1.10.2006

Third Circuit Speaks on Split re Ripening of Premature Appeals

Per the Third Circuit in Adapt of Philadelphia v. Philadelphia Housing Authority,--- F.3d ----, 2006 WL 39071 (3d Cir. Jan. 09, 2006):

Our decision in Cape May Greene, Inc. v. Warren, 698 F.2d 179 (3d Cir.1983), provides the analytical point of departure for examining the appealability of the six instant appeals. In Cape May Greene, this court held that a premature notice of appeal, filed after disposition of some of the claims before a district court, but before entry of final judgment, will ripen upon the court's disposal of the remaining claims. See id. at 184-85. There, the district court granted summary judgment against the plaintiff and in favor of the defendants. The plaintiff thereupon filed a notice of appeal from the district court's order granting summary judgment. However, the defendants had filed a cross-claim, which had not been adjudicated at the time the notice of appeal was filed. As a result, the judgment of the district court was not final. SeeFed.R.Civ.P. 54(b). This court upheld its jurisdiction to review the grant of summary judgment against the plaintiff. It did so because the cross-claim, although not disposed of before the notice of appeal was filed, was adjudicated after the notice of appeal was filed, thereby achieving finality as to all claims. Id. at 184.

The so-called Cape May Greene rule-and its expansive view of appellate jurisdiction-has been reaffirmed by this court on multiple occasions. Some courts of appeals, however, have not adhered to such a rule. See, e.g., United States v. Hansen, 795 F.2d 35, 37-38 (7th Cir.1986) (discussing circuit split on the issue and rejecting Cape May Greene rule). Still other courts of appeals that have followed a rule similar to Cape May Greene have restricted finality in premature cases in light of the Supreme Court's decision in FirsTier, which, as discussed below, called into question broader understandings of when premature appeals may ripen upon entry of final judgment. See Outlaw v. Airtech Air Conditioning and Heating, Inc., 412 F.3d 156, 160 (D.C.Cir.2005) (“We agree with decisions concluding that those prior lines of precedent must be limited in light of FirsTier.” ); United States v. Cooper, 135 F.3d 960, 963 (5th Cir.1998) (“[W]e recognize that in light of FirsTier, this expansive view of appellate jurisdiction cannot survive”); Serine v. Peterson, 989 F.2d 371, 372 (9th Cir.1993).

But while other jurisdictions have narrowed their holdings involving premature appeals in light of FirsTier, we have declined thus far to do the same, holding that the Cape May Greene rule has not been overruled by FirsTier. See Lazy Oil, 166 F.3d at 587.

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