§ 1291, the fundamental purpose of § 1292(b) is to permit discretionary avoidance of the final judgment requirement." 16 Wright, Miller, Cooper & Gressman, Federal Practice and Procedure: Jurisdiction § 3929 at 146 (1977). In order to certify a question for interlocutory appeal, there must be: 1) an order by the court on a controlling question of law; 2) as to which there is substantial ground for disagreement; and 3) the resolution of the entire case would he substantially advanced by a ruling from the circuit court on the question. 28 U.S.C. § 1292(b); Segni v. Commercial Office of Spain, 650 F. Supp. 1045, 1046 (N.D. Ill. 1987). The first two requirements are met here; the third is not.
This action was filed in 1981, alleging racial discrimination by the defendant Illinois Central Gulf Railroad Company in its hiring. After a bench trial on the issue of liability only, the Court determined that the plaintiff had showed a prima facie case, but that the defendant offered a legitimate, non-discriminatory reason for the discrepancy between the number of blacks and whites hired by the defendant. Mister v. Illinois Central Gulf Railroad Company, 639 F. Supp. 1560 (S.D. Ill. 1986). The plaintiff appealed, and the Seventh Circuit reversed the finding with regard to the class claims. Mister v. Illinois Central Gulf Railroad Company, 832 F.2d 1427 (7th Cir. 1987). The Supreme Court denied the defendant's petition for certiorari in 485 U.S. 1035, 108 S. Ct. 1597, 99 L. Ed. 2d 911 (1988). On remand, this Court was required to determine the proper remedy.
The Court's order of March 26, 1992, substantially limits the damages the plaintiff class may recover. The plaintiff class sought punitive damages, as well as damages for loss of enjoyment of life and impaired earning capacity. The Court held that the plaintiff could not, as a matter of law, recover those damages in this case. Therefore, the Court's order of March 26, 1992, involves a controlling question of law. On a theoretical level, the order bars the plaintiff from presenting any evidence on certain theories of damages. Therefore, the March 26 order is controlling as to the availability of these theories unless the order is reversed by the circuit. As a practical matter, the March 26 order disposes of a large part of the damages the plaintiff had hoped to recover. For both these reasons, the Court concludes that the March 26 order involves a controlling question of law.
The Court also finds that there is substantial ground for disagreement with the Court's March 26 ruling. The theories presented by the plaintiff class were novel. While novelty alone does not satisfy the requirement for a permissive interlocutory appeal, the lack of clear precedent indicates that the question of law is unsettled. The scope of damages which may be recovered under 42 U.S.C. § 1981 is unclear. The unsettled state of the law is seen in the amendments made by the Civil Rights Act of 1991, which appears to allow for damages for "loss of value of life". See Pub. L. No. 102-166 § 102(b)(3), 105 Stat. 1073 (1991). Moreover, there appears to be authority for the proposition that impaired earning capacity may be recovered in a civil rights suit; it is unclear, however, that impaired earning capacity may be recovered in a class action alleging discrimination in hiring.
The Court's decision on punitive damages also involves a novel interpretation of the Supreme Court's decision in Smith v. Wade, 461 U.S. 30, 103 S. Ct. 1625, 75 L. Ed. 2d 632 (1983). This Court held that, in a bench trial, it can exercise the same discretion as a jury with regards to punitive damages. In other words, even though the defendant's conduct may be sufficient to trigger an award of punitive damages, a court acting as a fact finder is not required to award punitive damages. The Court decided not to award punitive damages in spite of the findings of the Special Master that punitive damages were appropriate in this case. The Court acknowledges that there exists substantial disagreement over this ruling.
Whether the ultimate termination of this case would be advanced by a ruling from the circuit court is a more difficult question. Plaintiff suggests that discovery and trial of the remaining theories of damages would proceed during the appellate process. See 28 U.S.C. § 1292(b). The availability of back-pay, prejudgment interest, and damages for emotional distress under § 1981 is not substantially in dispute.
Therefore, an immediate appeal would advance the ultimate termination of this litigation since the parties would not have to wait until a final ruling by this Court on the amount of back-pay and other damages before receiving a final ruling from the circuit court on what is the heart of the case.
On the other hand, the past conduct of the parties to this action indicates that it is probable that the final ruling on the issue of back pay, interest, and emotional distress would be appealed, regardless of the amount awarded. If certification is granted, and a permissive interlocutory appeal taken from the March 26 order, the circuit court would be faced with two appeals, rather than one. The ultimate termination of the litigation would not be advanced if the appeals are multiplied in this manner.
Even disregarding the possibility of multiple appeals, the ultimate termination of this litigation would not be advanced by a certification of this Court's March 26 order. The Court believes that all the discovery and hearings necessary to make a final determination of the appropriate remedy may be completed in less time than the resolution of an interlocutory appeal. Under these circumstance, the ultimate determination of the litigation would occur more quickly if the plaintiff appealed from the final judgment of the Court rather than proceed with this litigation on two levels.
The Court DENIES plaintiffs motion for certification under 28 U.S.C. § 1292(b). The Court finds that its March 26, 1992, memorandum and order involves controlling questions of law over which there is substantial ground for disagreement. However, the resolution of these questions would not materially advance the ultimate termination of this litigation.
Plaintiff has also filed a motion to shorten the time for defendant's response to his motion for certification. Defendant's response was due on April 17, 1992; the motion requests that the response be filed by April 17, 1992. The Court is uncertain what plaintiff was seeking to accomplish through his motion. Therefore, the motion is DENIED.
IT IS SO ORDERED.
James L. Foreman