Local No 438, Construction General Laborers' Union, AFL-CIO v. S. J. Curry & Company/Concurrence Harlan

Mr. Justice HARLAN, concurring in the result.

I join in the determination that we have appellate jurisdiction in this case, and in the reversal of the judgment below. But I believe that the approach taken by the Court to the question of 'finality' is far broader than the case demands, or than precedent and policy would warrant.

At least until today, none of this Court's decisions could be interpreted to suggest that a state court's determination as to state versus federal jurisdiction could, without more, be considered a final judgment subject to our review when further proceedings on the merits were still pending. Indeed, Montgomery Building & Construction Trades Council v. Ledbetter Erection Co., Inc., 344 U.S. 178, 73 S.Ct. 196, 97 L.Ed. 204, held expressly to the contrary, despite the fact that the determination of jurisdiction had been coupled, as in the present case, with the issuance of a temporary injunction. In Ledbetter, as here, it was claimed that the temporary injunction might well have the practical effect of mooting the underlying dispute, thereby aborting any review of the jurisdictional issue.

Neither Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528, nor Radio Station WOW, Inc., v. Johnson, 326 U.S. 120, 65 S.Ct. 1475, 89 L.Ed. 2092, lends support to the view that a determination of jurisdiction at this stage, simply by virtue of its separability from the rest of the case, can be deemed a final judgment. For here, unlike Cohen, the question now raised would be merged in the final judgment and would be open to review by this Court at that time. And unlike Radio Station WOW, where the subsequent state proceedings could not moot the controversy sought to be brought before the Court, a victory for this petitioner in the permanent injunction proceedings would effectively dispose of the entire case.

In any event, there is no need to strain these precedents to the breaking point, since as the Court itself recognizes (p. 550), 'There is another entirely adequate reason for sustaining our authority to review in this case.' During oral argument before the Court, petitioner conceded that in any proceedings on the issuance of a permanent injunction, it would have nothing left to litigate. In other words, the state courts having decided that they had jurisdiction and that the picketing was for an unlawful purpose, the petitioner would have nothing further to offer on these or any other issues, and the issuance of a permanent injunction would follow as a matter of course.

It being clear that the entire case must stand or fall on the federal claim now presented, the case is squarely governed by Pope v. Atlantic Coast Line R. Co., 345 U.S. 379, 73 S.Ct. 749, 97 L.Ed. 1094. Since what remains to be done is only a formality, the judgment sought to be reviewed is final in every significant sense. No such showing was made in Ledbetter, supra, and the case is readily distinguishable on this ground. No doubts should be cast on the vitality of Ledbetter; still less should it be overruled.