                                                                                                                           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Precedential or Non-Precedential: Precedential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.
