Benn v. First Judicial Dist. of Pa.

Citation426 F.3d 233
Decision Date12 October 2005
Docket NumberNo. 01-4012.,No. 01-3769.,01-3769.,01-4012.
PartiesDonald BENN, Appellant v. FIRST JUDICIAL DISTRICT OF PENNSYLVANIA; City of Philadelphia; Board of Pensions and Retirement Muncipal Pension Fund of the City of Philadelphia.
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Ross Begelman, Begelman & Orlow, Cherry Hill, NJ, for Appellant.

David M. Donaldson, Administrative Office of Pennsylvania Courts, Philadelphia, PA, for Appellee.

Before: SLOVITER, BARRY and SMITH, Circuit Judges.

OPINION OF THE COURT

SLOVITER, Circuit Judge.

Plaintiff Donald Benn, who had been a probation and parole officer for the First Judicial District of Pennsylvania ("Judicial District"),1 brought suit against his former employer alleging violations of Title I of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. The District Court, by order dated September 6, 2001, granted summary judgment to the Judicial District. The District Court held that the Judicial District is a state agency and therefore is entitled to Eleventh Amendment immunity, a holding Benn vehemently opposes. The Judicial District states that "[t]he present case is an opportunity for this Court to finally issue a published precedent which holds that state courts have Eleventh Amendment immunity, in order to guide district courts and to quell repeated and unnecessary litigation of this issue." Appellee's Br. at 8.

We will proceed to consider that issue. Before we do so we must consider the Judicial District's contention that Benn's appeal was untimely.

I. FACTS

Benn was employed by the Judicial District as a probation and parole officer from 1977 until 1997. Throughout most of that period he was engaged in clerical and administrative tasks. In 1996, he was transferred to work in the Enforcement Unit and was appointed a Special Deputy by the United States Marshals Office. It is apparent from the record that Benn was not pleased by the transfer. As his brief recites, in the new position he had to wear a firearm and a bullet-proof vest, use handcuffs, and locate and apprehend dangerous criminals. In his complaint, Benn alleges that "he was not mentally suited for this position" and, shortly after his transfer, began experiencing job-related anxiety and stress. App. at 19. He allegedly suffered post-traumatic shock after seeing a coworker assaulted. In October 1996, he was accidentally struck by a car after seeing a probation violator on the street. He took leave from work for the next eight months, citing physical injuries from the accident, post-traumatic shock disorder, and chronic depression. Benn alleges that the Judicial District refused to offer any accommodation for his stress disorder, and that he was wrongfully terminated.

Benn filed a formal charge with the EEOC and received a right to sue letter on August 20, 1998. He filed suit in United States District Court for the Eastern District of Pennsylvania on October 29, 1998, claiming not only discrimination and retaliation in violation of the ADA but also violations of state law by the Judicial District, the City of Philadelphia, and the Board of Pensions and Retirement Municipal Pension Fund of the City of Philadelphia ("Board of Pensions").2 After some activity in the District Court, the Judicial District filed a motion for summary judgment on September 27, 1999 on the ground of its entitlement to Eleventh Amendment immunity. That motion was granted by order of the District Court dated September 6, 2001 and entered on the docket on September 10, 2001.

II. THE JURISDICTION ISSUE

On the same day that the District Court entered the summary judgment order, September 10, 2001, it also entered an order dismissing without prejudice defendant Board of Pensions and defendant City of Philadelphia. It is the coincidence of two orders on the same day in the same case that gives rise to the Judicial District's argument that we lack jurisdiction to consider the case because Benn did not file a proper, timely notice of appeal.

Rule 3 of the Federal Rules of Appellate Procedure requires that a notice of appeal "designate the judgment, order, or part thereof being appealed." Fed. R.App. P. 3(c)(1)(B). Rule 4 requires that the notice be filed "within 30 days after the judgment or order appealed from is entered." Fed. R.App. P. 4(a)(1)(A).

Benn filed a notice of appeal dated October 4, 2001 that reads, in full:

Notice is hereby given that Plaintiff Donald Benn by and through his undersigned counsel hereby appeals to the United States Court of Appeals for the Third Circuit from the Order of the Honorable Eduardo C. Robreno, entered in the above captioned proceeding on the 6th day of September, 2001.

Pl.'s Notice of Appeal (emphasis added).

When Benn filed the October 4 Notice, which was admittedly timely, he mistakenly attached a copy of the order dismissing the claims against the Board of Pensions and the City of Philadelphia, rather than a copy of the order entering summary judgment in favor of the Judicial District. When Benn recognized his mistake, he filed another notice of appeal dated October 22 which was intended to clarify that "[i]t was [his] intention to appeal the Order of September 6, 2001, issued regarding the [Judicial District]." Pl.'s Amended Notice of Appeal (emphasis added). If we regard the October 22, 2001 Notice of Appeal as the operative notice, the Judicial District would be correct that the appeal was untimely because filed outside the 30-day period prescribed by Rule 4.

Compliance with the Rules of Appellate Procedure for proper filing of a notice of appeal is "mandatory and jurisdictional." Lusardi v. Xerox Corp., 975 F.2d 964, 970 n. 7 (3d Cir.1992). A court may not waive the jurisdictional requirements of Rules 3 and 4, even for "good cause shown" under Rule 2. Torres v. Oakland Scavenger Co., 487 U.S. 312, 317, 108 S.Ct. 2405, 101 L.Ed.2d 285 (1988). Benn argues that, because the Rules do not require an attachment of the order that is the subject of the appeal, we may and should disregard the copy of the incorrect order that he attached to the October 4 Notice. We approach the issue somewhat differently.

In Shea v. Smith, 966 F.2d 127, 129 (3d Cir.1992), this court stated that we "liberally construe the requirements of Rule 3." Moreover, the Supreme Court has stated that even if a notice does not meet the letter of Rule 3, there is appellate jurisdiction if the appellant has filed a "functional equivalent" of a proper notice. Torres, 487 U.S. at 316-17, 108 S.Ct. 2405; see also Shea, 966 F.2d at 130.

Although we have not previously been presented with a case precisely like this one, where the ambiguity in the notice of appeal arises from the District Court's issuance of two orders on the same day, we have sustained our jurisdiction in cases where the appellant's notice of appeal implicated two different orders in the same action and failed to specify the correct order appealed. See, e.g., Shea, 966 F.2d 127 (involving notice of appeal specifying order granting summary judgment in favor of two defendants, when appeal was actually also intended from prior order granting summary judgment in favor of a third defendant); CTC Imports & Exports v. Nigerian Petroleum Corp., 951 F.2d 573 (3d Cir.1991) (involving notice of appeal specifying order granting summary judgment in favor of another party in the case, when appeal was actually intended from prior order imposing sanctions on appellant); Gooding v. Warner-Lambert Co., 744 F.2d 354 (3d Cir.1984) (involving notice of appeal specifying order granting summary judgment on one claim, when appeal was actually also intended from prior order dismissing another claim in the case). For all intents and purposes, the defect in Benn's October 4 Notice was a failure to specify the correct order that was being appealed.

We have held that a notice may be construed as bringing up an unspecified order for review if it appears from the notice of appeal itself and the subsequent proceedings on appeal that the appeal was intended to have been taken from the unspecified judgment, order, or part thereof. See Elfman Motors, Inc. v. Chrysler Corp., 567 F.2d 1252, 1254 (3d Cir.1977) (citing Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)). To determine whether appellate jurisdiction vests over an order that is not specified in the notice of appeal, we consider in particular whether there is a connection between the specified and unspecified orders, whether the intention to appeal the unspecified order is apparent, whether the opposing party was prejudiced by the appellant's failure to specify the correct order, and whether the opposing party has had a full opportunity to brief the issues. Shea, 966 F.2d at 129 (citing Williams v. Guzzardi, 875 F.2d 46, 49 (3d Cir.1989)).

In Benn's case, treating the order attached to the complaint as the specified order and the order Benn sought to appeal as the unspecified order, it is apparent that both orders were connected in that they were dispositive of the same case and issued on the same day, albeit as to different parties. The Judicial District had notice of Benn's intention to appeal the grant of summary judgment in a telephone conference held with the District Court on September 6, 2001, the day on which the relevant orders were issued. Indeed, the Judicial District does not dispute that it had notice of Benn's intention to appeal the grant of summary judgment, nor does it argue that it was in any way prejudiced by the defective October 4 Notice. Nor could it so argue realistically, as Benn's mistake was caught and corrected in time to afford the Judicial District a full and fair opportunity to brief the issues, including the adequacy of the notice, which it has done. The October 4 Notice of Appeal, albeit imperfect, constitutes the "functional equivalent" of a proper notice, and...

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