2006 Decisions

Opinions of the United

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Precedential or Non-Precedential: Precedential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
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__________

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
-3-

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
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. 

-5-

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
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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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
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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,
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. 

-8-

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. 
-9-

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
-10-

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
-12-

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
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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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
-14-

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
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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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
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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
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.” 

8Adapt 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)). 

-17-

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
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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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
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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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.
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.

-20-

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
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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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
-22-

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
-23-

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
-24-

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
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. 

-25-

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
-26-

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. 
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.

-27-

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