Adapt of Philadelphia v. Philadelphia Housing, 04-4502.

• Decision Date: 09 January 2006
• Docket Number: No. 04-4734.,No. 05-2079.,No. 04-4502.,No. 05-1727.,No. 05-2080.,No. 05-1692.,04-4502.,05-1727.,04-4734.,05-2079.,05-1692.,05-2080.
• Citation: 433 F.3d 353
• Parties: ADAPT OF PHILADELPHIA, Liberty Resources, Inc., Marie Watson, Marshall Watson, and Diane Hughes, v. PHILADELPHIA HOUSING AUTHORITY, Carl Greene, in his official capacity as the Executive Director of the Philadelphia Housing Authority, Appellants and Resident Advisory Board, Inc. (Intervenor in D.C.) Appellant.
• Court: U.S. Court of Appeals — Third Circuit

433 F.3d 353

ADAPT OF PHILADELPHIA, Liberty Resources, Inc., Marie Watson, Marshall Watson, and Diane Hughes, v. PHILADELPHIA HOUSING AUTHORITY, Carl Greene, in his official capacity as the Executive Director of the Philadelphia Housing Authority, Appellants and Resident Advisory Board, Inc. (Intervenor in D.C.) Appellant.

No. 04-4502.

No. 05-1727.

No. 04-4734.

No. 05-2079.

No. 05-1692.

No. 05-2080.

United States Court of Appeals, Third Circuit.

Argued November 7, 2005.

January 9, 2006.

Brian P. Flaherty, (Argued), Abbe F. Fletman, Andrew C. Curley, Wolf Block Schorr & Solis-Cohen LLP, Philadelphia, PA, 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, (Argued), Kolber & Freiman, Philadelphia, PA, for Appellant Resident Advisory Board.

Stephen F. Gold, (Argued), Philadelphia, PA, David A. Kahne, Houston, TX, for Appellees ADAPT of Philadelphia and Liberty Resources, Inc.

Before ROTH, FUENTES, and GARTH, Circuit Judges.

OPINION OF THE COURT

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 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 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 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 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, 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.

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 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...