*1 12(b)(6) ... Rule 56.” Id. But this procedures administrative ... or remain deciding wheth is not such a case. When not Plaintiffs have must followed. jurisdiction er is intertwined with the mer have with they complied demonstrated “the particular dispute, underlying of a appealing established the provisions jurisdic issue is whether resolution the is an official. The record inaction question of an requires tional resolution plaintiffs ever any evidence void of claim.” v. aspect the substantive Sizova BIA writing take requested in Inst, Tech., Nat'l & Standards card applications. CDIB their action on Cir.2002). substan II, F.Supp.2d (emphasis Davis case is tive issue in Plaintiffs’ whether added). motion chal- Defendants’ Because improperly Plaintiffs were denied CDIB underlying alle- Plaintiffs’ lenged the facts cards, particular plaintiff not whether a gations jurisdiction, has exhausted administrative remedies. motion was not foreclos- of that resolution (exhaustion of See id. at 1325 administra I, in Davis holding which ad- ed our not an “simply aspect tive remedies is sufficiency allega- of the dressed discrimination”). claim of [a] substantive tions themselves. affirm the district court’s Accordingly, we that even if Defen- respond Plaintiffs resolution of Defendants’ motion under is con- properly dants’ to dismiss motion 12(b)(1). Rule 12(b)(1), under Rule strued a motion as Plaintiffs To extent that raise addi- precluded district court was nevertheless brief, reply tional in their we challenges considering beyond information from reject timely challenges those not complaint. Consider- allegations of 211 F.3d at Stump, raised. 533. See information, claim, they ation of such into motion one would have converted Y. Conclusion But, judgment. they point summary judgment AFFIRM the of the dis- We out, clearly did not “The district trict court. judgment on the CDIB grant summary claim; card dismissed claim without it Br. at
prejudice.” Aplt. Reply 16. argument their is mis
Again, party challenges
conceived. When subject-matter ju allegations supporting YOUREN, Debra Plaintiff- risdiction, Appellee/Cross- wide “court has discretion to Appellant, affidavits, documents, other and a allow evidentiary hearing to dis limited resolve Holt, facts.” puted jurisdictional F.3d DISTRICT, TINTIC Patricia SCHOOL instances, a “In such court’s ref 1003. Hunter-Rowse, Alder, Ed Defen- pleadings erence evidence outside the dants-Appellants/Cross-Appellees. the motion [to dismiss] does convert not 01-4131, 01-4144. Nos. summary judg motion [for Rule 56 Appeals, Court of United States Id. ment].” Tenth Circuit. recognize that when “resolu We Sept. tion jurisdictional question of the is inter case,” twined of the it is with the merits 12(b)(1) “convert a Rule mo
necessary to
tion Rule [motion under] ... into *3 Lambert,
Loren M. Arrow Legal Solu- tions, LLC, Midvale, UT, Plaintiff-Ap- pellee/Cross-Appellant. *4 Burnett,
Brent A. Assistant Attorney General, Shurtleff, Mark L. Attorney Utah General, UT, City, Salt Lake for Defen- dants-Appellants/Cross-Appellees. HENRY, Before MeWILLIAMS and LUCERO, Judges. Circuit HENRY, Judge. Circuit appeals These arise from a case which plaintiff was Debra Youren and the defendants were the Tintic School District and employees, superintendent two of its Patricia Hunter-Rowse and teacher Ed Youren, formerly Alder. Ms. a teacher Tintic, employed brought suit under 42 U.S.C. alleging claims for violation her due process, speech, priva- free cy rights, and state-law claims for wrong- ful termination and violation of the Utah (the Protection of Employees Public Act Act”), “Whistleblower Utah Code Ann.' trial, §§ Following 67-21-1 to 67-21-9. a jury found Tintic and Ms. Rowse1 rights violated Ms. Youren’s under Act, compen- and awarded satory damages. also found favor of Ms. Youren on the federal civil rights claims and compensatory awarded damages against both Tintic and Ms. Rowse for those violations as well. order, In a post-trial district judg- denied the defendants’ motion for briefs, Taking parties’ our lead from the we refer to Patricia Hunter-Rowse as Ms. Rowse. with daughter and ship with Ms. Youren’s Ms. Youren’s of law on matter ment as a students, Mr. Alder con- male several claim, that Ms. holding whistleblower and indeed en- student absences doned of limita- 180-day statute Youren met ranch work at his couraged students to under Whis- claims bringing tions school, poly- attending than rather timely notice by filing Act tleblower had resulted influence at the school gamist was not claim, complaint though even discriminatory practices, adoption in the 180-day deadline. The until after filed allegations. number of other as well as a the defendants’ denied court also district holding jury’s to vacate request that, alleged further Ms. Youren Rowse, the Whis- ruling that against activities, whistleblowing of her result Rowse to be allowed Ms. Act tleblower (the and other superintendent) Rowse The defen- capacity. in her official sued retaliated employees school they rulings, appeal those dants now threats, re- employment with adverse her district court appeal also assert on Ms. Youren sub- requirements that ports, both recovery against by allowing erred examination, psychological herself to a ject *5 Rowse. Tintic and Ms. psycho- of that attempts to use the results Ms. Your- examination to discredit logical and chal- cross-appeals Ms. Youren en, induce Ms. Your- successful efforts to the grant the district lenges daughter allegations to fabricate en’s verdict motion for a directed defendants’ (accu- step-father her against sexual abuse puni- claims dismissing Ms. Youren’s recanted), oth- that later and sations were the district court’s damages, as well as tive inappropriate responses. er hourly rate used to of the determination attorneys’ fees to calculate the award of 12, 1998, Tintic sent Ms. March On Ms. Youren. notifying her that her em- Youren letter would not be renewed ployment contract in all re- the district court We affirm informing request her that she could and punitive denial spects except for its conference before the Tintic an informal issue, reverse and that we damages. On requested Board. Ms. Youren School determining to for a trial limited remand hearing. hearing The was scheduled amount, damages to any, punitive the 8,1998 April and then rescheduled to April Ms. Rowse on Ms. against be assessed on hearing The was convened 1998. claim. rights federal civil Youren’s suspended before it was April 23 but reconvened, for completed and was never I. BACKGROUND entirely clear that are not from reasons 8, 1998, May appellate the record. On by the Tin- employed Youren was Debra attorney Tintic’s informed Ms. Youren a teacher at West tic District as School hearing completed not be and would in rural In High Utah. Desert School challenge hearing that no further began express concerns to Ms. Youren be held. non-renewal of the contract would about superiors and colleagues her in her various teachers school. conduct of with Youren filed a Notice of Claim Ms. favoring a teacher was his alleged Attorney General and with Tintic She the Utah dating complaint and one family July members 1998. She filed her polygamist students, that another teacher dated in federal district court on October of his Tintic, Rowse, naming relation- as defendants attempted and to initiate a.sexual Youren tice of claim it has all of the and Mr. Alder. Ms. asserted information regarding against party claims it as a rights civil claim under U.S.C. who has a Complaint.” received Id. The rights for violation of her federal to due district court further held that because speech, privacy. free and process, She being Rowse was sued in her official also asserted state law claims under the capacity, the verdict and damages awarded Act, as well as common law against separately her were not void as a tort of intentional claims infliction of emo- matter of law. Id. tional distress and interference with eco- motions, Ruling on Ms. Youren’s nomic relations. attorneys’ court awarded fees and The district court dismissed tort $64,783.41. totaling costs Id. at 124. In trial, During claims before trial. result, reaching this the district court not- granted district court the defendants’ re- ed that contingency fee contract be- tween Ms. Youren and her quest punitive damages argued attorney speci- not be per fied a “default rate” of hour. Id. $105 jury to the The jury. found Ms. Your- explaining why After this rate was reason- claim, en’s favor on the whistleblower (based able experience, on counsel’s awarding damages against Tintie for involved, comparable matter and market $65,000 $65,000. against Ms. Rowse for rates), adopted the district court $105 also found favor of Ms. Youren hourly rate for its calculations. rights on her federal civil claims and $55,500 $32,500 damages awarded II. ANALYSIS Rowse, Tintie respective- and Ms. *6 The appeal defendants’ and Ms. Your- ly. Mr. Alder was not held hable. First, cross-appeal en’s raise five issues. trial, did the district court err in denying After the defendants renewed their the defendants’ motion asserting that the law- judgment motion for as a matter of law on 180-day suit had been filed after the stat- Ms. Youren’s under the claims Whistle- Second, ute of limitations? did the district Act, claiming blower that the suit was not by jurisdiction err exercising over timely filed and that Ms. Rowse could not against whistleblower claim Ms. Rowse be included Aplts’ App. as defendant. at capacity, though in her official even (Motion Judgment 82 a Matter separate Youren did file a notice not Law, Apr. Renewal of filed Request, Third, claim did against Rowse? motion, In denying the defendants’ district court violate the rule dou- the district court observed that the struc- recovery permitting ble to as- ture of the Act “suggests Whistleblower compensatory damages against sess both filing of the notice of claim satis- Fourth, Ms. Rowse and Tintie? did the applicable fies the statute of limitation. dismissing err in Ms. Your- district court Furthermore, underlying purpose of punitive damages? Finally, en’s claims for limitation, statutes of and likewise the ra- did the district court abuse its discretion claim, tionale behind the notice of is to attorneys’ Ms. Youren fees based awarding give notice prompt before memories fade hourly per on an rate of hour? $105.00 and evidence is Aplts’ App. lost.” A. The of Limitations and the
(Dist. Statute 2001) Order, Ct. dated June Pretrial Order (“Post-Trial Order”). Echoing policy rationale behind pleading, notice the court We review the denial of a motion novo, applying concluded: “Once the State receives a no- for a directed verdict “de 1302 by time limit cannot met by 180-day used the district
the same standards Claim, Co., merely filing a Notice of but rather v. Terminix Int’l 225 Bielicki court.” must be filed within Cir.2000). that the claim itself A direct 1162 F.3d days. argues Ms. Youren if the evi only appropriate ed verdict is the statute of limita- defendants waived dence, favorable light in the most viewed and, alternative, tions issue in the that the nonmoving party, “points but one to the correctly district court held that Ms. Your- to no reasonable way susceptible and is en satisfied the statute of limitations non-moving par supporting inferences her well before the filing Notice of Claim (internal quotation marks omit ty.” Id. statutory deadline. ted). reviewing are a federal Because we ancillary adjudication of an state We need address the merits of claim, the substan law Utah law controls if argument defendants’ we determine that Act analysis tive of the Whistleblower they preserved the statute of limitations though claim—even federal law controls question issue. therefore address the We question of wheth procedural the ultimate waiver, inqui- which in turn involves two was warranted. See er directed verdict first, whether statute of limita- ries: Inc., Howmedica, Oja v. F.3d so, all, tions can it be waived (10th Cir.1997). waived here? The Act sets forth the Is the Statute Limitations Defense applicable statute of limitations: em- “[A]n an ? Affirmative Defense
ployee alleges chap- who a violation this may appropriate ter a civil action for bring Federal Rule of Proce Under Civil injunctive damages, relief or actual 8(c), a defense waivable if it an dure is is both, days within 180 after the occurrence affirmative defense. See Bentley Cleve alleged chapter.” of the violation of this Comm’rs, County County land Bd. 67-21-4(2). par- Utah Code Ann. (10th Cir.1994) (“Failure F.3d agree statutory filing period ties plead an affirmative in a defense results *7 1998, 12, run when defense.”) started to on March (citing waiver of that Fed R. by 8(c) Ms. Youren received notification letter Moore, al, P. and 2A W. et Civ. James ¶ 8.27(3) (2d ed.1994)). parties that she The would be terminated. Moore’s Fed. Prac. 8(c) Rule both the federal and the Utah agree also that Ms. Youren’s Notice of procedure rules of civil “Affirma 23, 1998, states: July Claim was filed on less than pleading preceding tive Defenses. In to a letter; days 180 12 after the March pleading, party a shall set forth affirma filing that the 5 date of the actual October satisfaction, tively accord and ... statute Complaint days is more than 180 after the limitations, waiver, any other mat began to run. period limitations constituting ter an avoidance or affirma rejected The district the defen- 8(c); tive defense.” Fed R. Civ. P. Utah dants’ post-trial judgment motion for as a 8(c) added). (emphasis R. Civ. P. “Inter law, holding matter of that Ms. Youren’s pretations of Federal Rules of Civil timely filing of her Notice of Claim was persuasive Procedure are where the Utah sufficient the purposes to serve of the stat- ‘substantially Rules of Civil Procedure are ute’s prompt requirements. notification similar’ to the federal rules.” Tucker v. (Post-Trial Order, Aplts’ App. Co., at 122 filed State Farm Mut. Auto. Ins. 53 P.3d 4, 2001). (Utah 2002). Apr. n. 2 The defendants assert that 949
1303
filing
795 F.2d
independent
we
on
months
claim....’”
Although
hold
limitations is
at 547. The court ruled that this makes
the statute of
grounds that
defense,
noteworthy
“an element of
it is
the statute
limitations
an affirmative
initially the cause of action.” Id.
defendants themselves
Aplts’ App.
See
it as such.
treated
Emmons,
Similarly, in
the Fifth Circuit
(Defendants’ Answer to Plaintiffs Amend
Liability
that the Federal Employers’
held
Trial,
Jury
and Demand for
Complaint
ed
(“FELA”),
seq.,
§
45
Act
U.S.C.
51 et
(“FOURTH
1999)
AFFIR
filed Jan.
file a
imposed
plaintiff
burden
to
Plaintiffs
DEFENSE:
MATIVE
Some
limi
three-year
claim within
statute of
are barred
the relevant statute
claims
(“No
tations,
§
U.S.C.
action shall be
limitations”) (capitalization
original).
under this
com
chapter
maintained
unless
to the
argued
defendants nevertheless
The
day
within three
years
menced
from
limitations
court that
statute of
accrued.”).
of action
The court
the cause
of Ms. Youren’s case and
an “element”
is
n
language
construed that
to mea
Aplts’ App.
not an affirmative defense.
timely bring
suit not
bars
“[failure
of Law
(Proposition
66-67
Memorandum
remedy,
destroys
the claimant’s
it also
but
an Element of Plaintiffs’ Case
re: It is
liability.”
employer’s
are tied to features of suit may right in In Ford not be vindicated ply statutes at issue those cases. Thus, limita- Motor, timely not- not example, the Sixth Circuit suit is filed. to nine here is “a mere bar suit filing provision period month tions “[t]he ed Goodwin, Bill Straight Lading upon” rights. Ms. Youren’s of the Uniform limitations at 971. The statute of issue emanates from 49 U.S.C. F.2d 11707(e)(1982), a affirmative de- which defense is thus classic provides ‘[a] contract, rule, to may provide by precedent” and not “condition carrier not fense n otherwise, period of less than the suit. the statute of Accordingly, limitations must make a full and fair disclosure of defense is an affirmative defense and is their views as to what the real issues of Bentley, 41 the trial will be.” Rios v. subject Bigler, to waiver. See F.3d at 67 F.3d (10th Cir.1995) (internal 1543, 1549 quota 604. omitted). tion In assessing marks wheth preserved er an issue was it where was De- Was the Statute Limitations oi'der, pretrial omitted from a we have Waived? fense held party that because a “did not include Having determined that the stat in pre-trial report, this issue ... it was ute of limitations defense is a waivable part not of the case before the district defense, affirmative we must determine court.” Gowan v. Dep’t United States defendants, fact, in whether the waived it Force, Air Cir. in this case. It is true that the defendants initially pled here the statute of limitations Although the defendants included the defense, in general at least terms. See statute limitations as"an affirmative de- Aplts’ App. at 12. The defendants also fense in their answer to the complaint, during filed a motion course they identify did not the statute of limita- trial, again raising the statute of limita pretrial tions issue in the Notably, order. (Motion Aplts’ tions issue. at 55 App. there is a pretrial section of the order with 2001) Verdict, Directed filed Mar. heading “CONTESTED ISSUES OF (“The undisputed developed facts at trial LAW,” under which the defendants listed plaintiff timely show that failed to file her purely legal questions three the stat- —but claims”). facts, however, Neither of these ute limitations issue conspicuously was Rule, overcomes Pretrial Order em among not them. Aplts’ App. (capi- 16(e) in
bodied Rule of the Federal Rules talization in original). Even more notably, of Civil Procedure: the pretrial order evidently prepared any After conference held pursuant exclusively by the Aplts’ defendants. See rule, this an order shall be entered recit- (“No Reply Br. at 3 n. 1 joint pretrial ing the action taken. This order shall matter.”); order was in prepared this control the subsequent course of the ac- Aplts’ App. at 53 (pretrial order with the tion unless a subsequent modified signatures of Tintic’s counsel and the order. The order following pre- a final judge, but not that of Ms. Youren’s coun- sel). trial conference shall be modified
prevent
injustice.
manifest
An order
Co.,
In
Ingram
McGinnis v.
Equipment
16(e)
pursuant
entered
to Rule
super-
(11th Cir.1990),
Witvoet, (quoting Utah F.2d 1101 67-21-2(4)). “Therefore,” §Ann. the dis- limitations that a statute of the proposition continued, that trict court “this court holds by include waived failure to defense is not cause of Defen- against Plaintiffs action does, order. pretrial it in the Calderon brought Rowse is in her against dant her limita- indeed, that a conclude statute capacity statutory official no there are by was not failure to tions defense waived or other sound to vacate the bases order, in a 999 F.2d pretrial include it against award entered her.” Id. it does so on the basis that but already in that had district court case appeal, On the defendants ar issue. the defendants on that against ruled gue that because Ms. did not file a Youren concluded: Circuit thus The Seventh separate against notice of claim in the Rules Procedure “Nothing of Civil Rowse, the district have de court should preserve issues tells counsel jurisdiction clined to exercise over Ms. appeal they pretrial must insert into against Youren’s whistleblower claim already been contentions that have order subject Rowse. We review issues of mat rejected judge.” the defen- by the Id. As jurisdiction ter de States v. novo. United here, note the district dants themselves Prop. Parcel Lot One Located at Coun of limita- court did not rule the statute (10th Cir.1996). 100 F.3d ty Ridge, Hence, until after tions issue trial. The defendants are correct that in whistle- issue statute of limitations was a “live” involving entity, suits government blower a order before pretrial when the was drafted compliance requirements with the is notice trial, applicable. is thus not Calderon jurisdictional. generally Hall v. State See (Utah Corr., Dep’t P.3d issue, there- The statute limitations 2001) (holding that of claims is dismissal fore, part not of the case “was before against in a a proper whistleblower suit Gowan, at 1192. district court.” entity plaintiff when the fails government that the waived We thus hold defendants requirements). to adhere to notice their affirmative de- statute limitations omitting pre- from the fense issue against a brought When suit is order, and we to reach the trial decline against district and school officials school on this argument merits of the defendants’ official Govern capacity, their Utah issue. Immunity requires only mental Act on the notice of the claim served Subject B. Matter Jurisdiction Over having district. “Any person school Against Ms. Claim Rowse injury against governmental claim for ... shall entity, against employee or post-trial In their in the district motion the enti file a written notice claim with court, defendants argued ty maintaining an action.” Utah before jurisdiction court lacked over the claims 63-30-11(1) (emphasis Ann. add Code against Ms. Rowse “because the Whistle- ed). claim, an against The notice even action blower Act does not allow a cause of entity employee, must be filed with the individual, employer.” an itself. (Post-Trial Order). Aplts’ App. rejected do that notice argument, argue The district court this The defendants not inadequate Act’s defini- to the school district was noting *10 served, untimely nor that the claim did not two claims and establishes a dollar Therefore, list Ms. Rowse. the defen- injuries, you amount for her must not that argument dants’ because Ms. Youren award her compensatory additional dam- did not file or serve her notice of claim on ages on only each claim. Plaintiff is Rowse, subject there was no matter entitled to may be made whole once and jurisdiction established over Ms. Youren’s not recover more than she has lost or Rowse, claim against Ms. is baseless. Ac- course, suffered. if injuries Of different cordingly, subject the district court had claims, are separate attributed to the jurisdiction matter over Ms. Youren’s you then must compensate fully Plaintiff whistleblower claim against Ms. Rowse. injuries. for all of her Aple’s I, vol. App. at 12 (Jury Instruction Capacity Damages C. Are Official 36). No. Against Impermissible Ms. Rowse presume jury We has followed Recovery”? “Double the court’s instructions. See Mason v. argue The defendants Auth., Tpk. Oklahoma 115 F.3d district court’s award of official capacity (10th Cir.1997). The defendants do not damages against Ms. on Rowse the whis allege that the district court judge inap tleblower claim resulted in an impermissi propriately inadequately or instructed the ble recovery against “double [the] school Therefore, jury. we assume that the jury Aplts’ district.” Br. at 8. Because Ms. followed these instructions. See Macsenti Rowse was sued in her official capaci Becker, Cir. ty, and because she is an “agent” of the 2001) (“[T]here was no contention of im district, school the defendants argue that proper inadequate instructions to the the district court erred in permitting both ... jury, recovery [and thus double a] names to placed jury on the verdict argument fails because courts must as form. The suggest defendants sume that jury performed duty its was, school reality, district itself “in placed instructions.”) (in accordance with those jury on the verdict form twice: once under omitted). quotation ternal marks its own name and a second time under the name of employees one of its being sued are, moreover, persuaded We by Ms. her official capacity.” Id. at 17. The de argument Youren’s that these instructions argue fendants permit “[t]o awards jury allowed the apportion damages against both the employer directly and so that Ms. Rowse could be publicly sanc- indirectly” thereby sanctions double re tioned for having violated the Whistleblow- covery, and that we should instruct er Act. reject therefore We the defendants’ district court to dismiss those claims and argument on this issue. $65,000.00 resulting in damages
against Ms. Rowse. Id. at 18. Damages D. Punitive The district court in this case explicitly cross-appeal, On Ms. Youren challenges instructed the not to duplica- award the district court’s dismissal of her claims tive damages: punitive damages. The defendants
You must not compensatory award during dam- moved trial punitive exclude ages (Motion more than once inju- for the same damages. Aplts’ App. at 59 ry. For example, prevails Plaintiff Verdict, Directed filed Mar. Af-
1307 discussing municipalities puni- in are immune from chambers ter a discussion however, issues, not, does mean that damages the district tive variety of wide re- parties officials in their official ca- arguments from the individual sued heard oral The defen- damages. jury are likewise immune. The garding punitive pacity insufficient argued that there was that Ms. Rowse’s actions violated dants found damages support a punitive rights to Youren’s federal civil and violat- evidence verdict, Youren that suffi- argued and Ms. Act. de novo ed On See presented. review, therefore, could be cient evidence we must decide whether Pro- (Transcript 159-63 of App. at Aplts’ against Youreris evidence Ms. Rowse 26, After lis- Mar. ceedings, dated punitive damages. met the standard for arguments, to these and other tening such, As we must review whether the dis- “[Pjunitive ultimately ruled: district court ruling disallowing pu- trict court’s blanket out.” Id. at 172. damages [are] in damages nitive on all claims this case appropriate. determi Because district court’s Because we now know that to existed nation that insufficient evidence liable, Alder how found that Mr. was not of question is a support punitive damages ever, punitive imposed no can be damages law, de novo. we review determination or him for state federal claims. See Servs., Equifax See Deters v. Credit Info. 18—l(l)(a)(“[P]uni §Ann. Code Utah 78— Cir.2000). (10th 1262, Inc., 202 F.3d 1269 damages may if com tive awarded general or are award damages pensatory to Damages 1. Applicability Punitive Concerts, ed.”); City Newport v. Fact in this Case Defendants Different Inc., 269, 101 69 453 U.S. S.Ct. (1981) § (noting L.Ed.2d 616 sub addressing Before concerns, juries and puni we must courts to assess “allow[s] of Ms. Youren’s stance punitive damages appropriate circumstances applicability consider the tive first official, offending in this on his against to the different defendants based damages resources”) § law financial (emphasis Both U.S.C. 1983 and Utah personal case. added). Therefore, damage mu punitive against although bar awards Mr. Alder subject Miller nicipal agencies punitive such Tintic. See dam could have been Mission, Kansas, City under the same conditions as Ms. ages Cir.1983) (“‘[A] municipality is Rowse, unnec jury’s holding makes it punitive damages under immune from essary puni consider the applicability ”) Newport (quoting City § U.S.C. 1983.’ to Mr. damages tive Alder. Inc., Concerts, 453 U.S. v. Fact (1981)); 2748, 69 101 S.Ct. L.Ed.2d Damages Un- Availability Punitive 63-30-22(l)(a) (“No § Ann. Utah Code the Whistleblower Act der may judgment be rendered Act does not The Whistleblower government entity exemplary puni damages, provide punitive specifically damages.”). tive out. explicitly it rule them See nor does 67-21-5(1) (“A court, Ann. Code the district Utah We therefore affirm brought rendering judgment in an action punitive dismissal of claims for reinstate chapter, may this order district under under damages against school level, employee same fact of the at the federal and state claims. The ment both *12 1308 wages, back full payment grants of reinstate “plenary authority on the Board to fringe seniority
ment of benefits and impose parole, conditions of even absent rights, damages, any actual or legislation combina specifying particular condi- remedies.”) wording added). tion of these The of tions.” Id. (emphasis however, statute, makes it clear that Here, the legislature state failed to men- the list is of remedies meant to be exclu punitive damages, tion one of the two basic listing specific four remedies or a sive— types damages, in a law that authorized combination of them. Under the doctrine (reinstate- specific various forms of relief alterius, of expressio unius est exclusio ment, pay, seniority back rights, and actu- “express thing or include one implies the damages). al § See Utah Code Ann. 67- other, exclusion of the or of the alterna 21-5(1). Indeed, legislature twice (7th Dictionary tive.” Black’s Law mentioned “actual damages” without men- ed.1999). negative “The notion is one of id.; tioning punitive damages. See Utah implication: the enumeration of certain 67-21-4(2) (“An § Code Ann. employee in things suggests a statute that the legis alleges who a violation of this chapter may lature had no intent of including things bring a civil action for appropriate injunc- not listed embraced.” Seneca-Cayuga or both.”) tive relief or actual damages, or Tribe Okla. v. Nat’l Indian Gaming We are therefore unwilling puni- to read Comm’n, (10th 1019, 1034 Cir. damages tive into a statute that does not expressly authorize them. law, In interpreting Utah we are of guided by course the first instance 3. Availability Damages Punitive
pronouncements
highest
of that state’s
Violations
Federal Law
court.
Supreme
The Utah
Court has ex-
Unquestionably,
“[p]unitive
pressed some reservations about
appli-
damages
are
available
1983 actions
expressio
cation of the
unius doctrine.
are to
[and]
be awarded only when the
principle
only
“[TJhis
is
an aid to statutory
defendant’s conduct is shown to be
law,
moti
interpretation;
it is not a rule of
and
vated
intent,
evil motive or
it
when it
application.”
has
limited
Cullum v.
involves reckless or
Exch.,
callous
indifference to
Farmers
Ins.
857 P.2d
924
(Utah 1993).
federally
protected rights
“Indeed,
of others.”
recognized
we have
Deland,
Jolivet v.
966
servant,
F.2d
577
that it is a valuable
but a danger-
Cir.1992) (internal
Carver,
quotations
ous master.” Monson
marks and
v.
928 P.2d
omitted).
(Utah 1996) (internal
citations
1025
focus must be on
quotation
omitted).
Monson,
whether
marks
In
defendant’s
actions call for
“
rejected
‘deterrence
expressio
punishment
an
unius-style
over and
reading
above that provided by
the state constitution and
compensatory
held that “the
”
(Smith Wade,
awards.’
absence of the term
Id.
‘restitution’ from the
461 U.S.
30, 54,
provision
constitutional
setting forth the
S.Ct.
award punitive damages. e.g., seriously purpose take Biotech, Inc., We Medlock v. Ortho F.3d i.e., damages, punish (10th Cir.1999) “to what punitive (upholding jury *13 repetition.” and to deter its has occurred punitive damages retaliatory award for Haslip, Ins. Mut. Co. 1981). discharge § case under 42 U.S.C. Pacific Life 1032, L.Ed.2d 1 111 S.Ct. U.S. that, We therefore hold because there (1991). in the rec Ms. Youreris evidence jury was a sufficient evidence for to con- ord, believed, to us to appears reflect possibility awarding sider the punitive of pun be and actions that should deterred Rowse, damages against the Ms. bring efforts to to ished. Ms. Youreris preventing jury court erred in the from the activities at her light questionable considering imposition punitive the dam- allegedly contempt, with school were met remand, ages on her. On the district court hostility, anger. and Ms. Rowse decided trial the should hold a limited to issue of a undergo psychologi to have Youren Ms. claims, punitive damages federal for the that was ac “request” cal examination —a jury permitting awarding to consider “[fjailure a threat that to companied by damages against such Ms. Rowse. request follow this will constitute insubor (Letter dination,” I, App. Aple’s vol. Attorneys’ E. Fees Youren, Sep. Ms. to Ms. dated
from Rowse 10, 1997). find these jury If a were to acts Finally, Youren challenges Ms. unjustified, punitive damages to be could the district court’s decision to use a $105 appropriate. hourly calculating attorneys’ rate in fees. actions, For 42 U.S.C. we review public in the of a
Especially context a attorneys’ both district court’s award of in educating caring role and school its fees and the amount awarded an abuse extremely im- youth, for the nation’s it is v. City a discretion. See Robinson portant light those who shine protect Edmond, unsavory illegal on Cir. practices -risking— standard, we may this re knowledge their careers in the their “Under colleagues grateful findings only verse factual anything will be but a district court’s erroneous, clearly This involved if the but review allega- those efforts. case are we being statutory interpretations tions children were seduced court’s authority figures, and that the defen- legal adult other de novo.” Id. conclusions dants induced a false accusation sexual is mixed reasonableness determination a step-father. assault child’s De- we application apply law-fact to which allegations pending upon which of these general abuse of discretion standard. See believed, jury jury might well con- id. existed, that there clude that malice was argues Ms. Youren the dis
reckless or callous indifference short, hourly etc. In trict rate determination rights, Youreris could being beyond Campbell guidance on provides recent and for based actions most courts, Supreme purview see id. at from the United States Court on the state clearly Although punitive damages. that decision nonetheless reaffirms issue purposes punitive damages have punitive damages for which Court there invalidated excessive, being always used. award for see 123 S.Ct. at been given five-year span unreasonable of would remand with directions that the dis- litigation, suggesting and, that the district trict court first consider after hearing, make court failed to take into account the in- the initial determination as to wheth- er the attorneys’ defendants in fact creases in fees over that time waived the 180 Youren, day however, statute of limitations period. contained in the pro- fails to Act. any vide record evidence the issue of attorneys’ fees. “Because appellant] [the agree I day that the 180 statute of limi- failed the record in support to reference tations in the Act was not mentioned in the contentions, we will not consider them order, pre-trial though it pled by had been through or sift the record in support *14 defendants their answer. Notwith- thereof, instead defer to the but standing, the 180 day statute of limitations Indus, rulings.” High court’s Mile v. Co- inwas fact a contested issue during the hen, Cir.2000). trial of post-trial the case and in motion.
Accordingly, we will defer to the district trial, At the defendants moved for direct- court’s determination that Ms. Youren’s ed verdict on Youren’s Whistleblower $105, hourly counsel’s rate should be set at claim on grounds that Youren had as set out in the terms of the contingency failed bring her action within the 180 fee contract. day requirement. The district court denied verdict,
defendants’ motion for directed stating “I think basically these are III. CONCLUSION issues, legal if I need to decide some Accordingly, we AFFIRM the district trial, things after I will.” particu- On this claims, court on all with the exception of matter, lar in denying defendants’ motion ruling impose could not n.o.v., judgment the district court ruled punitive damages against Ms. Rowse un- plaintiff because filed a Notice of issue, der federal law. On that we RE- Claim with the Utah Attorney General and VERSE and REMAND for proceedings with the School District within 180 days consistent this ruling. with from her discharge, date of there was com-
pliance with the requirement Act’s any claim under the may Act be filed with McWILLIAMS, dissents, Circuit Judge, a court days within 180 plaintiffs from in part. (I date of discharge. have doubt as to Youren’s claim under the Utah Whistle- correctness the district court’s holding blower Act was not filed the United matter). on this The district court did not States District Court for the District of rule on question I waiver. would days Utah within 180 of her date of dis- prefer much that under these circum- charge. majority holds that because stances the district court grap- should first day statute of limitations contained ple with the statute of limitations issue. in the Utah Act was not set
forth order, in the district pre-trial thereby defendants partic- waived that
ular defense to Youren’s claim based on
the Act. Under the described circum- below,
stances set forth I disagree with the
majority’s holding that as a matter of law
the defendants waived that defense I