Baltimore Contractors v. Bodinger/Dissent Black

Mr. Justice BLACK, with whom Mr. Justice DOUGLAS concurs, dissenting.

I think the District Court's order denying a stay is appealable because it is (1) 'final' within the meaning of 28 U.S.C. § 1291, 28 U.S.C.A. § 1291, and (2) a refusal to grant an interlocutory injunction within the meaning of § 1292. As the Court admits, a collateral issue may be so severable and unrelated to central trial issues have a judgment on the collateral issue is considered 'final' and appealable under § 1291, even though other important issues are left undecided. Given this common sense meaning § 1291 authorizes the present appeal. For certainly decision of whether a judicial rather than an arbitration tribunal shall hear and determine this accounting controversy is logically and practically severable from the factual and legal issues crucial to determination of the merits of the controversy. And this Court has held that § 1292 makes all stay orders appealable that have the substantial effect of interlocutory injunction orders. Ettelson v. Metropolitan Ins. Co., 317 U.S. 188, 63 S.Ct. 163, 87 L.Ed. 176. The refusal to stay here had that effect. Indeed, the Court seems to admit that this order refusing a stay would be appealable had it been entered by another judge not presiding in this particular case. I agree with the Court that this jurisdictional 'incongruity * *  * springs from the persistence of outmoded procedural differentiations' that have 'elements of fiction' in this modern day. I do not agree that the Court's obeisance to these incongruous fictions is required by congressional enactments.

The Court relies on a purpose of Congress to avoid a waste of time and money incident to repeated 'piecemeal' appeals in the same suit. But, as pointed out, Congress, in §§ 1291 and 1292, has left the way open for the appeal of many judgments finally deciding collateral and severable issues separately adjudicated in a case. Any rigid rule to the contrary would itself guarantee useless delays and expenses. For two trials, one unnecessary, may take longer and cost more than two appeals where one would do. Take this case for example. It must now go back for a court accounting trial which could be time-consuming and expensive to litigants and to the Government. And should petitioner lose on the merits it could undoubtedly appeal. On that review the first question for the appellate court would be whether the order denying arbitration, which the Court now refuses to consider, was right or wrong. If found wrong, the trial court's judgment on the merits would have to be vacated and the case again sent back for determination on the merits-this time by arbitration. In that event the trial the Court now orders will have been wholly futile not even the litigant who now appears to be successful will have gained anything from it, unless perchance he stands to profit from delay. There is some difficulty, at least, in laying this wasteful procedure at the door of Congress.