Eddy v. Virgin Islands Water & Power Authority

MANSMANN, Before ALITO, Circuit Judges, ACKERMAN, and Senior District Judge.1 OPINION OF THE COURT ALITO, Circuit Judge: This is an appeal from a District Court order denying a motion for summary judg- ment an action as- serting a constitutional tort claim. The defendants raised the defense Ackerman, Honorable Harold A. Senior Jersey, District of New sitting by designa- Judge United States District Court for tion. against action this Eddy commenced rejected the District immunity, but and unnamed named and several ground defense, primarily tort to three In addition individuals. it because waived had been law, Eddy as- Islands Virgin claims re- judgment. We until asserted Four- directly on the based a claim serted pro- for further part remand verse in a claim under Amendment teenth ceedings. voluntarily dis- § 1983. U.S.C. law three territorial missed two I. law claims, remaining territorial us in before claim not employed Eddy was Plaintiff Gabrielle addition, dismissed District Court Power and Islands Water Virgin by the the Fourteenth directly on claim based The (‘WAPA”) a lineman. as Authority “duplica- it Amendment, holding was that his of the extent disagree about parties claim, that and 1983 of’ the section tive to trained he was whether and training us now. before likewise not dismissal is Krum facility at at work WAPA’s perform for moved The defendants acci- of the Thomas, location Bay, St. claim, 1983 but the section judgment on this lawsuit. led to that dent their motion. denied Court the District high 1994, on a 2, a switch On June clearly has “Eddy that held The Court A replaced. to be line needed voltage in remain material facts that established the work that made was determination the individual concerning whether dispute shutting off the done without be would outrageous so were actions defendants’ Brown, the act- James Defendant power. [the] of they ‘shock conscience’ that Depart- the Line of Superintendent ing Op. 6-7. 20, Dist. Ct. July Court.” Eddy perform to ment, instructed defen- rejected the Court The District informed that he Eddy claims work. immunity be- of dants’ defense to do unqualified he that was Brown this affirmative not raise they “did cause he told him that Brown work but for sum- motion filing this until defense possible discipline and subject to would be eighteen approximately mary judgment, According to if he refused. termination at 7. began.” Id. this case months after improper him with provided Eddy, WAPA in a footnote interpreted dictum The Court perform tools, equipment to and clothing, mean that to this Court opinion of in an Among other line. a live immunity this work to include “failure re- that he Eddy complaint asserts results problems, [the] to answer [the] ratchet ordinary metal use an affirmative of this quired involuntary waiver (as the insulated v. Government opposed (citing Frett wrench Id. defense.” 968, proce- Islands, 973 n. normally used for these Virgin wrenches Cir.1988)). polyester went dures) The to wear a District was forced for native bases (instead cloth- 100% cotton two alter provide of the on to uniform qualified immuni- regulations). defense rejecting the OSHA ing required the defen- Eddy’s concluded The Court replacement, ty. switch During the chal- their an to show vicinity of had failed in the dants passed slipped, wrench “discretionary” rather were and, lenged actions characteriz- insulator electric “it ministerial, n. and that id. in a brief, than engulfed he was his es jury to deter- for question incident, proper fired WAPA After this fireball. reasonably or knew mine if a num- cited Eddy, OSHA their conduct known that should have ber violations. 20 subject to liability.” qualified immunity

would them Id. at Under de fense, “government appeal performing This followed.2 officials

discretionary functions generally are liability from shielded for civil damages II. insofar as their conduct does violate statutory or constitu juris The our appellants invoke rights tional person which reasonable § diction under 28 which au U.S.C. Fitzger would have known.” Harlow appeals us from thorizes to hear “final ald, 457 U.S. decisions” the District Court Vir (1982). L.Ed.2d In determining gin in question Islands. The order here is qualified immunity whether applies sense, not a “final” order usual but case, specific “first determine whether certain collateral orders are considered to alleged has deprivation be final orders thus immediately are actual constitutional at all.” Wil appealable. qualify To under the collater Layne, son v. S.Ct. (1) doctrine, al order an order must conclu (1999); 143 L.Ed.2d 818 see also (2) sively disputed determine question, 226, Siegert 232, Gilley, v. 500 U.S. 111 important issue completely sep resolve an 1789, (1991); S.Ct. 114 277 L.Ed.2d Torres action, (3) of arate from the merits States, 179, (3d v. United 200 F.3d 184 effectively appeal be unreviewable on from Cir.1999); Bissell, 1241, v. F.3d 31 Giuffre Jones, a judgment. final v. See Johnson (3d 1247, Cir.1994). so, 1255 “[I]f [we] 304, 310, 2151, 515 115 U.S. S.Ct. 132 proceed to determine that right whether (1995); L.Ed.2d 238 In re Montgomery clearly was at established the time of the 367, (3d Cir.2000). County, 215 F.3d 373 Wilson, alleged violation.” 526 U.S. at The Supreme recognized Court has that an 609, 119 S.Ct. (quoting 1692 v. Conn Gab order rejecting qualified immunity a de bert, 290, 286, 1292, 526 U.S. 119 S.Ct. 143 summary judgment stage fense at the (1999)). L.Ed.2d 399 immediately be appealable, see Mitchell v. 511, 530, Forsyth, 472 clearly “A is if its (1985), 86 “only L.Ed.2d 411 but to the sufficiently outlines are clear a rea extent denial turns an of issue law.” sonable officer would understand that his County, In re Montgomery 215 F.3d at right.” actions violate Sterling v. Bor Jones, (citing 373 v. Johnson Minersville, (3d U.S. at ough 232 F.3d of 313); City Cir.2000). Grant v. Pittsburgh, Moreover, 98 F.3d “in light pre Cir.1996) (3d (“To 119-20 the extent existing law the must ap unlawfulness be they law, turn on an issue parent.” decisions v. Creighton, Anderson 483 U.S. denying public officials immunity 640, 107 S.Ct. 97 L.Ed.2d 523 (1987). are considered final under the collateral right may A be estab doctrine.”). lished, order If we jurisdiction however, have if “previ even there nois an review rejecting qualified order im precedent directly ous in point.” Good v. munity summary at the judgment stage, Dauphin County Soc. Servs. Children for See, our plenary. Youth, review the order is & 891 F.2d Cir. Cloutier, e.g., 1989); Acierno Fields, F.3d see also 178 F.3d Assaf (3d Cir.1994). (3d Cir.1999). 170, 177 “The ultimate is- 2. Only appeal. named individual Appellants' defendants James See Br. at 42. Randolph Harley Brown and seek relief on they if had been respects in all ed in officials ... reasonable is whether sue been It has pleadings.” raised the relevant at position defendants’ not waive does that a held “defendant believed, light of what have could time if raised the is- [h]e defense affirmative law, their case in the decided was time, sufficient pragmatically at a Good, sue lawful.” be conduct would prejudiced not plaintiff] was and [the ” ability respond.’ its III. (internal at 863-64 937 F.2d Charpentier, mind, omitted). Thus, though principles “[e]ven these citations With us in this judgment before is not summary issues specific for turn to the motion must ad previously that we way issue to raise appropriate The first most Kleinkneckt, District immunity,” the correctness defense of unpled dress defen individual in which the that the in cases holding F.2d at Court’s im we have held prejudiced, defense waived dants id.; until defense Char- raise the See failing to was no waiver. munity by there for motion 863-64. their they pentier, submitted law over issue of This is an judgment. Frett, on opinion in It is true that the col jurisdiction have which we relied, apparently the District Court which doctrine, that the we hold order lateral to set failure of an answer that the stated proper apply failed to District Court defense “results an affirmative forth waiver determining whether standard defense[ ] involuntary [the] waiver occurred. case,” F.2d at from exclusion [its] statement, any which 973 n. but affirma immunity an is Qualified dictum, address does not plainly event is Skrutski, 62 defense, Karnes v. see tive the of a late amendment possibility the (3d Cir.1995), therefore 491 F.3d court. answer with leave 8(c) Rules Federal Rule under courts asserted it be the dilemma that recognize should Procedure We Civil But the de pleading. fail to raise responsive appropriate face when early law, to an immunity the failure at qualified circuit fense hand, in a one result On the automatically litigation. of the stage so does not do Godsil, at an F.2d 937 to be raised Charpentier v. the defense permitting waiver. time Cir.1991); may Pro v. (3d also case waste stage see advanced (3d side. opposing n. 2 Donatucci, to the prejudice F.3d and cause Rivera-Cruz, 98 Gettysburg Col v. Cir.1996); Kleinkneckt See Guzman-Rivera Cir.1993). Cir.1996) (1st (expressing As 989 F.2d lege, un becoming witnesses about have stated concerns fees attorneys available, fading, memories 15(a), responsive Fed.R.Civ.P. Under additional imposing accumulating, and any time may amended be pleading Accordingly, system). the court costs on an affirma- to include court by leave of dis has “trial court held that freely has been defense, be and “leave shall tive fails if a defendant to find a waiver cretion requires.” Unless justice so given when limits the time within assert defense to prejudiced, be party will opposing otherwise if the court or the court by al- set generally be should to amend leave to exer has failed that a defendant finds Moreover, under Fed.R.Civ.P. lowed. the de asserted or has diligence cise due express or by 15(c), tried issues English dilatory purposes.” “treat- fense are parties implied consent (6th Dyke, Cir.1994). Eddy may be able to make a showing of The First Circuit has taken ap- a similar specific prejudice remand, and thus we proach. Guzman-Rivera, See 98 F.3d at leave it for Court, the District in the first hand, 668. On the overly other strict instance, to decide whether there was a waiver rule undermine qualified waiver under the law of our circuit. defense, immunity which important serves public purposes. English, See 23 F.3d at IV. 1089. As written, the First Circuit has “[bjecause the doctrine of immu- A. nity recognizes litigation costly is defendants, may plead now turn officials We the District defense stages various Court’s grounds alternative proceedings.”3 for rejecting Guzman-Rivera, 98 F.3d at defendants’ claim of qualified immuni ty. noted, As previously the Court stated agree We with the conclusions of in a footnote that this defense would fail the First and Sixth Circuits that the de even if the defendants had it, not waived fense of immunity neces they because failed to show that their ac sarily by a waived defendant who fails to tions were taken within scope of their raise it until the summary judgment stage. discretionary authority. July See Instead, the District Court must exercise Dist. Op. at Ct. 2.n. The Court went on its discretion and deter mine whether to observe that Eddy “produced had sub there awas reasonable modicum of dili stantial evidence demonstrating gence raising the defense. The District Brown’s actions follow a long-standing pol Court must also consider whether icy and pattern of intimidating and coerc prejudiced has been delay. ing employees to engage in unsafe work In view of the precedent circuit practices.” Id. And the Court added that above, noted we must reverse the decision “[tjhis counters arguments defendants’ of the District Court and remand for a that their actions were discretionary.” Id. more inquiry detailed regarding the issue Supreme The of particular, waiver. has stated that the Court must qualified inquire immunity applies whether the to “government defendants violated any per officials scheduling forming in orders raising discretionary func- the de tions,” Harlow, fense for the first time 818, in their at summary S.Ct. judgment motions, 2727, but they whether the delayed definition of a discretionary asserting the defense for function is purposes tactical broad. “A law that fails to or any improper reason, and, specify impor precise most the action that the official tant, whether delay the must prejudiced take in the each instance only creates plaintiffs case. With respect to discretionary this last authority; and authority that factor, we note that Eddy, in opposition his remains discretionary however egregiously to the summary judgment motion, it is failed to Scherer, abused.” Davis v. 468 U.S. argue prejudiced that he was any 183, specif 14, 196 n. 104 S.Ct. 82 L.Ed.2d ic way by the delay. See Oppo (1984); Plaintiffs see Baer, also Sellers v. sition to Defendants’ Motion (8th for Summary F.3d Cir.1994) (“For qualified Judgment, Appendix at However, 344-47. immunity purposes, duty a is ‘ministerial’ example, qualified For immunity may be discovery, after or anas affirmative defense at raised in a motion to dismiss at the pleading Guzman-Rivera, trial. 667; See at F.3d stage, summary motion for judgment English, 23 F.3d at 1089. B. leaves regulation or the statute only where discretion.”)- v. Varrone for no room ground Cf. final The District Court’s Cir.1997) (not- (2d Bilotti, immu claim of ejecting r the min- validity the of the ing that continued it, that was the nity, as we understand questioned has been duty exception isterial Eddy asserted— right that constitutional “extremely event, it is that, any process right and be due the substantive emp Sullivan, 2, 11 4 F.3d narrow”); Horta v. by a governmental conduct free from Cir.1993) (same). (1st the conscience—was that shocks loyer4 question time in at

clearly District of the correctness trial, The be that, it could not and without scope of interpretation con the defendants’ Court’s whether determined question is a duty exception enough to reach outrageous ministerial duct was order may in a collateral may holding reach be we law that The District Court’s level. District compo that the factual legal we conclude into and appeal, separated and was mistaken. we understanding component, which legal The nents. Court’s policy two “long-standing appeal, includes if had in this may reach Even (a) coercing alleged a intimidating Eddy and has whether pattern questions: prac all work process in unsafe due engage violation substantive employees (b) n. that was Op. at 7 asserted tices,” Dist. Ct. whether July 20 component “specified] The factual mean that WAPA established. does Scherer, genuine issues there action,” 468 U.S. whether are question v. Davis precise to the material facts are regarding 196 n. case, the defendants’ whether in this determination took individual the con shock sufficient to that their actions conduct it does not follow thus Jones, supra, Johnson rejec science. Under Accordingly, the ministerial. were sufficiency evidentiary question is a may this immunity defense tion of appeal.5 in this not address ground. on this affirmed not be circumstances Act, depends on the tional conduct 48 U.S.C. Organic the Revised 4. Under whether particular on and in the case applies to Clause § Due Process opportunity to deliberate "Thus, had the defendant Virgin Islands. Government challenged conduct. engaging in the before due process same requires the Organic Act Court, Here, denying District under the fed- utilized analysis that would be that the appears to have concluded judgment, Co., Reg O Hendrickson constitution.” eral was sufficient to summary judgment record Cir.1981). 14 n. 2 knew that the defendants show that case, that Court held the District In this " injury if certain a risk of almost 'would face defendants, who and the individual WAPA ” July 1999 Dist. work.’ performed the he actors. territorial employees, are are Dist. Ct. (quoting Feb. Op. at 3 Ct. in this us is not before This issue argued 10). have not The defendants Op. at wrong legal stan- appeal that this the on argued the that not defendants have 5. The Instead, they dispute the District dard. incor- is based on an District Court's decision of the facts evaluation Court's necessary to intent interpretation the rect Jones, v. Under Johnson judgment record. the process due claim support a substantive of this nature decision supra, a factual County Sacra- In type that asserts. order doc- the collateral reviewable 833, 849, Lewis, 118 S.Ct. U.S. mento trine. (1998), Supreme the L.Ed.2d 1043 reaching the defen- barred from We also are point of con- the "[w]hether that stated District Court's argument that the dants’ injuries are when shocking is reached science denying for basis no factual opinion reveals falling the something] within [by produced of defendant summary judgment motion the negligence inten- range” between middle respect With to the first of the We also persuaded are not that the issues, legal the defendants contend city’s that alleged failure to train employ- its process substantive due ees, to be or warn to them about known risks free from treatment that harm, shocks the con was an that can prop- omission science apply governmental does not to a erly be characterized as arbitrary, or employer’s of its employees. treatment As shocking, conscience ain constitutional it, put defendants “the Plaintiff simply sense. Petitioner’s claim is analogous to cannot raise the ‘shocks the conscience’ fairly a typical tort state-law claim: The test employment relationship con city breached its duty of care to her text.” Appellants’ Br. at 14. In making husband failing provide to a safe argument this rely primari work environment. Because the Due ly on City Collins v. Heights, Harker Process Clause “does not purport to 117 L.Ed.2d supplant traditional tort law in laying (1992), O’Hare, McClary down rules of conduct regulate to liabili- (2d Cir.1986), F.2d 83 but we believe that ty injuries living together attend the defendants misunderstand those deci ... society,” we have previously re- sions. jected claims that the Due Process Clause should be interpreted impose to Collins, the widow of a municipal federal duties analogous are to employee who was killed in an accident on those traditionally imposed by state tort job sued city for which he had law- reasoning [This] ... applies worked under Section claiming that special with force to claims asserted city had violated the Due Process against public employers because state Clause. explained As we in our en banc law, rather than the Federal Constitu- decision in Fagan Vineland, v. City tion, generally governs the substance of Cir.1994), plaintiff the employment relationship.... in Collins “advanced two theories of recov- Collins, 128, 112 503 U.S. at ery”: first,“ S.Ct. 1061. ‘that the Federal Constitution impose[d] duty city provide its defendants, Unlike the we do not read employees with minimal safety level of passage or anything else in Collins to ” security in workplace’ and, second, mean that in that case would “‘that the city’s “deliberate indifference” not have stated substantive process due to [the safety deceased’s] was arbitrary claim if she alleged had conduct on the Government action that must “shock part city that satisfied the demand- ” conscience” of federal judges.’ Id. (quot- ing shocks the Rather, conscience test. Collins, ing 503 U.S. at 112 S.Ct. we understand Collins mean 1061). After rejecting the first theory, allegations in that case did not rise to the Supreme Court turned to the “shocks the conscience-shocking level and that the Due theory conscience” and stated: Process Clause does not reach public Harley. question The there whether is suffi- "whatever plaintiff] evidence might [the have cient evidence the summary judgment officers], rec- about [two other point he could Harley ord to hold precisely is case the no evidence that these three had beaten him or question sort may that we not entertain in had been present while others did so.” a appeal. collateral order In Johnson v. U.S. at 115 S.Ct. (emphasis in Jones, supra, police three officers whom original). Supreme The Court held that this plaintiff alleged had argued beaten him argument that question concerned a of evidence the District Court had erroneously sufficiency denied that was not reviewable in a collat- their judgment requests because eral order rely 3012. not on duty its We also do ordinary breach of employer’s Fa employees. its See danger” theory relative to “state created of sub- car e that Collins (noting at 1304 gan, process liability, Kneipp due see stantive viability of “unanimously reaffirmed the Tedder, Cir.1996), 95 F.3d 1199 as standard”). Al the conscience’ the ‘shocks Eddy degree appeal.7 has to some on opinion Circuit’s though the Second summary, In we hold as follows. We clear, view it as consis McClary is less we the decision of the District Court reverse of Collins. interpretation our tent with insofar as it holds that the individual de- reject n. 6. thus F.2d at 89 & We See 786 that, Eddy’s em argument because fendants waived the defense of WAPA, has relationship he ployment with remand, immunity. On the District Court the Due Process alleged a violation of not question must reconsider this under the Clause. If standards set out our case law. that District Court concludes the defense light of our en banc decision not waived under these stan- has been reject argument must also Fagan, we dards, may the individual defendants as- Eddy was not asserts inju time of his clearly established sert that defense at trial. noted, interpreted Fagan,

ry. As of the District We reverse decision Collins, workplace acci involving a case a insofar as it holds that the individual dent, “unanimously reaffirming] the vi as may not assert the defense of the conscience’ stan ability of the ‘shocks qualified immunity their conduct because County 22 F.3d at 1304. dard.” Cf. discretionary. ex- was not As we have Lewis, 523 U.S. Sacramento plained, holding apparently based (1998) (hold 1708, 140 L.Ed.2d 1043 S.Ct. minis- interpretation on a mistaken of the here, that the events at issue ing, after On re- exception due terial the defense. executive action violates substantive conscience). In mand, if it shocks the process may reconsider the District Court conclusion, rely, we do not as reaching this exception under the applicability did, regulations is the District Court on standard. correct Occupational sued Health Safe affirm the District Court’s decision We ty Eddy asserting Administration. summary judgment on denying against claim the individual defendants Eddy has al- immunity grounds because Clause,6 and the violating the Due Process leged a violation of immunity not forfeit their defendants “do ap- dismiss the right. constitutional We respect claim] to that constitutional [with sufficiency it contests the peal insofar as regula by violating some other statute or that the conduct of Scherer, n. evidence to show Davis v. 468 U.S. tion.” whether, question 7. We do not reach the Eddy's makes it clear that his Section brief violation, Eddy argued appeal, a constitutional the District Court 1983 claim asserts has Act or OSHA not a violation of OSH holding cannot sue erred in regulations. Appellee’s Br. at 20. There- See sue the defen- itself and cannot individual fore, decide whether we need not and do not capacities under dants in their official state a claim under section question § is not within U.S.C. 1983. This Act, of the OSH 29 U.S.C. 1983 for a violation jurisdiction under the scope our limited regulations seq. § or issued thereunder. 651 et doctrine. collateral order Industries, 756 F.2d 26 Minichello v. U.S. See Cir.1985) (OSHA (6th regulations relevant liability). to civil clearly reasoning the individual defendants more either or both of articulate its on shocked the conscience. remand.

MANSMANN, Judge, Circuit

concurring: join

I decision to affirm Court’s summary

the District Court’s denial

judgment ground employ- on the that an

ee’s constitutional to be free from “arbitrary, shocking” injuri- or conscience America, UNITED STATES by instrumentality ous conduct a state Plaintiff-Appellee, the time of Mr. Eddy’s injury. separately I write because my analysis diverges my from that of col- JOHNSON, Frank Arnold leagues respects. in two Defendant-Appellant. First, matter, I as technical would not No. 99-4824. judgment characterize this Court’s as a in part, notwithstanding rejec- reversal our Appeals, United States Court of tion of grounds some alternative Fourth Circuit. upon which the District Court relied. The Argued June 2001. Order under review denied defendants’ summary judgment. motion This Decided June 2001. today upholds that denial. I would characterize result an this affirmance on ground. alternate For the same rea-

son, I Eddy, would award costs to as the

prevailing party

Second, agree I majority while with the the defendants’ failure to raise the qualified immunity

affirmative defense of

prior to the judgment stage does waiver,

not automatically result in a

appears that the District Court have finding appropriate

based its of waiver on

discretionary factors such as lack of dili-

gence resulting prejudice,1 and rather than per rejected

on the se properly rule

majority. The matter is of little moment stage view of our affirmance on If grounds.

other the District Court’s de- predicated

cision was on consideration of appropriate factors, then it should Cleveland, invested, City Yates v. discovery tensive one would Cf. (6th Cir.1991) (observing during time, in- imagine, a considerable amount in mon- filing complaint delayed terval between ey energy”). defense, plaintiff "engaged assertion of in ex-

Case Details

Case Name: Eddy v. Virgin Islands Water & Power Authority

Court Name: Court of Appeals for the Third Circuit

Date Published: Jul 10, 2001

Citation: 256 F.3d 204

Docket Number: 99-3849

Court Abbreviation: 3rd Cir.