PHILADELPHIA – An appellate judge stated Nov. 4 that the U.S. Court of Appeals for the Third Circuit does not have jurisdiction in a disability discrimination case filed against the U.S. Postal Service which dates back to the 1990’s.

Judge Julio M. Fuentes said a pair of orders issued in the U.S. District Court for the Western District of Pennsylvania would not be examined by the judiciary on their merits, as the body did not have oversight of the case filed by the Estate of Albert P. Schultz against the Merit Systems Protection Board.

“As a result, the appeal will be dismissed,” Fuentes said.

The cases on appeal began as two attorney fees’ proceedings brought by the Estate before the defendant Merit Board, an agency that serves as an “independent adjudicator of federal employment disputes.”

“After the first case (Schultz I) ended in a loss, the Estate both petitioned for judicial review and filed the second fee case before the Merit Board (Schultz II) – which, in turn, also ended in a loss and in another petition for review. After some false starts, both petitions for review ended up before Judge Nora Barry Fischer in the [U.S. District Court for the] Western District of Pennsylvania under separate docket numbers,” Fuentes recalled.

The Merit Board, a defendant in each action, moved to consolidate the two cases, which it described as “really the same case” and asked to be dismissed as an improper defendant.

“In an order entered on each docket, Judge Fischer consolidated the cases, dismissing/closing Schultz II and directing all further filings to be made on Schultz I. In the same order, Judge Fischer denied a motion to remand filed by the Estate and dismissed the Merit Board as a defendant from both cases,” Fuentes said.

“The consolidated Schultz I was then assigned to Judge Alan N. Bloch. A reconsideration motion filed on both dockets was denied separately by Judge Bloch on Schultz I and Judge Fischer on the now-closed Schultz II. The Estate then filed a notice of appeal in Schultz II,” Fuentes added.

Fuentes explained before examining the appeal, the Court was compelled to 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,” Fuentes said.

As a result, the case was remanded to the Merit Board for further proceedings.

According to Fuentes, the first determination to be made was whether Judge Fischer’s order was initially appealable. After careful analysis, Fuentes explained the Third Circuit could only conclude Judge Fischer’s order was “not appealable when it was originally issued.”

“While Judge Fischer’s order dismissed the Merit Board ‘with prejudice’ as an improper defendant, the claims against it remained lodged against the Postmaster General in the consolidated Schultz I; The District Court continued to adjudicate the remaining claims and otherwise to take action in the case. And in the absence of finality, ‘an order granting or denying consolidation is a non-appealable interlocutory order,” Fuentes said.

Fuentes explained that remaining avenue by which the Court may have jurisdiction, the Cape May Greene Rule (which allows for a premature appeal to “ripen upon the Court’s disposal of the remaining claims”), would also not apply here.

“Judge Fischer’s order contained both interlocutory and dispositive elements, but is challenged only with regard to the former, not the latter. The Estate does not contend that the Merit Board was a proper defendant for reasons unrelated to its concern about the full scope of the consolidation. Thus, Cape May Greene would not cause the notice of appeal to ripen,” Fuentes stated.

“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,” Fuentes said.

The plaintiff is represented by Alexander Schultz of Schultz Law in Lake Worth, Fla.

The defendants are represented by Jeffrey A. Gauger and Stephen William Fung of the U.S. Merit Systems Protection Board and Paul D. Kovac of the U.S. Attorney’s Office, all in Washington, D.C.

U.S. Court of Appeals for the Third Circuit case 15-1730

U.S. District Court for the Western District of Pennsylvania cases 2:14-cv-01159 & 2:13-cv-01363

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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