Weaver v. Bowers

• Decision Date: 19 September 1980
• Docket Number: No. 80-1245,80-1245
• Citation: 657 F.2d 1356
• Parties: John H. WEAVER, v. G. Rogers BOWERS, George M. Metzger, and Joseph F. Catania, Individually and as members of the Board of Commissioners of Bucks County, Appellants. . Submitted on Briefs under Third Circuit Rule 12(6)
• Court: U.S. Court of Appeals — Third Circuit

Page 1356

657 F.2d 1356

John H. WEAVER, v. G. Rogers BOWERS, George M. Metzger, and Joseph F. Catania Individually and as members of the Board of Commissioners of Bucks County, Appellants.

No. 80-1245.

United States Court of Appeals Third Circuit.

Submitted on Briefs under Third Circuit Rule 12(6) Sept. 19, 1980.

Decided Sept. 8, 1981.

Rehearing and Rehearing En Banc Denied Oct. 13, 1981.

Ronald J. Smolow (argued), Groen, Smolow & Lynch, Bensalem, Pa., for appellee.

David H. Moskowitz, Mindy M. Brook (argued), Moskowitz, Zamparelli & Weiss, P. C., Langhorne, Pa., for appellants.

Submitted Under Third Circuit Rule 12(6) Sept. 19, 1980.

Before GIBBONS, WEIS and SLOVITER, Circuit Judges.

Argued In Banc May 11, 1981.

Before SEITZ, Chief Judge, and ALDISERT, ADAMS, GIBBONS, HUNTER, WEIS, GARTH, HIGGINBOTHAM and SLOVITER, Circuit Judges.

OPINION OF THE COURT

SLOVITER, Circuit Judge.

I.

The underlying fact situation in this case is similar to that which we considered in Marino v. Bowers, No. 80-1395, 657 F.2d 1363 (3d Cir. Sept. 8, 1981), decided today. An employee of a Pennsylvania county who was hired when his political party was in power was discharged when that party lost power. Thereafter, in Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), the Supreme Court decided patronage dismissals were unconstitutional, and the employee brought suit. Under ordinary circumstances, our holding in the Marino case that Elrod should not be applied retroactively would be determinative of this case as well. Because this case followed a significantly different procedural course than did Marino, it requires separate consideration.

II.

Plaintiff-appellee, John Weaver, was hired in March 1972 as a park superintendent by the Bucks County Board of Commissioners, ¹ then controlled by a Democratic majority. At all times relevant to this litigation, Weaver was a registered member of the Democratic Party and was active in party politics. In January 1976 Weaver was discharged by the newly elected Republican-controlled board. On November 15, 1977, Weaver filed his complaint against the commissioners, individually and in their official capacities, alleging that his discharge was "solely by reason of his political party affiliation" and violated his civil rights, specifically his First Amendment right to free speech and his Fourteenth Amendment right to due process. The suit was brought under 42 U.S.C. §§ 1983, 1985, 1986, 1988.

Unlike their response in the later-filed Marino case, defendants did not file a motion to dismiss raising the nonretroactivity of the Elrod doctrine. Instead, defendants filed an answer to the complaint denying that Weaver was dismissed because of his political party affiliation and alleging instead that he was dismissed because of his lack of ability and poor work performance. Defendants also denied that Weaver's position of park superintendent was non-policymaking, thereby seeking to avoid application of the holding in Elrod v. Burns. ²

In this posture the case proceeded to a bench trial before the district court for three days from April 23, 1979 to April 25, 1979. Following the trial, the court issued an opinion on May 17, 1979. After reviewing the evidence, the court found that "all of the evidence in this case points to the inescapable conclusion that plaintiff's employment was terminated because of his political affiliation only." The court found "no evidence ... of poor job performance or subordination (sic) on the part of (Weaver)", and rejected defendants' argument that Weaver was a policymaking employee. The court stated that Weaver was "nothing more than a glorified foreman, notwithstanding his job title of park superintendent." The court, relying on the Supreme Court's holding in Elrod, found the defendants liable. In an order entered the same day, May 17, 1979, the district court directed the defendants to hire Weaver immediately "at the same or similar position and salary which he had at the time of termination, with all of the rights and privileges of seniority which he would have had if the termination had not taken place." The court declined to enter a judgment for lost wages because Weaver had introduced no evidence to substantiate his claim for lost wages.

There followed a series of post-trial motions and maneuvers which need not be reviewed in detail. Weaver sought modification of the judgment to include the award of backpay which the district court had originally declined to enter, and also moved for attorney's fees (motions filed May 29, 1979). Before the district court had taken any action on these motions, defendants appealed to this court (June 6, 1979). At a conference with the district court, the district judge apparently indicated he would retain jurisdiction notwithstanding the appeal, and directed the parties to place all outstanding issues before the court. Defendants filed post-trial exceptions to the factual findings of the court (August 13, 1979). This court entered an order remanding the case to the district court to rule on the outstanding post-trial motions (October 12, 1979). Defendants then refiled their post-trial exceptions directed to the district court's factual findings (October 19, 1979). Weaver filed a motion to hold defendants in contempt because they had not yet rehired him (October 31, 1979).

On November 1, 1979, the district court filed an order denying "all motions which have been filed by the defendants since the date of trial" and scheduling a hearing on Weaver's contempt motion. On November 27, 1979, the district court ruled on Weaver's motion to amend the judgment to include a backpay award. The court stated that backpay had not originally been granted because additional information had to be submitted, that Weaver had thereafter submitted the necessary information, and that he was therefore entitled to a backpay award. The court entered judgment in the amount of $40,280.59 for backpay. In a separate opinion the same day, the court calculated that Weaver's counsel should be awarded attorney's fees in the amount of $13,200.00 and $1,213.87 for reimbursement of expenses and ordered payment.

On December 6, 1979, defendants filed post-trial exceptions in the form of a motion to amend and modify the judgment in which they contended for the first time (1) that the decision in Elrod v. Burns should be given prospective effect only, and (2) that the decisions of the district court "violate the doctrine of governmental immunity afforded to the defendant by the Constitution of the United States." Weaver sought to amend the judgment to include backpay and counsel fees for the supplemental period from July 23, 1979 to November 26, 1979 when he was rehired. By opinion and order filed January 17, 1980, the district court granted Weaver's request and supplemented the judgment by awarding additional backpay and counsel fees. The court denied defendants' motion, holding that defendants had waived their claims regarding the nonretroactivity of Elrod and immunity by raising them well after the trial. The court also indicated that the post-trial motion itself was not timely filed.

Defendants appealed, essentially presenting four issues for review: Whether the district court erred (1) in finding that plaintiff was illegally discharged under the standards set forth in Elrod ; (2) in applying Elrod retroactively; (3) in refusing to find that defendants were immune; and (4) in dismissing defendants' immunity and nonretroactivity defenses because not timely raised.

III.

We first address defendants' contention that the district court erred in finding that Weaver's discharge fell within the proscription of Elrod v. Burns. We have examined the record and cannot call clearly erroneous the court's finding that Weaver was dismissed because of his political affiliation. Similarly, even were the relevant inquiry whether Weaver was or was not a policymaking employee, see note 2 supra, the district court's finding that he was not is also supported by ample evidence, and is not clearly erroneous. Thus, had defendants timely raised their claim that Elrod should not be applied retroactively to cover Weaver's dismissal, the same considerations which impelled us to decide against retroactivity in Marino v. Bowers, No. 80-1395, 657 F.2d 1363 (3d Cir. Sept. 8, 1981), would be dispositive. Weaver claims, however, that we are precluded from accepting that defense because defendants' contention was not timely raised.

Defendants' claim that Elrod should not be applied retroactively attacks the legal sufficiency of the complaint. It is, as such, a defense that the complaint fails to state a claim upon which relief can be granted and should have been made no later than "at the trial on the merits". Fed.R.Civ.P. 12(h)(2). Under the scheme envisaged by Rule 12(h), challenges to the maintenance of an action are divided into three categories. The least favored category, which encompasses the defenses such as lack of jurisdiction over the person, improper venue, and improper or insufficient service of process, must be raised either before or in a responsive pleading. Fed.R.Civ.P. 12(h)(1). This permits the opposing party to address the defect at the initial stage of the litigation, when it can often be corrected in a timely fashion. In direct contrast, the third category, lack of subject matter jurisdiction, may be raised at any time, Fed.R.Civ.P. 12(h)(3), including on appeal. Trent Realty Associates v. First Federal Savings & Loan Association of Philadelphia, 657 F.2d 29 (3d Cir. 1981). Because this defect deprives the court of its power to adjudicate the controversy, it cannot be waived.

The intermediate category covering the defense at issue here is governed by Rule 12(h)(2) which provides:

A defense of failure to state a claim upon which relief can be granted, a defense of failure to join a party indispensable under Rule 19, and an objection of failure to state a...