# Petition for Writ of Certiorari — Lundblad v. Celeste > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1939%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1991 - **Citation:** 501 U.S. 1250 ## Text “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 . fil \ \ - \ 4 { { , . ( A » ® ‘ }} ; { a. ri? st? . ( ‘ ’ ( be Tay v A A 4 4 \ \ I VA ) } | ’ ’ Micnhard | Cele { ( 1) fonn ; LACICMIUATLL . . | ] | sntteven Lundblad |? } ryt ef | I li " 4 { ‘ . { ~ ; \/ ( NTI AKA PR ,T) ld iT INOTAIG ATTi¢ ’ ‘ Je Te] lant I r A l t 4 w ) MEMORANDUM AND ORDER | x tT) 1 yl | Le YI KODU( JIN +! itter > Defore the ( urt n the Gefendant ) T “~ motions to dismiss pursuant to Fed. R.( » 12(b)(6) and | , | | ; , ( 1 Ive TrOUNQCd a CTLeCa re fallure t ate a Claln ; } ; 4 ) ‘ | j ‘ pon [ n re el iT e granted; .« ne adgerendadaNnt A Te ry tit 1 + ryroalify ; rmroyryiriy + neq 2 +} le iry ez ’ t Cl PLEICCA CL ;Liqci It'd bitil i i . Bele pit hai LTTNS avadalNS 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). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1939%3A1. Public record. Not legal advice.