ADAPT v. Phila Housing Auth

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
8-8-2005
ADAPT v. Phila Housing Auth
Precedential or Non-Precedential: Precedential
Docket No. 04-2595
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
Nos. 04-2595, 04-3651, 04-3686
___________
ADAPT OF PHILADELPHIA;
LIBERTY RESOURCES, INC.;
MARIE WATSON; MARSHALL WATSON;
DIANE HUGHES
v.
PHILADELPHIA HOUSING AUTHORITY;
CARL GREENE,
In His Official Capacity as the Executive
Director of the Philadelphia Housing Authority,
Appellants Nos. 04-2595, 04-3651
RESIDENT ADVISORY BOARD, INC. (Intervenor in D.C.)
___________
ADAPT OF PHILADELPHIA;
LIBERTY RESOURCES, INC.;
MARIE WATSON; MARSHALL WATSON;
DIANE HUGHES
v.
PHILADELPHIA HOUSING AUTHORITY;
CARL GREENE,
In His Official Capacity as the Executive
Director of the Philadelphia Housing Authority,
RESIDENT ADVISORY BOARD, INC. (Intervenor in D.C.)
Appellant No. 04-3686
__________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 98-cv-04609)
District Judge: The Honorable Harvey Bartle, III
___________
ARGUED JUNE 29, 2005
Before: NYGAARD, SMITH, and FISHER, Circuit Judges.
(Filed August 8, 2005)
Brian P. Flaherty, Esq. (ARGUED)
2
Abbe F. Fletman, Esq.
Andrew C. Curley, Esq.
Wolf Block Schorr & Solis-Cohen
1650 Arch Street, 22 nd Floor
Philadelphia, PA 19103
Counsel for Appellants Philadelphia Housing
Authority, et al.
Arlene O. Freiman, Esq. (ARGUED)
Kolber & Freiman
1530 Chestnut Street, Suite 604
Philadelphia, PA 19102
Counsel for Appellant Resident Advisory Board
Stephen F. Gold, Esq. (ARGUED)
125 South 9 th Street, Suite 700
Philadelphia, PA 19107
David A. Kahne, Esq.
P. O. Box 66386
Houston, TX 77266
Counsel for Appellees
___________
OPINION OF THE COURT
___________
3
NYGAARD, Circuit Judge.
Before us are three appeals from one case. They are the
first batch in a slew of them now percolating up from the
District Court in the same case. In number 04-2595, the
Philadelphia Housing Authority (“PHA”) appeals from a District
Court order of May 10, 2004. In number 04-3651, PHA appeals
from a District Court order of September 3, 2004. Both orders
required PHA to provide information demonstrating compliance
with a prior Settlement Agreement regarding the construction of
accessible public housing in Philadelphia. Also before us is
number 04-3686, Intervenor Resident Advisory Board’s
(“RAB”) appeal from the District Court’s September 3, 2004
order. Because the orders appealed from are not final and no
exception to the finality rule exists, we lack jurisdiction to
review them. Hence, we will dismiss all three appeals.
I.
4
In August 1998, ADAPT of Philadelphia sued PHA,
claiming that there were insufficient public housing units
accessible to individuals with disabilities in Philadelphia, which,
it claimed, violated section 504 of the Rehabilitation Act of
1973. After a bench trial in which ADAPT prevailed, PHA
appealed. During the pendency of the appeal, the parties
reached a Settlement Agreement. The District Court approved,
entering judgment on the Agreement on May 20, 2002 and
retaining jurisdiction to enforce its terms. (J.A. at A27).
Paragraph B of the Agreement required PHA to “create
248 accessible public housing rental units,” with half to be ready
for occupancy no later than December 31, 2003 and the
remaining units to be ready for occupancy by December 31,
2005. (Id. at A13). These units were to be in addition to those
PHA was otherwise required by federal regulations to make
accessible under 24 C.F.R. Part 8. (Id). Pursuant to Paragraph
5
C, PHA had a duty to “take reasonable non-discriminatory steps
to maximize the utilization of [the units created under Paragraph
B] by eligible households that include an individual whose
disability requires the accessibility features of the particular unit,
in accordance with 24 C.F.R. § 8.27.” (Id. at A18). The
Agreement also provided both PHA and ADAPT the right to
seek judicial relief by motion to the District Court in the event
of a dispute over enforcement of the Agreement. (Id. at A19, ¶
G).
On January 29, 2004, PHA notified ADAPT that it had
met the December 31, 2003 deadline under Paragraph B. PHA
did not provide the addresses of the accessible units it claimed
fulfilled its obligations under that Paragraph. When ADAPT
sought those addresses in order to verify compliance, PHA
refused. The parties could not resolve the dispute and ADAPT
filed a discovery motion, styled as a “motion to compel”
6
disclosure of the addresses in the District Court. On May 10,
2004, the District Court granted ADAPT’s motion and entered
an order requiring PHA to identify the street addresses of the
accessible units it created. It also required PHA to provide a
“statement identifying which of these units are not leased to
households that have a person with a mobility disability that
requires the accessibility features.” (Id. at A3). PHA moved for
reconsideration and a stay in the District Court, both of which
were denied. PHA did not seek a stay with this Court but
instead complied with the order by making the required
disclosures. It then appealed, arguing that the order imposed an
obligation not required by the Agreement.
Believing that PHA had not met its obligations under
Paragraph B, during the Summer of 2004, ADAPT filed two
more “motions to compel” in the District Court. In one of those
motions, ADAPT sought the street addresses of each accessible
7
residence created pursuant to Paragraph B at the Mount Olivet
and Suffolk Manor public housing projects. In the other,
ADAPT sought the street addresses of each residence that PHA
had made accessible at various public housing projects in
accordance with the requirements of 24 C.F.R. Part 8. After
ADAPT sought these disclosures, RAB, a non-profit
organization advocating on behalf of all public housing residents
in Philadelphia, intervened. It claimed that the requested
disclosures would violate the privacy rights of the residents
living in the units disclosed. The District Court granted both of
ADAPT’s motions on September 3, 2004. PHA again sought a
stay, which was again denied by the District Court. PHA then
complied with the District Court’s order and appealed, arguing
once more that the ordered disclosures went beyond what was
required by the Agreement. RAB separately appealed as well.
8
During the pendency of these appeals, the parties have
continued to litigate in the District Court, with ADAPT seeking
to force PHA to comply with the Agreement.
II.
Before we address the merits of these appeals, we are
compelled to question our jurisdiction. Because PHA has
complied with the District Court’s orders by disclosing the
disputed information, the question arises whether these appeals,
in which PHA and RAB argue that disclosure should not have
been required, are moot. As a general matter, “once a party has
complied with a court order . . . and has not been penalized or
suffered any prejudice that could be remedied on appeal, the
appeal is moot.” Harris v. City of Philadelphia, 47 F.3d 1311,
1326 (3d Cir. 1995). PHA has indeed complied with the District
Court’s orders and disclosed the information it now seeks to
protect. We conclude, nevertheless, on the narrowest of
9
grounds, that there is a remedy available sufficient to save these
appeals from being moot.
In Church of Scientology of California v. United States,
506 U.S. 9 (1992), the Supreme Court considered whether an
appeal challenging the propriety of ordering disclosure of
information is rendered moot by the appellant’s disclosure of
that information. The district court in that case had ordered
compliance with an IRS summons regarding various tape
recorded conversation. Although the tapes were handed over to
the IRS and the information therein disclosed, the Supreme
Court held that the case was not moot. The Court noted that,
although no judgment could withdraw from the IRS the
knowledge it gained from the tapes, a court could “fashion some
form of meaningful relief.” Id. at 12–13. According to the
Court, taxpayers such as the appellant in the case have “an
obvious possessory interest in their records.” Id. at 13. That
10
interest, the Court held, is violated when the government
inappropriately obtains those records and could be restored by
an order compelling their return. Moreover, even if the
government retains only copies of the tapes, a taxpayer suffers
injury in the form of an affront to the taxpayer’s privacy, id.,which could be remedied with the return or destruction of the
copies.
Church of Scientology is controlling. Although we can
fashion no remedy erasing the knowledge ADAPT gained from
the disclosed materials, we are able to fashion some meaningful
relief. PHA has sought “return of the information” it disclosed,
presumably in the form of a list it created. Were we to hold in
PHA’s favor, return or destruction of that information would be
“some form of meaningful relief” to PHA, however Pyrrhic. See
id. at 12–13. Similarly, although any violation of privacy rights
RAB claims has occurred cannot now be prevented, ordering
11
return or destruction of the compilation of street addresses of the
accessible units would alleviate, at least in part, any affront to
the privacy rights of the individuals living in those units. See id.
at 13. Moreover, an order prohibiting dissemination by ADAPT
of the disclosed information by PHA would help prevent any
future invasions of privacy. We therefore hold that none of
these appeals are moot, despite PHA’s disclosure of the
information it seeks to protect.
Mootness is not the only jurisdictional question we must
confront however. Upon our direction, the parties supplemented
briefing on the question of whether the orders appealed from are
final and therefore appealable, and if not, whether there exists
any exception to the finality rule that we may apply here. In its
briefing PHA contends, primarily, that we have jurisdiction
under the collateral order doctrine. It argues in the alternative
that appellate jurisdiction exists as an appeal from an order
12
granting or modifying an injunction. Neither argument has any
merit whatsoever.
A.
We have jurisdiction to review only those orders of the
district courts that are considered “final.” See 28 U.S.C. § 1291.
Nonetheless, we have a narrow exception under the “collateral
order doctrine,” but only if the order appealed from: (1)
conclusively determines the disputed question; (2) resolves an
issue completely separate from the merits of the dispute; and (3)
would be effectively unreviewable on appeal from a final
judgment. See, e.g., In re Ford Motor Co., 110 F.3d 954, 958
(3d Cir. 1997) (citing Cohen v. Beneficial Indus. Loan Corp.,
337 U.S. 541 (1949)). We apply this test stringently, as the
Supreme Court has cautioned that the collateral order doctrine
is a “narrow” exception to the finality requirement of section
1291 that should not be permitted to swallow the general rule.
13
See Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863,
868 (1994).
At a minimum, these appeals fail to satisfy the
“completely separate prong” of the collateral order test. The
appeals now before us—as well as several others filed by PHA
pending in this Court but not yet before us—all exist in the
context of an ongoing proceeding in the District Court. The
parties do not dispute that the subject matter of that ongoing
proceeding is PHA’s compliance with, and the District Court’s
enforcement of, the Settlement Agreement. More specifically,
from our dialogue with counsel at oral argument, it appears that
one issue to be resolved is whether PHA completed the disputed
units by the December 31, 2003 deadline set forth in Paragraph
B. Through its challenged motions, ADAPT sought evidence to
determine whether PHA complied with this requirement and
with the Agreement in general. Thus, the District Court’s orders
14
granting ADAPT’s motions did not resolve an issue “completely
separate from the merits of the dispute.” On the contrary, they
resolved a discovery dispute, intertwined with the merits of an
underlying action. It is well-established that unless a party is
seeking to prevent the disclosure of information on the basis of
trade secrets or some traditionally-recognized privilege such as
attorney-client or work product, the collateral order doctrine
does not permit appeal from discovery orders. Powell v. Ridge,
247 F.3d 520, 524 (3d Cir. 2001) (citing Bacher v. Allstate Ins.
Co., 211 F.3d 52, 57 (3d Cir. 2000)). Even if PHA or RAB
could assert some traditionally-recognized privilege, neither
could seek interlocutory appeal on the basis that immediate
review is necessary to prevent disclosure. Disclosure has
already occurred. We therefore hold that the second prong of
the collateral order test has not been satisfied.
15
Nor has the third prong been met. An appeal satisfies the
unreviewability prong of the collateral order doctrine when
“failure to review immediately may well cause significant
harm.” In re Diet Drugs Prods. Liability Litig., 401 F.3d 143,
159 (3d Cir. 2005). The failure to consider these appeals now
would not cause any significant harm beyond that which
occurred when PHA disclosed the disputed information. Nor
would reviewing the orders now “unscramble the egg scrambled
by [PHA’s] disclosure.” See In re Ford Motor Co., 110 F.3d
954, 963 (3d Cir. 1997). To the extent PHA has suffered as a
result of being compelled to make the disclosures, review now
would not prevent that suffering. To the extent, as Intervenor
RAB contends, the residents of the accessible units have had
their privacy rights violated, review now would not forestall that
invasion. Any harms allegedly caused by the challenged orders
have already occurred. The proverbial cat is out of the bag.
16
Deferring review until a final decision is reached by the District
Court would not cause additional harm.
Moreover, any harm that has already occurred would be
reviewable when a final order is issued. As counsel for PHA
conceded at oral argument, at some point in this saga there will
be a final decision by the District Court, which will determine
whether they have complied with the Agreement. When that
occurs, there is no reason why PHA would necessarily be
precluded from challenging whether it should have been
required to disclose the disputed information. The orders are not
“effectively unreviewable” on appeal from the District Court’s
forthcoming final order and the third prong of the collateral
order doctrine has, likewise not been met.
The collateral order doctrine does not provide an
exception to the finality rule here as a basis for appellate
jurisdiction.
17
B.
We also reject as meritless PHA’s alternative argument
that appellate jurisdiction lies under 28 U.S.C. § 1292(a)(1) as
an appeal from the grant or modification of an injunction.
Section 1292(a)(1) provides appellate jurisdiction over
“[i]nterlocutory orders of the district courts . . . granting,
continuing, modifying, refusing or dissolving injunctions, or
refusing to dissolve or modify injunctions.” An “injunction” for
the purposes of that section is an order “directed to a party,
enforceable by contempt, and designed to accord or protect
some or all of the substantive relief sought by the complaint.”
Cohen v. Bd. of Trustees, 867 F.2d 1455, 1465 n.9 (3d Cir.
1989) (quotation omitted). As explained in Part II.A., supra,
because the challenged motions sought evidence relating to the
merits of the ongoing enforcement proceeding, the District
Court’s orders granting those motions were discovery orders.
18
An order compelling discovery does not grant part of the
substantive relief sought and is therefore not an injunction for
the purposes of section 1292(a)(1). Hershey Foods Corp. v.
Hershey Creamery Co., 945 F.2d 1272, 1277 (3d Cir. 1991).
Accordingly, we reject PHA’s proffered alternative basis for our
jurisdiction.
III.
PHA’s contention that we have appellate jurisdiction over
its appeals is wholly without merit. Indeed, these appeals are
stark examples of why Congress, through 28 U.S.C. § 1291, has
expressed a distaste for piecemeal litigation. PHA has disputed
several issues resolved by the District Court and, without regard
for whether they are final or whether there exists any exception
to the finality rule, seem to have filed a corresponding appeal for
each. As a result, this case is being litigated on appeal piece by
piece, from order to order, seriatim. Only the first few of these
19
appeals are presently before us, but more are sure to follow.1
Litigating cases in this manner is undesirable for several
reasons. It creates delay; it adds to the costs and efforts that
must be expended by both the parties and the courts; and, as is
prevalent in this case, it diminishes the coherence of the
proceedings. See Johnson v. Jones, 514 U.S. 304, 309 (1995).
Although the numerous and frequent appeals in this case have
muddied its procedural waters, the record as it now stands
reveals that the challenged orders are discovery orders. Those
orders exist in the context of an ongoing proceeding in the
District Court to enforce the Settlement Agreement. They are
no different from any other order compelling the production of
documents issued in a civil case. Because the collateral order
doctrine does not provide an exception to finality here, see
1.
1 Counsel indicated that eight appeals are pending.
20
Powell, 247 F.3d at 524, and because no alternative basis for
appellate jurisdiction exists for these appeals, we will dismiss
them.