. 1139, 3 L. Ed. 2d 1030; Grant v. United States, 2 Cir., 1960, 282 F.2d 165, 170, so not every order containing words of command is a mandatory injunction within that section.
Our review of the cases that have reached appellate courts in the wake of Brown v. Board of Education, supra, and its supplement, 1955, 349 U.S. 294, 75 S. Ct. 753, has revealed only one in which jurisdiction may have been taken under such circumstances as here. In Clemons v. Board of Education of Hillsboro, 6 Cir., 1956, 228 F.2d 853; Brown v. Rippy, 5 Cir., 1956, 233 F.2d 796; Booker v. State of Tennessee Board of Education, 6 Cir., 1957, 240 F.2d 689, and Holland v. Board of Public Instruction, 5 Cir., 1958, 258 F.2d 730, the appeals were from final orders denying injunctive relief. In Aaron v. Cooper, 8 Cir., 1957, 243 F.2d 361, an injunction was denied because of a voluntary plan offered by the Little Rock School District which the District Court found satisfactory, but jurisdiction was retained; since the order denied an injunction it was therefore appealable whether it was deemed final or interlocutory.*fn3 In Board of Supervisors of L.S.U., etc. v. Ludley, 5 Cir., 1958, 252 F.2d 372, certiorari denied, 1958, 358 U.S. 819, 79 S. Ct. 31, 3 L. Ed. 2d 61; Board of Supervisors of L.S.U:, etc. v. Wilson, 1951, 340 U.S. 909, 71 S. Ct. 294, 95 L. Ed. 657, and Evans v. Buchanan, 3 Cir., 1958, 256 F.2d 688,*fn4 the District Court had issued mandatory injunctions directing the admission of Negro students. In Boson v. Rippy, 5 Cir., 1960, 275 F.2d 850, the appeal was from a refusal to modify an injunction so as to advance the dates of desegregation, this falling within another provision of § 1292(a) (1). The single case that may support appealability here is an unreported memorandum in Mapp v. Board of Education of Chattanooga, in which the Sixth Circuit denied a motion to dismiss an appeal, without discussion save for a reference to 28 U.S.C. § 1291 and § 1292(a) (1) and a "cf." to Boson v. Rippy, supra. We doubt that appellees' attempt to distinguish the Mapp case is successful, but we do not find the memorandum persuasive. Boson v. Rippy does not support the decision, for the reason indicated, as the manner of its citation perhaps recognized; and we do not know what it was that the judges found in the statutes to support their conclusion of appealability. Moreover, the subsequent proceedings in the Mapp case, where the District Court has already rejected the plan directed to be filed and required the submission of a new one, with a second appeal taken from that order although the first appeal has not yet been heard, indicate to us the unwisdom of following that decision even if we deemed ourselves free to do so.
There is a natural reluctance to dismiss an appeal in a case involving issues so important and so evocative of emotion as this, since such action is likely to be regarded as technical or procrastinating. Although we do not regard the policy question as to the timing of appellate review to be fairly open, we think more informed consideration would show that the balance of advantage lies in withholding such review until the proceedings in the District Court are completed. To stay the hearing in regard to the remedy, as appellants seek, would produce a delay that would be unfortunate unless we should find complete absence of basis for any relief - the only issue that would now be open to us no matter how many others might be presented, since we do not know what the District Judge will order - and if we should so decide, that would hardly be the end of the matter. On the other hand, to permit a hearing on relief to go forward in the District Court at the very time we are entertaining an appeal, with the likelihood, if not indeed the certainty, of a second appeal when a final decree is entered by the District Court, would not be conducive to the informed appellate deliberation and the conclusion of this controversy with speed consistent with order, which the Supreme Court has directed and ought to be the objective of all concerned. In contrast, prompt dismissal of the appeal as premature should permit an early conclusion of the proceedings in the District Court and result in a decree from which defendants have a clear right of appeal, and as to which they may then seek a stay pending appeal if so advised. We - and the Supreme Court, if the case should go there - can then consider the decision of the District Court, not in pieces but as a whole, not as an abstract declaration inviting the contest of one theory against another, but in the concrete. We state all this, not primarily as the reason for our decision not to hear an appeal at this stage, but rather to demonstrate what we consider the wisdom embodied in the statutes limiting our jurisdiction, which we would be bound to apply whether we considered them wise or not.
Accordingly, the appeal is dismissed for want of appellate jurisdiction at this time. Although it should not be necessary to do so, we add, from abundant caution, that this dismissal involves no intimation on our part with respect to the propriety or impropriety of the determination of the District Court. If defendants feel that the time that has been required for the disposition of this issue compels them to request a ...