B.F. Goodrich Co. v. Grand River Dam Authority

HOLLOWAY, Circuit Judge,

dissenting:

I must respectfully dissent.

As the district court’s order points out, the counterclaim of Northeast Oklahoma Electric Cooperative, Inc., sought to enjoin G.R.D.A. and certain third-party defendants from rescinding releases and settlement agreements and from arranging for payment by G.R.D.A. of additional money for surcharge overcharges. The district court’s holding that no justiciable controversy existed between G.R.D.A. and Northeast Oklahoma, and dismissing Northeast Oklahoma and its counterclaim, seems to have the effect of “refusing” an injunction. This brings the instant appeal within the provisions of 28 U.S.C. § 1292(a)(1) permitting interlocutory appeals of orders “granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions...”

While the dismissal of Northeast Oklahoma from the suit and dismissal of its counterclaim “did not in terms ‘refus[e]’ an ‘injunctio[n],’ it nonetheless had the practical effect of doing so.” Carson v. American Brands, Inc., 450 U.S. 79, 83, 101 S.Ct. 993, 996, 67 L.Ed.2d 59 (1981). Here it seems to me that Northeast Oklahoma has shown not only that the district court’s order in effect denied an injunction, but in addition that the order may have a serious, perhaps irreparable consequence, and can be effectually challenged only by this immediate appeal. Carson, 450 U.S. at 84, 101 S.Ct. at 996-97. *456 Indeed this court was moved to grant a stay of the district court’s proceedings, pending this appeal, because consummation of revised settlements might have serious consequences, not easily reversed after revised settlements and payments under them were made. We do not know what a full record and consideration of the legal merits of Northeast Oklahoma’s counterclaim will demonstrate as to its ultimate entitlement to relief. Nevertheless the circumstances are sufficient in my judgment to support the hearing of this appeal on its merits because of the effect of denial of injunctive relief and the showing that an effectual challenge can be made only by this appeal. See Carson, 450 U.S. at 84, 101 S.Ct. at 996-97; General Electric Co. v. Marvel Co., 287 U.S. 430, 432-33, 53 S.Ct. 202, 203-04, 77 L.Ed. 408 (1932) (holding appealable under the predecessor to § 1292(a)(1) the dismissal of a counterclaim for an injunction and an accounting); Adashunas v. Negley, 626 F.2d 600, 602 (7th Cir.1980); Melendez v. Singer-Friden Corp., 529 F.2d 321, 323 (10th Cir.1976); Abercrombie & Fitch Co. v. Hunting World, Inc., 461 F.2d 1040,1041-42 (2d Cir.1972); cf. Spangler v. United States, 415 F.2d 1242, 1246-48 (9th Cir.1969) (holding appealable an order striking part of a Government complaint due to effect of denial of some injunctive relief sought, despite provision in order that it was without prejudice to the right to urge the matter again). The order challenged here did not merely limit the scope of relief that may ultimately be granted as in Gardner v. Westinghouse Broadcasting Co., 437 U.S. 478, 481, 98 S.Ct. 2451, 2453-54, 57 L.Ed.2d 364 (1978).

Because of the practical effect of the dismissal of Northeast Oklahoma from the case and the dismissal of its counterclaim, I am persuaded that the district court’s order is appealable at this time.