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
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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).
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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
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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
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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
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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.
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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
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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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