Summary
noting that the court cannot, under Rule 54(b), review a decision concerning only "a part of a single claim" or a decision that denies relief pursuant to a "single legal theory of recovery" where alternative theories have also been presented
Summary of this case from In re Ishihara Chemical Co.Opinion
No. 416, Docket 34018.
Submitted January 12, 1970.
Decided January 14, 1970.
Arthur E. Arnow, New York City (Michaels Michaels Wigdor, Stuart S. Sherman, New York City, of counsel), submitted brief for appellant.
David L. Katsky (Robert M. Morgenthau, U.S. Atty., New York City, Peter R. DeFilippi, New York City, of counsel), submitted brief for appellees.
Leopold appeals from an order granting summary judgment on Item 1 of his prayer for relief in a declaratory judgment action attacking his dismissal from the Internal Revenue Service. That item sought a declaration that failure to produce Leopold's immediate superior, Church, at a Civil Service Commission hearing, violated Leopold's Fifth Amendment rights of confrontation. Additional items attacked the substantiality of the evidence, scope of review at the hearing, and similar alleged violations of appropriate administrative procedures. While we might be inclined to reach the merits of the diaphanous issues urged by Leopold, we are foreclosed by 28 U.S.C. § 1291 (1964), which permits appeals only from "final judgments."
A close reading of the complaint reveals that the only claim alleged is that Leopold was improperly discharged from his position. Item 1, on which Judge Ryan granted summary judgment in favor of the appellees, merely set forth one of eleven specific theories on which the dismissal is attacked. We have recognized that separable decisions with important collateral consequences may under certain circumstances be final in every practical sense while other issues remain yet to be tried, see Eisen v. Carlisle Jacquelin, et al., 370 F.2d 119 (2d Cir. 1966), cert. denied, 386 U.S. 1035, 87 S.Ct. 1487, 18 L.Ed.2d 598 (1967); MacAlister v. Guterma, 263 F.2d 65 (2d Cir. 1958); Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949); but we have never condoned piecemeal appeals to review "a part of a single claim or, as here, to test a single legal theory of recovery." Schwartz v. Eaton, 264 F.2d 195, 196 (2d Cir. 1959); Backus Plywood Corp. v. Commercial Decal, Inc., 317 F.2d 339, 341 (2d Cir. 1963). See also Original Ballet Russe v. Ballet Theatre, Inc., 133 F.2d 187, 189 (2d Cir. 1943).
The appeal is dismissed.