Estate of Albert P. Schultz, by Bonnie Schultz, Representative v. Merit Systems Protection Board

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 15-1730
___________
ESTATE OF ALBERT P. SCHULTZ, BY BONNIE SCHULTZ, REPRESENTATIVE
v.
MERIT SYSTEMS PROTECTION BOARD; POSTMASTER GENERAL
(D.C. Civil No. 2:13-cv-01363)
ESTATE OF ALBERT P. SCHULTZ, BY BONNIE SCHULTZ, REPRESENTATIVE
v.
MERIT SYSTEMS PROTECTION BOARD
(D.C. Civil No. 2:14-cv-01159)
Estate of Albert P. Schultz, by Bonnie Schultz, Representative*,
Appellant
*(Amended Pursuant to Clerk Order dated May 22, 2015)
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil Nos. 2:13-cv-01363 & 2:14-cv-01159)
District Judges: Honorable Alan N. Bloch & Nora Barry Fischer
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
February 9, 2016
Before: FUENTES,** KRAUSE, and ROTH, Circuit Judges
** Honorable Julio M. Fuentes assumed senior status on July 18, 2016.

-- 1 of 6 --

2
(Opinion filed: November 4, 2016)
_________
OPINION***
_________
FUENTES, Circuit Judge:
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 1990s1—have a
somewhat tangled procedural history. Before reaching the merits of the Estate’s appeal,
we determine whether we have appellate jurisdiction. For the reasons set forth below, we
do not. As a result, the appeal will be dismissed.
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.”2
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
*** This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
1 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 F.
App’x 712 (3d Cir. 2009); Estate of Schultz v. Potter, 285 F. App’x 886 (3d Cir. 2008).
Our 2009 decision contains a brief summary of the late Albert Schultz’s charge of
disability discrimination against the Postal Service. See Schultz, 349 F. App’x at 715–16.
2 Kloeckner v. Solis, 133 S. Ct. 596, 600 (2012).

-- 2 of 6 --

3
turn, also ended in a loss and in another petition for review.3 After some false starts, both
petitions for review ended up before Judge Fischer in the Western District of
Pennsylvania under separate docket numbers.
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.”4 The
Merit Board also 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.5 The consolidated Schultz I was then assigned to Judge
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. 6
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
3 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).
4 JA 393.
5 See Schultz v. Merit Sys. Prot. Bd., Nos. 13-1363 & 14-1159, 2014 WL 7015990, at *1–
3 (W.D. Pa. Dec. 11, 2014).
6 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

-- 3 of 6 --

4
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.”7
The case was, as a result, remanded to the Merit Board for further proceedings.
The Estate’s appeal presents a two-part appellate jurisdiction question, which we
“resolve . . . before reaching the merits.”8 We first determine whether Judge Fischer’s
order was initially appealable. If it was not, we decide whether intervening developments
in the case affected its appealability.
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.”9 A decision is final under 28
U.S.C. § 1291 when it ends the case as to all claims and all parties.10 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
Estate seeks review of both orders denying reconsideration or just Judge Fischer’s, our
disposition today would be the same in either scenario.
7 Schultz v. Donahoe, No. 13-1363, 2015 WL 1491754, at *4–6 (W.D. Pa. Mar. 31,
2015).
8 Cunningham v. R.R. Ret. Bd., 392 F.3d 567, 570 (3d Cir. 2004).
9 Lazy Oil Co. v. Witco Corp., 166 F.3d 581, 585 (3d Cir. 1999).
10 See Mellon Bank, N.A. v. Metro Commc’ns, Inc., 945 F.2d 635, 640 (3d Cir. 1991).

-- 4 of 6 --

5
to take action in the case.11 And in the absence of finality, “[a]n order granting or
denying consolidation is a nonappealable interlocutory order.”12
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.”13 Assuming without deciding that Judge
Bloch’s Schultz I decision resolved the rest of the case, we have held that Cape May
Greene “is not applicable to discovery or similar interlocutory orders.”14 Judge Fischer’s
order contained both interlocutory and dispositive elements, but is challenged only with
11 See Riley v. Kennedy, 553 U.S. 406, 419 (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.
12 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 (1978).
13 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)).

-- 5 of 6 --

6
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.
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.
14 Id. at 365.

-- 6 of 6 --