Sergeant Wilbur F. Justice v. Carl C. Danberg, Jr.

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 08-3542
__________
SERGEANT WILBUR F. JUSTICE
v.
CARL C. DANBERG, JR.,* in his official capacity
as the Commissioner of Correction;
ALAN MACHTINGER, individually and in his official capacity
as the Director of Human Resources
of the Department of Correction;
DEPARTMENT OF CORRECTION OF
THE STATE OF DELAWARE
Carl C. Danberg, Jr.; Alan Machtinger;
Department of Correction of the
State of Delaware,
Appellants
*(Pursuant to Fed. R. App. P. 43(c))
__________
On Appeal from the United States District Court
for the District of Delaware
(D.C. Civil No. 06-cv-00497)
District Judge: Honorable Sue L. Robinson
__________
Argued on July 13, 2009
Before: RENDELL, FUENTES, and ROTH, Circuit Judges.
(Filed: August 17, 2009)

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Mark P. Niedzielski, Esq. [ARGUED]
Department of Justice
Carvel Office Building, 7th Floor
820 North French Street
Wilmington, DE 19801
Counsel for Appellants
Carl C. Danberg, Jr.; Alan Machtinger;
Department of Correction of the
State of Delaware
Stephen J. Neuberger, Esq. [ARGUED]
Thomas S. Neuberger, Esq.
The Neuberger Firm
2 East 7th Street, Suite 302
Wilmington, DE 19801
Counsel for Appellee
Sergeant Wilbur F. Justice
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OPINION OF THE COURT
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RENDELL, Circuit Judge.
The plaintiff in this case, Sergeant Wilbur F. Justice, was a corrections officer with
the Delaware Department of Correction (“DOC”). He alleges that the defendants (the
DOC; Carl C. Danberg, Jr., in his official capacity as the Commissioner of Correction;
and Alan Machtinger, individually and in his official capacity as the Director of Human
Resources at the DOC) retaliated against him for his union activity by denying him a
promotion. The District Court denied the defendants’ motion for summary judgment and

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Justice retired from the DOC after filing this suit. The Eleventh Amendment bars1
suits against states and state officials, sued in their official capacities, when the relief
sought is retroactive. Edelman v. Jordan, 415 U.S. 651, 668-69 (1974). Justice concedes
that his retirement moots his claims for prospective relief against the DOC and against
Danberg and Machtinger in their official capacities, and that the remaining relief he seeks
is retroactive. Appellee’s Br. at 28. Therefore, the only remaining defendant is
Machtinger, who was sued in his individual capacity as well as his official capacity.
When the case returns to the District Court, it should dismiss the other defendants.
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granted the plaintiff’s partial motion for summary judgment as to whether Justice’s
conduct was protected by the First Amendment. We do not have jurisdiction over the
District Court’s order, and we will dismiss the appeal.1
I. Background
Justice worked for the DOC for twenty-two years before retiring in 2007. He was
also active in the correctional officer union, the Correctional Officers Association of
Delaware (“COAD” or “Union”). During the time of the alleged retaliation, COAD was
engaged in bitter contract negotiations with the DOC. The Union was also engaged in a
negative advertising campaign against the incumbent governor and the State of Delaware
which alleged “chronic under staffing . . . the need for salary increases . . . and security
lapses within the prison system.” (App. 73.) As a COAD vice-president, Justice
participated in the contract negotiations and COAD’s activities. He alleges that
Machtinger intentionally misplaced his application for promotion and that this was done
in retaliation for his union affiliation. Because his application was misplaced, Justice

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says, he was not on the initial interview list and had little time to prepare for the
interview. Justice came in second after the interviews and lost the promotion to a
colleague he claims was less qualified. Machtinger, who was head of Human Resources
at the DOC, contends that he was on vacation at the relevant time and had nothing to do
with Justice’s application.
Justice filed suit under 42 U.S.C. § 1983 in August of 2006. The case was initially
assigned to Judge Jordan, but upon his appointment to this court the matter was
reassigned. On February 4, 2008, at the close of discovery, the District Court issued an
order directing the parties to submit short and concise statements of facts and legal issues
rather than full summary judgment briefs. Justice submitted such a statement in support
of his motion for partial summary judgment. The defendants submitted a concise
statement but also filed full briefing and an appendix in support of their motion for
summary judgment. Justice moved to strike the defense filings for non-compliance with
the court’s order, but the court denied the motion to strike and ordered that Justice should
not file a brief in opposition or submit an appendix unless the court so ordered.
On July 29, 2008, the District Court issued an opinion and order granting Justice’s
motion for partial summary judgment, finding that he had engaged in constitutionally
protected activity and suffered an adverse employment action, and denying the
defendants’ motion for summary judgment. It found that a “genuine issue of material fact
remains as to whether plaintiff’s activity was a substantial or motivating factor in the

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We exercise plenary review over questions of law appealed pursuant to the collateral2
order doctrine. Schieber v. City of Phila., 320 F.3d 409, 415 (3d Cir. 2003). In reviewing
a denial of summary judgment, we view the facts in the light most favorable to the
nonmoving party, the appellee. See, e.g., Barton v. Curtis, 497 F.3d 331, 334 (3d Cir.
2007).
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adverse action.” (App. 4.) The court did not rule on qualified immunity, despite the
defendants’ argument that, even if a constitutional violation and retaliation were proved,
Machtinger was entitled to immunity from suit. The court disagreed, noting that qualified
immunity required a two-step analysis: first, whether there was a constitutional violation,
and second, whether the constitutional right that was violated was clearly established at
the time of the violation. See Curley v. Klem, 499 F.3d 199, 206-07 (3d Cir. 2007). It
then stated its disposition: “[t]he court reserves judgment on the issue of qualified
immunity until such time as an actual constitutional violation has been identified.” (App.
22.)
II. Jurisdiction
A denial of a motion for summary judgment is not usually a final order, but a
denial of summary judgment on the basis of qualified immunity can be an appealable
order under the collateral order doctrine. See Johnson v. Jones, 515 U.S. 304 (1995);
Rivas v. City of Passaic, 365 F.3d 181, 192 (3d Cir. 2004). However, such an order is
appealable only if it presents an issue of law. As the Supreme Court explained in2
Johnson, the collateral order doctrine does not permit an appeal from an order denying a

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Because we hold that we do not have jurisdiction over the denial of summary3
judgment, we will not address the grant of partial summary judgment.
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motion for summary judgment “insofar as that order determines whether or not the
pretrial record sets forth a ‘genuine issue’ of fact for trial.” 515 U.S. at 320. “With
respect to facts, ‘we may review whether the set of facts identified by the district court is
sufficient to establish a violation of a clearly established constitutional right, but we may
not consider whether the district court correctly identified the set of facts that the
summary judgment record is sufficient to prove.” Reilly v. City of Atl. City, 531 F.3d 216,
224 (3d Cir. 2008) (quoting Forbes v. Twp. of Lower Merion, 313 F.3d 144, 147 (3d Cir.
2002)).
Justice argues that we lack jurisdiction over the issue of qualified immunity
because the District Court determined that a genuine issue of material fact remained as to
whether his activity was a substantial or motivating factor in his failure to get a
promotion. The defendants argue that we do have jurisdiction; they contend they are
challenging only the pure legal issue of whether Justice’s union activity was protected by
“clearly established law.” (Appellant’s Supp. Br. at 2.)
We conclude that we lack jurisdiction over the appeal from the District Court’s
order denying summary judgment. The court did not deny summary judgment based on3
its analysis of qualified immunity; rather, it stated it was denying summary judgment
because it could not yet determine whether there had been a constitutional violation and

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The Supreme Court, in Pearson v. Callahan, 129 S. Ct. 808 (2009), held that the two-4
step Saucier analysis is no longer mandatory and that courts need not first determine
whether the facts alleged by the plaintiff make out a violation of a constitutional right.
Rather, lower courts “should be permitted to exercise their sound discretion in deciding
which of the two prongs of the qualified immunity analysis should be addressed first in
light of the circumstances in the particular case at hand.” Id. at 818. If a court first
determines that the right at issue was not clearly established at the time of the offense, it
need not explore the factual support for the plaintiff’s allegations of a constitutional
violation, and may grant qualified immunity. We do not know whether Pearson will have
an impact on this case, but it is worth noting the new post-Saucier flexibility in qualified
immunity analysis.
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thus could not decide the first prong of the qualified immunity analysis. Indeed, the4
court said specifically that it “reserve[d] judgment on the issue of qualified immunity
until such time as an actual constitutional violation has been identified.” (App. 22.)
We cannot determine from the District Court’s opinion or order whether it
believed there were factual issues related to the causation of the adverse employment
action (in which case we do not have jurisdiction because only issues of law are
appealable from orders denying qualified immunity at the summary judgment stage), or
whether it was deferring its qualified immunity decision because the record before it –
with full briefing from the defendants but only the concise statement of facts and no
appendix from Justice – was insufficient (in which case we do not have jurisdiction
because it was not prepared to decide the qualified immunity issue). Either way, the
District Court’s order is unreviewable.
We note that the purpose of qualified immunity is to protect officials from suit, not
just from trial. See, e.g., Johnson, 515 U.S. at 312 (noting that “qualified immunity is in

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part an entitlement not to be forced to litigate the consequences of official conduct”);
Hunter v. Bryant, 502 U.S. 224, 227 (1991) (“[W]e repeatedly have stressed the
importance of resolving immunity questions at the earliest possible stage in litigation.”).
A district court is charged with deciding “‘whether a constitutional right would have been
violated on the facts alleged . . ..’” Doe v. Groody, 361 F.3d 232, 237 (3d Cir. 2004)
(quoting Saucier v. Katz, 533 U.S. 194, 200 (2001)). In this case, the unorthodox
briefing, with only the concise statement of facts and no record evidence from the
plaintiff, may have made it impossible for the District Court to rule based on what was
before it. If the District Court did believe that the record was insufficient (rather than that
there were fact issues to be decided at trial), we encourage the District Court to proceed to
full briefing so as to be able to decide the qualified immunity issue prior to trial.
For the reasons set forth above, we will DISMISS the appeal for lack of
jurisdiction.

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