Appeal from the United States District Court for New Jersey
Before: HUNTER, SLOVITER, Circuit Judges, and GREEN, District Judge*fn*
Angelo M. Presinzano, a laboratory technician at Hoffman-LaRoche, Inc. (LaRoche) since 1970, developed a chronic sensitivity to chemicals used in some of the company's operations as a result of a workplace accident in 1976. Unable to work in operations of the plant requiring exposure to chemical fumes and dusts. Presinzano was transferred to other company operations but was unable to secure a permanent position. On June 19, 1978, he was notified that his employment would be terminated because "no permanent position was available" that he could fill "with his medical limitation," and on October 31, 1978 his employment was in fact terminated.
On October 23, 1978, Presinzano filed an administrative complaint with the Office of Federal Contract Compliance Programs (OFCCP) in an effort to obtain relief against LaRoche as a federal contractor under section 503 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 793 (1976 & Supp. IV 1981). The OFCCP New York Regional Office found that LaRoche had not violated its duties or obligations to Presinzano. Presinzano appealed to the Director of the OFCCP, United States Department of Labor (OFCCP National Office).*fn1 The OFCCP National Office found the evidence insufficient to support a finding of no violation and directed the New York Regional Office to reinvestigate.
After submission of the additional investigation report, the National Office by memorandum of March 5, 1981 notified the Assistant Regional Administrator that it "does not concur with your findings of no violation" and "instructed [the Regional Office] to take the necessary action to comply with the recommendation" contained in the summary case analysis which was attached. That summary concluded that the contractor violated its obligations under the nondiscrimination and affirmative action provisions of its Federal contract, recommended that the finding of no violation be reversed, and recommended that the case be remanded to the Regional Office which should enter into conciliation discussion with the contractor. The New York Regional Office notified both Presinzano and LaRoche of its determination. The Regional Office directed the Newark Area Office to begin conciliation efforts as soon as it had received copies of the letters from the National Office informing Presinzano and LaRoche of the reversal.
On April 10, 1981, the New York Regional Office notified Presinzano and LaRoche that it had received copies of the letters and had forwarded them to the Newark Area Office with instructions to begin conciliation. LaRoche questioned why a new Notification of Results of Investigation had not been issued and its counsel stated that in fairness the company should be apprised of the basis for National Office reversal because "otherwise, the company would have no way of knowing how to respond." The New York Regional Office agreed, so informed the parties, and prepared a "proposed" amended NRI setting forth the basis for the reversal, which it sent to the Regional Solicitor of the Department of Labor for "concurrence and/or comments" and "reasons therefore", specifically, for a "legal sufficiency review". The Regional Solicitor enclosed the requested legal analysis and reported that he had "found no evidence of discrimination" and, accordingly, was closing the file on the case.*fn2 The New York Regional Office sent the legal analysis and the "proposed Amendment NRI" to the National Office with the following recommendation: "We conclude that without RSOL [Regional Solicitor] concurrence we do not have a prosecutor. Therefore we recommend administrative closure of this complaint."
On July 15, 1981, the New Director of the OFCCP National office, Ellen M. Shong, who assumed that position on June 8, 1981, after the reversal of the Regional Office" finding, informed Presinzano that the National Office had reviewed "all of the information available, including the case file and the views of the Office of the Solicitor of Labor," and had concluded that there was no violation, thereby concurring in the original determination of the New York Regional Office.
Presinzano then brought suit against LaRoche, alleging that LaRoche violated sections 503 and 504 of the Rehabilitation Act of 1973, 29 U.S.C. §§ 793 and 794, as amended. He included pendent jurisdiction claims under New Jersey antidiscrimination statutes and state contract law. In Count VI, he also sued OFCCP and Director Shong (hereafter federal defendants) seeking declaratory, injunctive, and mandamus relief to reverse the federal defendants' decision not to initiate enforcement proceedings against LaRoche.*fn3 The district court dismissed the claim against LaRoche under section 503 of the Rehabilitation Act pursuant to our holding in Beam v. Sun Shipbuilding & Dry Dock Co., 679 F.2d 1077 (3d Cir. 1982), that no private right of action exists under that section. It also granted the federal defendants' motion for summary judgment. Plaintiff filed a notice on appeal from the order granting summary judgment on behalf of the federal defendants.
We consider first the defendants' motion to dismiss the appeal for lack of jurisdiction under 28 U.S.C. § 1291 on the ground that the appeal was not taken from a final order. At the time of the entry of summary judgment on behalf of the federal defendants, there remained pending against LaRoche the section 504 claim and the pendent state law claims. The order granting summary judgment was not certified under Rule 54(b) of the Federal Rules of Civil Procedure.
Appellant claims we have jurisdiction on two grounds. First, while the appeal was pending, the district court dismissed the remaining claims.*fn4 This court has held that "a premature appeal taken from an order which is not final but which is followed by an order that is final may be regarded as an appeal from the final order in the absence of a showing of prejudice to the other party." Richerson v. Jones, 551 F.2d 918, 922 (3d Cir. 1977) (emphasis in original). The vitality of this doctrine has recently been reaffirmed in Cape May Greene, Inc. v. Warren, 698 F.2d 179 (3d Cir. 1983). In the latter case, we upheld our jurisdiction to review the grant of summary judgment against the plaintiff although the notice of appeal was filed while a cross-claim between two of the defendants was pending, since the cross-claim was disposed of during the pendency of the appeal. 69 F.2d at 184. We construed the holding in Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 103 S. Ct. 400, 74 L. Ed. 2d 225 (1982), that a premature notice of appeal "self-destructs" under Fed. R. App. P. 4(a)(4), as limited to those case where motions have been filed in the ...