ADAPT v. Phila Housing Auth

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit

1-9-2006

ADAPT v. Phila Housing Auth
Precedential or Non-Precedential: Precedential

Docket No. 04-4502

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 PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________

Nos. 04-4502, 04-4734, 05-1692, 05-1727, 05-2079, 05-2080
__________

ADAPT OF PHILADELPHIA, LIBERTY RESOURCES,
INC., MARIE WATSON, MARSHALL WATSON, and
DIANE HUGHES

vs.

PHILADELPHIA HOUSING AUTHORITY, CARL
GREENE, in his official capacity as the Executive Director of
the Philadelphia Housing Authority,
Appellants Nos. 04-4734, 05-1727, 05-2080

and

RESIDENT ADVISORY BOARD, INC. (Intervenor in D.C.)
Appellant Nos. 04-4502, 05-1692, 05-2079

_________

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
District Court No. 98-cv-04609
District Judge: Honorable Harvey Bartle, III
 __________

Argued: November 7, 2005
___________

Before: ROTH, FUENTES, and GARTH, Circuit Judges

(Filed: January 9, 2006)

__________

OPINION OF THE COURT
__________

Brian P. Flaherty, Esquire (Argued)
Abbe F. Fletman, Esquire
Andrew C. Curley, Esquire
WOLF BLOCK SCHORR & SOLIS-COHEN LLP
1650 Arch Street, 22nd Floor
Philadelphia, PA 19103

Attorneys for Appellants Philadelphia Housing Authority
and Carl R. Greene, in his official capacity as the Executive
Director
of the Philadelphia Housing Authority

Arlene O. Freiman, Esquire (Argued)
KOLBER & FREIMAN
1530 Chestnut Street, Suite 604

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Philadelphia, PA 19102

Attorney for Appellant Resident Advisory Board

Stephen F. Gold, Esquire (Argued)
125 South 9th Street, Suite 700
Philadelphia, PA 19107

David A. Kahne, Esquire
2711 Main Street, Suite 105
P.O. Box 66386
Houston, TX 77266

Attorneys for Appellees ADAPT of Philadelphia
and Liberty Resources, Inc.

GARTH, Circuit Judge.

These six consolidated appeals seek our review of certain
discovery orders entered by the District Court during the course
of litigation involving the statutory obligation of the
Pennsylvania Housing Authority (“PHA”) to furnish housing for
disabled tenants. Pursuant to the terms of a Settlement
Agreement and Release (the “Agreement”), which purportedly
resolved the litigation, PHA was obliged to construct a number
of public housing units with accessibility features for the
mobility impaired and to lease these units to the appropriate
persons having the requisite disability.

The discovery orders, entered in connection with motions

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to enforce the Agreement, compelled PHA to disclose medical
history information of tenants occupying the public housing
units designed for persons with mobility impairments.
Disability advocacy groups, identified below, sought medical
information as to each tenant to confirm that PHA had complied
with the terms of the Agreement. PHA resisted furnishing this
information based on the terms of the Agreement and the
privacy interests of the affected tenants.

Unable to resolve these discovery matters amicably, the
parties filed various discovery motions with the District Court,
seeking either to compel or to prevent discovery. In three
separate orders, the District Court, after weighing the factors set
out in United States v. Westinghouse Elec. Corp., 638 F.2d 570
(3d Cir. 1980), essentially required PHA to divulge and turn
over the requested medical information, in both redacted and
unredacted form, but under seal and in accordance with specific
confidentiality terms. Appeals were filed after the entry of each
order.

Thereafter, on August 29, 2005, the District Court
entered its final order denying all motions to enforce the
Agreement. No appeal has been taken from this final order.

The threshold question we must answer is whether entry
of final judgment – the District Court’s August 29, 2005 order
– now provides appellate jurisdiction over these otherwise
premature appeals from interlocutory discovery orders.
Concluding that the orders from which the instant appeals were
taken are not final and appealable orders, notwithstanding the
subsequent entry of final judgment, we dismiss the appeals for

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want of appellate jurisdiction.

I.

A.

ADAPT of Philadelphia, Liberty Resources, Inc., and
several individuals (collectively, “ADAPT”) commenced this
action against the Philadelphia Housing Authority and its
executive director Carl Greene (collectively, “PHA”), alleging
that PHA had not made available a sufficient number of
subsidized accessible housing units for persons with mobility
impairments, in violation of § 504 of the Rehabilitation Act of
1973, 29 U.S.C. § 794, and the implementing regulations
thereunder.1 ADAPT prevailed after a bench trial in the United
States District Court for the Eastern District of Pennsylvania.
PHA appealed, but before this Court heard the matter, the
parties entered into the Agreement, thereby resolving all
outstanding issues in the litigation. The District Court approved
the Agreement on May 20, 2002, retaining jurisdiction to
enforce the terms of the Agreement.

Paragraph B of the Agreement required PHA to “create
248 accessible public housing rental units,” with 124 to be ready

1
Liberty Resources, Inc. is a federally funded social
service and advocacy non-profit corporation that is mandated,
pursuant to the Rehabilitation Act of 1973, 29 U.S.C. § 796f-4,
to provide services and ‘systems advocacy’ for people with
disabilities. ADAPT of Philadelphia is an organization that
advocates on behalf of individuals with disabilities.

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for occupancy no later than December 31, 2003 and the
remaining units to be ready for occupancy no later than
December 31, 2005. These units were required “in addition to
units PHA is otherwise required to make accessible in
accordance with 24 C.F.R. Part 8 (including its 5% accessibility
requirements).”2

Paragraph C of the Agreement required PHA 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.” Section 8.27 requires owners or managers of
multifamily housing projects to inform eligible individuals of
the availability of accessible units and to give priority to
disabled applicants. See 28 C.F.R. § 8.27.

Paragraph P of the Agreement, entitled “Reporting and
Monitoring,” required PHA to quarterly “provide [ADAPT]
with a report . . . regarding the implementation and status of
Paragraph B, Accessible Units.” The Agreement also granted
both PHA and ADAPT the right to seek judicial relief by motion
to the District Court in the event of a dispute over enforcement

2
Department of Housing and Urban Development
regulations require a housing authority to make five percent of
its newly constructed or substantially altered housing units
accessible to individuals with mobility impairments. See 24
C.F.R. §§ 8.22-8.23. In this action, ADAPT sought construction
of accessible housing units in excess of the five percent
accessibility requirement.

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of the Agreement.

After the December 31, 2003 deadline had passed,
ADAPT sought confirmation from PHA that the first group of
accessible units had been made available in accordance with the
Agreement. To this end, ADAPT first sought discovery of the
addresses of the accessible units which PHA claimed fulfilled its
obligations under Paragraph B of the Agreement. After
successfully obtaining the relevant addresses, ADAPT visited a
number of these units and determined that several units
identified as “accessible” had not been leased to tenants who
required the various accessibility features. As a result, ADAPT
filed a motion to enforce the Agreement, alleging that while
PHA had created the accessible housing units consistent with the
terms of the Agreement, it nonetheless violated Paragraph C of
the Agreement by failing to lease a significant number of the
units to tenants with mobility impairments.

In connection with its motion to enforce, ADAPT filed a
series of additional motions, seeking to obtain in discovery the
medical verifications of the tenants residing in those units.
During these discovery disputes, Resident Advisory Board, Inc.
(“RAB”), a non-profit organization advocating on behalf of
residents of tax-subsidized housing, intervened in the action,
aiming to protect the privacy interests of the affected tenants.

As we discuss below, the District Court issued five
discovery orders during the course of the settlement
enforcement proceeding, dated as follows: (1) May 10, 2004, (2)
September 3, 2004, (3) November 24, 2004, (4) February 10,

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2005, and (5) March 15, 2005.3 PHA complied with all orders
and produced all documents and information. PHA and RAB
have filed nine separate appeals from the five discovery orders.
Three of those appeals, taken from the May 10, 2004 and
September 3, 2004 orders, have already been dismissed for want
of appellate jurisdiction.4 See Adapt of Philadelphia v.
Philadelphia Hous. Auth., 417 F.3d 390 (3d Cir. 2005) (“Adapt
I”) (holding that the orders were not final and appealable
orders). Thus, six appeals remain pending, and it is those
appeals which invoke our jurisdiction here.

In order to determine our jurisdiction over the instant
appeals, it is necessary to describe the contents and rulings of
the District Court’s orders which gave rise to each appeal. In
addition, to put the present appeals in the appropriate
jurisdictional perspective, we are obliged to visit once again the
three appeals (arising from the May 10, 2004 and September 3,
2004 orders) which had been dismissed earlier by a separate
panel of this court for lack of appellate jurisdiction.

3
The District Court also entered a sixth order on June 3,
2005, which denied RAB’s motion to seal the courtroom. RAB
has appealed from that order, but that appeal – No. 05-2954 –
has been stayed pending resolution of the instant appeals.
Inasmuch as that appeal is not before us for decision, and is not
a discovery order, we do not address it in this opinion.
4
The three dismissed appeals – 04-2595 (PHA), 04-3651
(PHA) and 04-3686 (RAB) – largely concerned the disclosure
of the addresses of the accessible units, and the privacy rights of
the tenants.

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 B.

The May 10, 2004 Order

On January 29, 2004, PHA notified ADAPT that it had
met the December 31, 2003 deadline under Paragraph B of the
Agreement. PHA, however, did not provide the addresses of the
accessible units which it claimed fulfilled its obligations under
that Paragraph. When ADAPT sought those addresses in order
to verify compliance with the Agreement, PHA refused.
ADAPT thereupon filed a discovery motion, styled as a “motion
to compel” disclosure of the addresses in the District Court.
PHA opposed the discovery motion, arguing that the Agreement
did not require identification of addresses.

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 created in accordance with the
terms of the Agreement. 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 accessibility features.” PHA moved for reconsideration
and a stay in the District Court, both of which were denied.

ADAPT’s counsel thereafter visited a number of these
units, seeking to ascertain whether or not the units were
occupied by tenants with mobility impairments. As stated in
two declarations submitted by ADAPT in connection with its
motion to enforce the Agreement, ADAPT’s counsel “looked in
windows” and “spoke to neighbors” to verify these facts. As a
result of this assessment, ADAPT filed its motion to enforce the

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Agreement, arguing that a number of units identified as
accessible had not been leased to households with occupants
who required the accessibility features. ADAPT sought
declaratory and injunctive relief.

Meanwhile, PHA did not seek a stay with this Court, but
instead complied with the May 10, 2004 order and filed an
appeal. As stated, that appeal – No. 04-2595 – was dismissed on
jurisdictional grounds in Adapt I. See Adapt I, 417 F.3d at 396.

The September 3, 2004 Order

PHA’s opposition to ADAPT’s first motion to compel
disclosure of the addresses was a harbinger of things to come.
ADAPT filed two more “motions to compel” in the District
Court based on PHA’s alleged failure to comply with its
obligations under Paragraph B of the Agreement. In the first of
those motions, ADAPT sought the street addresses of each
accessible residence created pursuant to Paragraph B at the
Mount Olivet and Suffolk Manor public housing projects. In
2003, after the parties had entered into the Agreement, PHA
asked for ADAPT’s consent to substitute units at Mount Olivet
and Suffolk Manor for units that PHA had previously identified
and agreed to. ADAPT agreed to these substitutions, which
formed the basis of its motion to compel.

In its second motion, 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. See supra note 2. Because PHA agreed under
the Agreement to construct 248 accessible units in excess of its

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statutory obligations under the five percent accessibility
requirement, ADAPT sought confirmation that these statutorily
required units had in fact been made available.

In response, PHA filed a motion to enforce the
Agreement, or, in the alternative, to vacate the Agreement.
PHA argued that ADAPT, in demanding individualized
oversight of PHA’s tenant decisions, was seeking to impose
terms that PHA had refused to furnish through negotiations
leading to the Agreement. According to PHA, it was required
to produce no more information than that required by Paragraph
P of the Agreement, which, as previously noted, required PHA
to report quarterly “regarding the implementation and status of
Paragraph B Accessible Units.” Additionally, PHA argued that
ADAPT, in demanding information respecting the units
constructed in accordance with 24 C.F.R. Part 8 (the 5%
accessibility requirement), was seeking relief outside the scope
of the Agreement, which did not concern nor involve 24 C.F.R.
Part 8.

Sometime thereafter, RAB intervened, claiming that the
requested disclosures would violate the privacy rights of the
residents living in the subject units. The District Court,
however, granted both of ADAPT’s motions on September 3,
2004. After unsuccessfully seeking a stay in the District Court,
PHA complied with the order, turning over the relevant
information.

PHA then appealed, arguing that the ordered disclosures
were beyond the scope of the Agreement. RAB separately
appealed, arguing that the ordered disclosures violated the

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tenants’ privacy rights. Together with the appeal from the May
10, 2004 order (No. 04-2595), both appeals – No. 04-3651
(PHA) and No. 04-3686 (RAB) – were dismissed on
jurisdictional grounds in Adapt I. See Adapt I, 417 F.3d at 396.

The remaining three discovery orders – the District
Court’s orders dated November 24, 2004, February 10, 2005,
and March 15, 2005, which are the focus of the instant
consolidated six appeals – concern certain medical information
about the tenants of the accessible public housing units. We
describe those orders below.

The November 24, 2004 Order

ADAPT next sought discovery from PHA concerning the
medical and physical conditions of the disabled occupants of the
units constructed for the mobility impaired in accordance with
the Agreement. In particular, ADAPT requested copies of the
verifications of mobility impairment relied upon by PHA in
making tenant placements for the accessible housing units. To
this end, ADAPT served certain interrogatories and requests for
production of documents on PHA. In response, PHA served
timely objections and moved for a protective order. RAB also
moved the District Court for a protective order, contending that
the disclosure sought by ADAPT violated the privacy rights of
the affected tenants. ADAPT then moved to compel PHA to
answer the interrogatories and produce the requested documents.

As noted above, PHA requires verifications of mobility
impairment, which are usually completed by physicians, before
accepting tenants for accessible housing units. The verification

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form consists of a series of “yes” or “no” questions asking
whether the individual seeking public housing requires certain
accessibility features for the mobility impaired – i.e., wider
doors, lowered sinks and counter tops, and grab bars. Question
No. 5 of the verification form also asks the physician or
reporting individual the following:

Please provide further information that would assist us to
determine the accessible housing features and/or
accommodations in housing required by the applicant
(i.e., features to accommodate devices and equipment
used by the applicant, particular needs not addressed by
the features listed above, etc.). We do not require details
or information about the nature or extent of the disability.

On November 24, 2004, the District Court granted in part
and denied in part RAB’s motion for a protective order.5 The
District Court ordered PHA to produce the medical verifications
for the residents of each of the units in question. The District
Court also ordered that the “verifications produced shall have
the residents’ names redacted and shall be identifiable by the
resident’s [sic] initials, unit address, and date residency
commenced.” As an additional privacy protection, the District
Court ordered that “counsel for plaintiffs . . . shall not disclose
the information contained in the medical verifications to anyone
other than their outside experts, who must agree in advance and
in writing to keep the information in confidence pending further

5
The District Court also denied PHA’s motion for a
protective order in a separate ruling on November 3, 2004. That
ruling is not before us.

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order of the court.”

In compliance with the District Court’s order, PHA
produced the redacted medical information. PHA (No. 04-4734)
and RAB (No. 04-4502) appealed.

The February 10, 2005 Order

Based on the redacted verifications produced pursuant to
the November 24, 2004 order, ADAPT determined that 59
residents did not “require the accessibility features” of the
particular units. Accordingly, ADAPT filed a motion to compel
further disclosures limited to these 59 units. Specifically,
ADAPT moved the District Court to compel PHA to produce
unredacted copies of the same verifications.

On February 10, 2005, the District Court ordered PHA to
produce the medical verifications for 59 of the 149 units subject
to the November 24, 2004 order with only the residents’ names
redacted – the answers to Question 5 (requiring accessibility
features) for the 59 residents “otherwise shall not be redacted.”
The District Court again required the verifications to be filed
under seal and in accordance with the same confidentiality
terms.

In compliance with the court order, PHA produced the
unredacted verifications. PHA (No. 05-1727) and RAB (05-
1692) then appealed.

The March 15, 2005 Order

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 In its March 15, 2005 order, the District Court ordered
PHA to produce the unredacted documents for five additional
units, as well as a chart drawn up by PHA’s expert witness. As
in the previous discovery orders, the names of the residents were
redacted and disclosure was limited to ADAPT’s counsel and
experts. PHA (No. 05-2080) and RAB (05-2079) appealed.

C.

The August 29, 2005 Order (Denying Enforcement of the
Agreement)

On August 29, 2005, after all the foregoing nine appeals
had been filed and after the three appeals in Adapt I had been
dismissed, the District Court entered its final judgment denying
all motions to enforce the Agreement. In a thorough opinion,
the District Court examined each of the challenged units6 to
determine whether PHA had violated Paragraph C of the
Agreement, which required rental to disabled tenants. The
District Court considered the following documentation: medical
verifications, statements of personal interviews conducted by
PHA, and personal statements of the residents introduced into
evidence in lieu of their testimony.

In effect, ADAPT had contended that the individuals in
question, while suffering from some physical handicaps, did not
require the use of wheelchairs and thus did not need the

6
By this time, ADAPT had limited its challenge to 36
accessible units, instead of 59 units. Hence, the District Court
analyzed and discussed only those 36 units in its opinion.

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accessibility features of the particular units. The District Court,
refusing to read a wheelchair or similar requirement into the
Agreement and declining to establish a rigid hierarchy among
eligible disabled persons, concluded that PHA, in placing the
individuals in question, had acted reasonably and in conformity
with its obligations under the Agreement. Noting that the
placement of disabled persons in the subject units was not “an
exact science,” the District Court stated that ADAPT’s position
would require the court to “micromanage eligibility decisions
and to act as a ‘super-PHA.’”

Accordingly, the District Court denied ADAPT’s motion
to enforce the Agreement. In doing so, the District Court also
denied PHA’s motion to enforce the Agreement, finding that
ADAPT merely sought to gain information through discovery to
ensure compliance with the Agreement.

II.

As a result of the judgment by this court dismissing the
three earlier appeals, see Adapt I, 417 F.3d at 396, we are left
with the following appeals to review: 04-4734 (PHA), 04-4502
(RAB), 05-1727 (PHA), 05-1692 (RAB), 05-2080 (PHA), and
05-2079 (RAB). All six appeals concern the compelled
disclosure of medical verifications. At issue is whether we have
appellate jurisdiction over these appeals.

With exceptions not relevant here, we may only hear
appeals from final judgments of the district courts. See 28

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U.S.C. § 1291.7 Discovery orders are not final decisions within
the meaning of 28 U.S.C. § 1291. See, e.g., Smith v. BIC Corp.,
869 F.2d 194, 198 (3d Cir. 1989); Cipollone v. Liggett Group,
Inc., 785 F.2d 1108, 1116 (3d Cir. 1986) (“Discovery orders,
being interlocutory, are not normally appealable.”); New York v.
United Metals Refining Co., 771 F.2d 796 (3d Cir.1985). In
certain limited circumstances, however, discovery orders may be
reviewed pursuant to the collateral order doctrine of Cohen v.
Beneficial Industrial Loan Corp., 337 U.S. 541 (1949), which
provides a narrow exception to the general rule permitting
appellate review only of final orders.

PHA initially argued in its appellate brief that appellate
jurisdiction lies under the collateral order doctrine.8 PHA now

7
28 U.S.C. § 1291 provides that “[t]he courts of appeals
. . . shall have jurisdiction of appeals from all final decisions of
the district courts of the United States.”
8
Adapt I rejected PHA’s argument based on the collateral
order doctrine, as do we. See Adapt I, 417 F.3d at 395. PHA
has also argued that appellate jurisdiction lies under 28 U.S.C.
§ 1292(a), which provides jurisdiction over “[i]nterlocutory
orders of the district courts . . . granting, continuing, modifying,
refusing or dissolving injunctions, or refusing to dissolve or
modify injunctions.” We rejected the same argument as
meritless in Adapt I, holding that “[a]n 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).” Id. at 396 (citing Hershey Foods Corp. v. Hershey
Creamery Co., 945 F.2d 1272, 1277 (3d Cir. 1991)).

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argues that with the entry of final judgment – the August 29,
2005 order, we have acquired appellate jurisdiction over these
six consolidated appeals under 28 U.S.C. § 1291. Contending
that entry of the August 29, 2005 order converted the
interlocutory orders from which these premature appeals were
taken into final orders, PHA seeks to distinguish Adapt I from
the instant appeals.

PHA argues that at the time we dismissed the appeals in
Adapt I, no final judgment had yet to be entered by the District
Court. As a result, finality had not attached to the discovery
orders that had been appealed. PHA now claims that, with the
filing of the August 29, 2005 order, any problems of finality
affecting the instant six appeals have been cured. In so arguing,
PHA relies on a number of precedents from our court, including
two decisions in particular: Cape May Greene, Inc. v. Warren,
698 F.2d 179 (3d Cir. 1983), and Lazy Oil Co. v. Witco Corp.,
166 F.3d 581 (3d Cir. 1999). There, we essentially held that the
premature appeals in those cases had become effective upon
entry of final judgment.

ADAPT, on the other hand, argues that we have no
jurisdiction over the six appeals, relying on the Supreme Court’s
decision in FirsTier Mortgage Co. v. Investors Mortgage Ins.
Co., 498 U.S. 269 (1991).9 In that case, the Supreme Court

9
ADAPT also argues that entry of final judgment renders
the instant appeals moot. While mootness presents problems of
a jurisdictional nature, we are more concerned with the
threshold problem of appellate jurisdiction. Accordingly, we
requested the parties to address the basis of our appellate

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construed the specific appellate rule governing premature
appeals – Federal Rule of Appellate Procedure 4(a)(2) – and
held, in unequivocal terms, “that Rule 4(a)(2) [does not]
permit[] a notice of appeal from a clearly interlocutory
decision--such as a discovery ruling or a sanction order under
Rule 11 of the Federal Rules of Civil Procedure--to serve as a
notice of appeal from the final judgment.” See FirsTier, 498
U.S. at 276 (emphasis added). ADAPT contends that under
FirsTier, the instant appeals suffer from the same problems of
finality as the three appeals dismissed in Adapt I.

These six appeals now require us to determine whether
discovery orders and other similar interlocutory orders, if
followed by entry of final judgment, qualify as premature
appeals that may ripen upon entry of judgment.10 We hold that
they do not. Accordingly, we are without jurisdiction to reach
the merits of the appeals. See Firestone Tire & Rubber Co. v.

jurisdiction, with particular emphasis on the Supreme Court’s
decision in FirsTier Mortgage Co. v. Investors Mortgage Ins.
Co., 498 U.S. 269 (1991). The parties submitted supplemental
briefs after oral argument.
10
Although the parties did not address the impact of the
Supreme Court’s decision in FirsTier upon our jurisdictional
analysis, we raised the issue sua sponte, having the inherent
obligation to satisfy ourselves that appellate jurisdiction attaches
to the instant appeals. See Collinsgru v. Palmyra Bd. of Educ.,
161 F.3d 225, 229 (3d Cir. 1998). We have plenary review to
determine our jurisdiction. See In re: Diet Drugs Products Liab.
Litig. 401 F.3d 143, 152 (3d Cir. 2005).

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Risjord, 449 U.S. 368, 379 (1981).

III.

A.

Our decision in Cape May Greene, Inc. v. Warren, 698
F.2d 179 (3d Cir. 1983), provides the analytical point of
departure for examining the appealability of the six instant
appeals. In Cape May Greene, this court held that a premature
notice of appeal, filed after disposition of some of the claims
before a district court, but before entry of final judgment, will
ripen upon the court’s disposal of the remaining claims. See id.
at 184-85. There, the district court granted summary judgment
against the plaintiff and in favor of the defendants. The plaintiff
thereupon filed a notice of appeal from the district court’s order
granting summary judgment. However, the defendants had filed
a cross-claim, which had not been adjudicated at the time the
notice of appeal was filed. As a result, the judgment of the
district court was not final. See Fed. R. Civ. P. 54(b).11 This
court upheld its jurisdiction to review the grant of summary
judgment against the plaintiff. It did so because the cross-claim,
although not disposed of before the notice of appeal was filed,
was adjudicated after the notice of appeal was filed, thereby
achieving finality as to all claims. Id. at 184.

The so-called Cape May Greene rule – and its expansive

11
Absent certification by the district court, Federal Rule
of Civil Procedure 54(b) requires disposition of all claims and
parties in order for finality to attach.

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view of appellate jurisdiction – has been reaffirmed by this court
on multiple occasions.12 Some courts of appeals, however, have
not adhered to such a rule. See, e.g., United States v. Hansen,
795 F.2d 35, 37-38 (7th Cir. 1986) (discussing circuit split on
the issue and rejecting Cape May Greene rule).

Still other courts of appeals that have followed a rule
similar to Cape May Greene have restricted finality in premature
cases in light of the Supreme Court’s decision in FirsTier,
which, as discussed below, called into question broader
understandings of when premature appeals may ripen upon entry
of final judgment. See Outlaw v. Airtech Air Conditioning and
Heating, Inc., 412 F.3d 156, 160 (D.C. Cir. 2005) (“We agree
with decisions concluding that those prior lines of precedent
must be limited in light of FirsTier.”); United States v. Cooper,
135 F.3d 960, 963 (5th Cir. 1998) (“[W]e recognize that in light
of FirsTier, this expansive view of appellate jurisdiction cannot
survive”); Serine v. Peterson, 989 F.2d 371, 372 (9th Cir. 1993).

But while other jurisdictions have narrowed their
holdings involving premature appeals in light of FirsTier, we
have declined thus far to do the same, holding that the Cape
May Greene rule has not been overruled by FirsTier. See Lazy
Oil, 166 F.3d at 587. We begin our analysis with Federal Rule

12
See Presinzano v. Hoffman-La Roche, Inc., 726 F.2d
105 (3d Cir. 1984); Dowling v. City of Philadelphia, 855 F.2d
136 (3d Cir. 1988); Lazy Oil Co. v. Witco Corp., 166 F.3d 581
(3d Cir. 1999); General Motors Corp. v. New A.C. Chevrolet,
Inc., 263 F.3d 296 (3d Cir. 2001).

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of Appellate Procedure (“FRAP”) 4(a)(2).

B.

FRAP 4(a)(2), as construed by the Supreme Court,
allows certain qualifying premature appeals to become effective
upon entry of final judgment, thus preserving those appeals
from dismissal for failure to satisfy the jurisdictional
prerequisite of finality. FRAP 4(a)(2) provides that “[a] notice
of appeal filed after the court announces a decision or order--but
before the entry of the judgment or order--is treated as filed on
the date of and after the entry.” In FirsTier, the Supreme Court
held that FRAP 4(a)(2) “permits a notice of appeal from a
nonfinal decision to operate as a notice of appeal from the final
judgment only when a district court announces a decision that
would be appealable if immediately followed by the entry of
judgment.” 498 U.S. at 276.

FirsTier involved a notice of appeal that was filed after
the district judge announced from the bench that he was granting
summary judgment on all claims, but before the court entered
findings of fact and conclusions of law. The Supreme Court
concluded that FRAP 4(a)(2) operated to make the premature
appeal effective after the subsequent entry of final judgment. As
the Court explained, FRAP 4(a)(2) “was intended to protect the
unskilled litigant who files a notice of appeal from a decision
that he reasonably but mistakenly believes to be a final
judgment, while failing to file a notice of appeal from the actual
final judgment.” Id. In such cases, the Court further explained,
“a litigant’s confusion is understandable, and permitting the
notice of appeal to become effective when judgment is entered

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does not catch the appellee by surprise.” Id.

The Court contrasted those situations “from a clearly
interlocutory decision-such as a discovery ruling or a sanction
under Rule 11,” because a “belief that such a decision is a final
judgment would not be reasonable.” Id. Hence, the Court
concluded that “Rule 4(a)(2) [does not] permit[] a notice of
appeal from a clearly interlocutory decision--such as a discovery
ruling or a sanction order under Rule 11 of the Federal Rules of
Civil Procedure--to serve as a notice of appeal from the final
judgment.” Id. (emphasis added). We have held, however, that
there are situations other than those covered by FRAP 4(a)(2)
when a premature notice of appeal will ripen at a later date. See
Lazy Oil, 166 F.3d at 587.

C.

In Lazy Oil, the precedent on which PHA most heavily
relies, we reaffirmed the validity of the Cape May Greene
doctrine, holding that Cape May Greene had not been overruled
by FirsTier. Lazy Oil involved an appeal that had been taken
from an order of the district court approving a class action
settlement and denying various objectors’ motions. However,
in that same order, the district court denied a motion to approve
an allocation plan for the settlement proceeds. Directly after the
order had been entered, objectors filed a notice of appeal. Two
months later, the district court approved a revised allocation

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plan. Final judgment was then entered and the case closed. Id.
at 585.

The question posed in Lazy Oil was “whether a notice of
appeal, filed . . . after a district court’s order approving a class
action settlement but before the court enters a final judgment
approving all aspects (including the allocation) of the
settlement, ripens upon the district court’s entry of final
judgment or is premature and void.” Id. The Lazy Oil court
exercised jurisdiction over the premature notice of appeal,
relying on Cape May Greene and holding that our earlier
precedents, including Cape May Greene, were not overruled by
FirsTier. Id. at 586. The court acknowledged “that Rule 4(a)(2)
does not support the Cape May Greene doctrine when the order
from which a notice of appeal is filed is not one that would be
final if followed immediately by entry of judgment.” Id.
However, the court determined that the Cape May Greene rule
remained viable because FirsTier simply limited the reach of
Rule 4(a)(2)’s proviso. Id. at 587. In this court’s view,
“[FirsTier] did not hold that the Rule 4(a)(2) situation –
announcement of a final decision followed by notice of appeal
and then entry of the judgment – is the only situation in which
a premature notice of appeal will ripen at a later date.” Id.

D.

Conceptually speaking, Lazy Oil construed the Cape May
Greene rule as broader than the limitations established by
FirsTier, thus encompassing more situations than those strictly
controlled by FRAP 4(a)(2). Our cases now hold that premature
appeals may ripen upon entry of final judgment pursuant to two

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distinct jurisdictional doctrines: (1) the Cape May Greene rule
and (2) Federal Rule of Appellate Procedure 4(a)(2).13 FRAP
4(a)(2), as construed in FirsTier, cannot save the present
premature appeals, which have their roots in discovery orders.
See FirsTier, 498 U.S. at 276. That narrows our focus to
whether the present appeals can be saved pursuant to the Cape
May Greene and Lazy Oil doctrine, which makes no distinction
between unalterably interlocutory (discovery) orders and orders
that would be final upon entry of judgment.

Our decision in Lazorko v. Pennsylvania Hosp., 237 F.3d
242 (3d Cir. 2000), is instructive here. In Lazorko, we held that
there was no jurisdiction over an appeal from an award of
sanctions where the district court had yet to quantify the amount
of the sanction before the notice of appeal was filed. Although
the district court subsequently entered its final order on the
sanctions award before we heard the appeal, we held that the
entry of the final order did not cure the premature appeal and
render it timely. In so holding, Lazorko cited to FirsTier; it did
not cite to Cape May Greene or Lazy Oil. Id. at 248.

The present case bears far more similarity to Lazorko

13
Lazy Oil has been criticized for fashioning, without
institutional warrant, an additional doctrine to save premature
notices of appeals that are not saved under the rules, as
construed by the Supreme Court. See Outlaw, 412 F.3d at 160
n.2 (disagreeing with Lazy Oil) (Roberts, J.). But that criticism,
whatever its validity, does not bear upon our decision. Because
we are dealing here with discovery orders, we hold Lazy Oil
inapposite.

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than to Cape May Greene or Lazy Oil. We take pains in
emphasizing that none of the cases following Cape May Greene,
Lazy Oil included, involved discovery or similar interlocutory
orders. See supra note 12. Moreover, as stated in Lazy Oil, the
Cape May Greene rule applies where the refusal to exercise
jurisdiction would elevate a mere technicality above important
substantive issues. See Lazy Oil Co., 166 F.3d at 587. That is
not the situation here. To the contrary, these appeals raise
compelling concerns about piecemeal litigation. As we
explained in Adapt I:

[T]hese appeals [from discovery orders] 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. . . . 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.

Adapt I, 417 F.3d at 396. As such, the assertion of appellate
jurisdiction in the case sub judice would do more than overcome
a mere technicality – it would invite the very piecemeal
litigation discouraged by 28 U.S.C. § 1291.

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 Perhaps more importantly, Lazy Oil noted “that Rule
4(a)(2) does not support the Cape May Greene doctrine when
the order from which a notice of appeal is filed is not one that
would be final if followed immediately by entry of judgment.”
Lazy Oil Co., 166 F.3d at 586. That is the precise situation
presented by these appeals. Therefore, whatever the continued
viability of Lazy Oil may be, see supra note 13, it cannot control
interlocutory orders such as the discovery orders found here or
the sanctions order of the nature found in Lazorko.

IV.

Concluding that the Cape May Greene and Lazy Oil rule
is not applicable to discovery or similar interlocutory orders, we
hold that appeals from discovery orders do not qualify as
premature appeals that may ripen upon entry of final judgment.
Accordingly, the six instant appeals, no different from the
appeals dismissed in Adapt I, must be dismissed for lack of
appellate jurisdiction.14

14
Had a notice of appeal been filed from the August 29,
2005 order, we could have reviewed the various discovery
orders which have been the subject of the instant appeals. As it
is, however, no appeal has been taken from that final order.

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