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.
417 F.3d 390
Before: NYGAARD, SMITH, and FISHER, Circuit Judges.
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.
OPINION OF THE COURT
NYGAARD, Circuit Judge.
1 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.
2 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).
3 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
4 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.
5 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
6 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.
7 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.
9 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.
10 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.
11 We have jurisdiction to review only those orders of the district courts that are considered “final.” See
12 At a minimum, these appeals fail to satisfy the “completely separate prong” of the collateral order test. The appeals now before us—as well as several others filed by PHA pending in this Court but not yet before us—all exist in the context of an ongoing proceeding in the District Court. The parties do not dispute that the subject matter of that ongoing proceeding is PHA‘s compliance with, and the District Court‘s enforcement of, the Settlement Agreement. More specifically, from our dialogue with counsel at oral argument, it appears that one issue to be resolved is whether PHA completed the disputed units by the December 31, 2003 deadline set forth in Paragraph B. Through its challenged motions, ADAPT sought evidence to determine whether PHA complied with this requirement and with the Agreement in general. Thus, the District Court‘s orders granting ADAPT‘s motions did not resolve an issue “completely separate from the merits of the dispute.” On the contrary, they resolved a discovery dispute, intertwined with the merits of an underlying action. It is well-established that unless a party is seeking to prevent the disclosure of information on the basis of trade secrets or some traditionally-recognized privilege such as attorney-client or work product, the collateral order doctrine does not permit appeal from discovery orders. Powell v. Ridge, 247 F.3d 520, 524 (3d Cir. 2001) (citing Bacher v. Allstate Ins. Co., 211 F.3d 52, 57 (3d Cir. 2000)). Even if PHA or RAB could assert some traditionally-recognized privilege, neither could seek interlocutory appeal on the basis that immediate review is necessary to prevent disclosure. Disclosure has already occurred. We therefore hold that the second prong of the collateral order test has not been satisfied.
13 Nor has the third prong been met. An appeal satisfies the unreviewability prong of the collateral order doctrine when “failure to review immediately may well cause significant harm.” In re Diet Drugs Prods. Liability Litig., 401 F.3d 143, 159 (3d Cir. 2005). The failure to consider these appeals now would not cause any significant harm beyond that which occurred when PHA disclosed the disputed information. Nor would reviewing the orders now “unscramble the egg scrambled by [PHA‘s] disclosure.” See In re Ford Motor Co., 110 F.3d 954, 963 (3d Cir. 1997). To the extent PHA has suffered as a result of being compelled to make the disclosures, review now would not prevent that suffering. To the extent, as Intervenor RAB contends, the residents of the accessible units have had their privacy rights violated, review now would not forestall that invasion. Any harms allegedly caused by the challenged orders have already occurred. The proverbial cat is out of the bag. Deferring review until a final decision is reached by the District Court would not cause additional harm.
14 Moreover, any harm that has already occurred would be reviewable when a final order is issued. As counsel for PHA conceded at oral argument, at some point in this saga there will be a final decision by the District Court, which will determine whether they have complied with the Agreement. When that occurs, there is no reason why PHA would necessarily be precluded from challenging whether it should have been required to disclose the disputed information. The orders are not “effectively unreviewable” on appeal from the District Court‘s forthcoming final order and the third prong of the collateral order doctrine has, likewise not been met.
15 The collateral order doctrine does not provide an exception to the finality rule here as a basis for appellate jurisdiction.
B.
16 We also reject as meritless PHA‘s alternative argument that appellate jurisdiction lies under
III.
17 PHA‘s contention that we have appellate jurisdiction over its appeals is wholly without merit. Indeed, these appeals are stark examples of why Congress, through