Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division - No. IP 72-C-398 JAMES E. NOLAND, Judge.
Tuttle,*fn* Tone and Bauer, Circuit Judges.
The plaintiff Beverly Jeanne Jenkins brought this action on her own behalf and for a class she purported to represent, charging the defendants, Blue Cross Mutual Hospital Insurance, Inc., Blue Cross Medical Insurance, Inc. (Blue Cross-Blue Shield), her former employer, with racial and sex discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. and 42 U.S.C. § 1981. The district court determined that the action could not proceed as a class action; thereafter the court denied the plaintiff's motion for a preliminary injunction to enjoin the defendants' promotion and employee evaluation practices, which were alleged to have discriminatory effect.
The plaintiff appeals the denial of her requested preliminary injunction, pursuant to 28 U.S.C. § 1292(a)(1). The preliminary injunction which was requested would have enjoined the defendants' current employee evaluation and promotion practices. As the plaintiff was no longer employed by the defendants at the time suit was filed, she clearly could not allege irreparable injury to herself resulting from the continued use of these practices. Rather, as the plaintiff candidly admits, it is the harm allegedly suffered by the class of present employees which the plaintiff argues justifies enjoining the defendants' supervisory performance rating system.
Thus, the real issue which the plaintiff seeks to appeal is whether she should be permitted to maintain her suit as a class action; only if the district court erred in denying the plaintiff the right to proceed as a representative of a class of all past and present employees could its subsequent refusal to grant a preliminary injunction be seriously challenged.
Generally a trial court's decision that a suit is inappropriate to proceed as a class action is not a "final decision" and thus cannot be appealed under 28 U.S.C. § 1291,*fn1 3B Moore's Federal Practice, P23.97 at 23 - 1951-52. While certain limited exceptions to 28 U.S.C. § 1291's requirement of a final order of the district court have developed permitting interlocutory appellate review of certain class action determinations where those decisions have in some sense a final effect on the action,*fn2 these exceptions have been rejected in this circuit as a basis for permitting an appeal from an order refusing class status,*fn3 and the plaintiff does not attempt to invoke them. Rather, the plaintiff seeks to review the district court's class action determination by the limited interlocutory appeal permitted by 28 U.S.C. § 1292(a)(1) which provides:
"The courts of appeals shall have jurisdiction of appeals from: (1) 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 . . . ."
While the plaintiff cites no authority for this approach, a substantial body of case law has in fact developed for the view that
"when injunctive relief is sought and the denial of class action treatment has the effect of denying the broad injunctive relief requested in the complaint, the order is appealable under 28 U.S.C. § 1292 (a)(1) as an order denying an injunction."
3B Moore's Federal Practice, P23.97 (1973 Supp.) at 130. See Price v. Lucky Stores, Inc., 501 F.2d 1177 (9th Cir. 1974); Hackett v. General Host Corp., 455 F.2d 618, 622 (3rd Cir. 1972); Yaffe v. Powers, 454 F.2d 1362 (1st Cir. 1972); Spangler v. United States, 415 F.2d 1242 (9th Cir. 1969); Oatis v. Crown Zellerbach Corp., 398 F.2d 496 (5th Cir. 1968); Shapiro Bernstein & Co. v. Continental Record Co., 386 F.2d 426 (2d Cir. 1967); Brunson v. Board of Trustees, 311 F.2d 107 (4th Cir. 1962), cert. denied, 373 U.S. 933, 10 L. Ed. 2d 690, 83 S. Ct. 1538 (1963).*fn4
We find these authorities convincing. Certainly in this case there is an order denying a preliminary injunction, which would permit review under the terms of § 1292(a)(1). Further, there can be no doubt that the district court's earlier refusal to certify the suit as a class action directly controlled its subsequent decision on the requested preliminary injunction.*fn5
Because the class action determination of the district court directly controlled the subsequent disposition of the request for a preliminary injunction, we believe it, too, is reviewable under 28 U.S.C. § 1292(a)(1). By refusing to certify the action as a class action, the district court effectively precluded a grant of preliminary injunction relief; as the plaintiff was no longer employed by the defendants, Blue Cross-Blue Shield, she clearly suffered no continuing harm from the challenged promotional and employee evaluation practices. Accordingly, in our view, the refusal to ...