Sheehan v. City of Gloucester

         United States Court of Appeals
                     For the First Circuit


No. 02-1357

                        ARTHUR SHEEHAN,

                     Plaintiff, Appellant,

                               v.

                    THE CITY OF GLOUCESTER,

                      Defendant, Appellee.



          APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Douglas P. Woodlock, U.S. District Judge]



                             Before

                      Boudin, Chief Judge,

              Torruella and Lipez, Circuit Judges.


     Nancy S. Tierney, for appellant.
     Bradford N. Louison, with whom Merrick, Louison & Costello,
was on brief, for appellee.




                        February 25, 2003
           TORRUELLA, Circuit Judge. This appeal asks us to revisit

a dispute between the City of Gloucester and Arthur Sheehan, a

former member of the Gloucester Police Department.                    Previously,

after reviewing the district court's entry of summary judgment for

the defendant, we remanded the case for further consideration of

Sheehan's Americans with Disabilities Act ("ADA") claim in light of

an intervening decision by the Supreme Court in Murphy v. United

Parcel Services., Inc., 527 U.S. 516 (1999).                   Sheehan v. City of

Gloucester,      207    F.3d     35   (1st     Cir.   2000).       After   further

proceedings, the district court again entered summary judgment for

the defendant.         While the case was before the district court on

remand, a Supreme Court decision once again transformed the terrain

of disability law, this time with unfortunate consequences for

Sheehan.      See Toyota Motor Mfg. v. Williams, 534 U.S. 184 (2002).

The district court granted summary judgment for the defendants and

found, using Toyota for guidance, that Sheehan was not disabled

under   the     ADA.      Sheehan       now    appeals   the    district   court's

application of Toyota, claiming, inter alia, that delay by the

district court caused him to lose under Toyota rather than prevail

under Murphy.     This time around, we affirm.

                               Factual Background

           The factual background of Sheehan's case is set forth in

the district court's opinion, Sheehan v. Marr, 2002 WL 389297 (D.

Mass.   March    27,    2000),    and    our    opinion,   Sheehan   v.    City   of


                                         -2-
Gloucester, 207 F.3d 35 (1st Cir. 2000) ("Sheehan I").                 We will

again briefly summarize the relevant facts and update them to

reflect events since our last opinion.

            Sheehan was a member of the Gloucester Police Department

from 1965 to 1994.      In 1984, Sheehan began receiving treatment for

hypertension.       In August and October of 1992, and August of 1993,

he was hospitalized due to incidents of chest pain, some of which

occurred while he was on duty.         Then fifty-two years old, Sheehan

did not return to duty after the 1993 hospitalization.

            Several physicians concluded that Sheehan's hypertension

and chest pain were the result of job-related stress.             In October

of 1993, Dr. Madhu Thakur examined Sheehan at the defendant's

request.     Based upon his review of the job description for a

Gloucester    police    officer,    Dr.    Thakur   concluded   that   Sheehan

"should    retire    from   the   police    force   in   Gloucester    and   his

retirement should be permanent."

             On November 4, 1993, Gloucester Police Chief James Marr

submitted an application for involuntary disability retirement on

Sheehan's behalf with the Division of Public Employee Retirement

Administration ("PERA").          A panel of three physicians found that

Sheehan was physically incapacitated and substantially incapable of

performing his particular job and that his incapacity was likely to

be permanent.       Based upon the medical panel's determination, PERA

concluded that Sheehan qualified for accidental disability and


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recommended that he be retired from the Gloucester police force.

Sheehan was retired on August 17, 1994.

                      Procedural Background

           In May 1996, Sheehan brought an action for age and

disability discrimination in the United States District Court for

the District of Massachusetts, contending that the denial of his

request for a reasonable accommodation violated his rights under

the ADA.    The City of Gloucester filed a motion for summary

judgment, asserting, inter alia, that Sheehan was not "disabled"

under the ADA, and alternatively, that they had offered Sheehan

reasonable accommodation (by offering him a quieter night shift,

which he declined).

           The district court granted summary judgment for the

defendants on May 20, 1998.     On March 27, 2000, we remanded the

case for further consideration of Sheehan's ADA claim in light of

the Supreme Court's intervening decision in Murphy, 527 U.S. 516

(1999).1



1
   The sole issue on remand was the effect of the Murphy decision
on Sheehan's ADA claim against the City of Gloucester.     We did
note, however, that the district court had a wide degree of
latitude in considering that claim. We stated that:

     The district court, after consideration of the ADA claim,
     may, if it is so persuaded, award defendants summary
     judgment once again, or, of course, make any other
     determination of the matter it deems proper, including
     assigning the case for trial.

Sheehan I, 207 F.3d at 41-42.

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              While the case was pending before the district court, the

Supreme Court decided Toyota Motor Manufacturing v. Williams, 534

U.S. 184 (2002), which addressed the question of what an ADA

plaintiff must demonstrate to establish a substantial limitation in

the specific major life activity of performing manual tasks.              Id.

at 691.    Applying Toyota to Sheehan's ADA claim, the court found

that Sheehan was not disabled as defined by the ADA because there

was no evidence that Sheehan's hypertension rendered him unable to

perform a sufficiently broad range of jobs.2             Sheehan, 2002 WL

389297,   at    *5.    Noting    that   after   his   retirement   from   the

Gloucester police force Sheehan continued to work as a security

guard for 24-32 hours per week, the court held that his ability to

work had not been substantially limited by hypertension. Id.              The

court concluded, "[a]ccordingly, I find that he fails -- even under

the most generous reading of recent Supreme Court caselaw -- to

satisfy the first prong of the ADA's definition of disability: he

does    not    manifest   a     physical   or   mental    impairment      that

substantially limits one or more of his major life activities." Id.




2
    The ADA defines the term "disability" as:

       (A) a physical or mental impairment that substantially
       limits one or more of the major life activities of such
       individual;
       (B) a record of such an impairment; or
       (C) being regarded as having such an impairment.

42 U.S.C. § 12102(2).

                                     -5-
            The district court also rejected Sheehan's claim that he

satisfied   the      ADA's   definition     of    disabled   because     he   had    a

"record" of a physical or mental impairment that substantially

limits   one    or    more   major   life    activities.         See   42     U.S.C.

§ 12102(2)(B).

            Finally,     the    district    court    considered    and    rejected

Sheehan's claim that he qualified as disabled under the ADA because

the   defendant      regarded    Sheehan     as    having    a   disability,        as

contemplated by 42 U.S.C. § 12102(2)(C).                 The court held that

although the City of Gloucester considered Sheehan to be unable to

perform the job of a Gloucester police officer, that was not the

same as showing that the defendants regarded him as disabled for

purposes of the ADA.         According to the court, the ADA's statutory

classification, as construed by the Supreme Court "requires that

the defendant [has] regarded Sheehan's hypertension as rendering

him unable to perform a broad range of jobs."                Id. (citing Murphy,

527 U.S. at 521-23).           The court concluded that Sheehan had not

produced any evidence in support of his argument that the City of

Gloucester regarded him as unable to perform a broad range of jobs.

            Sheehan appealed the district court's entry of summary

judgment.      His primary argument on appeal is that the district

court erroneously and unfairly applied the Supreme Court's recent

Toyota decision to his case.               As peculiar as this claim is,

Sheehan's appeal is remarkable more for the issues it fails to


                                      -6-
raise, rather than for the issues actually raised: he does not

dispute that under Toyota, his hypertension does not constitute a

"disability"    as   that   term    is    defined   by   the   ADA.     Instead,

Sheehan's argument is that the district court took an unreasonable

length of     time   to   decide   the     defendant's   motion   for    summary

judgment, and, because of the court's delay, his case was decided

under the guidelines provided in Toyota -- which was decided in

2002 -- rather than under Murphy -- which was decided in 1999.

According to Sheehan, if his case had been decided in a timely

manner, he would have prevailed under Murphy. By subjecting him to

the Court's decision in Toyota, Sheehan claims the delay resulted

in an ex post facto application of law and denied him his due

process rights.

                                   Discussion

            We review the district court's grant of summary judgment

for the City of Gloucester de novo.            We affirm the district court's

judgment only if there is no genuine issue of material fact and if

the City of Gloucester is entitled to judgment as a matter of law.

Rochester Ford Sales, Inc. v. Ford Motor Co., 287 F.3d 32, 38 (1st

Cir. 2002).

            Sheehan's contention is essentially that the district

court's delay exposed him to unfavorable Supreme Court precedent

which in turn compelled the district court to grant a motion of

summary judgment against him.             Although we understand Sheehan's


                                         -7-
frustration with the delay below, there is no merit to his claim

that    the    timing   of    the   district    court's   decision     and   its

application of Toyota violated his constitutional rights.               A party

simply does not suffer any legally cognizable injury when a court

applies the intervening precedent of a higher court which decides

an issue against that party.          After all, it is axiomatic that "a

court is to apply the law in effect at the time it renders its

decision, unless doing so would result in manifest injustice or

there   is    statutory      direction    or   legislative   history    to   the

contrary."      Bradley v. Richmond Sch. Bd., 416 U.S. 696, 711-12

(1974).

              It is immaterial that the "law in effect" at the time the

court renders its decision is an intervening change in the law, or

that the law took effect after some delay in the district court.

As Chief Justice Marshall articulated in 1801:

              It is in the general true that the province of
              an appellate court is only to enquire whether
              a judgment when rendered was erroneous or not.
              But if subsequent to the judgment and before
              the decision of the appellate court, a law
              intervenes and positively changes the rule
              which governs, the law must be obeyed, or its
              obligation   denied.       If   the   law   be
              constitutional . . . I know of no court which
              can contest its obligation.

United States v. Schooner Peggy, 1 Cranch 103, 5 U.S. 103, 110

(1801).

              While Sheehan would have us turn back the clock and apply

the law as it existed prior to Toyota, he does not offer any

                                         -8-
legitimate argument why Toyota should not be applied to his case.

Sheehan does not dispute that Toyota was the "law in effect" at the

time his case was decided.   He does not distinguish Toyota in any

substantive manner.   And further, he does not allege that the

district court's finding under Toyota, that his hypertension did

not constitute a "disability" as that term is defined by the ADA,

is erroneous.

          Instead Sheehan claims that the court's application of

Toyota violated his rights under the ex post facto provisions of

the United States Constitution and the Massachusetts General Laws.

Sheehan maintains that by applying the modifications and changes to

the ADA, propounded by cases such as Toyota, the district court has

ex post facto changed the definition and rights provided under the

ADA.

          It is well settled that the prohibitions against ex post

facto laws apply only when the statute is criminal or is punitive

in nature. Johannessen v. United States, 225 U.S. 227, 242 (1912);

Taylor v. Rhode Island, 101 F.3d 780, 782-83 (1st Cir. 1996); In re

Dutil, 768 N.E.2d 1055, 1065 (Mass. 2002).        As there is no

plausible argument that the application of Toyota constituted a

retroactive "punishment," Sheehan's ex post facto arguments are

without merit.   The district court correctly applied Toyota to

Sheehan's pending claim.




                                -9-
           In   his     brief   before     the        Court,     Sheehan   argued

alternatively that even if the district court correctly applied

Toyota to his case, he in any event qualifies as disabled because

(1) his hypertension substantially interfered with his ability to

work; and (2) the City demonstrated that it regarded Sheehan as

being disabled when it had him involuntarily retired from the

police force.       Although we believe that these arguments simply

constitute further attempts to circumvent Toyota, we nevertheless

briefly dispatch these claims.

           First, the district court correctly found that Sheehan

failed to demonstrate that his physical impairment rendered him

incapable of performing a broad class of jobs.                 The Supreme Court

has repeatedly noted that even assuming that working is a major

life activity, a claimant must show an inability to work in a

"broad range of jobs," rather than one specific job.                   Sutton v.

United Air Lines, 527 U.S. 471, 492 (1999).              Thus, for Sheehan to

prevail on his claim that he is substantially limited in the major

life activity of working, he "must be precluded from more than one

type of job, a specialized job, or a particular job of choice.                    If

jobs utilizing an individual's skills (but perhaps not his or her

unique   talents)     are   available,    one    is    not     precluded   from    a

substantial class of jobs."         Id.     Applying Sutton to Sheehan's

claim, it is enough to note that Sheehan continued to work for 24-

32 hours per week as a security guard for us to determine that


                                    -10-
Sheehan's physical impairment simply did not preclude him from a

substantial class of jobs.

            Second, although the record clearly sets forth the City's

belief that Sheehan was incapable of working as a Gloucester police

officer due to his hypertension and risk of heart attack, this

evidence is not sufficient for Sheehan to be considered disabled

for purposes of the ADA.         In order for us to find Sheehan disabled

under the "regarded as" prong of the ADA, Sheehan would have to

show that the City regarded his hypertension as rendering him

unable to perform a broad range of jobs.             See Murphy 527 U.S. at

522-23.     Sheehan has not presented any evidence supporting this

larger conclusion.

            Finally, Sheehan argues that the district court erred

when it     issued    its    opinion   without    providing   the   parties   an

opportunity to amend or supplement the pleadings to make their case

under Toyota.      For our purposes, it makes no difference whether or

not Sheehan actually moved for leave to amend, as his argument will

fail in any event.         The decision whether to allow motion for leave

falls     within     the    district    court's    discretion.      Manzoli   v.

Commissioner, 904 F.2d 101, 103 (1st Cir. 1990), and there was no

abuse of discretion here.

            Judgment affirmed.         No costs are imposed.




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