Petition for Writ of Certiorari — Lundblad v. Celeste
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“Supreme Ow, WR |
FILED
APR 15 O88
ICE OF FHE CLERE
Supreme Court of the United Stites —
October Term, 1990
— = --—--@ ——_- ——
STEVEN LUNDBLAD,
Petitione?
RICHARD D. CELESTE; DOROTHY SHOEMAKER;
WILLIAM NAPIER; and DONALD OLSON,
Respondents
+
Petition For Writ Of Certiorari To The United States
Court of Appeals For The Sixth Circuit
-—~--~— ee
PETITION FOR WRIT OF CERTIORARI
> ——
Davip RuDoOvSsKY
KAIRYS & RUDOVSKY
924 Cherry Street, #500
Philadelphia, PA 19107
(215) 925-4400
Counsel of Record
For Petitioner
SetH KREIMER
University of Pennsylvania
Law School
3400 Chestnut Street
Philadelphia, PA 19104
215) 898-7447
JEFFREY M. Deciu
laMeES C. Ayers Law Orr
165 N. High Street
Columbus, Ohio 43215
(614) 221-0770
KLE LAW BRIEF PRINTING CO KY) 225-4
OR CALL COLLECT (402) 342-2831
‘BEST AVAILABLE COPY
QUESTIONS PRESENTED FOR REVIEW
I. Where this Court has consistently ruled that a
state post-deprivation remedy will satisfy due process
only when the deprivation is random and unauthorized,
did not the lower court err in dismissing petitioner’s due
process claim where the deprivation of property was a
direct result of an established state policy and procedure.
Il. Did not the court below err in determining that
state officials are entitled to qualified immunity from suit
for having denied petitioner a state contract solely
because of political patronage considerations, where Ohio
had by legislation expressly required public contracts to
be awarded on merit, and where this Court had clearly
established that absent a state interest in patronage, free
speech and equal protection principles prohibit discrimi-
nation based on political affiliation.
ii
LIST OF PARTIES
In addition to the parties listed in the caption, the
defendants Ronald James, Ohio Department of Natural
Resources, (OQDNR) and Myrl Shoemaker also partici-
pated in the proceedings below. The claims against
Ronald James and ODNR were dismissed by the District
Court. Upon the death of Myrl Shoemaker, the respon-
dent Dorothy Shoemaker was substituted as a party-
defendant.
ili
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED FOR REVIEW ........... i
ee il
es”) iil
8 | iv
Ee ae 2
meenmuee Gee Bete CADURT.... 1.6... kee cee 3
STATUTORY PROVISIONS INVOLVED............. 3
oe ge ig. | ik Ge | 5
REASONS FOR GRANTING THE WRIT ........... 10
I. The Decision of the Court of Appeals is in
Direct and Irreconcilable Conflict with Due
Process Principles Established By An Unbro-
ken Line of Cases in this Court ............. 10
II. Respondents are not Entitled to Qualified
Immunity where Both State Law and the First
and Fourteenth Amendments Clearly Esiab-
lished that Political Patronage Could Play No
Legitimate Role in the Awarding of Public
TN ng coc ease sastreses 11
Ne ek wanacnvarcbess 17
APPENDIX
Opinion of District Court, June 12, 1987 ........... A.1
Panel Opinion, Court of Appeals for the Sixth
ET eee eee A.20
En Banc Opinion, Court of Appeals for the Sixth
ES 5) | A.43
iv
TABLE OF AUTHORITIES
Page
Allegheny Pittsburgh Coal Co. v. County Com‘n,
oe ee ENR ery re ee 14
Anderson v. Creighton, 483 U.S. 685 (1987).......... 12
Anderson v. Martin, 375 U.S. 399 (1964)............. 15
Bd. of Educ. v. Sever-Williams Co., 22 Ohio St.2d
ome Re repre en ne Pe 10
Boren & Guckes v. Comm’s of Darke Cy., 21 Ohio
ks Eg EE: STAD: sa RS aneda sanshchesviaancens uns 10
Branti v. Finkel, 445 U.S. 507 (1980)...... 12, 13, 14, 15
Cafeteria Workers v. McElroy, 367 U.S. 886 (1961).... 14
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532
EEE 5 OCA.G NA O44 ROARS MEATS ee eh eae ee 10
Elrod v. Burns, 427 U.S. 347 (1976)........... 12, 13, 14
Glister v. Michigan Liquor Control Commissioner,
Coe eo oo he es ere 14
Heckler v. Mathews, 465 U.S. 728 (1984) ............ 15
Hudson v. Palmer, 468 U.S. 517 (1984) ............ 9, 11
Logan v. Zimmerman Brush Co., 455 U.S. 422
CE ik ee ae Wee Glee am weal eae 11
Memphis Light, Gas & Water Div. v. Craft, 438
33. Ri eee eee rere rrr Tree rey er ere 10
Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S.
274 (1977)
Parratt v. Taylor, 451 U.S. 527 (1981).............. 9, 11
TABLE OF AUTHORITIES - Continued
Page
Rutan v. Republican Party, 110 S.Ct. 2729 (1990)
(ka eae kaa eae Sa ibe dh ca ek co danen cc. 13, 14, 16
Speiser v. Randall, 357 U.S. 513 (1958) .............. 15
United Public Workers v. Mitchell, 330 U.S. 75
RD ea a ee Br an er 14
Wieman v. Updegraff, 344 U.S. 183 (1952)........... 14
Zinermon v. Burch, 110 S.Ct. 975 (1990).............. )
No. 90-
, —
—
In The
Supreme Court of the United States
October Term, 1990
»
_:
STEVEN LUNDBLAD,
Petitioner,
RICHARD D. CELESTE; DOROTHY SHOEMAKER;
WILLIAM NAPIER; and DONALD OLSON,
Respondents.
a ee a
Petition For Writ Of Certiorari To The United States
Court of Appeals For The Sixth Circuit
a
a
PETITION FOR WRIT OF CERTIORARI
,™
—
Petitioner Steven Lundblad respectfully requests that
a writ of certiorari issue to review the judgment entered
in this case by the United States Court of Appeals for the
Sixth Circuit on January 31, 1991.
- »
4
OPINIONS BELOW
On June 25, 1984, the district court issued a judgment
dismissing the case against the Ohio Department of Natu-
ral Resources on Eleventh Amendment grounds and dis-
missing the case against all respondents ona theory of res
judicata, citing a prior state action concerning this matter.
On appeal, the Court of Appeals reversed the dismissal
against all respondents, finding that the res judicata doc-
trine did not bar this action. Lundblad v. Celeste, 772 F.2d
907 (6th Cir. 1985). These opinions are not reprinted in
the Appendix because the issues are beyond the scope of
this petition.
On remand the district court issued an opinion on
June 12, 1987, denying respondents’ motion to dismiss on
the asserted grounds of failure to state a claim and quali-
fied immunity. This opinion is reprinted at A.1.
The panel opinion of the Court of Appeals affirming
the denial of the motion to dismiss the equal protection
claim, but reversing the denial of the motion with respect
to the First Amendment and Due Process claims is
reported at 874 F.2d 1087 (6th Cir. 1989). It is reprinted at
A.20.
The En Banc Opinion of the Court of Appeals dis-
missing the entire Complaint was issued on January 31,
1991. It is reprinted at A.43.
»
4
JURISDICTION OF THE COURT
The opinion of the Court of Appeals was entered on
January 31, 1991. This Court has jurisdiction to review the
judgment pursuant to 28 U.S.C. §1254(1).
-
. 4
STATUTORY PROVISIONS INVOLVED
ORC §1501.091:
Contracts for the operation of public service facilities
shall be made in writing by the director of natural
resources with the person, firm, partnership, association,
or corporation whose bid, in consideration of the public
interest, is determined by the director to be the best bid
received, after advertisement for bids has been published
for four consecutive weeks in a newspaper having a
general circulation in each county in which the facility is
situated. Such notice for bids shall set forth the pertinent
facts concerning the facility, the periods of required oper-
ation during the year, and shall refer to the conditions of
operation and the terms of the contract which shall be on
file in the office of the director and open to public inspec-
tion. Contracts for the operation of public service facili-
ties shall contain provisions assuring that the facilities
will be open to the public at reasonable rates and without
discrimination as to race, creed or color, and such other
provisions as the director deems necessary to satisfy the
needs of the people of the state for public park facilities.
This section does not apply to any contract awarded
under section 1501.011 [1501.01.1] of the Revised Code for
the construction of a public service facility in consider-
ation of a lease to operate the facility.
\
§1501.10 Lease provisions.
Advertisement for bids for the leasing of public ser-
vice facilities in state parks shall be published in any
newspaper of general circulation in Franklin county and
each county in which the facility to be leased is situated.
Such publication shall be made once each week for four
consecutive weeks prior to the date fixed for the accep-
tance of such bids. Such notice shall set forth the perti-
nent facts concerning the facility to be leased, the periods
of required operation during the year, and shall refer to
the terms and condition[s] which such lease shall include,
which shall be on file in the office of the director and
open to public inspection.
Such public service facilities may be leased for such
period of years as may be determined by the director of
natural resources, provided, that the director may, at the
expiration of the original lease, without advertisement for
bids, grant the lessee a renewal of said lease for an
additional period not to exceed four years. Leases exe-
cuted under this section may contain any provisions
which the director deems necessary, provided that the
following provisions shall be contained in said leases.
(A) The lessee shall be responsible for keeping such
facilities in good condition and repair, reasonable wear
and tear and damages caused by casualty or acts beyond
the control of lessee, excepted.
(B) The lessee shall operate the facilities for such
periods during the year as the director of natural
resources deems necessary to satisfy the needs of the
people of the state; provided that such periods of
required operation must be set forth in the notice for the
acceptance of bids.
(C) The lessee, upon the execution of the lease, shall
furnish a bond to the state in an amount as prescribed by
the director, conditioned that the lessee shall fully per-
form all terms of the lease.
The director may lease any public service facilities in
state parks to the person, firm, partnership, association,
or corporation who submits the highest and best bid
under the terms set forth in this section and in accor-
dance with the rules of the director, taking into account
the financial responsibility and the ability of the lessee to
operate such facilities. Bids shall be sealed and opened at
a date and time certain, published in advance.
This section does not apply to an advertisement for a
bid to construct a public service facility in consideration
of a lease to operate the facility under section 1501.011
[1501.01.1] of the Revised Code or to a lease made pur-
suant to the award of such a bid.
a
vv
STATEMENT OF THE CASE
A. Factual Background
Petitioner, Steven Lundblad, was from 1973 to 1982
the golf professional and concessionaire at the Punderson
State Park in Geauga County, Ohio. He held this position
pursuant to the award of a state contract and his work
throughout this period was “excellent.” 874 F.2d at 1099.
In 1982, following the election of respondent Celeste as
Governor of Ohio, the position which petitioner had held
was put up for bid. Under the pertinent provisions of
Ohio law (ORC §§1501 091 and 1501.010) the state had the
choice of operating the golf course under contract or
lease, or could operate the facility with its own
employees. The contractual arrangement was subject to
the public bidding provisions of §1501.091, which specifi-
cally mandated that the contract be awarded to the per-
son making the “best bid.”
Petitioner and three other persons submitted bids to
operate the golf course. On March 2, 1983, respondent
Donald Olson, the head of the Parks and Recreations
Division of the Ohio Department of Natural Resources
(“ODNR”), reviewed the qualifications of the four bid-
ders and recommended that petitioner be awarded the
contract. Olson’s official evaluation stated:
Steven M. Lundblad’s bid offers a high return to
the State and is substantiated with a thorough
plan of operation and sound pro forma. He is a
PGA member and has successfully operated the
pro shop for nine years. He is proposing contin-
ued on site management and expansion of ser-
vices for the public. He has adequate financial
resources for the scope of this operation.
In consideration of the above information, | feel
that the bid submitted by Steven M. Lundblad is
the best bid received.” (Appendix, 93, Court of
Appeals)
On March 21, 1983, at the request of the Deputy
Director of ODNR, Mr. Olson again reviewed the bids
and again recommended that petitioner be awarded the
bid:
“ _.. Based upon the financial data provided, it
appears that neither Mayfly Outfitters nor
Robert Grant would be financially able to oper-
ate the facility. In consideration of the differ-
ences amongst proposals (particularly in the
areas of financial ability, experience, and pro-
posed services), I maintain that Steven
Lundblad submitted the best bid for the opera-
tion of the Punderson Golf Course Pro Shop.”
(Appendix, 89, Court of Appeals).
In the face of overwhelming documentation that peti-
tioner had submitted the “best bid,” Director Shoemaker
awarded the contract to Robert Grant, a person with no
experience in the field and without the financial
resources to properly operate the facility. Petitioner
alleged, and the courts below properly assumed, that the
decision to award the contract to Grant was based solely
on partisan politics and patronage considerations. Grant
was recommended for this position by an official in the
state Democratic Party, and the respondents had imple
mented a policy of limiting these contracts and other
types of state employment to Democrats.
On April 3, 1983, petitioner filed suit in the Court of
Common Pleas of Franklin County, Ohio, seeking injunc-
tive relief. He obtained a temporary restraining order
enjoining the award of the contract to Grant. On April 16,
1983, Director Shoemaker accepted Grant’s withdrawal
from the bidding process. Thereafter, to implement the
patronage policy, Shoemaker decided to operate the golf
course with ODNR employees.
Petitioner has alleged and stands ready to prove that
the sole reason for the decision to cancel the bidding
process was to ensure that non-Democrats would not be
permitted to operate this facility as part of a larger policy
of patronage appointments. Since it was apparent that
petitioner had submitted the “best bid,” the only recourse
open to the respondents to implement their policy of
denying contracts or employment to non-Democrats, was
to self operate the golf course. A.23-24.
B. Proceedings Below
Petitioner filed suit in the United States District
Court in May, 1983 alleging that the respondents and
others had violated his rights to free speech, association,
equal protection and due process of law by arbitrarily
denying him the contract to operate the golf course.
The district court granted respondents’ motion to
dismiss on res judicata grounds (based on the judgment
rendered by the Ohio Court of Common Pleas in peti-
tioner’s state court action). The district court also granted
dismissal to ODNR on Eleventh Amendment immunity
grounds.
On appeal, the Court of Appeals for the Sixth Circuit
reversed the res judicata decision and remanded. (The
dismissal of ODNR was not appealed). 772 F.2d 907 (6th
Cir. 1985).
In the district court the respondents renewed their
motion to dismiss, claiming entitlement of qualified
immunity from damages.' The district court denied the
motion. On appeal, a divided panel of the Sixth Circuit
ruled that the respondents were (1) entitled to qualified
' Petitioner joined a second action against Ronald James,
Deputy Director of Resource Management for ODNR, but that
matter was dismissed on statute of limitation grounds and is
no longer part of this case.
“immunity on the first amendment claim, (2) not entitled
to qualified immunity on the equal protection claim, and
(3) not subject to suit for a due process violation because
of the availability of a post-deprivation remedy in state
court. Judge Ryan dissented on the due process and equal
protection issues. 874 F.2d 1097 (6th Cir. 1989).
On en banc rehearing, the Court of Appeals on Janu-
ary 31, 1991 ruled that the respondents were entitled to
qualified immunity on the equal protection claim and
ordered the complaint dismissed. The Court of Appeals
did not address the central argument made by petitioner:
since the State of Ohio had by statute specifically dis-
avowed patronage as a state interest and had required
that the contracts be awarded on merit, settled first
amendment and equal protection principles prohibited
the use of partisan political criteria in the contracting
process.
The Court of Appeals also ignored the rulings in
Parratt v. Taylor, 451 U.S. 527 (1981), Hudson v. Palmer, 468
U.S. 517 (1984), and Zinermon v. Burch, 110 S.Ct. 975
(1990), that the availability of state post-deprivation
remedies will negate a due process claim only when the
deprivation occurs as a result of a random and
unauthorized act. In this case, the deprivation — the arbi-
trary denial of petitioner’s bid — was pursuant to a delib-
erately adopted state policy and practice.
a
_
10
REASONS FOR GRANTING THE WRIT
I. The Decision of the Court of Appeals is in Direct
and Irreconcilable Conflict with Due Process Princi-
ples Established By An Unbroken Line of Cases in
this Court.
Petitioner asserted that his state protected property
interests were denied without due process of law. In
Ohio, a bidder for a state contract has a protected interest
in a fair determination of his bid for the contract. ORC
§§1501.09, 1501.091 and 1501.10 (set forth supra, at 3-5)
require that state contracts be awarded to the “best bid
received” (or in lease situations to the “highest and best
bid”). These provisions established a protected property
interest in the bidder sufficient to entitle petitioner to due
process protections. See, e.g., Cleveland Bd. of Educ. v.
Loudermill, 470 U.S. 532 (1985); Memphis Light, Gas &
Water Div. v. Craft, 438 U.S. 1 (1978).
-The court below correctly assumed “that [petitioner]
held a property interest in the fair and non-arbitrary
evaluation of his bid... ,” 874 F.2d at 1102, but inexplica-
bly went on to hold that the “procedural due process
2 The district court found, and the court of appeals
assumed, that petitioner had a sufficiently protected interest
under state law to mandate due process protection against an
arbitrary denial of the contract. There is strong support for this
view. See, e.g., Bd. of Educ. v. Sever-Williams Co., 22 Ohio St.2d
107, 115 (1970); Boren & Guckes v. Comm'’s of Darke Cy., 21 Ohio
St. 311, 322 (1871) (analogous bidding provision meant to
promote “open and honest competition” to protect the public
“as well as the bidders themselves . . .”) (Emphasis added). This
issue is not presented by this petition since it was not decided
by the court of appeals.
11
claim must fail because [petitioner] has adequate post-
deprivation remedies available under Ohio law.” Id. That
ruling could not be wider of the mark. The court of
appeals ignored the cases in this Court that have explic-
itly held that the availability of state post-deprivation
remedies is relevant only where the deprivation was
“random” and “unauthorized.” This Court has repeatedly
ruled that post-deprivation remedies do not satisfy due
process where a deprivation of property is caused by
conduct pursuant to established state procedure, rather
than random and unauthorized action. Hudson v. Palmer,
supra at 532. See also Logan v. Zimmerman Brush Co., 455
U.S. 422 (1982); Parratt v. Taylor, supra.
As Judge Ryan correctly noted in dissent, 874 F.2d at
1196-07, petitioner claims not a random denial of his bid, but
rather a denial motivated and caused by a state policy and
practice of denying petitioner and any other non-Democrats
of state contracts, regardless of the merits of their bids or
their individual qualifications. Such a policy is the antithesis
of the unauthorized actions subject to correction in a state
post-deprivation proceeding.
It is difficult to imagine a more direct and irreconcilable
conflict between a principle established by this Court and an
errant opinion of a court of appeals. Certiorari should be
granted to ensure the correction of this plainly erroneous
ruling.
II.- Respondents are not Entitled to Qualified Immu-
nity where Both State Law and the First and Four-
teenth Amendments Clearly Established that
Political Patronage Could Play no Legitimate Role
in the Awarding of Public Contracts.
Certiorari should also be granted ta review the deci-
sion of the court below to grant qualified immunity from
12
damages for the violation of petitioner’s First and Four-
teenth Amendment rights to be free from political and
patronage-based discrimination in his bid for a public
contract. ; \
A. The qualified immunity doctrine excuses govern-
ment officials from liability where the right violated was
not sufficiently “clearly established” to put a reasonable
official on notice that the challenged conduct was uncon-
stitutional. However, “[t]his is not to say that an official
action is protected by qualified immunity unless the very
action in question has previously been held unlaw-
ful, .. . but it is to say that in light of preexisting law the
unlawfulness must be apparent.” Anderson v. Creighton,
483 U.S. 685 (1987).
As we demonstrate below, it was clearly established
in 1983 that patronage-based discrimination in the award-
ing of public contracts violated First Amendment and
Equal Protection principles. See Elrod v. Burns, 427 U.S.
347 (1976); Branti v. Finkel, 445 U.S. 507 (1980). The
respondents did not have to predict the future of consti-
tutional law to understand that their denial of peti-
tioner’s bid violated controlling constitutional principles.
Buteven if the application of Burns and Branti to this case
was in any sense questionable, the fact that the State of
Ohio had by merit-legislation expressly disclaimed any
interest in patronage contracting precludes any argument
that the respondents could, consistent with the First
Amendment, deny petitioner a contract because he was
not a Democrat.
The division in this Court in Elrod and Branti was on
the issue of whether long standing patronage practices
13
are violative of the First Amendment. All Members of the
Court agreed that absent a state’s asserted countervailing
interest in patronage, the First Amendment claim would
be beyond dispute. Justice Powell, who wrote dissenting
opinions in both cases, expressly recognized that the
state’s interest could only be asserted where the
patronage system was authorized by long standing prac-
tice and not countermanded by “merit” legislation.
In Branti, Justice Powell asserted that prior public
employment cases were not controlling since they did not
involve patronage, and stated:
“The constitutionality of appointing or dismiss-
ing public employees on the basis of political
affiliation depends upon the governmental interests
served by patronage. . . . This inquiry cannot be
resolved by reference to First Amendment cases
in which patronage was neither involved nor
discussed.” Id. at 527. (Emphasis added).
In Elrod, supra at 381, Justice Powell stated that the
question presented:
4s
. is whether it is consistent with the First
and Fourteenth Amendments for a State to offer
some employment conditioned, explicitly or
implicitly, on partisan political affiliation and on
the political fortunes of the incumbent
officeholder. This is to be determined, as the
plurality opinion agrees, by whether patronage
hiring practices sufficiently advance important
state interests to justify the consequent burden-
ing of First Amendment interests.”
See also, Rutan, supra at 2696 (Scalia, J., dissenting).
The court below granted qualified immunity on the
mistaken premise that petitioner’s claim, like those
14
addressed by this Court in Elrod v. Burns, supra, Branti v.
Finkel, supra and Rutan v. Republican Party, 110 S.Ct. 2729
(199C), was one that pitted the individual’s right to free
speech, association and equal protection against a clearly
asserted state interest in patronage. However, the conflict
between these competing interests is not involved in this
case. The State of Ohio has legislatively disclaimed any
patronage interest in the state contracting process. The
statutes controlling the bidding and contract award sys-
tem are based on merit and require the contract to be
based on the “best bid.” ORC §1501.091.
Since the state legislature had decided that economic
benefits to the state, rather than political considerations,
should be the determinative factor in the letting of
ODNR’s contracts, the state cannot assert a countervail-
ing patronage interest. See, Allegheny Pittsburgh Coal Co.
v. County Com'n, 109 S.Ct. 633 (1989) (while states have
broad power to differentiate taxes according to different
property classifications, where state law does not draw
distinctions between properties and its Constitution
requires uniform taxation rates, state officials violate
Equal Protection by deviating from uniform rates).
Accordingly, the controlling constitutional principle in
effect in 1983 was that articulated by this Court in United
Public Workers v. Mitchell, 330 U.S. 75, 100 (1947), that
“Congress may not enact a regulation providing that no
Republican, Jew or Negro shall be appointed to fefleral
office . . . ” See also Wieman v. Updegraff, 344 U.S} 183
(1952); Cafeteria Workers v. McElroy, 367 U.S. 886 (1961).*
> In 1947 the Sixth Circuit also recognized that suck dis-
crimination is prohibited. Glicker v. Michigan Liquor Control
4
(Continued on following page)
‘
.
15
B. Even if there was no merit-based selection statute
in effect, the law was clearly established in 1983 that
patronage-based denials of public contracts were uncon
stitutional.
In Branti v. Finkel, supra, this Court explicitly disap
proved of the practice of conditioning a public defender’s
hiring on party affiliation: “[I]t is difficult to formulate
any justification for tying either the selection or retention of
an assistant public defender to his party affiliation.” Id. at
520, n.14 (emphasis added). A reasonable public official
would have heeded this express statement of constitu
tional principle by the Supreme Court. Indeed, in Branti,
the dissent noted that the Court did not distinguish
between discharges and hirings. Referring to the lan
guage cited above, Justice Powell stated:
“If this . . . statement is not a holding of the
Court, it at least suggests that the Court per-
ceives no constitutional distinction between
(Continued from previous page)
Commissioner, 160 F.2d 96 (6th Cir. 1947) (discrimination for
political reasons, by a state or its agents in the revocation of a
liquor license, violates equal protection).
Respondents have argued that the final decision to operate
the facility by state employees eliminates any constitutional
objection to their actions. This assertion, which was rejected by
the panel and not addressed by the en banc court (and therefore
is not presented in this petition) is erroneous. This Court has
repeatedly held that governmental acts disadvantaging citizens
are unconstitutional where they would not have occurred but
for an invidious purpose. See, e.g., Mt. Healthy City Bd. of Educ
v. Doyle, 429 U.». 274 (1977); Anderson v. Martin, 375 US. 399
(1964); Speiser v. Randall, 357 U.S. 513, 526 (1958); Cf. Heckler 1
Mathews, 465 U.S. 728 (1984).
16
selection and dismissal of public employees.” /d.
at 522, n.2.
Further, as this Court emphasized in Rutan, this con-
stitutional principle has been embodied in “[d]Jecades of
decisions by this Court.” Rutan, 110 S.Ct. at 2738.
[Rlespondents contend that the burden imposed
[by patronage hiring] is not of constitutional
dimension. Decades of decisions by this Court
belie such a claim. . . . Almost half a century
ago, this Court made clear that the government
“may not enact a regulation providing that no
Republican . . . shall be appointed to federal
office.” Public Workers v. Mitchell, 330 U.S. 75,
100, . . . (1947)... . Under our sustained precedent.
conditioning hiring decisions on political belief and
association plainly constitutes an unconstitutional
condition, unless the government has a vital
interest in doing so. Rutan, 110 S.Ct. at 2738,
2739 (notes, parallel citations omitted; emphasis
added).
Given this “sustained precedent,” the respondents
need not have “predicted the future” of constitutional
law to realize that their actions were unconstitutional!
> —
.
17
CONCLUSION
For the reasons stated above, the Petition for Cer
uiorari should be granted.
Respectfully submitted,
Davip Rupovsky
Katrys & Rupovsky
924 Cherry Street, #500
Philadelphia, Pa. 19107
(215) 925-4400
Counsel of Record
For Petitioner
SetH KREIMER
UNIVERSITY OF PENNSLYVANIA
LAw Sx bic]
3400 Chestnut Street
Philadelphia, Pa. 19104
(215) 898-7447
leerrEY M. Deen
James C. Ayers Law Orrn
165 N. High Street
Columbus, Ohio 43215
(614) 221-0770
APPENDIX
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MEMORANDUM AND ORDER
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+! itter > Defore the ( urt n the Gefendant
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motions to dismiss pursuant to Fed. R.( » 12(b)(6) and
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pon [ n re el iT e granted; .« ne adgerendadaNnt A Te
ry tit 1 + ryroalify ; rmroyryiriy + neq 2 +} le iry ez ’ t
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eoTenaant Imes are time-Darrea ror the reasons et out
entirety and the motions of the other defendants are
GRANTED in part nd DENIED) in part
wrongfully denied a ntract to run the golf course con
ession at Punderson State Park in Geauga County, Ohio,
“5
A.2
because he was not a democrat. His complaint is brought
pursuant to 42 U.S.C. §§1981, 1983, 1985, 1986; 28 U.S.C.
$§1331, 1343; the First and Fourteenth Amendments to
the United States Constitution, the Ohio Constitution,
and Ohio Revised Code §1501.091.
The plaintiff had operated the Punderson State Park
golf course for nine years from 1973 and through 1982.
For the first five years the plaintiff leased the facilities
from the Ohio Department of Natural Resources
(“ODNR”) pursuant to Ohio Revised Code §1501.09. That
lease was renewed one time for another four years with-
out competitive bidding as permitted under Ohio Revised
Code §1501.10.
In late 1982, the director of ODNR, Myrl Shoemaker,
advertised for public bids to operate the Punderson golf
course starting with the 1983 season. Four bids were
submitted and internal ODNR documents indicate that
the plaintiff’s bid was twice recommended by Defendant
Olson as “the best bid . . . in consideration of the public
interest.” Ohio Revised Code §§1501.091, 1501.10 (Attach-
ments to Plaintiff's memo contra filed February 24, 1986,
Doc. #71). However, on April 1, 1983, the contract was
awarded to Robert Grant who the department at one time
had considered financially unqualified.
On April 6, 1983, the plaintiff filed a verified com-
plaint in Franklin County Court of Common Pleas, Case
No. 83CV-04-2067, seeking an injunction requiring the
defendants to award the contract to him. After an oral
hearing on April 6, a preliminary injunction was issued.
On April 16, 1983, Robert Grant wrote ODNR “requesting
[ODNR] permission to withdraw from the Punderson
A.3
State Park Golf Pro Shop Concession Agreement which
we entered into based upon the competitive bidding
award of April 1, 1983.” Mr. Grant’s proferred reason for
withdrawal was the litigation initiated by the plaintiff.
(Exhibit “D” of Defendants’ July 18, 1983 motion for
protective order, Doc. #12).
At an oral hearing on April 20, the State indicated
that the contract would not be awarded to Mr. Lundblad,
but rather the ODNR was going to self-operate the con-
cession under the authority of Ohio Revised Code
§1501.09. Because of that decision, the Court of Common
Pleas granted the defendants’ motion to dismiss because
the controversy was moot.
On May 13, 1983, suit was filed in this court naming
as defendants Richard Celeste, Governor; Dorothy Shoe-
maker, Executor of the Estate of Myrl Shoemaker, for-
merly Director of the ODNR; William Napier, Deputy
Director of ODNR; and Donald Olson, Deputy Chief,
ODNR. After an oral hearing, Judge Robert M. Duncan
granted the Defendants’ motion for summary judgment,
holding that the Eleventh Amendment bars the award of
money damages against the state and that the dismissal
for mootness in State Court barred any money damages
against the defendants in their individual capacities
because of res judicata. That decision was reversed and
remanded by the Sixth Circuit Court of Appeals. That
court’s decision of August 22, 1985 held that the state
court dismissal for mootness was otherwise than on the
merits and was therefore without prejudice under Rule
41(B)(4)(a) of the Ohio Rules of Civil Procedure and that
accordingly plaintiff’s claims are not barred by res judi-
cata.
A.4
On October 31, 1985, plaintiff filed an amended com-
plaint which deleted the ODNR as a defendant and
increased the monetary damages sought. On December
12, 1986, plaintiff once against [sic] amended his com-
plaint in order to add a claim of fraudulent concealment
by the defendants of the role that Ronald James played in
the alleged deprivation of plaintiff’s rights. Mr. James is
the defendant in a companion case, Lundblad v. James,
Case No. C-2-86-402, which was filed on April 14, 1986
and which was consolidated with Case No. CV-83-0906
on June 11, 1986.
Defendants filed motions to dismiss in both cases
asserting that the complaints fail to state a claim upon
which relief can be granted, all defendants are entitled to
immunity and in the case of defendant James, all claims
are barred by the state of limitations. These motions to
dismiss are now before the Court.
DISCUSSION
A. Standard of Review
A motion to dismiss for failure to state a claim
“should not be granted unless it appears beyond doubt
that the plaintiff can prove no set of facts in support of
his claim that would enable him to relief.” Conley v.
Gibson, 35 U.S. 41, 45-46 (1957). All allegations of the
complaint are construed most favorably toward the non-
movant and are accepted as true. Jenkins v. McKeithen, 395
U.S. 411 (1969). Motions to dismiss claims made under
the civil rights statutes are given special scrutiny. Westlake
v. Lucas, 537 F.2d 857 (6th Cir. 1976); Brooks v. Seiter, 779
F.2d 1177 (6th Cir. 1985). A claim barred by the statute of
A.5
limitations may be determined in a motion to dismiss.
General Instrument Corp. v. American Home Assur. Co., 397
F. Supp. 1074 (E.D. Pa. 1975). Ail well-pleaded allegations
must be taken as true, Scheuer v. Rhodes, 416 U.S. 232
(1974), and if matters outside the pleadings are consid-
ered, then a 12(b) motion is converted into one for sum-
mary judgment.
B. Statute of Limitations
Defendant James asserts that all claims against him
are barred by the statute of limitations. As a matter of
law, Ohio Rev. Code §2305.11 provides a one year state of
limitations for all 42 U.S.C. §1983 actions. Mulligan &
Hazard, 777 F.2d 340 (6th Cir. 1985), cert. denied, 106 S. Ct.
2902 (1986). A one year statute of limitations also applies
to all §1981 actions. Demery v. City of Youngstown, Case
No. 86-3261 (6th Cir.), decided May 12, 1987.
While Ohio law provides the length of the period of
limitation for §1983 actions, Federal law governs such
matters as accrual of an action and tolling of the statute
Silverberg v. Thompson McKinnon Securities, Inc., 787 F.2d
1079 (6th Cir. 1986); Peck v. United States, 470 F. Supp.
1003 (S.D. N.Y. 1979).
A cause of action under the civil rights statutes
accrues when a tortfeasor interferes with a victim’s
rights. If a plaintiff has notice of wrongful conduct, it is
not necessary that he have knowledge of all the details or
all of the parties in order for a cause of action to accrue.
Compton v. Ide, 732 F.2d 1429 (9th Cir. 1984)
A.6
The wrongful act alleged is the denial of a concession
contract with the state. This occurred in 1983. Plaintiff
alleges that defendant James conspired with the defen-
dants named in a companion case, Case Number
CV-2-83-906, Lundblad v. Celeste, to deny the plaintiff his
constitutional rights. However, the “mere continuance of
a conspiracy beyond the date when injury or damage
occurs does not extend the statute of limitations.” Comp-
ton v. Ide, supra at 1432; Hoffman v. Holden, 268 F.2d 280
(9th Cir. 1959) overruled in part on other grounds, Cohen v.
Norris, 300 F2d 24 (9th Cir. 1962) (en banc).
Under specific circumstances, tolling of the statute of
limitations is recognized. Federal courts have applied the
“due diligence — discovery” rule in civil rights cases
when the defendants have actively sought to fraudulently
conceal a cause of action. Rinehart v. Locke, 454 F.2d 313
(7th Cir. 1971), or when the injury is “inherently unknow-
able”. Cox v. Stanton, 529 F.2d 47 (4th Cir. 1975). The due
diligence - discovery rule postpones accrual “until the
plaintiff has or with reasonable diligence should have
discovered the critical facts.” Diminnic v. United States,
728 F.2d 301 (6th Cir. 1984), cert. denied, 469 U.S. 842
(1984), quoting Barrett v. United States, 689 F.2d 324 (2d
Cir. 1982). The issue in this case is whether Defendant
James can be sued three years after the accrual of the
cause of action because of alleged fraudulent conceal-
ment by the defendants.
The Sixth Circuit Court of Appeals in Diminnic stated
that the doctrine of equitable tolling of a statute of limita-
tions based upon the doctrine of “concealment involves a
matter of fraud or constructive fraud on the part of the
party sought to be held responsible, for it makes little
A.7
sense to impose the responsibility for delay upon a party
innocent of causing it.” /d. at 305. The party to be charged
with fraudulent concealment must play an active role in
the concealment. Mere passive refusal to come forth with
crucial facts is insufficient.
Diminnic involved a suit against a federal agent
under the Federal Tort Claims Act, 28 U.S.C. §2671 et seq.
The agent had allowed an innocent person to be tried and
convicted for crimes the agent had committed. Neverthe-
less, the government was held not liable because it had
not actively helped the agent conceal his guilt and, there-
fore, the accrual of the statute of limitations was not
tolled. The plaintiff’s action was held to be time-barred.
The court went on to state that as morally wrong as the
agent’s action was, he was not required to come forward
and confess. “No balance of moral positions, justice, and
policy can require [the agent] to surrender his Fifth
Amendment rights under threat of civil tort liability, for
the creation of a tort duty would necessarily require the
surrender of his Fifth Amendment privilege against self-
incrimination.” Id. at 1196. Since a state official can be
subject to criminal liability for misfeasance in office, the
same analysis applies. See Chapter 2921, Ohio Revised
Code. A defendant has no obligation to come forward
with any information regarding his role or anyone else’s
role in the alleged conspiracy.
The facts alleged to establish fraudulent concealment,
even if true, do not serve to toll the statute of limitations
against defendant James. In Hohri v. United States, 782
F.2d 227 (D.C. Cir. 1986); cert. granted, 55 U.S.L.W. 3357
(1986), the court held that the fraudulent concealment
ae
“pr
ee
A.8
must prevent the plaintiff from alleging a “crucial ele-
ment” of his claim, and not merely conceal the fact of the
injury or the identity of the inflictor (emphasis added). See,
Cain v. United States, 643 F. Supp. 175 (S.D. N.Y. 1986).
The plaintiff in this case was sufficiently aware of all
elements of his cause of action to file and vigorously
pursue his claims in the companion case of Lundblad v.
Celeste, Case No. C-2-83-0906. The claims in that case are
identical to the claims alleged against Defendant James.
Nothing that the defendants have allegedly done as
stated by plaintiff's Second Amended Complaint rises to
fraudulent concealment for the purpose of tolling the one
year statute of limitations applicable to 42 U.S.C. §1983
and §1981 actions. Therefore, all claims against defendant
lames are dismissed as time-barred.
C. 1985 and 1986 Clainis
In order to maintain an action under 42 U.S.C. §1985
there “must be some racial, or perhaps otherwise class
based invidiously discriminating animus behind the dis
criminators’ action.” Griffin v. Breckenridge, 403 U.S. 88,
101-102 (1970). The Supreme Court did not specify which
classes might be protected. However, the Sixth Circuit has
discussed the scope of the persons protected in Browder v
Tivton, 630 F.2d 1149 (6th Cir. 1980) where the court
stated:
We hold that the class of individuals protected
by the “equal protection of the laws” language
of the statute are those so-called “discrete and
insular” minorities that receive special protec-
tion under the Equal Protection Clause because
of inherent personal characteristics. The persons
BEST AVAILABLE COPY
A.9
protected under the “equal privileges and
immunities” language of the statute are those
individuals who join together as a class for the
purpose of asserting certain fundamental rights.
Id. at 1150.
See also Wilson v. Moss, 537 F. Supp. 281 (S.D. Ohio 1982)
(psychologists are not “discrete and insular minority” at
least for purposes of constitutional analysis under 42
U.S.C. §1985(3)).
In United Brotherhood of Carpenters & Joiners, Local 610
v. Scott, 463 U.S. 825 (1983), Justice White delivered the
Opinion of the Court and stated:
In the first place, it is a close question whether
§1985(3) was intended to reach any class-based
animus other than animus against Negroes and
those who championed their cause, most nota
bly Republicans. .. . The predominant purpcse
of §1985(3) was to combat the prevalent animus
against Negroes and their supporters.
Id. at 836.
There is no characteristic of the plaintiff that qualifies
as an “immutable characteristic” so that any alleged con
spiracy comes under the aegis 42 U.S.C. §1985(3). Conse
quently, the plaintiff fails to state a claim under 42 U.S.C
§1985(3) against all named defendants
Plaintiff has also alleged jurisdiction under 42 U.S.C
g
§1986 which states in part:
“Every person who, having knowledge that any
of the wrongs conspired to be done, and men
tioned in §1985 of this title, are about to be
committed, and having power to prevent or aid
in preventing the commission of the same,
A.10
neglects or refuses so to do, if such wrongful act
be committed, shall be liable to the party
injured, or his legal representatives, for all dam
ages caused by such wrongful act, which such
person by reasonable diligence could have pre
vented; and such damages may be recovered in
an action on the case; and any number of per
sons guilty of such wrongful neglect or refusal
may be joined as defendants in the
action; ... But no action under the provisions of
this section shall be sustained which is not com
menced within one year after the cause of action
has accrued.”
By its terms, §1986 has a one-year statute of limitations
and is dependent upon a valid 42 U.S.C. §1985 claim
Browder v. Lipton, supra. Even if plaintiff had stated a
valid §1985 claim, it would be barred by the statute of
limitations against defendant James because when a
$1986 claim is brought in tandem with a §1985 claim both
are controlled by the 1986 one year statue of limitations
Carter v. City of Emporia, 543 F. Supp 354, 357 (D. Kan
1982). The date upon which plaintiff would have known
that there was a conspiracy was in the spring of 1983
herefore, even if the §1985 claim had been valid, the
$1986 claim would be barred by the applicable statute of
limitations against Defendant James. Since the court
holds that the plaintiff has failed to state a claim agains!
any defendant under §1985(3), all 42 U.S.C. §1986 claims
against all defendants also fail
1) Section 1981 Claims
Title 42 U.S.C. $1981 states
All persons within the jurisdiction of the United
States shall have the same right in every State
A.1]
and lerritory to make and enforce contracts, t
sue, be parties, give evidence, and to the fu
and equal benefit of all laws and proceedings
for the security of persons and property as is
enjoyed by white citizens, and shall be subject to
like punishment, pains, penalties, taxes
licenses, and exactions of every kind, and to no
other
In order to state a claim under §1981, the plaintif!
must show that the defendants intentionally discrimi
nated on account of race in the plaintiff's pursuit of one
of the enumerated activities. Jones v. Alfred H. Mayer Co
392 U.S. 409, (1968). Conclusory allegations of gener
alized racial bias are insufficient to establish the neces
sary discriminatory intent. Minority Police Office?
Association v. South Bend, 801 F.2d 964 (7th Cir. 1986)
Nowhere in the three volumns [sic] of pleadings that
have been filed in this case are there any allegations of
any sort that suggest intentional racial discrimination on
the part of the defendants. Nor does the plaintiff plead
any allegations of discrimination based upon race evel
under the liberal construction of 81981 recently enunc!
ated by the Supreme Court in St. Francis College
Khazran, 55 U.S.L.W. 4626, (decided May 18, 1987). Ther
fore, the plaintiff's claims under 42 U.S.C. §1981 are
dismissed against Defendant James as being time-barred
and against all other defendants for failure to state a
claim
I $1983 Claims
litle 42 U.S.C. §1983 states
“Every person w ho, under color of any statute
ordinance, regulation, custom, or usage, Of any
A.12
State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of
the United States or other person within the
jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the
party injured in an action at law, suit in equity,
or other proper proceeding for redress. For the
purposes of this section, any Act of Congress
applicable exclusively to the District of Colum-
bia shall be considered to be a statute of the
District of Columbia.”
It is well established that in order to recover under
§1983, a plaintiff must plead and prove at least: (1) that
he has been deprived of a right “secured by the Constitu-
tion and laws” of the United States and (2) that the
defendant deprived him of his rights while acting under
the color of law. Coffy v. Multi-County Narcotics Bureau,
600 F.2d 570, 576 (6th Cir. 1979); Gomez v. Toledo, 446 U.S.
635 (1980). As a part of this burden of proof, the plaintiffs
must establish that the defendants were involved in the
activity violative of their constitutional rights. It is insuf-
ficient to base liability upon the general doctrine of
respondeat superior, 1.e., that a defendant was in a super-
visory position. Monell v. New York Department of Social
Services, 436 U.S. 691-694 (1978); Coffy v. Multi-County
Narcotics Bureau, supra at 580. Rather, the plaintiff must
show that the defendants were personally involved in the
alleged illegal conduct. Id. at 580; Jones v. Denton, 527 F.
Supp. 106, 109 (S.D. Ohio 1981). Cf. Rizzo v. Goode, 423
U.S. 362, 373-377 (1976).
“By enactng [sic] O.R.C. §1501.091 the General
Assembly recognized that there may be sound business
and economic reasons why the public is better served by
A.13
private rather than state operation of certain public ser-
vice facilities.” Sovine v. Teater, 47 Ohio App.2d 254, 256,
353 N.E.2d 880, 882 (1976). The Ohio Supreme Court has
construed similar statutes that, like Ohio Revised Code
§1501.091, require publication of the bid specifications
and award of ihe contract to the lowest or highest and
best bidder, depending upon whether the contract is to
maximum income or minimize outgo.
The Director of ODNR was under no obligation to
award a contract but if he chose to let a contract, which
he did, then under Ohio law and the express language of
the applicable statute, he must select “in consideration of
the public interest... the best bid received.” Ohio
Revised Code §1501.091. In determining who submitted
the best bid, the ODNR Director must exercise his discre-
tion in a non-arbitrary fashion. The Ohio Supreme Court
held that it was an abuse of discretion to award a contract
on the basis of unannounced and wunestablished guide-
lines. The court, quoting the trial court, stated: “ ‘[t]he
lack of an announced standard and priority of miscella-
neous considerations allows unbridled discretion and
political favoritism.’ We find neither allegations nor proof
of political favoritism. However, we do find, due to the
lack of announced standards, that appellant’s action in
this case was arbitrary”. Dayton, ex rel. Scandrick v. McGee,
67 Ohio St. 2d 356, 361; 423 N.E.2d 1095, 1098. The
plaintiff has alleged political favoritism and arbitrary and
unannounced standards. This is a factual matter which
precludes granting the defendants’ motion to dismiss.
[1,2] “The meaning of the term ‘abuse of discre-
tion’ * * * connotes more than an error of law or
A.14
of judgment; it implies an unreasonable, arbi
trary or unconscionable attitude ** * .” Steiner v.
Custer (1940), 137 Ohio St. 448, 31 N.E.2d 855,
paragraph two of the syllabus; Conner v. Conner
(1959), 170 Ohio St. 85, 162 N.E.2d 852; 262 N.2d
685, and State v. Adams (1980), 62 Ohio St.2d 151,
404 N.E.2d 144. “Arbitrary” means “without
adequate determining principle; * * * not gov-
erned by any fixed rules or standard.’ Black’s
Law Dictionary (5 Ed.). “Unreasonable” means
irrational.” Id.
McGee, supra, 423 N.b.2d at 1097. Abuse of discretion has
also been held to mean “a discretion .. . exercised to an
end or purpose not justified by and clearly against reason
and evidence.” State ex. rel. Shafer v. Ohio Turnpike Com
missioner, 159 Ohio St. 581, 591, 113 N.E.2d 14, 19 (1953).
It is not an abuse of discretion to determine to grant
one bidder the contract but prior to notification of that
bidder to then reject all bids provided “no vested right of
others [bidder] has intervened.” (Emphasis added). State ex.
rel. Clevelnd [sic] Trinidad Paving Co. v. Board of Public
Service of Columbus, 81 Ohio St. 218, 225; 90 N.E. 389,
(1909). A granting agency has continuing jurisdiction to
reconsider its decision until the institution of court pro-
ceedings attacking such decision. State ex. rel. Maxson v.
Board of County Commissioners, 167 Ohio St. 458, 149
N.E.2d 918 (1958). The Ohio Supreme Court also held that
it was an abuse of discretion and denial of equal protec-
tion to refuse to award a contract to the lowest and best
bidder simply because the lowest bidder used non union
versus union labor. State ex rel. United District Heating,
Inc. v. State Office Bldg. Comm., 125 Ohio St. 301 (1932).
A.15
This Court finds persuasive the reasoning of Judge
Harvey in Kasom v. City of Sterling Heights, 600 F. Supp.
1555 (E.D. Mich. 1985), aff’d., 785 F.2d 308 (6th Cir. 1986):
[W]here a state statute requires public works
contracts to be awarded to the lowest qualified
bidder, and where a decision has been made to
award such a contract, bidders have a limited
property interest in not having the procedure,
which regulates the enjoyment of the benefit
sought, applied in an arbitrary or capricious
manner. (citation omitted) “An entitlement may
exist with respect to a benefit which is sought
but not yet obtained whenever state law limits
the exercise of discretion by the state official
responsible for conferring the benefit.” Flixon v.
Durbin, 560 F Supp. 654, 659 (E.D. Pa. 1983)
Id., at 1559.
Protected property and liberty interests emanate not
only from the Constitution but also from state statutes
and customs which create legitimate claims of entitle
ment. Board of Regents v. Roth, 408 U.S. 564 (1972). The
“existing rules or understandings” of the statutes and
procedures involved in awarding contracts under Ohio
Statutes and case law creates a limited property interest
of sufficient magnitude to invoke the equal protection
and due process clauses of the Fourteenth Amendment
Kasom, supra; Three Rivers Cablevision, Inc. v. City of Pitts-
burgh, 502 F. Supp. 1118 (W.D. Pa. 1980). The plaintiff has
alleged sufficient facts to state a cause of action under 42
U.S.C. §1983.
Plainiiff’s complaint also alleges that the defendants’
conduct is pursuant to an established policy of the
Celeste administration and is not a random and
A.16
unauthorized act. Therefore, the requirement of pleading
the inadequacy of state post-deprivation procedures need
not be met. Spruytte v. Walters, 753 F.2d 498 (6th Cir.
1985), cert. denied, 106 S.Ct. 788 (1986).
Infringement of First Amendment Rights
In addition to denial of due process and equal protec:
tion under the Fourteenth Amendment, plaintiff alleges
that his First Amendment right to freedom of political
association was impaired by the defendants’ actions.
Freedom of political association is protected by the First
Amendment. Buckley v. Valeo, 424 U.S. 1 (1976). In a
different context, the Supreme Court has held that non
renewal of an employment contract may not be predi
cated on the exercise of First and Fourteeth [sic] Amend
ment rights. Perry v. Sindermann, 408 U.S. 593 (1972).
In Elrod v. Burns, 427 U.S. 347 (1975), Justice Brennan
wrote that the states could not “deny a benefit to a person
because of his constitutionally protected interests — espe-
cially, his interests in freedom of speech or association.”
To do so would chill the exercise of those freedoms. Id. at
359. “Rights are infringed both where the government
fines a person a penny for being a Republican and where
it withholds the grant of a penny for the same reason.” [d.
at 360, n. 13. The “penny” in this case is the contract
which was granted to Mr. Grant. If that contract was
granted under facts that support a claim of abuse of
discretion and in the interest only of political patronage, a
claim under 42 U.S.C. 1983 and the First Amendment has
been stated. However, the Sixth Circuit has recently
decided that if a constitutional claim is stated under
A.17
§1983, then that statute is the exclusive remedy for First
Amendment violations. Thomas v. Shipka, 6th Cir., Case
No. 86-3230 (decided May 1, 1987).
(;. Qualified Good Faith Immunity
Finally, the defendants argue that they are entitled to
qualified good faith immunity. This is a question of law
for the Court to decide. Harlow v. Fitzgerald, 457 U.S. 800
(1982). An official is immune unless the conduct “viclates
clearly established statutory or constitutional rights of
which a reasonable person would have known.” Id. at
818. Davis v. Scherer, 468 U.S. 183 (1984); Huron Valley
Hospital, Inc. v. City of Pontiac, 792 F.2d 563 (6th Cir. 1986)
The ODNR was dismissed from the suit on the basis
of Eleventh Amendment Immunity. The Eleventh Amend
ment also bars recovery of damages against an individual
government officer who is sued in his official capacity,
since in such suits that state entity is the real party in
interest and the state treasury is the source of recovery
for any damage award. However, officiais are not
immune from injunctive and declaratory relief. Brandon v
Holt, 469 U.S. 464 (1985); Monell v. New York City Depart
ment of Social Services, 436 U.S. 658 (1978); Kentucky,
Bureau of State Police v. Graham, 53 U.S.L.W. 4966 June 25,
1985).
Personal-capacity suits, in contrast, seek to impose
personal liability upon a government official for actions
he takes under color of state law. Scheuer v. Rhodes, 416
U.S. 232 (1974). An award of damages against an official
in his personal capacity can be executed only against the
A.18
officia!’s personal assets. Kentucky, Bureau of State Police v.
Graham, supra at 4967.
Judge Duncan's decision did not determine whether
the defendants were sued in their individual capacities
since he held that those claims, if any, were barred by res
judicata. The complaint does not clearly specify whether
the named defendants are being sued in their personal or
official capacity or both. Therefore, the Court must look
to the course of the proceedings to determine the nature
of the liability sought to be imposed. Brandon v. Holt,
supra at 469.
The caption of the complaint lists the names, official
titles and business addresses of the defendants. Plaintiff,
however, moved pursuant to Fed. R. Civ. P. 25 to substi-
tute Dorothy Shoemaker as a party defendant after the
death of her husband. That motion was granted on
December 6, 1985 by Magistrate Abel. By requesting the
substitution of the administratrix of Mr. Shoemaker’s
estate rather than his successor in the position of Director
of the ODNR, the plaintiff invoked section (a) of the Rule
25. The Notes of Advisory Committee on Rules for the
1961 Amendments state that Rule 25(a) applies to those
“infrequent actions which are directed to securing money
judgments against the named officers enforceable against
their personal assets.” Therefore, this Court finds that the
course of the proceedings in this case indicates that the
named officials are being sued in their official and per-
sonal capacities.
An official sued in his personal capacity may assert
the defense of a qualified good faith immunity. Harlow,
supra. Officials do not forfeit their immunity by violating
the clear command of a statute or regulation, federal or
A.19
state, unless that statute or regulation provides the basis
for the cause of action sued upon. Ohio Revised Code
§1501.091 and the First Amendment provide the basis of
plaintiff’s cause of action. Davis v. Scherer, supra.
As previously noted, the law in Ohio is well estab-
lished that decisions to award contracts are constrained
by an abuse of discretion standard. The law is also well
established that the state may not deprive a person of a
property interest on the basis of political affiliation. Elrod,
supra; Branti v. Finkel, 445 U.S. 507 (1980). It was not as
well-settled but still sufficiently established as a matter of
law that bidders on state contracts can state a property
and due process interest in a contract that was not
awarded to them. Three Rivers, supra. Therefore, this
Court finds that the named defendants are not entitled to
qualified good faith immunity.
In conclusion, Defendant James’ motion to dismiss is
GRANTED in its entirety.
Defendants Celeste, Shoemaker, Napier and Olson’s
motions to dismiss are DENIED with respect to plaintiff's
claims under 42 U.S.C. §1983 but are GRANTED with
respect to plaintiff's claims arising directly under the
First Amendment and those alleged under 42 U.S.C.
§§1981, 1985 and 1986.
This Court’s prior orders staying discovery are
hereby vacated.
It is so ORDERED.
/s/ James L. Graham
JAMES L. GRAHAM
United States District Judge
A.20
Before MERRITT, KRUPANSKY and RYAN, Circuit
Judges.
MERRITT, Circuit Judge.
Plaintiff Steven Lundblad filed two actions pursuant
to 42 U.S.C. §1983 against the Ohio Department of Natu-
ral Resources (“ODNR”) and various Ohio state officials
in their individual capacities. The defendants moved to
dismiss Lundblad’s actions, now consolidated, pursuant
to Fed.R.Civ.P. 12(b)(6). The district court denied the
motions of all the defendants except that of Ronald
James, holding that Lundblad stated a claim under the
due process clause of the fourteenth amendment, the first
amendment, and the equal protection clause of the four-
teenth amendment of the United States Constitution. In
granting James’ motion to dismiss, the district court held
that Lundblad’s action against him was barred by the
statute of limitations. Defendants now appeal the district
court’s order denying their motion to dismiss and
Lundblad cross-appeals the district court’s order impos-
ing sanctions against both plaintiffs and defendants pur-
suant to Fed.R.Civ.P. 11. We affirm the district court’s
order denying defendant’s motion to dismiss insofar as it
held that Lundblad stated a cause of action under the
equal protection clause of the fourteenth amendment. We
reverse, however, the district court’s order insofar as it
held that Lundblad stated a claim under the first amend-
ment and the due process clause of the fourteenth
amendment. We affirm the district court’s dismissal of
Lundblad’s claim against James. Finally, we decline to
address the Rule 11 sanctions issue as it is not properly
before the court.
A.21
In May of 1983, Lundblad filed suit against four of
the current defendants, Ohio Governor Richard Celeste,
Myrl Shoemaker, Lieutenant Governor of Ohio and Direc-
tor of ODNR,! William Napier, Deputy Director of
ODNR, and Donald Olson, Division Chief of ODNR, and
ODNR itself. Plaintiff brought his claim under 42 U.S.C.
§1983, alleging that defendants violated his constitutional
rights under the due process clause of the fourteenth
amendment, the first amendment, and the equal protec-
tion clause of the fourteenth amendment by refusing to
accept his bid for a contract to operate a golf course
located in a state park. On April 14, 1986, a month short
of three years after filing his original action, Lundblad
filed a complaint against defendant James, Deputy Direc-
tor of Resource Management for ODNR, alleging that
James had been an active participant with the other
defendants in the denial of Lundblad’s constitutional
rights. On July 5, 1983, ODNR and the other individual
defendants in the original action moved for summary
judgment on the ground that Lundblad’s claims against
all of the defendants were barred by the doctrine of res
judicata as the result of a judgment rendered by an Ohio
Common Pleas Court on April 20, 1983. ODNR also
moved that Lundblad’s claim against it be dismissed on
' After the death of Lieutenant Governor Shoemaker in
1985, the district court, upon motion by the plaintiff, substi-
tuted Dorothy Shoemaker, the late Lieutenant Governor’s
widow and the executrix of his estate, as a party to this action.
A.22
eleventh amendment grounds. On June 25, 1984, the dis-
trict court held that the individual defendants had valid
res judicata defenses and ODNR was protected by the
eleventh amendment trom an award of monetary dam-
ages. Lundblad appealed. On August 22, 1985, this court
decided that the defendants’ res judicata defense was not
valid, reversed the decision of the district court with
respect to the individual defendants and remanded the
case back to the district court for further proceedings. 772
F.2d 907 (6th Cir.1985). Plaintiff did not appeal the dis-
missal of ODNR on eleventh amendment grounds, so
ODNR is no longer a party to this action.
Thereafter, defendants renewed their motion to dis-
miss on the ground that, as state government officials,
they were entitled to qualified immunity from civil dam-
ages. Meanwhile, plaintiff had filed his complaint against
defendani James and on June 11, 1986, the district court
granted a motion to consolidate the action against James
with the original action against the other defendants.
Defendant James, in addition to joining in the motion of
the other defendants to dismiss on immunity grounds,
also asserted that Lundblad’s complaint against him was
barred by the statute of limitations. The district court
denied the defendants’ motion and held that Lundblad
had stated valid claims under 42 U.S.C. §1983 pursuant to
the due process clause of the fourteenth amendment, the
first amendment, and the equal protection clause of the
fourteenth amendment. However, the court granted the
motion to dismiss with respect to defendant James and
held that plaintiff's claims against him were barred by
the statute of limitations. The defendants, with the excep-
tion of defendant James, now appeal the district court’s
A.23
denial of their claim of qualified immunity.? Lundblad
has filed a cross-appeal of the district court’s dismissal of
defendant James and of an earlier district court order
granting sanctions against his counsel.
B.
Because this case comes before this court on a motion
to dismiss for failure to state a claim under Fed.R.Civ.P.
12(b)(6), the court must accept as true, for purposes of
this appeal, all of Lundblad’s well-pleaded allegations.
Ana Leon T.V. Federal Reserve Bank of Chicago, 823 F.2d 928,
930 (6th Cir.), cert. denied, U.S. , 108 S.Ct. 333, 96
L.Ed.2d 360 (1987). Lundblad alleged that he operated the
golf concession at Punderson State Park in Geauga
County, Ohio from 1973 to 1982. Under Ohio state law,
ODNR is permitted to operate public service facilities
such as golf courses located in state parks with its own
employees or by entering into contracts or leases for the
Operation of such facilities by private parties. O.R.C.
§§1501.07, 1501.09 (Supp.1987). Although Lundblad had
done an excellent job during his nine years as operator of
the golf course, ODNR decided to invite bids for a con-
tract to operate the golf course during the 1983 season
ODNR thereafter sent an “Instruction to Bidders” (“TTB”)
2 Defendants filed their appeal pursuant to the Supreme
Court’s decision in Mitchell v. Forsyth, 472 U.S. 511, 530, 105
S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985), in which the Court held
that a “district court’s denial of a claim of qualified immunity,
to the extent that it turns on an issue of law, is an appealable
‘final decision’ within the meaning of 28 U.S.C. §1291 notwith-
standing the absence of a final judgment.”
A.24
to prospective bidders, including Lundblad. ODNR
received four bids on the contact.
Lundblad alleged that internal ODNR evaluations
reached the conclusion that the bid submitted by plaintiff
was the best bid received. Nevertheless, on April 1, 1983,
ODNR announced that it had accepted the bid submitted
by Robert Grant. Plaintiff alleged that defendant Shoe-
maker, as Director of ODNR, awarded the contract to
Grant solely on the ground that Lundblad was not a
Democrat. He further alleged that the decision not to
grant the contract to Lundblad was part of a broader
conspiracy involving all of the defendants to award con-
tracts only to democrats and to completely exclude all
bidders who are not Democrats.
On April 3, 1983, Lundblad filed suit in the Court of
Common Pleas of Franklin County, Ohio for injunctive
relief against the award of the contract to anyone but
himself. He obtained a temporary restraining order from
that court enjoining the award of the contract to Grant.
On April 16, 1983, before the state court had a chance to
examine Lundblad’s claims on the merits, Robert Grant
wrote a letter to defendant Shoemaker withdrawing his
bid and requesting the return of his bid bond. On April
18, 1983, defendant Shoemaker accepted Grant’s with-
drawal and returned to Grant his bid bond. Thereafter,
defendant Shoemaker decided to reject all of the bids and
to operate the golf course with ODNR employees pur-
suant to the statutory authority granted by O.R.C.
§1501.09.
A.25
It is now firmly established that some government
officials in the course of performing official duties are
entitled to a qualified immunity from suit for civil dam-
ages. The Supreme Court set out the standard for apply-
ing this qualified immunity in Harlow v. Fitzgerald:
[Glovernment officials performing discretionary
functions, generally are shielded from liability
for civil damages insofar as their conduct does
not violate clearly established statutory or constitu-
tional rights of which a reasonable person would
have know.
* * *
If the law at that time was not clearly estab-
lished, an official could not reasonably be
expected to anticipate subsequent legal develop-
ments, nor could he fairly be said to know that
the law forbade conduct not previously identi
fied as unlawful.
457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 72 L.Ed.2d 396
(1982) (emphasis added).
Thus, under Harlow, Lundblad must allege facts
which, if proven, “clearly establish” a violation of his
constitutional rights.* Plaintiff has alleged violations of
* Lundblad argues that defendants may not raise the qual-
ified immunity defense because it “is an affirmative defense
that must be pleaded by a defendant official.” Harlow, 457 U.S.
at 815, 102 S.Ct. at 2737. Lundblad reasons that because defen-
dants have not filed an answer and instead raise the qualified
immunity defense on a motion to dismiss for failure to state a
claim, defendants should be precluded from raising the
defense prior to filing an answer. While Lundblad correctly
(Continued on following page)
A.26
his constitutional rights under the due process clause of
the fourteenth amendment, the first amendment, and the
equal protection clause of the fourteenth amendment.
Each of these must be examined in turn to determine
whether they constitute allegations that defendants vio-
lated Lundblad’s “clearly established” constitutional
rights.
A.
Equal Protection
Lundblad argues, and the district court held, that
defendants’ alleged action constituted a violation of the
equal protection clause of the fourteenth amendment
thereby establishing a cause of action under §1983. The
essence of this equal protection claim is that the incum-
bent Democratic administration of the State of Ohio had a
rule against hiring Republicans, albeit informal and exer-
cised in a capricious manner. In applying this rule,
Lundblad contends, the administration discriminated
against him by depriving him of the contract to run the
golf course solely because he was a Republican.
(Continued from previous page)
states the rule, courts generally permit affirmative defenses to
be asserted by motion. Wright & Miller, Federal Practice and
Procedure §1277 (1969). The Sixth Circuit has adopted this view,
and extended it to hold that “an affirmative defense is not
waived, even though not specifically pleaded, where the
defense clearly appears on the face of the pleading and is
raised in a motion to dismiss.” Pierce v. County of Oakland, 652
F.2d 671, 672 (6th Cir.1981).
A.27
The equal protection clause provides that “[n]o state
shall . . . deny to any person within its jurisdiction the
equal protection of the laws.” It is in essence, “a direction
that all persons similarly situated should be treated
alike.” Cleburne v. Cleburne Living Center, Inc., 473 U.S.
432, 439, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985).
If, as Lundblad alleges, he was denied the contract
solely on the basis that he was a Republican, he was not
treated the same as those with whom he is similarly
situated, t.e., otherwise qualified applicants who sought
the contract to run the golf course. There is no rational
basis for a rule which allows a state to contract with only
Democrats or only Republicans. Indeed, this court and
the Ohio Supreme Court have held that discrimination by
a state or its agent for political reasons violates the equal
protection clause. See Glicker v. Michigan Liquor Control
Commission, 160 F.2d 96 (6th Cir.1947) (discrimination, for
political reasons, by a state or its agent in the revocation
of a liquor license violates the equal protection clause of
the fourteenth amendment); State ex rel. United District
Heating, Inc. v. State Office Building Commission, 124 Ohio
St. 413, 179 N.E. 138 (1931) (denial of public contract to
lowest bidder on sole ground that bidder does not
employ union labor violates equal protection clause).
Moreover, the state’s argument, citing Palmer v.
Thompson, 403 U.S. 217, 91 S.Ct. 1940, 29 L.Ed.2d 438
(1971), that no matter what the motives of the state offi-
cials, the state’s decision to run the course itself resulted
in no actual discrimination against Lundblad and hence
no violation of equai protection, is not persuasive. First,
as Lundblad asserts, that decision was nothing more than
an indirect way of obtaining the same result — rendering
A.28
plaintiff ineligible to operate the golf course because of
his political party affiliation.
Second, the motive discussed in Palmer was that of
legislative officials. The cases make a clear distinction
between the motives of a legislative body and the motives
of other actors. With respect to legislators, it has been said
that a finding of unconstitutionality may not be grounded
solely on the basis of motive. See Ely, Legislative and
Administrative Motivation in Constitutional Law, 79 Yale L.J.
1505 (1970). This preclusion is justified by separation of
powers principles and by the difficulty of determining
the dominant motives underlying legislation, given the
fact that many legislators with many different motives on
a measure. Courts are not precluded, however, from
inspecting the motives of nonlegislators. If courts were so
precluded, wrongs such as racial and sexual discrimina-
tion in employment and in other areas could not be
corrected. Indeed, motive and intent are the keystone of
equal protection analysis. See Washington v. Davis, 426
U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976) (discrimina-
tory intent required).
We hold, therefore, that Lundblad has stated a cause
of action under §1983 for violation of his rights under the
equal protection clause of the fourteenth amendment.
B.
First Amendment
Lundblad argues, and the district court held, that
defendants’ alleged actions in this case also violated
Lundblad’s first amendment free speech rights. Both
A.29
plaintiff and the district court cited the Supreme Court's
decisions in Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287,
63 L.Ed.2d 574 (1980), and Elrod v. Burns, 427 U.S. 347, 96
S.Ct. 2673, 49 L.Ed.2d 547 (1976). Branti and Elrod both
involved state employees who were dismissed from their
jobs solely because of their political affiliation. In particu-
lar, the district court relied upon rather expansive lan-
guage in the plurality opinion of Justice Brennan in Elrod
to the effect that whenever the government treats a Dem-
ocrat One way and a Republican another it has violated
the first amendment. However, the concurring opinion of
Justice Stewart, which provided the majority votes to the
plurality, limited the Court’s holding to the proposition
that “a nonpolicymaking, nonconfidential government
employee can[not] be discharged or threatened with dis-
charge from a job that he is satisfactorily performing
upon the sole ground of his political beliefs.” Id. at 375, 96
S.Ct. at 2690 (Stewart, J., concurring).4 Thus, the question
presented here is whether the Supreme Court’s holdings
in Branti and Elrod should be extended to cases where
public officials refuse to grant public contracts to the
lowest bidder solely on the ground of political affiliation.
4 “When a fragmented Court decides a case and no single
rationale explaining the results enjoys the assent of five jus-
tices, ‘the holding of the Court may be viewed as that position
taken by those Members who concurred in the judgments on
the narrowest grounds. ...’” Marks v. United States, 430 U.S.
188, 1983, 97 S.Ct. 990, 993, 51 L.Ed.2d 260 (1977) (quoting
Gregg v. Georgia, 428 U.S. 153, 169 n. 15, 96 S.Ct. 2909, 2923 n.
15, 49 L.Ed.2d 859 (1976)) (opinion of Stewart, Powell, and
Stevens, JJ.).
A.30
In this case, it is not necessary to address this ques-
tion directly because it was not “clearly established” in
1983 that Elrod and Branti extended to situations involv-
ing the letting of public contracts. Although the Sixth
Circuit had not addressed the issue, two Eighth Circuit
decisions prior to 1983 refused to apply Elrod and Branti
to decisions to fire independent contractors. In Sweeney v.
Bond, 669 F.2d 542, 545 (8th Cir.), cert. denied, 459 U.S. 878,
103 S.Ct. 174, 74 L.Ed.2d 143 (1982), the court held that a
politically motivated dismissal of Missouri Department of
Revenue fee agents, whom the court found to be indepen-
dent contractors, did not violate the first amendment.
Similarly, the Eight Circuit had held that the politically
motivated dismissal of a public accounting firm from its
position as city auditor did not contravene the first
amendment because the accounting firm was an indepen-
dent contractor. Fox & Co. v. Schoemehl, 671 F.2d 303, 305
(8th Cir.1982).
Given the fact that the only relevant case law existing
in 1983 refused to extend the Elrod and Branti holdings to
independent contractors, it cannot fairly be said that it
was “clearly established” that the refusal of pubic offi-
cials to grant a public contract to the lowest bidder solely
because of political affiliation violated Lundblad’s first
amendment rights. We emphasize that we do not reach
the underlying issue of whether Elrod and Branti should
be extended to situations involving independent contrac-
tors. We merely hold that no such extension was “clearly
established” in 1983 and that defendants are, therefore,
entitled to qualified immunity from civil damages for
first amendment violations under §1983 as interpreted by
Harlow.
A.3]
...
Procedural Due Process
The district court found that Lundblad had a prop-
erty interest protected by the due process clause of the
fourteenth amendment in having his bid evaluated in a
fair, nonarbitrary fashion. The district court further
found, however, that since Lundblad alleged that this
property interest was deprived pursuant to an estab-
lished policy rather than a random and unauthorized act,
he need not plead the inadequacy of state post-depriva-
tion remedies. See Spruytte v. Walters, 753 F.2d 498, 509
(6th Cir.1985), cert. denied, 474 U.S. 1054, 106 S.Ct. 788, 88
L.Ed.2d 767 (1986) (quoting Hudson v. Palmer, 468 U.S.
517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984)).
Assuming, without deciding, that Lundblad held a
property interest in the fair and non-arbitrary evaluation
of his bid, his procedural due process claim must fail
because he has adequate post-deprivation remedies avail-
able under Ohio law. See Dayton ex rel. Seandrick v. McGee,
67 Ohio St.2d 356, 423 N.E.2d 1095 (1981) (permanent
injunction prohibiting entry into contract with arbitrarily
favored bidder); State ex rel. United District Heating, Inc. v.
State Office Bldg. Comm., 124 Ohio St. 413, 179 N.E. 138
(1931), aff'd on rehearing, 125 Ohio St. 301, 181 N.E. 129
(1932) (writ of mandamus compelling award to lowest
bidder). Plaintiff has no federal cause of action against
defendants on procedural due process grounds because
Ohio judicial remedies are perfectly adequate and pro-
vide all the process that is due.
Spruytte does not relieve Lundblad of the obligation
to avail himself of these remedies. The “established state
A.32
procedure” referred to in Hudson and in Logan v. Zimmer-
man Brush Co., 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265
(1982), has no application here. In Logan, the law did not
allow any post-deprivation judicial remedy. Indeed, it was
the remedy itself which was being challenged. That is not
the case here. The scheme allegedly established in favor
of the Democrats did not involve the Ohio courts. Indeed,
there is no claim that the Ohio courts participated with
the executive branch to refuse contracts to Republicans.
Thus, the Ohio courts provide fair and nonarbitrary
means of obtaining a remedy, and so provide due process.
There is no showing that Ohio courts will deny Lundblad
a remedy if he can prove his claim of discrimination
based on party affiliation. Thus his procedural due pro-
cess claim must fail.
We, therefore, hold that Lundblad has failed to state
a cause of action under §1983 for violation of his rights
under the due process clause of the fourteenth amend-
ment.
ITf.
Plaintiff filed a cross-appeal arguing that the district
court erred in holding that plaintiff’s claims against
defendant James are barred by the statute of limitations.
As an initial matter, defendants argue that this court does
not have jurisdiction to hear plaintiff’s cross-appeal
because Fed.R.Civ.P. 54(b) requires that an order dismiss-
ing less than all of the parties may not be appealed on an
interlocutory basis unless the district court makes an
A.33
express determination that no just reason exists for delay-
ing appeal. The district court made no such determina-
tion here. Nevertheless, defendants’ jurisdictional
arguments must be rejected because plaintiff's claim
against James was originally a separate action from the
claims against the other defendants. To borrow the lan-
guage of Kraft, Inc. v. Local Union, 327, 683 F.2d 131, 133
(6th Cir.1982), “[I]nasmuch as the consolidation of both
actions below did not merge the suits into a single cause,
it is beyond preadventure that the trial court’s decision
dismissing [James] and thereby terminating [Lundblad’s]
action is a final appealable order not requiring further
certification pursuant to Fed.R.Civ.P. 54(b).”
Turning to the merits, in Mulligan v. Hazard, 777 F.2d
340 (6th Cir.1985), cert. denied, 476 U.S. 1174, 106 S.Ct.
2902, 90 L.Ed.2d 988 (1986), this court held that the one-
year statute of limitations found in O.R.C. §2305.11 gov-
erns all §1983 actions arising in Ohio. [d. at 344. However,
the Supreme Court’s recent decision in Owens v. Okure,
US. , 109 S.Ct. 573, 102 L.Ed.2d 594 (1989), effec-
tively overruled our holding in Mulligan. In Owens, the
Supreme Court concluded that when a state has both a
statute of limitations for intentional torts and a statute of
limitations for residual personal injuries, “courts consid-
ering §1983 claims should borrow the general or residual
statute for personal injury actions.” Id. at ___, 109 S.Ct. at
574. Thus, the correct limitation period for §1983 actions
arising in Ohio is the two-year period found in O.R.C.
§2305.10 which governs “action[{s] for bodily injury or
at
injuring personal property... .
This change does not help plaintiff because he did |
not file the claim against James until over three years
A.34
after the cause of action accrued. Nevertheless, plaintiff
argues that the statute should be tolled because he did
not become aware of James’ participation in the decision
not to grant him the contract to run the golf course until
February 1986, and that James, along with the other
defendants, fraudulently concealed James’ participation.
“In actions brought under section 1983, state tolling
statutes apply where the most nearly analogous state
statute of limitations is borrowed, to the extent that the
tolling provisions are not inconsistent with the federal
policy underlying section 1983.” Jones v. Shankland, 800
F.2d 77, 80 (6th Cir.1986), cert. dented, 481 U.S. 1048, 107
S.Ct. 2177, 95 L.Ed.2d 834 (1987) (citing Board of Regents of
the University of the State of New York v. Tomantio, 446 U.S.
478, 484-85, 100 S.Ct. 1790, 1795, 64 L.Ed.2d 440 (1980)).
We must therefore examine plaintiff’s argument that the
statute was tolled under the guidelines of Ohio law.°
> The district court relied upon this court’s decision in
Silverberg v. Thomson McKinnon Securities, Inc., 787 F.2d 1079,
1082 (6th Cir.1986), to the effect that “federal law, not state law,
governs such matters as accrual of causes of action and toll-
ing.” We need not resolve the apparent conflict between Jones
and Silverberg because the statute of limitations governing
Lundblad’s claim against James was not tolled under either the
federal or state tolling rules. Assuming federal rules apply, the
district court correctly held that our decision in Diminnie v.
United States, 728 F.2d 301 (6th Cir.)., cert. denied, 469 U.S. 842,
105 S.Ct. 146, 83 L.Ed.2d 85 (1984), would preclude tolling in
this case under federal law because James did not actively and
personally participate in any fraud on Lundblad to conceal his
role in the decision to deny plaintiff the golf course manage-
ment contract.
A.35
Lundblad makes three arguments under Ohio law in sup-
port of tolling the statute of limitations on his claim
against James. We take up each in turn.
First, he argues that failure to apply the toll in this
case would violate his right to a remedy under Article I,
Section 16 of the Ohio Constitution. Lundblad cites Hardy
v. Vermeulen, 32 Ohio St.3d 45, 47, 512 N.E.2d 626, 629
(1987), cert. denied, U.S. _, 108 S.Ct. 1029, 98 L.Ed.2d
993 (1988), for the proposition that a statute of limitations
“as applied to bar the claims of medical malpractice
plaintiffs who did not know or could not reasonably have
known of their injuries, violates the right-to-a-remedy
provision of Section 16, Article I of the Ohio constitu-
tion.” However, Hardy applies only where a prospective
plaintiff is not aware or could not be aware of his injuries.
It does not apply to cases where a prospective plaintiff is
unaware that an additional defendant may exist for a
known cause of action. There is no support in Ohio law
for the proposition that a statute of limitations will be
tolled until plaintiff learns the identity of a prospective
defendant. In this case, Lundblad knew of the injury at
the time of its occurrence, and the statute of limitations
afforded him a reasonable time in which to enforce his
claim. Lundblad’s argument that Hardy tolled the statute
of limitations therefore fails.
Second, Lundblad argues that application of the time
limitation to this case would be retroactive and thus
would violate his right to a remedy under the Ohio
Constitution. Deskins v. Young, 26 Ohio St.3d 8, 496 N.E.2d
897 (1986). Lundblad reasons that the Supreme Court's
decision in Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938,
85 L.Ed.2d 254 (1985), overturned long-established law
A.36
that federal courts were required to use the most analo-
gous statute of limitations. Lundblad further argues that
the most analogous statute of limitations at the time
Wilson was decided was O.R.C. §2305.09(C) which pro-
vides for a four-year limitation period in cases seeking
relief for fraud.
Plaintiff's argument must fail for two reasons. First,
Deskins, like Hardy, involved a case where the injury, not
the identity of a defendant, could not have been discov-
ered prior to the running of the statute. The retroactive
application of a shorter statute of limitations “is not
unlawful as long as a prospective claimant is still
afforded a reasonable time in which to enforce his right.”
Mominee v. Scherbarth, 28 Ohio St.3d 270, 278, 503 N.E.2d
717, 723 (1986) (quoting Baird v. Loeffler, 69 Ohio St.2d 533,
535, 433 N.E.2d 194, 196 (1982)). Second, and more impor-
tantly, this court has already expressly considered and
rejected this argument. In Mulligan, the court held that
“Wilson implicitly mandates that its holding be applied
retroactively.” 777 F.2d at 344. Although Mulligan no
longer controls the question of which statute of limita-
tions applies, it remains the law of the circuit with respect
to the question of retroactivity.
Finally, Lundblad argues that the statute of limita-
tions is tolled with respect to his claim against defendant
James under the Ohio doctrine of fraudulent conceal-
ment. The facts of this case do not support a finding of
fraudulent concealment because plaintiff has not alleged
that defendant James personally took any fraudulent
actions to conceal his involvement in the decision not to
grant Lundblad the golf course contract. At most, plain-
tiff alleged that he was prevented from discovering
A.37
defendant James’ participation in the denial of his bid as
a result of deceptive replies by ODNR to his discovery
requests, the original defendants’ securing of protective
orders in both state and federal court, and the filing of a
fraudulent affidavit by defendant Skoemaker’s physician
which prevented plaintiff from deposing him. None of
these allegedly deceptive practices involved James.
We hold that the statute of limitations governing
Lundblad’s claim against James was not tolled and that,
because Lundblad did not initiate any action on that
claim during the two-year period, the.district court was
correct in dismissing it.
IV.
Plaintiff also appeais the district court’s order impos-
ing Rule 11 sanctions on counsel for both plaintiff and
defendants. We decline to address this question because
the Rule 11 sanctions are in no way related to the issues
of qualified immunity made appealable by Mitchell v.
Forsyth, 472 U.S. at 530, 105 S.Ct. at 2817. See note 2 supra.
The district court did not make “an express determina-
tion that there is no just reason for delay ... ,”
Fed.R.Civ.P. 54(b). We therefore lack jurisdiction to
review this question on an interlocutory appeal. The
Ninth Circuit opinion in Unioil, Inc. v. E.F. Hutton & Co.,
Inc., 809 F.2d 548, 556 (9th Cir.1986), cited by the dissent-
ing judge, might provide persuasive authority for a con-
trary ruling if the lawyer for Lundblad had in fact
appealed as did the lawyer, Alioto, in Unioil. The lawyer
here, however, has not filed a notice of appeal from the
order imposing the Rule 11 sanctions, as did Alioto, and
A.38
therefore the lawyer has no standing in our court to argue
that the order imposing Rule 11 sanctions against him is
final. Unioil does not hold - and our research does not
disclose that any court has held - that an interlocutory
appeal by a party becomes final because the party is
appealing Rule 11 sanctions.
V.
We conclude that Lundblad’s equal protection claim
is his only viable §1983 claim and that his claim against
James is foreclosed. The judgment of the district court is
AFFIRMED in part and REVERSED in part, and the case
is REMANDED for further proceedings not inconsistent
with this opinion.
RYAN, Circuit Judge, concurring in part and dissent-
ing in part:
Because my brother correctly resolves the questions
presented by plaintiff's first amendment claim and his
claim against defendant James, I join parts I, II-B, and III
of the court’s opinion. However, | must respectfully dis-
sent from my brother’s treatment of the plaintiff’s equal
protection claim, his procedural due process claim, and
the trial court’s imposition of sanctions against plaintiff's
counsel.
I.
The court concludes that plaintiff has stated a claim
under 42 U.S.C. §1983 for violation of his rights under the
equal protection clause of the fourteenth amendment
because he has alleged that defendants denied him the
A.39
golf course contract solely because he was not a Demo-
crat. The court is not troubled by the defendants’ subse-
quent decision to run the gold course themselves
pursuant to O.R.C. §1501.29 (1986). Were we writing ona
clean slate, | might agree with my brother’s reasoning
and conclusion. Unfortunately, however, the Supreme
Court’s decision in Palmer v. Thompson, 403 U.S. 217, 91
S.Ct. 1946, 29 L.Ed.2d 438 (1971) precludes that result.
In Palmer, plaintiffs brought an equal protection claim
against the city of Jackson, Mississippi after city officials
had closed the public swimming pool rather than deseg-
regate it. The Court refused to find an equal protection
violation because the decision treated blacks and whites
identically: neither could use the pool /d. at 220, 91 S.Ct.
at 1942. In this case, defendants’ decision similarly treats
Democrats and Republicans identically: neither may
operate the golf course.
My brother offers two reasons for ignoring Palmer.
First, he argues that the decision of defendants to operate
the golf course themselves “was nothing more than an
indirect way of obtaining the same result — rendering
plaintiff ineligible to operate the gold course because of
his political affiliation.” That may very well be so. But the
decision at issue in Palmer was also unquestionably an
indirect way of obtaining the same result - keeping
blacks out of public pools in Jackson. Counsel for the city
conceded at oral argument “that the desegregation
ruling ... precipitated the city’s decision to cease furnish-
ing public swimming facilities to its citizens.” Id. at 254.
91 S.Ct. at 1959 (White, J., dissenting). Thus, there is no
distinction on this point between the case at bar and
Palmer.
A.40
We also told that this case is distinct from Palmer in
that the decision there was taken by a legislative body
whereas the decision at issue here was taken by executive
officials. My brother cites no authority for the proposition
that Palmer applies only to statutes and not executive
actions, and I could find none. Instead, the court explains
that the judiciary may not be precluded from inspecting
the motives of non-legislators. This, of course, is true. But
it does not change the fact that executive officials may not
be held liable under the equal protection clause unless
they actually discriminate against a protected group.
Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48
L.Ed.2d 597 (1976), does not stand for the proposition
that discriminatory intent, without discriminatory action,
establishes a violation of the equal protection clause;
rather, it holds that both are required. /d. at 239, 96 S.Ct. at
2047.
Defendants’ actions in this case may very well have
been designed to keep Republicans out of the state’s golf
course business. But these actions did treat Democrats
and Republicans alike. While I sympathize with my
brother’s desire to preclude conduct of the sort alleged
here, this court lacks the authority to reach that conclu-
sion. We must respect the Supreme Court’s determina-
tion, right or wrong, in Palmer.
Il.
I also disagree with the court’s conclusion that plain-
tiff does not state a claim for violation of his rights under
the due process clause. The court holds that the availabil-
ity of adequate post-deprivation remedies under Ohio
A.41
law precludes plaintiff’s due process claim. This reason-
ing ignores the well established principle that the require-
ment that a plaintiff seek post-deprivation remedies “is
inapplicable when ‘a deprivation of property is caused by
conduct pursuant to established state procedure, rather
than random and unauthorized action.’ ” Spruytte v. Wal-
ters, 753 F.2d 498, 509 (6th Cir.1985), cert. denied, 474 U.S.
1054, 106 S.Ct. 788, 88 L.Ed.2d 767 (1986) (quoting Hudson
v. Palmer, 468 U.S. 517, 532, 104 S.Ct. 3194, 3203, 82
L.Ed.2d 393 (1984)) (emphasis added).
The court attempts to avoid Spruytte by pointing out
that the law at issue in Logan v. Zimmerman Brush Co., 455
U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982), a case
upon which the Spruytte court relied, did not provide for
a post-deprivation judicial remedy. This observation,
while interesting, is completely irrelevant to the issue
presented by this appeal. The fact remains that the
Spruytte court squarely held that “the adequacy of state
post-deprivation procedures is irrelevant” when plaintiff
has alleged a violation of his rights pursuant to estab-
lished state procedure. 753 F.2d at 510.
Because plaintiff did allege that defendants’ actions
were part of a broader scheme to ensure that only Demo-
crats received state contracts, and because | agree with
the district court’s holding that Ohio law grants plaintiff
a property interest in the fair and non-arbitrary evalua-
tion of his bid, see Dayton ex rel. Scandrick v. McGee, 67
Ohio St.2d 356, 423 N.E.2d 1095 (1981); State ex rel. United
District Heating, Inc. v. State Office Bldg. Commission, 124
Okio St. 413, 179 N.E. 138 (1931), aff'd on reh., 125 Ohio St.
301, 181 N.E. 129 (1932), I would affirm the district
A.42
court’s denial of defendants’ motion to dismiss plaintiff's
procedural due process claim.
IT].
Finally, I must dissent from the court’s refusal to
consider the appeal of the district court’s imposition of
sanctions. My brother declines to reach the issue because
it is not “related to the issues of qualified immunity made
appealable by Mitchel! v. Forsythe, 472 U.S. 511, 530, 105
S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985).” I disagree with
this holding, and would instead adopt the position taken
by the Ninth Circuit:
An order imposing sanctions solely upon coun-
sel, a non-party to the underlying action, is
immediately appealable as a final order. Optyl
Eyewear Fashion International Corp. v. Style Com-
panies, Ltd., 760 F.2d 1045, 1047 n. 1 (9th Cir.
1985); Kordich v. Marine Clerks Association, 715
F.2d 1392, 1393 (9th Cir.1983).
Unioil, Inc. v. E.F. Hutton & Co., Inc., 809 F.2d 548, 556 (9th
Cir.1986).
Under this rule, it does not matter whether the issues
presented by the sanctions order relate to those of quali-
fied immunity because the sanctions order is itself a final,
appealable order under 28 U.S.C. §1295.
IV.
For the reasons set forth above, I concur with parts I,
II-B, and III of the court’s opinion, and dissent from parts
II-A, II-C, and IV.
A.43
Ee
RECOMMENDED FOR FULL TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 24
Nos. 87-3651 /3589
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
STEVEN LUNDBLAD,
Plaintiff-Appellee,
Cross-Appellant,
v.
KicHARD F. Cre_este, DoRotHy
SHOEMAKER, WittiaAM Napier
and DoNALD OLSON, in their
official capacities,
Defendants-Appellants,
Cross-Appellees,
Onto DEPARTMENT OF NATURAL
RrsourcES, RONALD JAMES,
Deputy Director,
Defendants.
ee ee ee ee ee ee ee ed
On Apreat from
the United States
District Court for
the Southern
District of Ohio
Decided and Filed January 31, 1991
Before: MERRITT, Chief Judge; KEITH, KENNEDY, MAR-
TIN, JONES, KRUPANSKY, MILBURN, GUY, NELSON,
RYAN, BOGGS, NORRIS and SUHRHEINRICH, Circuit
Judges; and WELLFORD*%, Senior Circuit Judge.
*The Honorable Harry W. Wellford assumed senior status Janu-
ary 21, 1991.
A.44
MERRITT, C.J., delivered the opinion of the court in
which KEITH, KENNEDY, MARTIN, JONES, KRU-
PANSKY, MILBURN, GUY, NELSON, BOGGS, NORRIS,
and SUHRHEINRICH, JJ., and WELLFORD, S.J., joined.
RYAN, J., (p. 5), delivered a separate opinion concurring
in part and dissenting in part, in which, WILLFORD, S.J.,
joined as to part II-C.
MERRITT, Chief Judge. The Court, having granted
rehearing and sitting en banc, has reconsidered and now
modified Part II A of the opinion heretofore published in
this case, Lundblad v. Celeste, 874 F.2d 1097, 1100-01 (1989).
In that Part of the opinion, the panel decision held that
the defendant public officials were not entitled to a quali-
fied immunity from damages under Harlow v. Fitzgerald,
457 U.S. 800 (1982), insofar as the complaint alleged that
the defendants deprived plaintiff of equal protection by
causing the State of Ohio on partisan political grounds to
refuse to award plaintiff a bid to operate a golf course at a
state park. We now hold that under the doctrine of qualli-
fied immunity the defendant officials are shielded from
the payment of civil damages on plaintiff’s equal protec-
tion claim. We therefore reinstate the opinion heretofore
filed, except for Part II A which we vacate and Part V
which we modify by reversing the District Court’s judg-
ment on the plaintiff's equal protection claim.
The doctrine of qualified immunity, as defined in
Harlow, supra at 818, shields officials “from liability for
civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of which
a reasonable person would have known.” (Emphasis
added.) The basic reason for the principle is that “an
official could not reasonably be expected to anticipate
Ee
A.45
subsequent legal developments, nor could he fairly be
said to ‘know’ that the law forbade conduct not previ-
ously identified as unlawful.” Id.
We conclude that no legal principles developed
under the Equal Protection Clause “clearly establish” that
state officials may not award public contracts on the basis
of partisan politics or party aifiliation. In Rutan v. Republi-
can Party of Illinois, 110 S. Ct. 2729 (1990), Branti v. Finkel,
445 U.S. 507 (1980), and Elrod v. Burns, 427 U.S. 347
(1976), the Supreme Court has developed principles
under the First Amendment prohibiting the hiring and
firing of employees on a partisan political basis, but the
Court has not developed such principles under the Equal
Protection Clause, nor has it extended these First Amend-
ment principles to the area of public contracts. It has not
decided a case holding that the award of public contracts
on the basis of political patronage violates either equal
protection or the First Amendment. Thus there is no law
ceveloped in the Supreme Court that could be said to
“clearly establish” the principle of equal protection pro-
posed by the plaintiff in this case.
The only case we have found from this Court that
could be argued “to clearly establish” such a proposition
under equal protection is Glicker v. Michigan Liquor Con-
trol Comm'n, 160 F.2d 96 (1947), the case relied on in our
previous panel decision in this case. In Glicker, we held, in
reviewing a motion to dismiss for failure to state a claim,
that state revocation of an existing state liquor license for
partisan political reasons may violate equal protection.
The case does not rule on whether the refusal to award a
public contract for similar reasons would constitute a
violation, and we have discovered no case in this or
A.46
another court of appeals holding that awards of public
contracts on a partisan political basis violates the Equal
Protection Clause. In the absence of such authority, a
public official could not “know that the law forbade
[such] conduct.” Thus the law was not clearly established
on the issue, and the doctrine of official immunity shields
the defendants from civil damages.
- Accordingly, the opinion of the Court in Lundblad v.
Celeste is reinstated except for Part II A which is vacated
and Part V which is modified so as to reverse the District
court judgment denying the defendants’ defense of quali-
fied immunity on plaintiff’s equal protection claim. The
result of our en banc judgment, therefore, is to REVERSE
the judgment of the District court with respect to plain-
tiff’s Equal Protection, First Amendment and Due Process
claims and AFFIRM the judgment of the District Court in
dismissing on statute of limitations grounds the plain-
tiff’s claim against the defendant James.
RYAN, Circuit Judge, concurring in part and dissent-
ing in part. I concur in the court’s opinion, except for
parts II-C and IV of the reinstated portion of the panel
opinion. As to those parts, I dissent for the reasons stated
in my dissenting opinion in Lundblad v. Celeste, 874 F.2d
1097, 1100 (6th Cir. 1989).
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.