                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-10-2001

Eddy v. Virgin Island Water Power Auth
Precedential or Non-Precedential:

Docket 99-3849




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Filed July 10, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 99-3849

GABRIELLE EDDY

v.

VIRGIN ISLANDS WATER AND POWER AUTHORITY;
JAMES BROWN; JOHN DOE I; JOHN DOE II;
JOHN DOE III; JOHN DOE IV

       Virgin Islands Water and Power Authority;
       James Brown; Randolph Harley,

       Appellants

ON APPEAL FROM THE DISTRICT COURT OF
THE VIRGIN ISLANDS

(District Court No. 96-cv-00048)
District Court Judge: Thomas K. Moore

Argued: December 5, 2000

Before: MANSMANN, ALITO, Circuit Judges, and
ACKERMAN, Senior District Judge1

(Opinion Filed: July 10, 2001)



_________________________________________________________________
1. Honorable Harold A. Ackerman, Senior Judge of the United States
District Court for the District of New Jersey, sitting by designation.
       SAMUEL H. HALL, JR. (argued)
       MARIE E. THOMAS
       Birch de Jongh Hindels & Hall
       Poinsettia House at Bluebeard's
        Castle
       No. 1330 Estate Taarnebjerg
       St. Thomas, V.I. 00802

       Counsel for Appellant

       JAMES M. DERR (argued)
       28-29 Norre Gade
       P.O. Box 664
       St. Thomas, V.I. 00804

       Counsel for Appellees

OPINION OF THE COURT

ALITO, Circuit Judge:

This is an appeal from a District Court or der denying a
motion for summary judgment by the defendants in an
action asserting a constitutional tort claim. The defendants
raised the defense of qualified immunity, but the District
Court rejected that defense, primarily on the ground that it
had been waived because it was not asserted until
summary judgment. We reverse in part and remand for
further proceedings.

I.

Plaintiff Gabrielle Eddy was employed by the V irgin
Islands Water and Power Authority ("W APA") as a lineman.
The parties disagree about the extent of his training and
whether he was trained to perform work at WAPA's facility
at Krum Bay, St. Thomas, the location of the accident that
led to this lawsuit.

On June 2, 1994, a switch on a high voltage line needed
to be replaced. A determination was made that the work
would be done without shutting off the power . Defendant
James Brown, the acting Superintendent of the Line

                                2
Department, instructed Eddy to perform the work. Eddy
claims that he informed Brown that he was unqualified to
do the work but that Brown told him that he would be
subject to discipline and possible termination if he refused.
According to Eddy, WAPA pr ovided him with improper
clothing, tools, and equipment to perfor m this work on a
live line. Among other problems, Eddy asserts that he was
required to use an ordinary metal ratchet wrench (as
opposed to the insulated wrenches normally used for these
procedures) and was forced to wear a polyester uniform
(instead of the 100% cotton clothing requir ed under OSHA
regulations). During the switch replacement, Eddy's wrench
slipped, passed in the vicinity of an electric insulator and,
as Eddy characterizes it in his brief, he was engulfed in a
fireball. After this incident, WAP A fired Eddy, and OSHA
cited WAPA for a number of violations.

Eddy commenced this action against WAP A and several
named and unnamed individuals. In addition to thr ee tort
claims under Virgin Islands law, Eddy asserted a claim
based directly on the Fourteenth Amendment and a claim
under 42 U.S.C. S 1983. Eddy voluntarily dismissed two of
the three territorial law claims, and the r emaining
territorial law claim is not before us in this appeal. In
addition, the District Court dismissed the claim based
directly on the Fourteenth Amendment, holding that it was
"duplicative of " the section 1983 claim, and that dismissal
is likewise not before us now.

The defendants moved for summary judgment on the
section 1983 claim, but the District Court denied their
motion. The Court held that "Eddy clearly has established
that material facts remain in dispute concer ning whether
the individual defendants' actions were so outrageous that
they `shock the conscience' of [the] Court." July 20, 1999
Dist. Ct. Op. at 6-7. The District Court rejected the
defendants' defense of qualified immunity because they "did
not raise this affirmative defense untilfiling this motion for
summary judgment, approximately eighteen months after
this case began." Id. at 7. The Court interpreted dictum in
a footnote in an opinion of this Court to mean that"failure
to include qualified immunity in [the] answer to [the]
complaint results in the involuntary waiver of this

                               3
affirmative defense." Id. (citing Frett v. Government of the
Virgin Islands, 839 F.2d 968, 973 n.1 (3d Cir. 1988)). The
District Court went on to provide two alter native bases for
rejecting the defense of qualified immunity. The Court
concluded that the defendants had failed to show that their
challenged actions were "discretionary" rather than
ministerial, id. at 7 n.2, and that "it is a proper question for
the jury to determine if defendants knew or r easonably
should have known that their conduct would subject them
to liability." Id. at 8. This appeal followed.2

II.

The appellants invoke our jurisdiction under 28 U.S.C.
S 1291, which authorizes us to hear appeals fr om "final
decisions" of the District Court of the V irgin Islands. The
order in question here is not a "final" order in the usual
sense, but certain collateral orders ar e considered to be
final orders and thus are immediately appealable. To
qualify under the collateral order doctrine, an order must
(1) conclusively determine the disputed question, (2) resolve
an important issue completely separate from the merits of
the action, and (3) be effectively unr eviewable on appeal
from a final judgment. See Johnson v. Jones, 515 U.S. 304,
310 (1995); In re Montgomery County, 215 F.3d 367, 373
(3d Cir. 2000). The Supreme Court has r ecognized that an
order rejecting a qualified immunity defense at the
summary judgment stage may be immediately appealable,
see Mitchell v. Forsyth, 472 U.S. 511, 530 (1985), but "only
to the extent the denial turns on an issue of law." In re
Montgomery County, 215 F.3d at 373 (citing Johnson v.
Jones, 515 U.S. at 313); Grant v. City of Pittsburgh, 98 F.3d
116, 119-20 (3d Cir. 1996) ("To the extent they turn on an
issue of law, decisions denying public officials qualified
immunity are considered final under the collateral order
doctrine."). If we have jurisdiction to r eview an order
rejecting qualified immunity at the summary judgment
stage, our review of the order is plenary. See, e.g., Acierno
v. Cloutier, 40 F.3d 597, 609 (3d Cir . 1994).
_________________________________________________________________

2. Only named individual defendants James Br own and Randolph Harley
seek relief on appeal. See Appellants' Br. at 42.

                               4
Under the qualified immunity defense, "gover nment
officials performing discretionary functions generally are
shielded from liability for civil damages insofar as their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would
have known." Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982). In determining whether qualified immunity applies
in a specific case, we "first determine whether the plaintiff
has alleged the deprivation of an actual constitutional right
at all." Wilson v. Layne, 526 U.S. 603, 609 (1999); see also
Siegert v. Gilley, 500 U.S. 226, 232 (1991); Torres v. United
States, 200 F.3d 179, 184 (3d Cir. 1999); Giuffre v. Bissell,
31 F.3d 1241, 1247, 1255 (3d Cir. 1994). "[I]f so, [we]
proceed to determine whether that right was clearly
established at the time of the alleged violation." Wilson, 526
U.S. at 609 (quoting Conn v. Gabbert, 526 U.S. 286, 290
(1999)).

"A right is clearly established if its outlines are
sufficiently clear that a reasonable officer would
understand that his actions violate the right." Sterling v.
Borough of Minersville, 232 F.3d 190, 193 (3d Cir. 2000).
Moreover, "in the light of pr e-existing law the unlawfulness
must be apparent." Anderson v. Cr eighton, 483 U.S. 635,
640 (1987). A right may be clearly established, however,
even if there is no "previous pr ecedent directly in point."
Good v. Dauphin County Soc. Servs. for Childr en & Youth,
891 F.2d 1087, 1092 (3d Cir. 1989); see also Assaf v. Field,
178 F.3d 170, 177 (3d Cir. 1999)."The ultimate issue is
whether . . . reasonable officials in the defendants' position
at the relevant time could have believed, in light of what
was in the decided case law, that their conduct would be
lawful." Good, 891 F.2d at 1092.

III.

With these principles in mind, we tur n to the specific
issues before us in this appeal. The first issue that we must
address is the correctness of the District Court's holding
that the individual defendants waived the defense of
qualified immunity by failing to raise the defense until they
submitted their motion for summary judgment. This is an
issue of law over which we have jurisdiction under the

                               5
collateral order doctrine, and we hold that the District
Court failed to apply the proper standar d for determining
whether a waiver occurred.

Qualified immunity is an affirmative defense, see Karnes
v. Skrutski, 62 F.3d 485, 491 (3d Cir . 1995), and therefore
under Rule 8(c) of the Federal Rules of Civil Pr ocedure it
should be asserted in the appropriate r esponsive pleading.
But under established circuit law, the failur e to do so does
not automatically result in a waiver. Charpentier v. Godsil,
937 F.2d 859, 863 (3d Cir. 1991); see also Pro v. Donatucci,
81 F.3d 1283, 1286 n.2 (3d Cir. 1996); Kleinknecht v.
Gettysburg College, 989 F.2d 1360, 1373 (3d Cir. 1993). As
we have stated

       Under Fed.R.Civ.P. 15(a), a responsive pleading may be
       amended at any time by leave of court to include an
       affirmative defense, and "leave shall be freely given
       when justice so requires." Unless the opposing party
       will be prejudiced, leave to amend should generally be
       allowed. Moreover, under Fed.R.Civ.P . 15(c), issues
       tried by the express or implied consent of the parties
       are "treated in all respects as if they had been raised
       in the pleadings." It has been held that a "defendant
       does not waive an affirmative defense if`[h]e raised the
       issue at a pragmatically sufficient time, and[the
       plaintiff] was not prejudiced in its ability to respond.' "

Charpentier, 937 F.2d at 863-64 (internal citations omitted).
Thus, "[e]ven though a motion for summary judgment is not
the most appropriate way to raise a previously unpled
defense of immunity," Kleinknecht, 989 F .2d at 1374, in
cases in which the plaintiff was not pr ejudiced, we have
held that there was no waiver. See id.; Charpentier, 937
F.2d at 863-64.

It is true that the opinion in Frett, on which the District
Court apparently relied, stated that the failure of an answer
to set forth an affirmative defense "r esults in the
involuntary waiver of [the] defense[ ] and [its] exclusion
from the case," 839 F.2d at 973 n.1, but this statement,
which in any event is plainly dictum, does not addr ess the
possibility of a late amendment of the answer with leave of
court.

                                6
We recognize the dilemma that courts face when
defendants fail to raise the defense of qualified immunity at
an early stage of the litigation. On the one hand, permitting
the defense to be raised at an advanced stage of the case
may waste time and cause prejudice to the opposing side.
See Guzman-Rivera v. Rivera-Cruz, 98 F .3d 664, 667 (1st
Cir. 1996) (expressing concerns about witnesses becoming
unavailable, memories fading, attorneys fees accumulating,
and imposing additional costs on the court system).
Accordingly, it has been held that a "trial court has
discretion to find a waiver if a defendant fails to assert the
defense within the time limits set by the court or if the
court otherwise finds that a defendant has failed to exercise
due diligence or has asserted the defense for dilatory
purposes." English v. Dyke, 23 F.3d 1086, 1090 (6th Cir.
1994). The First Circuit has taken a similar approach. See
Guzman-Rivera, 98 F.3d at 668. On the other hand, an
overly strict waiver rule may undermine the qualified
immunity defense, which serves important public purposes.
See English, 23 F.3d at 1089. As the First Circuit has
written, "[b]ecause the doctrine of qualified immunity
recognizes that litigation is costly to defendants, officials
may plead the defense at various stages in the pr oceedings."3
Guzman-Rivera, 98 F.3d at 667.

We agree with the conclusions of the First and Sixth
Circuits that the defense of qualified immunity is not
necessarily waived by a defendant who fails to raise it until
the summary judgment stage. Instead, the District Court
must exercise its discretion and deter mine whether there
was a reasonable modicum of diligence in raising the
defense. The District Court must also consider whether the
plaintiff has been prejudiced by the delay.

In view of the circuit precedent noted above, we must
reverse the decision of the District Court and remand for a
more detailed inquiry regarding the issue of waiver. In
particular, the Court must inquire whether the defendants
_________________________________________________________________

3. For example, qualified immunity may be raised in a motion to dismiss
at the pleading stage, in a motion for summary judgment after discovery,
or as an affirmative defense at trial. See Guzman-Rivera, 98 F.3d at 667;
English, 23 F.3d at 1089.

                               7
violated any scheduling orders in raising the defense for the
first time in their summary judgment motions, whether
they delayed asserting the defense for tactical purposes or
any improper reason, and, most important, whether the
delay prejudiced the plaintiff 's case. With respect to this
last factor, we note that Eddy, in his opposition to the
summary judgment motion, failed to argue that he was
prejudiced in any specific way by the delay. See Plaintiff 's
Opposition to Defendants' Motion for Summary Judgment,
Appendix at 344-47. However, Eddy may be able to make a
showing of specific prejudice on remand, and thus we leave
it for the District Court, in the first instance, to decide
whether there was a waiver under the law of our circuit.

IV.

A.

We now turn to the District Court's alternative grounds
for rejecting the defendants' claim of qualified immunity. As
previous noted, the Court stated in a footnote that this
defense would fail even if the defendants had not waived it,
because they failed to show that their actions wer e taken
within the scope of their discretionary authority. See July
20, 1999 Dist. Ct. Op. at 7 n.2. The Court went on to
observe that Eddy had "produced substantial evidence
demonstrating that Brown's actions follow a long-standing
policy and pattern of intimidating and coer cing employees
to engage in unsafe work practices." Id. And the Court
added that "[t]his counters defendants' ar guments that
their actions were discretionary." Id.

The Supreme Court has stated that qualified immunity
applies to "government officials per forming discretionary
functions," Harlow, 457 U.S. at 818, but the definition of a
discretionary function is broad. "A law that fails to specify
the precise action that the official must take in each
instance creates only discretionary authority; and that
authority remains discretionary however egregiously it is
abused." Davis v. Scherer, 468 U.S. 183, 196 n.14 (1984);
see also Sellers v. Baer, 28 F.3d 895, 902 (8th Cir. 1994)
("For qualified immunity purposes, a duty is`ministerial'

                               8
only where the statute or regulation leaves no room for
discretion."). Cf. Varronev. Bilotti, 123 F.3d 75, 82 (2d Cir.
1997) (noting that the continued validity of the ministerial
duty exception has been questioned and that, in any event,
it is "extremely narrow"); Horta v. Sullivan, 4 F.3d 2, 11 (1st
Cir. 1993) (same).

The correctness of the District Court's interpr etation of
the scope of the ministerial duty exception is a question of
law that we may reach in a collateral or der appeal, and we
conclude that the District Court's understanding was
mistaken. Even if WAPA had a "long-standing policy and
pattern of intimidating and coercing employees to engage in
unsafe work practices," July 20 Dist. Ct. Op. at 7 n.2, that
does not mean that WAPA "specif[ied] the precise action,"
Davis v. Scherer, 468 U.S. at 196 n.14, that the individual
defendants took in this case, and thus it does not follow
that their actions were ministerial. Accor dingly, the
rejection of the qualified immunity defense may not be
affirmed on this ground.

B.

The District Court's final ground for r ejecting the claim of
qualified immunity, as we understand it, was that the
constitutional right that Eddy asserted -- the substantive
due process right to be free from conduct by a
governmental employer4 that shocks the conscience -- was
clearly established at the time in question and that, without
a trial, it could not be determined whether the defendants'
conduct was outrageous enough to reach this level. The
District Court's holding may be separated into legal and
factual components. The legal component, which we may
reach in this appeal, includes two questions: (a) whether
_________________________________________________________________

4. Under the Revised Organic Act, 48 U.S.C.S 1561, the Due Process
Clause applies to the Government of the V irgin Islands. "Thus, the
Organic Act requires the same due pr ocess analysis that would be
utilized under the federal constitution." Hendrickson v. Reg O Co., 657
F.2d 9, 14 n.2 (3d Cir. 1981).

In this case, the District Court held that W APA and the individual
defendants, who are WAPA employees, are territorial actors. This issue is
not before us in this appeal.

                               9
Eddy has alleged a substantive due process violation at all
and (b) whether the right asserted was clearly established.
The factual component is the question whether ther e are
genuine issues regarding facts that ar e material to the
determination of whether the defendants' conduct was
sufficient to shock the conscience. Under Johnson v. Jones,
supra, this is a question of evidentiary sufficiency that we
may not address in this appeal.5

With respect to the first of the legal issues, the
defendants contend that the substantive due pr ocess right
_________________________________________________________________

5. The defendants have not argued that the District Court's decision is
based on an incorrect interpretation of the intent necessary to support
a substantive due process claim of the type that Eddy asserts. In County
of Sacramento v. Lewis, 523 U.S. 833, 849 (1998), the Supreme Court
stated that "[w]hether the point of conscience shocking is reached when
injuries are produced [by something] falling within the middle range"
between negligence and intentional conduct depends on the
circumstances of the case and in particular on whether the defendant
had the opportunity to deliberate before engaging in the challenged
conduct. Here, the District Court, in denying summary judgment,
appears to have concluded that the summary judgment record was
sufficient to show that the defendants knew that Eddy " `would face a
risk of almost certain injury if he perfor med the work.' " July 20, 1999
Dist. Ct. Op. at 3 (quoting Feb. 5, 1997 Dist. Ct. Op. at 10). The
defendants have not argued on appeal that this was the wrong legal
standard. Instead, they dispute the District Court's evaluation of the
facts in the summary judgment record. Under Johnson v. Jones, supra,
a factual decision of this nature is not r eviewable under the collateral
order doctrine.

We are also barred from r eaching the defendants' argument that the
District Court's opinion reveals no factual basis for denying the
summary judgment motion of defendant Harley. The question whether
there is sufficient evidence in the summary judgment record to hold
Harley in the case is precisely the sort of question that we may not
entertain in a collateral order appeal. In Johnson v. Jones, supra, three
police officers whom the plaintiff alleged had beaten him argued that the
District Court had erroneously denied their summary judgment requests
because "whatever evidence [the plaintif f] might have about [two other
officers], he could point to no evidence that these three had beaten him
or had been present while others did so." 515 U.S. at 307 (emphasis in
original). The Supreme Court held that this ar gument concerned a
question of evidence sufficiency that was not r eviewable in a collateral
order appeal.

                               10
to be free from treatment that shocks the conscience does
not apply to a governmental employer's tr eatment of its
employees. As the defendants put it, "the Plaintiff simply
cannot raise the `shocks the conscience' test in an
employment relationship context." Appellants' Br. at 14. In
making this argument the defendants rely primarily on
Collins v. City of Harker Heights, 503 U.S. 115 (1992), and
McClary v. O'Hare, 786 F.2d 83 (2d Cir. 1986), but we
believe that the defendants misunderstand those decisions.

In Collins, the widow of a municipal employee who was
killed in an accident on the job sued the city for which he
had worked under Section 1983, claiming that the city had
violated the Due Process Clause. As we explained in our en
banc decision in Fagan v. City of Vineland , 22 F.3d 1296,
1304 (3d Cir. 1994), the plaintiff in Collins "advanced two
theories of recovery": first, " `that the Federal Constitution
impose[d] a duty on the city to provide its employees with
minimal level of safety and security in the workplace' " and,
second, " `that the city's "deliberate indifference" to [the
deceased's] safety was arbitrary Government action that
must "shock the conscience" of federal judges.' " Id.
(quoting Collins, 503 U.S. at 126). After r ejecting the first
theory, the Supreme Court turned to the"shocks the
conscience" theory and stated:

       We also are not persuaded that the city's alleged failure
       to train its employees, or to warn them about known
       risks of harm, was an omission that can pr operly be
       characterized as arbitrary, or conscience shocking, in a
       constitutional sense. Petitioner's claim is analogous to
       a fairly typical state-law tort claim: The city br eached
       its duty of care to her husband by failing to provide a
       safe work environment. Because the Due Pr ocess
       Clause "does not purport to supplant traditional tort
       law in laying down rules of conduct to regulate liability
       for injuries that attend living together in society," . . .
       we have previously rejected claims that the Due
       Process Clause should be interpreted to impose federal
       duties that are analogous to those traditionally
       imposed by state tort law . . . . [This] r easoning . . .
       applies with special force to claims asserted against
       public employers because state law, rather than the

                               11
       Federal Constitution, generally governs the substance
       of the employment relationship. . . .

Collins, 503 U.S. at 128.

Unlike the defendants, we do not read this passage or
anything else in Collins to mean that the plaintiff in that
case would not have stated a substantive due pr ocess claim
if she had alleged conduct on the part of the city that
satisfied the demanding shocks the conscience test. Rather,
we understand Collins to mean that the allegations in that
case did not rise to the conscience-shocking level and that
the Due Process Clause does not reach a public employer's
ordinary breach of its duty of car e relative to its employees.
See Fagan, 22 F.3d at 1304 (noting that Collins
"unanimously reaffirmed the viability of the `shocks the
conscience' standard"). Although the Second Circuit's
opinion in McClary is less clear, we view it as consistent
with our interpretation of Collins. See 786 F.2d at 89 & n.6.
We thus reject the argument that, because of Eddy's
employment relationship with WAP A, he has not alleged a
violation of the Due Process Clause.

In light of our en banc decision in Fagan, we must also
reject the argument that the right that Eddy asserts was
not clearly established at the time of his injury. As noted,
in Fagan, we interpreted Collins , a case involving a
workplace accident, as "unanimously reaffirm[ing] the
viability of the `shocks the conscience' standar d." 22 F.3d at
1304. Cf. County of Sacramento v. Lewis , 523 U.S. 833
(1998) (holding, after the events at issue her e, that
executive action violates substantive due pr ocess if it
shocks the conscience). In reaching this conclusion, we do
not rely, as the District Court did, on r egulations issued by
the Occupational Health and Safety Administration. Eddy is
asserting a claim against the individual defendants for
violating the Due Process Clause,6 and the defendants "do
_________________________________________________________________

6. Eddy's brief makes it clear that his Section 1983 claim asserts a
constitutional violation, not a violation of the OSH Act or OSHA
regulations. See Appellee's Br. at 20. Therefore, we need not and do not
decide whether a plaintiff may state a claim under section 1983 for a
violation of the OSH Act, 29 U.S.C. S 651 et seq. or regulations issued
thereunder. See Minichello v. U.S. Industries, 756 F.2d 26 (6th Cir. 1985)
(OSHA regulations not relevant to civil liability).

                               12
not forfeit their immunity [with respect to that
constitutional claim] by violating some other statute or
regulation." Davis v. Scherer, 468 U.S. at 194 n.12. We also
do not rely on the "state created danger" theory of
substantive due process liability, see Kneipp v. Tedder, 95
1199 (3d Cir. 1996), as Eddy has to some degr ee on appeal.7

       In summary, we hold as follows. We reverse the decision
of the District Court insofar as it holds that the individual
defendants waived the defense of qualified immunity. On
remand, the District Court must reconsider this question
under the standards set out in our case law. If the District
Court concludes that the defense has not been waived
under these standards, the individual defendants may
assert that defense at trial.

       We reverse the decision of the District Court insofar as it
holds that the individual defendants may not assert the
defense of qualified immunity because their conduct was
not discretionary. As we have explained, this holding was
apparently based on a mistaken interpretation of the
ministerial exception to the defense. On remand, the
District Court may reconsider the applicability of the
exception under the correct standard.

       We affirm the District Court's decision denying summary
judgment on qualified immunity grounds because Eddy has
alleged a violation of a clearly established constitutional
right. We dismiss the appeal insofar as it contests the
sufficiency of the evidence to show that the conduct of
either or both of the individual defendants shocked the
conscience.
_____________________________________________________________

7. We do not reach the question whether, as Eddy has argued on appeal,
the District Court erred in holding that Eddy cannot sue WAPA itself and
cannot sue the individual defendants in their official capacities under 42
U.S.C. S 1983. This question is not within the scope of our limited
jurisdiction under the collateral order doctrine.

                               13
MANSMANN, Circuit Judge, concurring:

I join in the Court's decision to affirm the District Court's
denial of summary judgment on the ground that an
employee's constitutional right to be free fr om "arbitrary, or
conscience shocking" injurious conduct by a state
instrumentality was clearly established at the time of Mr.
Eddy's injury. I write separately because my analysis
diverges from that of my colleagues in two respects.

First, as a technical matter, I would not characterize this
Court's judgment as a reversal in part, notwithstanding our
rejection of some of the alternative gr ounds upon which the
District Court relied. The Order under r eview denied
defendants' motion for summary judgment. This Court
today upholds that denial. I would characterize this result
as an affirmance on an alternate gr ound. For the same
reason, I would award costs to Eddy, as the prevailing party
on appeal.

Second, while I agree with the majority that the
defendants' failure to raise the affir mative defense of
qualified immunity prior to the summary judgment stage
does not automatically result in a waiver , it appears that
the District Court may have based its finding of waiver on
appropriate discretionary factors such as lack of diligence
and resulting prejudice,1 rather than on the per se rule
properly rejected by the majority. The matter is of little
moment at this stage in view of our affirmance on other
grounds. If the District Court's decision was predicated on
consideration of the appropriate factors, then it should
more clearly articulate its reasoning on r emand.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit
_________________________________________________________________

1. Cf. Yates v. City of Cleveland, 941 F.2d 444, 449 (6th Cir. 1991)
(observing that during interval between filing of complaint and delayed
assertion of defense, plaintiff "engaged in extensive discovery and
invested, one would imagine, a considerable amount in time, money and
energy").

                               14
