                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-25-2002

Johnson v. Housing Auth Pgh
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-1490




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"Johnson v. Housing Auth Pgh" (2002). 2002 Decisions. Paper 765.
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                                                                         NOT PRECEDENTIAL

                            UNITED STATES COURT OF APPEALS
                                 FOR THE THIRD CIRCUIT
                                       __________

                                           No. 02-1490
                                           __________

                                      TONYA JOHNSON,
                                                 Appellant

                                                 v.

                   HOUSING AUTHORITY OF THE CITY OF PITTSBURGH
                                   __________

                ON APPEAL FROM THE UNITED STATES DISTRICT COURT
                   FOR THE WESTERN DISTRICT OF PENNSYLVANIA
                                 D.C. Civil No. 01-cv-01216
                     District Judge: The Honorable Donetta W. Ambrose
                                        __________

                            Submitted Under Third Circuit LAR 34.1(a)
                                       November 19, 2002
                                         __________

           Before: BARRY, AMBRO, Circuit Judges, and ACKERMAN,* District Judge

                               (Opinion Filed: November 25, 2002)
                                         ____________

                                           OPINION
                                         ____________




BARRY, Circuit Judge



   *
   The Honorable Harold A. Ackerman, United States District Judge for the District of
New Jersey, sitting by designation.
        Appellant Tonya Johnson filed a petition pursuant to Chapter 7 of the United States

Bankruptcy Code on January 12, 2001. Twelve days later, on January 24, Johnson applied

to appellee Housing Authority of the City of Pittsburgh (“HACP” or “the Housing

Authority”) for public housing. On February 16, HACP rejected her application because

she owed HACP rent from her public housing tenancy six years earlier. In response,

Johnson filed a motion for contempt against HACP in the United States Bankruptcy Court

for the Western District of Pennsylvania, claiming that HACP’s denial of her public

housing application because she owed back rent violated the Bankruptcy Code. She sought,

as well, an order requiring the immediate approval of her housing application, damages, and

attorneys’ fees.

        In an Order dated May 16, 2001, the Bankruptcy Court held that HACP’s denial of

Johnson’s application on the basis of her debt for past rent violated 11 U.S.C. § 525(a),

which prohibits, inter alia, government discrimination against a debtor on the basis of

unpaid dischargeable debts, and also violated the automatic stay granted by 11 U.S.C. §

362(a). The Bankruptcy Court ordered that HACP immediately accept Johnson’s

application for public housing retroactive to the date of Johnson’s original application, but

expressly declined to hold HACP in contempt. The Bankruptcy Court then went on to state:

        The preceding holding notwithstanding, the Court also recognizes, and shares
        as well, the concern of the Housing Authority that the potential exists for a
        debtor to file for bankruptcy not with the intent of obtaining a discharge of
        debts but simply so as to obtain public housing assistance. To counter the
        preceding concern, which were it to be realized would constitute an abuse of
        bankruptcy process, the Court rules that the Housing Authority can, without
        fear of violating either the automatic stay or § 525(a), delay acceptance of a

                                                     2
        bankrupt debtor’s public housing application until the conclusion of that
        debtor’s § 341 creditor’s meeting . . . .

Because Johnson’s creditors’ meeting had already been held at the time the May 16 Order

was issued, however, the above-quoted statement had no effect on her case.

        It is that statement, however, which was the sole basis of her appeal to the District

Court and the appeal to this Court. Thus, although HACP granted Johnson’s public housing

application on June 20 in accordance with the Bankruptcy Court’s Order, Johnson appealed

to the District Court on the narrow question of whether the Bankruptcy Court had erred in

stating that the Housing Authority may delay acceptance of “a bankrupt debtor’s” public

housing application until completion of the section 341 creditor’s meeting. In an Order

and Opinion dated December 5, 2001, the District Court found that the only part of the May

16 Order that was appealed by Johnson – the statement – was moot. Surprisingly, the

District Court affirmed the Order of the Bankruptcy Court rather than dismissing the appeal

as moot, and Johnson filed a timely notice of appeal. We will dismiss the appeal.

        We agree with the District Court that Johnson’s appeal to it was moot because she

had obtained the public housing she sought and the resolution of the issue she raised on

appeal could have had no effect on her case or her legal rights. See County of Morris v.

Nationalist Movement, 273 F.3d 527, 533 (3d Cir. 2001) (“[T]he requirement that an action

involve a live case or controversy extends through all phases of litigation, including

appellate review.”). For the same reasons, her appeal to this Court is moot. The only issue

on appeal, both to the District Court and to us, was the Bankruptcy Court’s statement, which


                                                     3
was nothing more than an advisory opinion, concerning the propriety of delaying future

debtors’ housing applications, mere dicta which had no relevance to or effect upon the

already resolved dispute between Johnson and HACP. See McDonald v. Master Fin., Inc.

(In re McDonald), 205 F.3d 606, 608 (3d Cir. 2000) (no appellate jurisdiction exists to

review unauthorized advisory opinion issued by Bankruptcy Court); see also McCord v.

Agard (In re Bean), 252 F.3d 113, 118 (2d Cir. 2001). Stated somewhat differently, the

“onerous restriction” Johnson seems to believe the Bankruptcy Court “put in place” for the

future has no force and effect because it was not essential to the resolution of the issues

before it and was not even before that Court for adjudication.

        We will dismiss the appeal.




TO THE CLERK OF THE COURT:

        Kindly file the foregoing Opinion.

                                                             /s/ Maryanne Trump Barry
                                                          Circuit Judge




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