                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-14-2006

Blake v. VI Dept Housing
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-2694




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Recommended Citation
"Blake v. VI Dept Housing" (2006). 2006 Decisions. Paper 597.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/597


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                                                   NOT PRECEDENTIAL

               UNITED STATES COURT OF APPEALS
                    FOR THE THIRD CIRCUIT


                              No. 02-2694


                           CLARICE BLAKE

                                     v.

             GOVERNMENT OF THE VIRGIN ISLANDS,
                  DEPARTMENT OF HOUSING,
                   PARKS AND RECREATION;
                  IRA HOBSON, as Commissioner
                 of Housing, Parks and Recreation;
                CHARLES TURNBULL, Governor

                            Charles Turnbull,

                                                Appellant



           Appeal from the District Court of the Virgin Islands
                         (Division of St. Croix)
                            No. 01-cv-00098
             Chief District Judge: Hon. Raymond L. Finch


                        Argued on May 12, 2006

       BEFORE: FISHER, COWEN and ROTH*, Circuit Judges

                   (Opinion filed:    August 14, 2006)



*Judge Roth assumed senior status on May 31, 2006.
Jomo Meade, Esquire (ARGUED)
112 Queen Cross Street
Frederiksted, St. Croix
U. S. Virgin Islands 00840

              Attorney for Appellee

Kerry E. Drue, Equire
Attorney General
Elliott M. Davis, Esquire
Solicitor General
Richard S. Davis, Esquire (ARGUED)
Assistant Attorney General
Office of Attorney General of the Virgin Islands
U.S. Department of Justice
34-38 Kronprindsens Gade
GERS Bldg., 2nd Floor
Charlotte Amalie, St. Thomas
U.S. Virgin Islands 00802

              Attorneys for Appellant




                                         OPINION



ROTH, Circuit Judge:

       This is an appeal from the District Court’s order affirming the Magistrate Judge’s

order that denied Governor Charles W. Turnbull’s motion to stay discovery. For the

reasons stated below, we will dismiss the appeal for a lack of jurisdiction.

I.     Factual Background and Procedural History

       As the facts are well known to the parties, we give only a brief description of the


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issues and procedural posture of the case.

       On May 21, 2001, Clarice Blake filed a civil rights action against Governor

Turnbull and others stemming from the termination of her employment. During

discovery, Governor Turnbull filed a motion to stay discovery on the ground that he had

qualified immunity from suit as the Governor of the Virgin Islands. On April 30, 2003,

the Magistrate Judge denied the motion to stay because, inter alia, the Governor had

delayed filing his motion for summary judgment, where he first asserted qualified

immunity, and he did not make a showing of irreparable injury. The Magistrate Judge’s

order did not rule on the merits of the Governor’s alleged immunity. On June 5, 2002, the

District Court affirmed the denial of the stay, and this appeal followed. The Governor’s

motion for summary judgment is still pending.

II.    This Court Lacks Jurisdiction Over the Appeal

       This Court lacks jurisdiction over the appeal. Generally, only final orders of the

district court are appealable. See 28 U.S.C. § 1291. Here, no final order has been issued.

       Moreover, the collateral order doctrine articulated in Cohen v. Beneficial Industrial

Loan Corp., 337 U.S. 541 (1949), and its progeny is inapplicable. Often, orders denying

qualified immunity are immediately appealable under the collateral order doctrine.

Mitchell v. Forsyth, 472 U.S. 511, 526-27 (1985). The instant order does not, however,

deny the Governor’s qualified immunity; rather, it focuses on the Governor’s lack of

irreparable injury and his delay in seeking summary judgment, all in the context of

discovery. As such, the order does not “conclusively determine the disputed question” of

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the Governor’s immunity and, therefore, is not appealable. Id. at 527 (quoting Coopers &

Lybrand v. Livesay, 437 U.S. 463, 468 (1978)); see also Schrob v. Catterson, 967 F.2d

929, 938 (3d Cir. 1992) (noting that “the finality aspect of the collateral order doctrine is

not satisfied” when the order “conclusively determined the immunity issue [only] to the

extent that it requires the appellants to engage in such limited discovery proceedings.”).

Finally, the Governor’s argument that the District Court lacks jurisdiction over the case

due to Blake’s failure to obtain a Right-to-Sue letter is best left to the District Court in the

first instance.

III.   Conclusion

        As this Court lacks jurisdiction, we will dismiss the appeal.




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