Estate of Schultz ex rel. Schultz v. Merit Systems Protection Board
Opinion of the Court
OPINION
The Estate of Albert P. Schultz (the “Estate”) seeks review of two District Court orders, which like the underlying dispute itself—a disability discrimination case involving the United States Postal Service that dates back to the 1990s
Greatly condensed, the cases on appeal began as two attorneys’ fees proceedings brought by the Estate before the Merit Systems Protection Board (the “Merit Board”), an agency that serves as an “independent adjudicator of federal employment disputes.”
The Merit Board, named as a defendant on each docket, moved under Fed. R. Civ. P. 42(a) to consolidate the two cases, which it described as “really the same case.”
Before turning to the appeal proper, we address one more relevant part of the proceedings before the District Court. Eight days after the Estate appealed Schultz II, Judge Bloch ruled on several motions in Schultz I that had been filed prior to the consolidation. Significantly, Judge Bloch granted the Estate’s cross motion for summary judgment “to the extent that it seeks remand to the [Merit] Board for a determination of attorney fees incurred in connection with [the Estate’s] underlying compliance action.”
The Estate’s appeal presents a two-part appellate jurisdiction question, which we “resolve ... before reaching the merits.”
We conclude that Judge Fischer’s order was not appealable when it was originally issued. “In general, we may only hear appeals from final judgments and from certain prescribed interlocutory orders of the district courts.”
There is one more avenue by which we might have jurisdiction. In this Circuit, the Cape May Greene rule allows for a prematurely filed appeal to “ripen upon the court’s disposal of the remaining claims.”
In sum, we conclude that Judge Fischer’s order was not appealable, and has not become so due to intervening events. It follows that the orders denying reconsideration were also not appealable. Because we lack jurisdiction, the appeal will be dismissed.
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.
.We have reviewed at least three appeals from prior incarnations of this case. See C.A. No. 10-2843 (judgment order entered June 20, 2011); Estate of Schultz v. Potter, 349 Fed.Appx. 712 (3d Cir. 2009); Estate of Schultz v. Potter, 285 Fed.Appx. 886 (3d Cir. 2008). Our 2009 decision contains a brief summary of the late Albert Schultz’s chargof disability discrimination against the Postal Service. See Schultz, 349 Fed.Appx. at 715— 16.
. Kloeckner v. Solis, 568 U.S. 41, 133 S.Ct. 596, 600, 184 L.Ed.2d 433 (2012).
. Schultz v. U.S. Postal Serv., 120 M.S.P.R. 652 (M.S.P.B. 2014) (table); Schultz v. U.S. Postal Serv., 117 M.S.P.R. 698 (M.S.P.B. 2012) (table).
.JA 393.
. See Schultz v. Merit Sys. Prot. Bd., Nos. 13-1363 & 14-1159, 2014 WL 7015990, at *1-3 (W.D. Pa. Dec. 11, 2014).
. The Estate specifically disclaims any interest in appellate review of Schultz I. See, e.g., Appellant’s Br. 4. Relatedly, while it is somewhat unclear from the record whether the Estate seeks review of both orders denying reconsideration or just Judge Fischer’s, our disposition today would be the same in either scenario.
. Schultz v. Donahoe, No. 13-1363, 2015 WL 1491754, at *4-6 (W.D. Pa. Mar. 31, 2015).
. Cunningham v. R.R. Ret. Bd., 392 F.3d 567, 570 (3d Cir. 2004).
. Lazy Oil Co. v. Witco Corp., 166 F.3d 581, 585 (3d Cir. 1999).
. See Mellon Bank, N.A. v. Metro Commc'ns, Inc., 945 F.2d 635, 640 (3d Cir. 1991).
. See Riley v. Kennedy, 553 U.S. 406, 419, 128 S.Ct. 1970, 170 L.Ed.2d 837 (2008) ("A final judgment is one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.”) (internal quotation marks omitted). The Estate appears to argue that the cases were not truly consolidated, and thus that Judge Fischer’s order was actually "final” for Schultz II. The Estate further attempts to distinguish the two cases by labeling Schultz I the "fee petition case” and Schultz II the “settlement agreement enforcement case.” Appellant’s JD Resp. 2. But we do not perceive such a division between the two matters. The Estate's second amended complaint in Schultz I referenced the settlement agreement and the fees due in connection with the agreement. (See, e.g., JA 288-89.) And Judge Bloch’s merits decision “in fact[] remand[ed] [the Estate’s] case ... for reconsideration and a determination of attorney fees due for the compliance action.” Schultz, 2015 WL 1491754, at *6. To the extent the line of authority descended from Bogosian v. Gulf Oil Corp., 561 F.2d 434 (3d Cir. 1977), is applicable here, the indication that the cases were not intended to be kept separate is an additional factor weighing against allowing appeal before all consolidated actions were resolved.
. Brace v. O'Neill, 567 F.2d 237, 240 n.9 (3d Cir. 1977) (citation omitted).
To the extent that the “collateral order” doctrine might save the appeal, the Estate has not argued for its application here. See United States v. Chelsea Towers, Inc., 404 F.2d 329, 330 (3d Cir. 1968) (per curiam) (suggesting that collateral order doctrine does not apply to consolidation). There is otherwise no indication that Judge Fischer’s order would be “effectively unreviewable on appeal from a final judgment.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978).
. Adapt of Phila. v. Phila. Hous. Auth., 433 F.3d 353, 362 (3d Cir. 2006) (citing Cape May Greene, Inc. v. Warren, 698 F.2d 179, 184-85 (3d Cir. 1983)).
. Id. at 365.
Reference
- Full Case Name
- ESTATE OF Albert P. SCHULTZ, By Bonnie Schultz, Representative v. Merit Systems Protection Board Postmaster General Estate of Albert P. Schultz, By Bonnie Schultz, Representative v. Merit Systems Protection Board. Estate of Albert P. Schultz, By Bonnie Schultz, Representative
- Status
- Published