Section 2218 of the New York Surrogate's Court Procedure Act
authorizes the surrogate to order an alien's share of a New York
estate paid into court when it appears that the alien "would not
have the benefit or use or control of the money or property"
constituting the share. Appellants, who live in Romania and are
beneficiaries of New York decedents' estates and whose shares were
paid into court for their benefit under § 2218, filed a complaint
challenging its constitutionality and seeking temporary and
permanent injunctive relief against its operation. In the
three-judge District Court which was convened, appellants moved for
summary judgment, contending that, under
Zschernig v.
Miller, 389 U. S. 429, §
2218 is unconstitutional on its face and as applied, and requesting
"the relief prayed for in the complaint." Appellants filed no
separate application for a preliminary injunction, and have not
urged the appropriateness of temporary relief for the release of
the court-held funds. The District Court denied summary judgment,
but did not dismiss the complaint as urged by appellees, surrogates
of several New York counties. Appellants appealed to this Court
from the order denying summary judgment, claiming that this Court
has jurisdiction by virtue of 28 U.S.C. § 1253, which, in pertinent
part, provides for an appeal
"to the Supreme Court from an order granting or denying . . . an
interlocutory or permanent injunction in any civil action . . .
required by an Act of Congress to be heard and determined by a
district court of three judges."
Held: The only interlocutory orders that this Court has
power to review under § 1253 are those granting or denying
preliminary injunctions, and therefore this Court lacks
jurisdiction to review the District Court's interlocutory order,
which involved no question of preliminary injunctive relief. Pp.
396 U. S.
475-479.
299
F. Supp. 1389, appeal dismissed.
Page 396 U. S. 472
MR. JUSTICE MARSHALL delivered the opinion of the Court.
Appellants are beneficiaries of New York decedents' estates who
live in Romania. Their shares of these estate have not been
distributed to them, but have been paid into court for their
benefit under § 2218 of the New York Surrogate's Court Procedure
Act. Section 2218 authorizes the surrogate to order an alien's
share of a New York estate paid into court when it appears that the
alien "would not have the benefit or use or control of the money or
other property" constituting the share. [
Footnote 1]
In 1966, appellants filed a complaint in the United States
District Court for the Southern District of New York, challenging
what is now § 2218 on the grounds that it denied them due process
and equal protection, that it unconstitutionally intruded upon the
Federal Government's conduct of foreign relations, and that it
conflicted
Page 396 U. S. 473
with federal regulations permitting the payment of federal funds
to persons in Romania. Appellants prayed for both temporary and
permanent injunctive relief against further operation of the
statute, and therefore requested the impaneling of a three-judge
court. A single district judge declined to request a three-judge
court on the ground that the constitutional questions raised were
frivolous, and the Court of Appeals for the Second Circuit
affirmed. This Court granted certiorari, vacated the judgment, and
remanded the case to the Court of Appeals for further consideration
in the light of
Zschernig v. Miller, 389 U.
S. 429, decided the same day.
389 U.
S. 581 (1968). On remand, the Court of Appeals reversed
the original order of the District Court, and remanded the case for
consideration by a three-judge court. 391 F.2d 586 (C.A.2d
Cir.1968).
Page 396 U. S. 474
Appellants then moved for summary judgment, urging that § 2218
was unconstitutional, either on its face or as applied, under the
principles of
Zschernig v. Miller, supra. In their motion,
they requested "the relief demanded in the complaint." They
accompanied their motion with an affidavit, largely consisting of a
memorandum of law arguing that the application of § 2218 by the New
York courts ran afoul of
Zschernig.
Appellees, surrogates of several New York counties, opposed the
motion for summary judgment and further requested that the action
be dismissed. In their accompanying affidavit, they argued that §
2218 was constitutional on its face and that there was at least a
triable issue of fact whether it was being constitutionally
applied.
The District Court denied summary judgment, but did not dismiss
the action.
299 F.
Supp. 1389 (D.C.S.D.N.Y.1968). In its opinion it held that §
2218 was not unconstitutional on its face under
Zschernig,
and that the only reported post-
Zschernig construction of
the statute,
Matter of Leikind, 22 N.Y.2d 346, 239 N.E.2d
550 (1968),
app. docketed, No. 68, O.T. 1969, did not show
unconstitutional application.
From the order denying summary judgment, appellants took an
appeal to this Court, claiming that we had jurisdiction under 28
U.S.C. § 1253, which provides:
"Except as otherwise provided by law, any party may appeal to
the Supreme Court from an order granting or denying, after notice
and hearing, an interlocutory or permanent injunction in any civil
action, suit or proceeding required by any Act of Congress to be
heard and determined by a district court of three judges."
Appellees did not oppose jurisdiction, but rather filed a motion
to affirm. We noted probable jurisdiction, 394
Page 396 U. S. 475
U.S. 996 (1969), and received briefs and heard argument confined
to the merits. Further examination of the case since oral argument
has, for the first time, raised the question of our jurisdiction,
and we have concluded that we lack jurisdiction of the appeal.
A preliminary question is whether the District Court's order
denying summary judgment to a plaintiff who has requested
injunctive relief is "an order . . . denying . . . an . . .
injunction" within the meaning of § 1253. In construing the
analogous provision giving the courts of appeals jurisdiction to
hear appeals from interlocutory orders granting or denying
injunctions, 28 U.S.C. § 1292(a)(1), this Court has ruled that a
denial of summary judgment is not an appealable order denying an
injunction, at least where the denial is based upon the existence
of a triable issue of fact.
Switzerland Assn. v. Horne's
Market, 385 U. S. 23
(1966). [
Footnote 2] However,
we need not decide whether the same treatment should be given to
denials of summary judgment under § 1253, for we conclude that the
only interlocutory orders that we have power to review under that
provision are orders granting or denying
preliminary
injunctions. Since, in our view,
Page 396 U. S. 476
the District Court here decided no question of preliminary
injunctive relief, we cannot review its order.
Section 1253, along with the other provisions concerning
three-judge district courts, 28 U.S.C. §§ 2281-2284 (a collectivity
hereinafter referred to as the Three-Judge Court Act), derives from
§ 266 of the Judicial Code of 1911, 36 Stat. 1162, which, in turn,
derived from § 17 of the Mann-Elkins Act of 1910, 36 Stat. 557. As
originally enacted, the Three-Judge Court Act required that no
interlocutory injunction restraining the operation of any
state statute on constitutional grounds could be issued, except by
a three-judge court, and provided that
"[a]n appeal may be taken directly to the Supreme Court of the
United States from the order granting or denying . . . an
interlocutory injunction in such case."
36 Stat. 557. The Act grew out of the public furor over what was
felt to be the abuse by federal district courts of their injunctive
powers in cases involving state economic and social legislation.
While broad and radical proposals were made to deal with the
problem, including proposals to deprive the federal courts of all
jurisdiction to enjoin state officers, Congress compromised on a
provision that would deal with what was felt to be the worst abuse
-- the issuance of temporary restraining orders and preliminary
injunctions against state statutes, either
ex parte or
merely upon affidavits, and subject to limited and ineffective
appellate review.
See Phillips v. United States,
312 U. S. 246,
312 U. S. 250
(1941); Hutcheson, A Case for Three Judges, 47 Harv.L.Rev. 795,
803-810 (1934); Note, The Three-Judge District Court and Appellate
Review, 49 Va.L.Rev. 538, 539-543 (1963).
Until 1925, the Act required a three-judge court only on
application for an interlocutory (or, as we would say, preliminary)
injunction. In that year, the Act was amended to carry the
three-judge requirement forward to the issuance of a permanent
injunction, 43 Stat. 938,
Page 396 U. S. 477
"in order to avoid the anomalous result of having a single judge
review the decree of three judges at the final hearing." Note, 49
Va.L.Rev.,
supra at 543. The provision governing appeal to
this Court was correspondingly amended to allow direct appeal from
"a final decree granting or denying a permanent injunction. . . ."
43 Stat. 938.
Thus, as of 1925, the provisions of the Three-Judge Court Act
relating to appeal to this Court, set out in the Judicial Code, as
amended, read as follows:
"An appeal may be taken directly to the Supreme Court of the
United States from the order granting or denying, after notice and
hearing, an
interlocutory injunction in such case. . .
."
36 Stat. 557.
". . . and a direct appeal to the Supreme Court may be taken
from a final decree granting or denying a permanent injunction in
such suit."
43 Stat. 938. (Emphasis added.) As clearly as language can, this
language confined this Court's review of three-judge court action
to (1) final judgments granting or denying permanent injunctions,
and (2) interlocutory orders granting or denying preliminary
injunctions.
In 1948, the present Judicial Code was enacted, including § 1253
as it now stands. As the language now reads, the Court has
appellate jurisdiction over any three-judge court order "granting
or denying . . . an interlocutory or permanent injunction." On its
face, this language is subject to the construction that
interlocutory orders denying permanent as well as preliminary
injunctions can be appealed to this Court. However, such a
construction would involve an expansion of this Court's mandatory
appellate jurisdiction over that granted by the clear language of
the prior statute. The Reviser's Note to § 1253 indicates no intent
to make such a substantive
Page 396 U. S. 478
change; indeed, it refers to the section as merely a
consolidation of prior provisions in Title 28, themselves derived
from the statute as adopted and amended by Congress. [
Footnote 3]
This Court has more than once stated that its jurisdiction under
the Three-Judge Court Act is to be narrowly construed, since
"any loose construction of the requirements of [the Act] would
defeat the purposes of Congress . . . to keep within narrow
confines our appellate docket."
Phillips v. United States, supra, at
312 U. S. 250.
See Stainback v. Mo Hock Ke Lok Po, 336 U.
S. 368,
336 U. S. 375
(1949);
Moore v. Fidelity & Deposit Co., 272 U.
S. 317,
272 U. S. 321
(1926). That canon of construction must be applied with redoubled
vigor when the action sought to be reviewed here is an
interlocutory order of a trial court. In the absence of clear and
explicit authorization by Congress, piecemeal appellate review is
not favored,
Switzerland Assn. v. Horne's Market, supra,
at
385 U. S. 24,
and this Court above all others must limit its review of
interlocutory orders.
Hamilton Shoe Co. v. Wolf Brothers,
240 U. S. 251,
240 U. S. 258
(1916). In light of these factors, and the history of the statute
as set out above, we cannot but conclude that our jurisdiction over
interlocutory orders under § 1253 is confined to orders granting or
denying a preliminary injunction.
As we read the record, this is not such an order. Appellants
did, in their original complaint, pray for preliminary as well as
permanent injunctive relief. And in moving for summary judgment,
they requested "the relief demanded in the complaint." However,
they took
Page 396 U. S. 479
no practical step toward obtaining such relief. They filed no
separate application for a preliminary injunction. In none of their
papers, in the District Court or in this Court, have they urged the
appropriateness of temporary relief. The District Court, in its
opinion, in no way adverted to the possibility of such relief being
granted. Indeed, in the nature of the case, preliminary injunctive
relief could never have been a practical possibility. Appellants
are seeking the release of funds held in court in New York to
beneficiaries outside the jurisdiction of the United States. Any
injunction granting relief of this sort must necessarily have been
final in its effect, and could hardly have been awarded in the
absence of a final determination on the merits in appellants'
favor. Since the order here in question is an interlocutory one,
and is not an order granting or denying a preliminary injunction,
we must dismiss the appeal from that order for want of
jurisdiction.
It is so ordered.
[
Footnote 1]
Section 2218 (Supp. 1969), formerly § 269a of the New York
Surrogate's Court Act, reads as follows:
"1. (a) Where it shall appear that an alien legatee, distributee
or beneficiary is domiciled or resident within a country to which
checks or warrants drawn against funds of the United States may not
be transmitted by reason of any executive order, regulation or
similar determination of the United States government or any
department or agency thereof, the court shall direct that the money
or property to which such alien would otherwise be entitled shall
be paid into court for the benefit of said alien or the person or
persons who thereafter may appear to be entitled thereto. The money
or property so paid into court shall be paid out only upon order of
the surrogate or pursuant to the order or judgment of a court of
competent jurisdiction."
"(b) Any assignment of a fund which is required to be deposited
pursuant to the provisions of paragraph one (a) of this section
shall not be effective to confer upon the assignee any greater
right to the delivery of the fund than the assignor would otherwise
enjoy."
"2. Where it shall appear that a beneficiary would not have the
benefit or use or control of the money or other property due him or
where other special circumstances make it desirable that such
payment should be withheld the decree may direct that such money or
property be paid into court for the benefit of the beneficiary or
the person or persons who may thereafter appear entitled thereto.
The money or property so paid into court shall be paid out only
upon order of the court or pursuant to the order or judgment of a
court of competent jurisdiction."
"3. In any such proceeding where it is uncertain that an alien
beneficiary or fiduciary not residing within the United States, the
District of Columbia, the Commonwealth of Puerto Rico or a
territory or possession of the United States would have the benefit
or use or control of the money or property due him the burden of
proving that the alien beneficiary will receive the benefit or use
or control of the money or property due him shall be upon him or
the person claiming from, through or under him."
[
Footnote 2]
The Second Circuit originally took the view that denial of
summary judgment, where an injunction had been prayed for, was an
appealable order denying an injunction under § 1292(a)(1),
Federal Glass Co. v. Loshin, 217 F.2d 936 (1954) (L. Hand,
J.; Frank, J., concurring; Clark, J., dissenting). This was
contrary to the majority view that such orders were not appealable,
a view best represented by
Morgenstern Chemical Co. v. Schering
Corp., 181 F.2d 160 (C.A.3d Cir.1950). The Second Circuit,
even before this Court's decision in
Switzerland Assn.,
supra, had reversed its position.
Chappell & Co. v.
Frankel, 367 F.2d 197 (1966) (en banc).
See also 6 J.
Moore, Federal Practice �56.21[2], at 2791-2792 (2d ed.1966).
In
Switzerland Assn., supra, this Court left open the
question whether an order denying summary judgment might be
appealable as an order denying an injunction when the ground for
the denial was other than the existence of a triable issue of
fact.
[
Footnote 3]
The 1948 revision of the Judicial Code did make one substantive
change in the Three-Judge Court Act; it eliminated the requirement,
imposed by the 1925 amendment, that a three-judge court should be
required to hear an application for a permanent injunction only
where an application for a preliminary injunction had originally
been made. Reviser's Note, 28 U.S.C. § 2281.
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK concurs,
dissenting.
If summary judgment [
Footnote
2/1] had been granted to appellants there would be no question
but that this Court would have jurisdiction under 28 U.S.C. § 1253
over an appeal from that judgment, as it would constitute an "order
granting . . . an interlocutory or permanent injunction."
Similarly, there seems little room for argument that the denial of
summary judgment to appellants constitutes an order "denying . . .
an interlocutory or permanent injunction," since such injunctive
relief was requested
Page 396 U. S. 480
in appellants' complaint. [
Footnote
2/2] The majority opinion relies on
Switzerland Assn. v.
Horne's Market, 385 U. S. 23, as
authority for dismissing this appeal for want of jurisdiction under
28 U.S.C. § 1253. In that case, however, the denial of summary
judgment was based solely on the existence of a triable issue of
fact; [
Footnote 2/3] the summary
judgment
Page 396 U. S. 481
did not concern in any way the merits of the case. This case
involves more. Appellants claimed that § 2218 of the New York
Surrogate's Court Procedure Act was unconstitutional on its face.
The denial of summary judgment constituted a rejection of this
claim on the merits, as well as a denial of injunctive relief based
on that claim. On this basis, I would find jurisdiction under 28
U.S.C. § 1253 to decide this appeal on the merits.
[
Footnote 2/1]
The appellants' motion for summary judgment was as follows:
"Plaintiffs move the court as follows: "
"1. That it enter, pursuant to Rule 56 of the Federal Rules of
Civil Procedure, a summary judgment in plaintiffs' favor for the
relief demanded in the complaint on the ground that there is no
genuine issue as to any material fact and that plaintiff is
entitled to a judgment as a matter of law; and, especially, in the
light of
Zschernig v. Miller, 36 L.W. 4120 (1/15/68),
decided by the Supreme Court of the United States."
"The Affidavit of John R. Vintilla is attached hereto in support
of this motion."
[
Footnote 2/2]
The "relief demanded in the complaint" included:
"That [the District Court] issue a permanent injunction forever
restraining and enjoining the defendants and each of them, their
agents and employees, from denying plaintiffs, and others similarly
situated the right to their distributive shares from decedents'
estates, and to other funds to which they may be entitled; that the
defendants, and each of them, their agents, and employees, be
ordered and directed to take such action as shall be necessary to
deliver the distributive shares and other funds which are due and
owing to and being withheld from these plaintiffs and others
similarly situated."
"That
pending the final hearing and determination of this
complaint upon its merits, the Court issue a preliminary
injunction, restraining the defendants and each of them, their
agents, and employees, from denying the plaintiffs, and others
similarly situated, the right to their distributive shares and
other funds to which they may be entitled."
(Emphasis added.)
[
Footnote 2/3]
Switzerland Assn. involved an action for unfair
competition under the federal trademark laws, 60 Stat. 427, 15
U.S.C. § 1051
et seq. The sole claim was that defendant's
actions in selling cheese labeled as "imported Swiss cheese" which
had been imported into the United States from a country other than
Switzerland were illegal under the trademark laws. The defense was
that "imported Swiss cheese" had come to have an accepted meaning
in the trade of Swiss cheese that had been imported from any
country. The District Court found that the meaning in the trade of
"imported Swiss cheese" was an issue of fact as to which there was
a genuine dispute, and therefore denied the plaintiffs' motion for
summary judgment.
The request for injunctive relief therefore had to await a jury
trial on the facts.