concurring and dissenting:

I concur in Judge Sneed’s opinion except insofar as it concludes that this is a case in which there is a wrong without a remedy. I agree that appellants are entitled to a free transcript of the proceedings before the magistrate and that their rights were violated when they were required to pay over $8,000 in order to obtain a review by an Article III judge. I do not believe, however, that we are powerless to correct this injustice.

It is true that appellants may ultimately recover the costs of the transcript if they prevail on the merits of their Title VII action. That, however, is not the issue before us. This is an interlocutory appeal relating solely to the transcript issue. Since appellants may well lose on the merits of the underlying litigation (and the district court has already ruled against them), the question is who pays for the transcript in that event. The majority says that appellants must bear the cost of the transcript they should not have been required to pay for. I disagree.

When the district court denied appellants’ motion for a transcript, it provided in its order that unless appellants ordered the transcript by a particular date no additional time would be allowed for the filing of objections to the magistrate’s findings, conclusions, and order. However, the district court in that same order certified its denial of appellants’ request for a free transcript for interlocutory appeal pursuant to 28 U.S.C. § 1292 (b). We granted permission for the filing of that appeal. Appellants also filed an emergency motion requesting a stay of the proceedings before the district court pending our determination as to whether they were entitled to a free transcript, and a motion that the appeal be expedited. We denied their motions, leaving the appellants with no alternative but to pay for the transcript while waiting for our decision as to whether it should have been provided free.

Although the University of Washington did not oppose appellants’ contentions, on interlocutory appeal, that they were entitled to a free transcript, the University vigorously opposed appellants’ motion for a stay. The basis of the University’s opposition to the stay request was that appellants would suffer no irreparable injury if we denied the stay. It is that very injury which my colleagues now say is irremediable. 1

This court was persuaded to deny appellants’ motion for a stay by the University’s arguments that a remedy existed. The University took the position that appellants had the right to reimbursement if they pre *1239 vailed on the interlocutory appeal. 2 They have now prevailed. I agree with my colleagues that it would be unfair to ask the court reporter to return the monies previously paid them. The reporter received the payments in good faith and may well have expended them in the normal course of living. Nor should the district court be required to expend court funds simply because we have now determined that the ruling below was erroneous. The University should have known, at the time it made its representation that a remedy was available, that reimbursement could not be obtained from the court reporter or the district court. That left only the University itself as a possible source of reimbursement. Whether the University’s representation was based on a misunderstanding of

the law or simply on a failure to think the problem through, that representation, if it is to be given any reasonable meaning, was that the University would be legally responsible for the cost of the transcript if appellants prevailed in this interlocutory appeal.

In my opinion, the University is now es-topped from contending that it is not liable for the cost of the transcript. Either the University or the appellants must bear the over $8,000 expense. That expense would not have been incurred had the stay been granted. Having persuaded the court not to issue the stay by arguing that the appellants would be entitled to recover the cost of the transcript if they prevailed on this interlocutory appeal, the University should not now be permitted to argue that it may not be assessed the cost. 3

*1240 It is not necessary, however, to find that this court actually relied on the University’s representation in denying the stay. Whether we did or not, the University certainly urged us to do so and should be held to its material representations if they may have contributed to our decision. If the University was correct that appellants could recover the cost of the transcript upon prevailing on this interlocutory appeal, we were right in denying the stay. If, in fact, the University was incorrect in representing that there was a remedy available to appellants, then we erred in denying the stay. I believe that we were right to deny the stay because I believe that there is a remedy. That remedy is to hold the University to its representation.

I would order that the costs of providing the transcript be assessed against the University.

. In saying that the injury is irreparable, I recognize that it is conceivable that appellants will ultimately prevail on the merits of the underlying litigation and will, in fact, recover the costs of the transcript from the University of Washington. Again, however, that is not the issue in this appeal. The question before us is what happens if appellants do not- prevail on the merits of the litigation. The majority opinion says, in effect, that in such case the loss will be irreparable since appellants will have no remedy available. While I recognize that Judge Sneed’s statements do not constitute a holding that would bar appellants from subsequently filing a separate suit against the University of Washington for recovery of the costs on some theory or other, his statements clearly demonstrate that he would consider any such recovery “inappropriate and unjust.” Judge Anderson joins him in this view. I do not.

. The University’s position, as set forth in its brief, was as follows:

Response at 9.

There is no doubt as to what the University represented to this court, despite the awkward way in which it phrased its representations. Although in the first sentence the University literally said only that the appellants could “seek reimbursement,” the second sentence says that “there is therefore no possibility of irreparable harm .. . . ” Obviously, a right to seek reimbursement where no party or entity can be held liable would not eliminate the possibility of irreparable harm. The University’s statements therefore constitute a representation that a source of reimbursement existed. Since that source is neither the court reporters nor the district court, it must be the University. There is also no question that the University represented that reimbursement would be available if appellants prevailed on this interlocutory appeal, i.e., if this court held, as we do, that appellants had a right to a free transcript. The University expressly stated that a remedy would be available if appellants prevailed either in “this interlocutory appeal” or on the merits of the underlying case.

. That the motions panel of this court that denied appellants’ request for a stay was aware of the irreparable injury issue and the University’s representation when we acted is apparent from a reading of our orders. That we found the University’s statements of paramount significance is evident from the fact that we took the unusual step of reciting the statements in our order when we denied the stay. The first order we issued was as follows:

Before: SNEED and REINHARDT, Circuit Judges.

Response at 9.

Subsequently, appellants moved for clarification of that order, out of what appeared to be an excess of caution, and asked us to make it clear that we were not merely saying that their remedy was the recovery of normal litigation costs if they prevailed on the underlying case. Appellants’ concern resulted from the second sentence of the two sentence portion of the University’s brief which we set forth in our order. There was reason for confusion if not for concern. The second sentence does two *1240 things which at first glance appear to be inconsistent. First, it says “There is therefore no irreparable harm,” referring to its argument that appellants are entitled to reimbursement if they prevail on the interlocutory appeal. Later in the same sentence the University says there is no irreparable injury because the cost is recoverable as a “litigation cost.” Appellants were concerned that “litigation costs” would be read in a narrow sense, meaning that they would be recoverable only if appellants prevailed in the underlying litigation. That construction, however, is not possible when the two sentences are read together. Attributing such a limited meaning to litigation costs would conflict directly with the University’s statements in the immediately preceding sentence. Therefore, that term can only be read reasonably to mean that appellants would be entitled to recover those costs if they prevailed either on the interlocutory appeal or on the case in chief.

In response to the appellants’ motion for clarification we issued the following order a week after our first:

Before: SNEED and REINHARDT, Circuit Judges.

While I do not think it necessary to base the assessment of transcript costs against the University on actual reliance by this court on the University’s representations, I think a review of the orders we issued demonstrates that there was, in fact, actual reliance in this case.