Adapt of Philadel. v. Philadelphia Housing Auth.

• Decision Date: 08 August 2005
• Docket Number: No. 04-2595.,No. 04-3651.,No. 04-3686.,04-2595.,04-3651.,04-3686.
• Citation: 417 F.3d 390
• Parties: 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.
• Court: U.S. Court of Appeals — Third Circuit

417 F.3d 390

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.

No. 04-2595.

No. 04-3651.

No. 04-3686.

United States Court of Appeals, Third Circuit.

Argued June 29, 2005.

Filed August 8, 2005.

Brian P. Flaherty, Esq. (Argued), Abbe F. Fletman, Esq., Andrew C. Curley, Esq., Wolf Block Schorr & Solis-Cohen, Philadelphia PA, Counsel for Appellants Philadelphia Housing Authority, et al.

Arlene O. Freiman, Esq. (Argued), Kolber & Freiman, Philadelphia, PA, Counsel for Appellant Resident Advisory Board.

Stephen F. Gold, Esq. (Argued), Philadelphia, PA, David A. Kahne, Esq., Houston, TX, Counsel for Appellees.

Before: NYGAARD, SMITH, and FISHER, Circuit Judges.

OPINION OF THE COURT

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.

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 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" 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 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.

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 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, 113 S.Ct. 447, 121 L.Ed.2d 313 (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, 113 S.Ct. 447. According to the Court, taxpayers such as the appellant in the case have "an obvious possessory interest in their records." Id. at 13, 113 S.Ct. 447. That 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, 113 S.Ct. 447. Similarly, although any violation of privacy rights RAB claims has occurred cannot now be prevented, ordering 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, 113 S.Ct. 447. 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 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)...