*1 the context of this appeal, then, our holding
in FOP I inapposite.11
III. regrettable
It is police that the depart-
ment has been confronted with many so
specious arguments in their efforts to deal
with the sequelae of a history recent
corruption within department. As we present record,
view the there nois basis to
further delay process. For the reasons above,
stated we will vacate the decision of court,
the district remand this case and
direct the district court per- dissolve its injunction
manent against questions use of
15, 18-22, and the Philadelphia Department
Police in its Special Investiga-
tions Unit questionnaire. Ques- Except for
tion the Philadelphia Police Department should not further enjoined be from the use questionnaire involved in this
litigation.
UNITED America, STATES of
Cross-appellant in No.
87-1777,
Marcus SPEARS Spears. and Doris E.
Appeal SPEARS, of Doris
No. 87-1735. 87-1735,
Nos. 87-1777.
United States Court of Appeals,
Third Circuit.
Argued July 1988.
Decided Oct.
Moreover,
we note
support
that in FOP I
pua
City
Plainfield,
F.Supp.
applied
statement
that "[t]ests
prerequi-
as a
(D.N.J.1986), a
employees
case in which the
site
employment
for continued
hardly
urinalysis
to submit
or forfeit
voluntary,"
considered
part
relied in
employment.
Ca-
their
OPINION WEIS, Judge. Circuit notice require statutes mortgagor before given to a question on may begin. proceedings agency a federal is whether this those statutes comply in the mortgage acquired foreclosing aon No-third program. a federal loan course affected, interests party commercial compelling reason find so we and deci- rule of as the law incorporate state a district Accordingly, will vacate sion. directing order statutes. the state (now Spears Doris 1981, defendant Marcus Rivera)1 her and husband Doris property deceased) purchased (now Spears Alburtis, Pennsylvania. located by mortgage financed was purchase Spears $43,500 given by the the amount of Administration Home Farmers to the income, modest their (FmHA). Because credit” “interest received Spears FmHA, reducing the subsidy from $130. from $487 monthly payments 1982, but June until made Payments were time. since received been has none marital of a the result July Mr. separated. couple dispute, the moved Rivera York and Ms. to New moved said, to be she Rico, expecting, Puerto inWhile months. or four for three gone treat- Rico, underwent Ms. Rivera Puerto se- and physical ailments various ment a consensual secured She depression. vere in December divorce FmHA wrote October On stating that Rico, “[i]t Puerto Ms. Rivera Lehigh Greenwald, (argued), Jeffrey L. have you our attention has come to Easton, Pa., Inc., Services, Legal Valley ais violation This property. your vacated Spears. Doris and Marcus in- Your agreement_ mortgage your Jr., Atty., Wal- Dennis, and U.S. cancelled been S.G. has also Edward credit terest Atty., Chief advised Jr., was U.S. Batty, She Asst. ter S. increased....” payments Asst. Sheehan, (argued), G. sell the James either Appeals, she could pay the Pa., U.S. for the mortgage Philadelphia, Atty., refinance com- corresponding A full. government Let- Spears. to Mr. mailed munication was SCIRICA, SLOVITER, Before sent also effect same ters WEIS, Judges. Circuit opinion. course divorce, fam- her resumed defendant 1. After to as name, referred bewill ily Rivera. She parties January July provided both must be a list' of consumer credit Rico agencies Ms. Rivera left Puerto counseling be notified daughter’s moved to her residence Allen- right to apply for financial assistance from town, Pennsylvania. the state’s Emergency Homeowner Mort *3 gage Program. 16, 1984,
In a letter dated March FmHA informed Ms. that default on The district court observed that these mortgage had occurred fail- statutes neither afforded additional sub- ures payments occupy to make and to stantive benefits FmHA mortgagors to nor premises. agency The stated its intent to imposed a substantial administrative bur- begin accelerate loan and to foreclosure government. on den did State law proceedings thirty days. within Once with, interfere objectives or frustrate the again Ms. Rivera was told she could of, the program, and there was no by making specified pay- cure the default need uniform administration aon na- ments, transferring to another Relying tional basis. on United States v. person agency regula- accordance with Inc., Foods, 715, Kimbell tions, refinancing mortgage. The 1448, (1979), 59 L.Ed.2d again 711 the court gave right letter also notice of the to an FmHA, directing remanded to the it to hearing administrative if she a submitted “comply with the 6Act request days. thirty within The record 91, [government’s] Act after which the mo- response by contains no Ms. Rivera to summary judgment tion for may be re- of these Ms. letters. Rivera moved back parties’ newed.” Both motions for summa- 1985, into the house in November and she ry judgment were denied in the same order. has lived there since time pay- without appeal Ms. On Rivera contends that the ing any installment on mortgage. judge finding district erred in proceedings Foreclosure in the district produced FmHA had substantial evidence began summer 1985. After justify abrogation to financing its disposing matters, preliminary some arrangements. cross-appeal, In its court, district par- consent of the required asserts that is not ties, remanded the case the FmHA comply with the state statutes which re- administrative Following determinations. a mortgagee’s against strict remedies its hearing a and an to the state di- mortgagor. rector, the FmHA determined that
property had July been abandoned 1982 I. and had so remained until December 1985.
Consequently, A. agency decided to contin- ue with foreclosure. Ms. Rivera 28 cites U.S.C. 1291 as the § then returned to the because, district for appellate jurisdiction basis she review, court. contends, On the court found that a taken from final supported subtantial evidence Although adminis order. the FmHA has not con- trative decision statement, abandonment tested that it is clear that the therefore, the agency, properly finality denied order lacks the traditional sense. relief Ms. Rivera. The judge, summary judgment motions of however, upheld the defendant’s contention both Ms. Rivera and the FmHA were de the FmHA was nied, and the case was remanded to the with two statutes—Act 6 of agency. judg The denial of summary 1974, (Purdon 41 Pa.Stat.Ann. § order, ment motion is Boeing final 1988), and Act 91 of 35 Pa.Stat.Ann. Union, Auto., v.Co. International United (Purdon 1988). 1680.401c These statutes Aerospace Agric. Implement & Workers mortgagor given direct that a written America, (3d Cir.1967). notice of mortgagee’s to begin intention proceedings thirty Moreover, days at least remanding an order addition, advance. mortgagor matter to an administrative is no appealable, here step adjudica are not but factors real- interlocutory than an more ap- ity practicality be evaluated. generally and is proceedings tive Amer pealable. Steelworkers We have the benefit of the district R.R., F.2d ica, 1913 v. Union Local ruling court’s that substantial evidence Cir.1981); Marshall Cele deny supports agency’s decision to Cir.1965). An brezze, F.2d mortgage continue the request Rivera’s however, nonap- exists, exception reading of in force. Our the district court orders. In AJA pealability of such remand that, if opinion leaves no doubt the FmHA Army Corps Engineers, Assoc. complies summary 6 and with Acts (3d Cir.1987), 1070, 1073 we stated F.2d in its A judgment will be entered favor. *4 a dis proposition as follows: “when juncture remand to the district court at this important finally court resolves an trict yet in would result another to this reviewing an administrative legal issue raising precisely the same conten- appellate of re agency and denial action tions then now before us. We would be agency would remand to the view before encouraging, discouraging, rather than practical appellate as a foreclose review piecemeal appeals were we decline re- matter, immediately is remand order view of Ms. Rivera’s contentions now. Int’l, Inc. also Horizons appealable.” See recognize We the strictures on Cir.1987); (3d 154 Baldrige, v. 811 F.2d jurisdiction, fairly of a but are mindful R.R., F.2d 648 Union well-defined, exception. but narrow falls The remand order here within Co., Filippo v. United San States Trust exception in our special articulated 246, (2d Cir.1984), 737 F.2d cert. complies If the cases. 1035, 1408, denied, S.Ct. 84 470 U.S. 105 order—giving requisite district court’s (1985), explained L.Ed.2d 797 proceeding and then state notification appellate jurisdiction. pendent doctrine of moot. foreclosure—the issue will become jurisdiction over one we have taken “[0]nce hand, if agency declines On the other discretion, ease, may, in our in a we issue law, the district follow nonappealable issues consider otherwise prevent will the fore court’s directive well, there is sufficient the case where proceeding, from closure action appeal- overlap the facts relevant [the will remain limbo. nonappealable] issues to warrant able authority exercising plenary over our [the] Moreover, the FmHA raises an issue v. appeal.” at 255. See also Barrett Id. significant day-to-day operation is 565, States, F.2d 798 571 Cir. United conflicting agency spawned has 1986); Co. v. Local Consolidation Coal court decisions within this circuit. America, Mineworkers United Black, See, 622 e.g., United States Cir.1982); (4th 831 Intermed (W.D.Pa.1985); F.Supp. 669 Regents University Infusaid, ies Inc. v. (M.D.Pa.1986), F.Supp. 484 Royer, 683 (Fed.Cir. Minnesota, F.2d 134 (3d Cir.1987). Finally, F.2d 696 aff'd, 815 1986). law; question purely us is one of is not for the remand emphasized, is exception, it This securing in purpose additional factual Court of an of discretion exercise circumstances, we formation. these sparingly. used Appeals and should be di conclude that the district court’s order might lead to abuse. application Casual Pennsyl recting the FmHA to example, device to obtain review For as a appealable. 6 and 91 is vania Acts juris- within our of a matter not otherwise bring diction, might us inconse- litigant
B. normally would not be quential issues A. E. Wright, Miller & appealed. C. appeal of the denial Ms. Rivera’s Gressman, Federal Practice summary judgment, Cooper, how & E. motion (1976 Supp.). & 1987 ever, presents separate jurisdictional prob and Procedure § however, posed clearly usually danger, above, That lems. noted such orders As 28 cross-appeal Cir.1973), denied, gives juris-
here where the
us
cert.
(1974),
diction.
S.Ct.
L.Ed.2d 122
where on a
1292(b)appeal
section
we considered issues
expressly
Although this Court has not
beyond
question
those subsumed in the
acknowledged that
review of collateral
us.
law certified to
pendent juris-
matters
fall
our
within
diction,
have in
ques-
fact ruled on such
summarize,
To
appeals
Int’l,
tions.
the Court con-
Horizons
a matter on
district court has
sidered in the
collateral to
issue
litigation
ruled. The
nature
such
the administrative order. See
F.2d
that, upon compliance
mandate,
with our
Associates,
Similarly, in
AJA
where
already
district court has
indicated that
we had taken
over
remand
summary
it will enter
judgment without
order,
panel
remanded
conten-
several
ado;
again appeal
further
Ms. Rivera will
tions on the merits for “reasons of institu-
raising precisely the
issues now be-
same
short,
integrity”—in
tional
to allow the dis-
Finally,
unlikely
fore us.
it seems
pass
trict court to
on the
factual matters
because,
appealed
other issues
bewill
when
panel
strong
gave
the first instance. The
presently
matters
before us
re-
impressed
indication that it was not
*5
solved,
proceed
the foreclosure action will
merits,
appellant’s argument
the
on the
pro
differently,
forma. Phrased
resolution
suggesting
remaining
argu-
“AJA’s
point
battle,
of the
this
issues at
ends the
may
ments
also be meritless and resolution
except
up
and little
remain
will
to tie
the
the
on a
summary judg-
motion for
circumstances,
loose ends. In these
consid-
may
Assoc.,
ment
appropriate.”
AJA
judicial economy,
litigant’s
erations of
the
foreclose
of law
choice
Having determined
law....”
in or by
terms, we must
*6
by contract
not dictated
rule of
applicable
analysis to the
instrument
reads,
our
shift
Paragraph
“[t]his
law or
adopt state
regulations
present
Whether
decision.
subject to
shall be
Administration,
rests on
rule
and
federal
a uniform
Home
fashion
of
Farmers
the nature
inconsistent
regulations
policy
drawn
judicial
to its future
and
at stake
interest
hereof.”
governmental
express
specific
The court
law.
applying state
effect of
agrees
23, the borrower
paragraph
by
program,
federal
if the
ascertain
may
“the Government
default
upon
na-
single standard
nature,
a
demands
its
or
as authorized
this instrument
foreclose
law
state
of
application
tionwide, whether
existing
of
then
by the laws
permitted
objectives
specific
frustrate
is situated
property
where
to which
extent
and the
program,
federal
America, on
of the United
and
disrupt
rule would
federal
application of
satisfactory to
conditions
and
terms
on
relationships predicated
commercial
limited
Government, including
but
at
Foods,
U.S.
Kimbell
law.
state
sale,
power of
(a) statutory
by
728-29,
at 1458-59.
99 S.Ct.
proper-
and sale
(b)
advertisement
highest bidder
Dun
ty
public auction
and Walter
at
Foods
Kimbell
both
Government’s
parcels
partici
at the
or more
parties
one
aggrieved
lap,
and in
place
and
They
the time
and at
option
program.
federal
pants
terms
notice
after such
rule
federal
by
manner
prejudiced
been
have
by the
or determined
priori
statute
lien
system
state
preempting
statute.”
contrary to
if not
“on
Government
applicability
general
ties of
—statutes
daily
their
base
creditors
private
FmHA
to an
pointed
Foods,
Kimbell
transactions.”
(1986),
commercial
set-
1955.15
7 C.F.R.
regulation,
Noting
at
S.Ct.
giving
used
to be
forms
ting out
commercial
state
look
businesses
accounts.
acceleration
notice
transac-
financial
evaluating risks
law
Supple-
State
stated
regulation
“[a]
here,
fact
The crucial
6 and
as Acts
sites
however,
provision
23. That
paragraph
refers
3. This
federal, not
used
the FmHA
FmHA,
used
if
require
might
arguably
state, procedures.
prerequi-
such
procedures, to
state
tions, the Court observed that
year later,
More than
one
“[c]reditors
letter dated
justifiably
who
rely
16, 1984,
on state law to
March
obtain
again
called
superior liens would have
attention
expecta-
their
to the default and advised the
tions thwarted
agency’s
whenever
a federal
intention to acceler-
contrac-
tual
ate the
security
loan and
interest
foreclose on
suddenly appeared
mortgage.
Proceedings
were to
precedence.”
took
be instituted
Id. at
within
99 S.Ct.
thirty days unless the delinquency
at 1464.
was cor-
rected. The letter
explained
also
that the
contrast,
when the controversy does
marshal would sell
approxi-
not affect
parties
third
but embroils only
mately sixty days, but that
the debtors
debtor,
United States and a
the factors
could contact the FmHA
thirty days
within
that favor applying state law are considera
they
wished to
hearing.
schedule a
Once
bly weakened if not
entirely
removed
from again, the FmHA did not act
promptly
consideration. This result is illustrated in as it had warned.
Virginia
West
States,
v. United
begun
Foreclosure was not
until
(1987),
L.Ed.2d 639
only
after service of
complaint
did
where the
government
sued a state
request
hearing.
The record
on an indebtedness. The issue before the
demonstrates that she received notice on
Supreme Court was whether the United
more than one occasion and had an ample
States was entitled to prejudgment inter
opportunity for a hearing.
process
Due
est. The Court held that federal
gov
law
observed,
was
and there was no need to
payment
erned the
of interest due for de
resort to the state notification statutes.
layed payment of a
obligation.
contractual
Other
factors
discussed
Kimbell
“While there are instances in which state
Foods and West Virginia lead us to con-
law
be adopted as the federal rule of
clude that state law
supply
should not
decision ...
this
presents
no compel
rule of decision here.
It is true that the
ling reason
doing
[Application
so....
arrangements
contractual
giving the
of a federal rule would not ‘disrupt com
FmHA an option to
procedures
utilize state
mercial relationships predicated on state
conclusively demonstrate that no need for
*7
law’ ... since state law would not of its
national uniformity
present.
Nor can we
govern
own force
contracts between a state
say that application of state law would
and the Federal Government.” West Vir
always frustrate the
aims
federal
ginia, 479
at
U.S.
293 an assume to decision 1292(b)). 28 U.S.C. under locutory appeal Dress § Interstate v. NLRB also 449-50; see 99, (3d Cir. 104 Inc., Carriers, 610 F.2d majori the agree with I cannot Finally, discovery order review 1979) (declining to is akin situation that this ty’s assertion in preliminary with conjunction in granted (3d 820 Alldredge, 488 F.2d v. Johnson junction). 882, 95 denied, Cir.1973), cert. Kershner, in principles (1974). these Even Applying 122 148, 42 L.Ed.2d S.Ct. jurisdiction although we had Kersh- that held expansive we than more Johnson appeal an 1292(a)(1) of 28 Kershner, U.S.C. under later not, as the ner, it is court’s the district from inmates Johnson, prison decision, control. would banc preliminary for their motion denial 28 under appeal certified involved which suit, lacked we 1983 a section injunction not limit 1292(b), held we were we U.S.C. § appeal inmates’ the consider jurisdiction control wording of the inartful to the ed court’s the portion that from certifi district court’s question in ling certification. class them denied that order not didWe Id. at 822-23. order. cation distinguish attempts legal majority issue beyond the expand on the instant from Kershner appropriately order involved inwas appeal Kershner that ground there. us context, and injunction preliminary majority’s deci that concerned I am review appellate opportunity therefore open step towards takes in this case sion However, provided. ultimately keep sought we floodgates ing the opportunity here as well issues Kershner. closed in at refrain if we foreclosed not review Rivera’s appeal and government’s over jurisdiction accepting from stage this intertwined,” re as “inextricably not are summary judgment of Rivera’s denial they are dis That Kershner. quired under issues reach Rivera’s motion; not if we do independent by the is demonstrated tinct concedes, “Ms. Rivera majority now, the majority’s them given treatment at Maj. op. appeal.” again will Heckler, Tustin opinion. limitation Moreover, majority’s (Kershner bars Cir.1984) 1055, 1065-66 con injunction preliminary Kershner or certification class reviewing from court consid policy important overlooks text injunction, even preliminary along with der decision underlay that erations so, because do like to though court In Kersh- here. applicable equally are are issues when jurisdiction lacks court for in ner, we emphasized & Assocs. Gore W.L. separate”); “entirely constitut in section terlocutory appeal 614, Corp., F.2d v. Carlisle rule the basic “from exceptions ed upon the conferred Cir.1976) (“jurisdiction appealable,” interlocutory orders to other extend does appeals we stated F.2d at judg determined issues claims must be construed exceptions of such scope pro upon bearing have which ment ... circumspection care “great re ” action priety of bringing in opened’ floodgate be 'lest issue]”). spect [reviewable or nonfinal unreviewable many otherwise Switzerland circuits (quoting other Id. from The cases ders. Inc., Market, liberal a more E. Horne’s may take Assoc. relies majority Cheese ap- L.Ed. pendent assertion toward approach adopted (1966)). than 2d 123 pellate event, are distin- they any Kershner. viewed event, has this court ap- they case because this guishable necessarily confined Kershner *10 extensive only that where hold pear Miller context. injunction preliminary rele- facts issues overlap exists (3d 7 Cir. 660, n. 667 F.2d Bolger, 802 por- unreviewable to reviewable vant analy the Kershner that 1986) (suggesting decision, appellate an court lower of a “inextricably tions to be issues requiring the sis 294
court exercise discretion closely to consider and, factually indeed, interrelated issues, otherwise unreviewable interdependent.” Filippo San Thus, United States Trust even were we free to depart from Co., 737 Cir.1984), F.2d 246 cert. de Kershner’s requirement restrictive of nied, 1085, 1408, connection ap- between the “inextricable]” (1985), L.Ed.2d 797 the court first pealable found and nonappealable orders for as- jurisdiction that under the collateral sumption of pendent appellate jurisdiction, order doctrine to review the district court’s 449, F.2d at majority today in as- denying orders summary judgment and re serting jurisdiction over a wholly distinct quiring defendants to be deposed because surpasses issue even more re- liberal both premised orders were rejection on a quirements of for assertion of pendent appel- defendants’ claim of immunity. jurisdiction absolute late of these other circuits. The court proceeded then to consider an There may be valid policy reasons to ground other for defendants’ summary permit a court of appeals to juris- assume judgment light motion in “overlap” diction over such as Rivera’s. in the factors relevant to nonappealable We cannot avoid taking cognizance appealable 255; issues. Id. at see judicial waste of resources that will occur also Barrett v. States, 798 F.2d require again Rivera to bring an 565, (2d Cir.1986) (on appeal from appeal after our remand to the district qualified denial of and absolute immunity produces court preordained How- result. defendants, certain accepted pen ever, the exercise of discretionary pendent jurisdiction dent plaintiff's cross-appeal jurisdiction simply because the on result of an independently unreviewable order remand and issues to be on raised subse- granting absolute immunity to another de quent appeal can represents be foreseen fendant all of the issues involved significant alteration of our traditionally in the cross-appeal were also involved in approach restrained juris- exercise the appeal of the order); collateral final cf. diction. New York v. Nuclear Regulatory important, More the majority establishes ’n, Comm F.2d Cir.1977) no guideline workable beyond of refer (declining to review summary denial ring to need to our exercise our discretion judgment in course of appeal of interlocu “sparingly.” Maj. op. at 287. As the court tory ground on order expanded review stated in Garner v. Wolfinbarger, 433 F.2d require expenditure additional of ef (5th Cir.1970): ap ad hoc “[t]he fort). proach pendent jurisdiction] [to invites In Consolidation Coal Co. v. Local parties inject a sham issue as the vehicle (4th 683 F.2d Cir.1982), bring the case to this court at the inter where the court decided that “in the inter locutory stage for a declaration on an order ests of efficiency” it hear the inter not otherwise reviewable confuses [and] locutory appeal of a union from con the courts and parties, who assume tempt against order it together with the because a discretionary ... order has appropriate appeal of the individual union been reviewed in one case it can be re officials, it is evident that the issues viewed in any other.” The majority’s con appeals two coincided. tention danger present such the instant case because a cross-appeal is In the final ease cited majority, here explain involved does not how this Intermedics Infusaid, Regents Inc. v. avoid creating expectations that Minnesota, Univ. litigants future may be the beneficiaries of (Fed.Cir.1986), the court expressly stated similar exercises of discretionary jurisdic it would pendent exercise tion. over the of a district grant court’s stay of a jur accepting after analysis, last the majority has isdiction over appealable another interlocu policy made decisions that are appro- more tory order, “because the two motions are priately Congress. those body That has *11 fine-tuning juris- our responsibility a rule adopt very well diction to assume us discretion gives Congress so. to do Until efficient when is to precedent acts, our Riv- dismiss we must I
contrary, believe respectfully I Accordingly, appeal.
era’s opin- majority part IIB dissent III. Part reach
ion & ACCIDENT
HARTFORD COMPANY, INDEMNITY BANK, PENNSYLVANIA
FIRST N.A., Appellee, (EAST) NATIONAL BANK
MELLON
ASSOCIATION, Appellant. 88-1182, 88-1338.
Nos. Appeals, Court States
United Circuit.
Third 16, 1988. Aug.
Argued 14, 1988. Oct.
Decided Ei-W. Jay (argued),
Alan C. Gershenson Comisky & McCau- Rome, Blank, senhofer, Pa., appellee. Philadelphia, ley, Bradford J. (argued), Nicholas A. Robert McClay, & Shaw Mcllvain, Reed Smith appellant. Pa., for Philadelphia, STAPLETON, Before Judges, and MANSMANN, Circuit Judge.* FISHER, District * designation, Fisher, Dis- S. Clarkson Honorable sitting Jersey, Judge District of New for the trict