Brown v. U.S.
| Decision Date | 21 June 1988 |
| Docket Number | 87-5910,Nos. 87-5471,s. 87-5471 |
| Citation | 851 F.2d 615 |
| Parties | Owen G. BROWN and Loreen E. Brown, Appellees v. UNITED STATES of America, Department of Housing and Urban Development, Virgilio J. Granata, Thomas Verdon, Ron Santa, Jane Smullins, Robert Wall, Edwin J. Keyes, Robert S. Ernst, Richard Hajjar, individually and trading as Hajjar Real Estate Agency, Ann Platt, Charles Beimfohr Construction Co., Charles Beimfohr, a/k/a Karl Beimfohr, Borough of Bogota Police Department, Anthony Yocovelli, Peter Hoffman, William Kennedy, Borough of Bogota, Patrick Carr, Wolfgang Albrecht, John Does and Jane Does. Appeal of Virgilio J. GRANATA. Virgilio J. GRANATA, Petitioner at 87-5910, v. Honorable Clarkson S. FISHER, U.S.D.J. for the District of New Jersey, Respondent, and Owen G. Brown and Loreen E. Brown, Respondents. |
| Court | U.S. Court of Appeals — Third Circuit |
James A. Plaisted (argued), Walder, Sondak, Berkeley & Brogan, P.A., Roseland, N.J., for Virgilio J. Granata.
Michael DeMarrais (argued), Brown, Buckalew & DeMarrais, Hackensack, N.J., for Owen G. Brown and Loreen E. Brown.
Before HUTCHINSON, SCIRICA and GARTH, Circuit Judges.
Defendant Virgilio J. Granata appeals (at 87-5471) a district court order denying his motion to dismiss plaintiffs' complaint, which alleges violations of their constitutional rights. In the alternative, he requests relief in the form of a writ of mandamus (at 87-5910) ordering the district court to dismiss the complaint. Because the complaint stated claims arising under the law of the United States, the district court had jurisdiction under 28 U.S.C.A. Sec. 1331 (West Supp.1988). 1 We have jurisdiction to review the district court's interlocutory order as it pertains to Granata's claim of qualified immunity under 28 U.S.C.A. Sec. 1291 (West Supp.1988). Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985); see also Musso v. Hourigan, 836 F.2d 736, 741 (2d Cir.1988) (). Our review of the legal questions presented on appeal is plenary. See Hynson v. City of Chester, 827 F.2d 932, 934 (3d Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 702, 98 L.Ed.2d 653 (1988).
Because the record before us is insufficient for determination of Granata's claim of qualified immunity, the only theory available to him on this appeal, that issue is not ripe for appellate determination. Therefore, we will remand to the district court for further development of the record with respect to qualified immunity. Since Granata's remedy of dismissal for properly established qualified immunity remains open, mandamus is not available.
In 1969, plaintiffs Owen and Loreen Brown (the Browns) purchased a house in Bogota, New Jersey. They financed this purchase through a mortgage with Community Federal Savings and Loan Association (CFS & L). They later fell behind in their mortgage payments, and CFS & L assigned the mortgage to the United States Department of Housing and Urban Development (HUD). The Browns failed to meet the requirements of a payment schedule they set up with HUD.
In August, 1979, the Health Sanitarian for the Borough of Bogota notified HUD's Newark, New Jersey office that the Borough would have its Department of Public Works clean up garbage and debris on the Browns' property if the Browns did not do so. In September, 1979, the Bogota police chief communicated with defendant Granata, then Chief of HUD's Property Disposition Branch in Newark, and Thomas Verdon, HUD's Deputy Manager, to advise HUD that the Borough wanted the Browns' property cleaned up. A few days later, HUD called the Hajjar Real Estate Agency and requested that it have the property cleaned up. The Hajjar Agency arranged to have the Charles Beimfohr Construction Company clean up the property. From September 13 through September 16, 1979, the construction company removed furniture, clothing and debris from the property.
In April, 1980, the Browns filed a formal administrative claim with HUD. After that claim was denied, they filed suit in the United States District Court for the District of New Jersey, claiming that various federal and non-federal defendants had wrongfully entered their property and removed personalty, causing physical damage to the premises in the process. The district court dismissed the action, without prejudice, for lack of jurisdiction in December, 1981.
The Browns filed a similar complaint in the Superior Court of New Jersey in March, 1983. 2 The action was removed to the United States District Court for the District of New Jersey. The district court concluded that it lacked jurisdiction over the United States, HUD and the individual federal defendants in their official capacities, but granted the Browns leave to amend their complaint to include a cause of action under the Federal Tort Claims Act (FTCA), 28 U.S.C.A. Sec. 1346(b) (West 1976). The Browns filed their amended complaint in March, 1984. In May, 1984, the district court dismissed the claims against the United States, HUD and the individual federal defendants in their official capacities under the FTCA because the Browns had filed suit beyond the Act's two-year limitation period, 28 U.S.C.A. Sec. 2401(b) (West Supp.1988).
The individual federal defendants then sought dismissal of the complaint's state law, Sec. 1983 and Bivens claims, contending, inter alia, that the complaint was filed beyond the statute of limitations. Treating their motions as motions for summary judgment under Federal Rule of Civil Procedure 56, the district court granted summary judgment and dismissed the complaint as to the federal defendants in their individual capacities.
The Browns filed a motion for reconsideration of this order. They argued that the complaint should not have been dismissed as to defendant Granata because the statute of limitations applicable to the claims against him was tolled under N.J.Stat.Ann. Sec. 2A:14-22 (West 1987), which provides that the statute of limitations for personal injuries will be tolled in cases where the person against whom the action is brought is not a resident of the state of New Jersey. Because Granata was a resident of the state of Connecticut when the Browns' cause of action accrued, the district court held that the statute of limitations was tolled as to those claims asserted against Granata to which the statute of limitations for personal injury applied. Accordingly, the court vacated its earlier order dismissing the complaint as to Counts One, Two, Three, Four and Eight. 3 Granata filed a motion seeking reconsideration of this order and dismissal of the complaint on grounds other than the propriety of the court's interpretation of the New Jersey tolling statute. The district court denied this motion on June 15, 1987. Granata appeals this order; he also seeks relief in the form of a writ of mandamus ordering the district court to vacate its order of June 15, 1987, and to dismiss the complaint against him.
Granata contends that the complaint should have been dismissed because (1) he is protected from suit under the doctrine of qualified immunity; (2) he was not served with process within 120 days, see Fed.R.Civ.P. 4(j); (3) the district court erred in applying New Jersey's tolling statue; 4 (4) 28 U.S.C.A. Sec. 2676 (West 1965) bars further proceedings against him in light of the court's dismissal of the Federal Tort Claims Act suit against the United States; (5) the complaint alleges actions taken under color of federal authority and thus does not state a valid claim under 42 U.S.C.A. Sec. 1983; and (6) the complaint does not state a constitutional cause of action.
Because the district court's order denying Granata's motion to dismiss the complaint is interlocutory, we must first determine whether we have appellate jurisdiction. Granata asserts that the district court's denial of his dismissal motion is appealable under the collateral order doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). 5
The Supreme Court has held that an order denying a claim of qualified immunity is not effectively reviewable after the case is adjudicated and hence is appealable before final judgment under the collateral order doctrine. Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). The district court's order is, therefore, immediately reviewable to the extent that it denied Granata's motion on the ground of qualified immunity.
The other issues raised by Granata, however, may be reviewed upon appeal from final judgment. As it pertains to these issues, the order fails to meet the "unreviewability" criterion of the three-pronged test developed in Cohen and its progeny, and thus is not immediately appealable under the collateral order doctrine. Gulfstream Aerospace Corp. v. Mayacamas Corp., --- U.S. ----, 108 S.Ct. 1133, 1137, 99 L.Ed.2d 296 (1988).
Having settled the question of our appellate jurisdiction, we next address the question of Granata's qualified immunity. As the law has developed, government officials who perform discretionary functions have qualified immunity shielding them from liability for civil damages if "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, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). As most recently explained by the Supreme Court:
The operation of this standard, however, depends substantially upon the level of generality at which the relevant "legal rule" is to be identified. For example, the right to due process of law is quite clearly established by the Due...
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