Opposition Brief — Godon v. North Carolina Crime Control & Public Safety

on Supreme Court, U.S.

Ni

(y/) EILED

JUN 22 2001

‘ No. 00-1561

CLERK

In the

Supre™e Court of the United States

KIMBERLY F. GODON

Petitioner,

Vv.

NORTH CAROLINA CRIME CONTROL & PUBLIC

SAFETY; NORTH CAROLINA TARHEEL

CHALLENGE ACADEMY; KENNETH STALLS, in his

individual and official capacities; DALE AUTRY, in his

individual and official capacities; LESLIE T. EVERETT,

in his individual and official capacities; STATE OF

NORTH CAROLINA,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court of Appeals

for the Fourth Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

Isaac T. Avery, III,* Special Deputy Attorney General

Patricia A. Duffy, Assistant Attorney General

North Carolina Department of Justice

Post Office Box 629

Raleigh, North Carolina 27602-0629

Telephone: (919) 716-6900

June 22, 2001 *Counsel of Record

Il.

i

QUESTIONS PRESENTED

WHETHER, UNDER THE ELEVENTH

AMENDMENT TO THE UNITED STATES

CONSTITUTION, THE EQUITABLE REMEDY

OF REINSTATEMENT IS AVAILABLE TO A

FORMER STATE EMPLOYEE WHO WAS

EMPLOYED UNDER A_ TIME-LIMITED

CONTRACT WHICH HAS NOW EXPIRED AND

WHO CLAIMS HER CONTRACT WAS

TERMINATED AS A RESULT OF A

LEGITIMATE EXERCISE OF HER FIRST

AMENDMENT RIGHTS?

WHETHER A PLAINTIFF WHO DEFEATS A

DEFENDANT’S MOTIONS PURSUANT RULES

12(B)(6) AND 56 OF THE FEDERAL RULES OF

CIVIL PROCEDURE IS ENTITLED TO A

TRIAL?

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ill

TABLE OF CONTENTS

DEALEMEENE OF BHC CASE oo AS eae icde l

SUMMARY OF THE ARGUMENT .................. 4

REASONS FOR DENYING THE WRIT .............. 5

[. THE DECISION OF THE FOURTH CIRCUIT

COURT OF APPEALS DOES NOT CONFLICT

WITH DECISIONS OF THE SUPREME COURT,

THE FOURTH CIRCUIT’S OWN PRIOR

DECISIONS OR DECISIONS OF OTHER

FEDERAL COURTS OF APPEAL BECAUSE A

FORMER STATE EMPLOYEE WHO WAS

EMPLOYED UNDER A _ TIME-LIMITED

CONTRACT WHICH HAS EXPIRED IS NOT

ENTITLED TO REINSTATEMENT AS

PROSPECTIVE INJUNCTIVE RELIEF .......... 5

Pe ee OL. ess bac even td eaeh hee o 5

B. Eleventh Amendment Sovereign Immunity ..... 6

C. Ex parte Young and Prospective Injunctive

PURO, i hs acd ied ee sees ee baa dwc ss 8

SGP a Gad a 65° 8 3 ERY EG EG ss 6 hm oa ess 9

iV

G. Application of the Law to the Case At Bar ..... 17

1. No Underlying Authorization .......... 17

2. ‘Web Cpe Wee i a. face ss os kes 17

3. | Damages Are An Adequate Remedy ..... 18

ee RR re Sere err eee pe 20

II. PETITIONER IS NOT ENTITLED TO A TRIAL

IF, AFTER FURTHER DISCOVERY, THE

DISTRICT COURT DISMISSES ALL

got Te. reper err is oo Pe 20

CONCLUSION 22

ecoeeeeeeeeeee eevee e ee eee ee 6 © © 86 8 6 8 8 8 ht he

Vv

TABLE OF AUTHORITIES

Alden v. Maine, 527 U.S. 706 (1999) ................ 19

Arizonans for Official English v. Arizona,

$20 US. 4349997) 60 ii ce GG ise ee 20

Bank of Nova Scotia v. United States,

GG7 £15. ZOOTIGRED 6 owes Se Sa ee ae 21

Caudell v. Dellinger, 129 N.C. App. 649,

501 S.E.2d 99 (1998), aff'd per curiam,

350 N.C. 89, 54 S.E.2d 304 (1999) .............. 19

Chambers v. Nasco, Inc., 501 U.S. 32 (1991)

(Sonim, 2. NED sine 685 A a a a a 21

City of Los Angeles v. Lyons, 461 U.S. 95 (1983) ...... 11

Coakley v. Welch, 877 F.2d 304 (4th Cir. 1989) ... 13.14.15

County of Los Angeles v. Davis, 440 U.S. 625 (1979) ... 20

Cromer v. Brown, 88 F.3d 1315 (4th Cir. 1996) ..... 12.13

Cross v. State of Alabama,

49 F 3d 1450 (91h Cit. 1999) 2 oe i SR... 11

Doe v. Lawrence Livermore Nat. Laboratory,

131 F.3d 836 (9th Cir. 1997),

rev'd on other grounds sub nom.

Regents of the University of California v. Doe,

SBP U.S. BEG CIOs 8 Se A as a Sis 11

vi

Dube v. State University of New York,

S00 F 20 SEF UEPME 6 00 bse nsasreveccisneapben 11

Edelman v. Jordan, 415 U.S. 651 (1974) ....... 9.11,12,18

Ex parte Young, 209 U.S. 123 (1908) ............ passim

Green v. Mansour, 474 U.S. 64 (1985) ........... 8,17,18

Idaho v. Coeur d’ Alene Tribe of Idaho,

$21 U.S. 261 C199) sh aA oe 19

Kentucky v. Graham, 473 U.S. 159 (1985) ........... 7.8

McConnell v. Adams, 829 F.2d 319 (4th Cir. 1987) ..... 15

Milliken v. Bradley, 433 U.S. 267 (1977) ............. 15

Mt. Healthy City Board of Education v. Doyle,

429 U.S: TIA ios eas icnk daa

Mumford v. Basinski, 105 F.3d 264 (6th Cir. 1997) ..... 18

Papasan v. Allain, 478 U.S. 265 (1986) ............ 7,10,18

Pearce v. Employment Sec. Comm'n ina,

349 N.C. 315, 507 S.E.2d 272 (1998) ............ 18

Perry v. Sindermann, 408 U.S. 593 (1972)) .......... 5,6

Pickering v. Board of Education, 391 U.S. 563 (1968) . 36

Powell v. McCormack. 395 U.S. 486 (1969) ........... 20

Preiser v. Newkirk, 422 U.S. 395 (1975) .............. 20

vii

Puerto Rico Aqueduct and Sewer Authority v.

Metcalf & Eddy, Inc., 506 U.S. 139 (1993) ........ i)

Rankin v McPherson, 483 U.S. 378 (1987) ........... 5,6

Reuber v. United States, 750 F.2d 1039 (D.C. Cir. 1984) . 19

The Republic of Paraguay v. Allen, 134 F.3d 622

FUMED ss ioe diusadea ss kusrtawealeaa eae 15,16

Russell v. Dunston, 896 F.2d 664 (2nd Cir. 1990) ...... 11

Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996) . 19

Smith v. State of North Carolina, 289 N.C. 303,

ee ee NEE > tina's 6s ho 0 eed a he 19

Treleven v. University of Minnesota,

TS FA CNG TOPO os os OST coca 11

Will v. Michigan Dep't of State Police,

Se I io Resa ncatieccéasees 6.9.13

STATUTE

Fe Me ME, TP inv cae etfs a hides ee neseve 6,7

MISCELLANEOUS

Fed. R. Civ. P. Rule 56(d) (2001) ................ 20.21

13A Charles A. Wright. et al.. Federal Practice and

PES DSP S LPO ho eke ee ekace ees Hee. 20

Vill

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No. 00-1561

a

In the

Supreme Court of the United States

KIMBERLY F. GODON

Petitioner,

Vv.

NORTH CAROLINA CRIME CONTROL & PUBLIC

SAFETY; NORTH CAROLINA TARHEEL

CHALLENGE ACADEMY; KENNETH STALLS, in his

individual and official capacities; DALE AUTRY, in his

individual and official capacities; LESLIE T. EVERETT,

in his individual and official capacities; STATE OF

NORTH CAROLINA, :

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court of Appeals

for the Fourth Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

STATEMENT OF THE CASE

The Tarheel Challenge Academy (“the Academy”) is a

quasi-military style progs2™ for youths sixteen (16) to eighteen

(18) years of age who are high school dropouts and expellees,

and is sponsored by the North Carolina National Guard which

is a division of the Department of Crime Contro] and Public

Safety (“CC&PS”). The program consists of two phases: a

2

twenty-two (22) week in-residence phase and a post-resident

phase of twelve (12) months. During the in-resident phase,

cadets attend school, eat, sleep, wear uniforms, and learn to

work within a highly structured and disciplined program. The

purpose of the Academy is to enable the cadets to receive a

GED (high school equivalent diploma) and to develop the

necessary skills to succeed after the cadet completes the

program. The cadets are subject to a rigorous behavior code

and any infractions are documented and if sufficiently serious

or persistent can result in expulsion from the program. The

cadre. or cadet supervisors, are also expected to conform to a

high standard of behavior and to set a good example for the

cadets as set forth in the Cadre Standard Operating Procedure.

The management structure of the Academy consisted of

respondent Leslie T. Everett, the Director, respondent Kenneth

Stalls. the Deputy Director, and respondent Dale Autry, the

Assistant Commandant.

On August 26, 1994, petitioner entered into a written one-

year contract with CC&PS to perform the function of Team

Leader at the Academy. App. at 3a-6a. The agreement set

forth petitioner’s responsibilities as a Team Leader which

included supervising the training of a platoon consisting of

twenty-five (25) cadets. App. at la-3a. The agreement also

provided that “if, through any cause, the CONTRACTOR shall

fail to fulfill in a timely and proper manner the obligations

under this Agreement,” that the contract could be terininated by

the agency upon a one-day written notice. App. at 4a.

From August until the spring of 1995, petitioner’s job

performance was satisfactory. However, during Avril and May

of 1995, petitioner rapidly began accumulating negative

performance evaluations which prompted several counseling

sessions with petitioner. On May 17, 1995, Director Everett

wah

3

gave petitioner written notice of her contract termination based

on the following specific grounds:

a) By your own admission to Mr. Autry on May 9,

1995, you acknowledged you had given

permission for female cadets to sleep together in

single/one person beds for “safety and security

reasons.” You also acknowledged that Mr.

Boone, the Commandant of cadets, had

specifically told you such a practice was not

allowed.

b) You received a verbal counseling on April 28

and a written on May 5, 1995 regarding certain

aspects of your performance of duty (Team

Leader) in which you were placed on probation

for the remainder of your contract. On May 6,

1995, you told the cadets that you had been

counseled and placed on probation. Later that

day, Mr. Autry was presented a copy of a

petition signed by approximately 60 personnel,

(mainly cadets) asking that we (the Academy)

keep you here as Team Leader for Team 1.

App. at 7a.

Petitioner filed the present action on September 16, 1996

claiming that the true reason for her discharge was that she had

complained to Stalls and Autry about their discriminatory and

disproportionate termination without cause of the facility’s

female and black cadets while they permitted white male cadets

to remain enrolled in the program although their infractions

were sufficiently severe to result in termination.

4

In its Order entered October 7, 1999, the District Court

dismissed the individually named defendants in their official

capacity stating: “Although under the doctrine of Ex parte

Young, 209 U.S. 123, 159-60 (1908), prospective injunctive

relief is available in a claim against state officers in their

official capacities, the reinstatement Plaintiff seeks is not

prospective, and thus Plaintiff s official capacity claim is barred

by the Eleventh Amendment.” Pet. App. at 10. On appeal, the

Fourth Circuit Court of Appeals affirmed the dismissal of the

individually named defendants in their official capacity stating:

“For the reasons given by the district court, we affirm its

dismissal of the State defendants and the individual defendants

in their official capacity.” Pet. App. at 5.

SUMMARY OF THE ARGUMENT

The narrow issue presented for the Court’s consideration

by this Petition for Writ of Certiorari is whether, under the

Eleventh Amendment to the United States Constitution, the

equitable remedy of reinstatement is available to a former state

employee who was employed under a time-limited contract

which has now expired and who claims her contract was

terminated as a result of a legitimate exercise of her First

Amendment rights. Petitioner, Kimberly F. Godon, asserts that

the Fourth Circuit Court of Appeals erroneously affirmed the

dismissal of the individually named defendants in their official

capacity in that reinstatement, which she denominates

“prospective injunctive relief.” is a remedy which is not barred

by the Eleventh Amendment under Ex parte Young. Petitioner

seeks a Writ of Certiorari on the ground that the Fourth

Circuit’s decision affirming the dismissal of the individually

named defendants in their official capacity is in conflict with

decisions of this Court, other Fourth Circuit decisions and

decisions of other Circuit Courts of Appeal.

*.

5

Respondents contend that this Court should deny the

Petition for Certiorari because the dismissal of the individually

named defendants in their official capacity was correct since a

state employee, employed under a time-limited contract which

has expired, is not entitled to reinstatement as a species of

prospective injunctive relief under this Court’s Eleventh

Amendment jurisprudence.

SONS FOR DENYING THE W

I. THE DECISION OF THE FOURTH CIRCUIT

COURT OF APPEALS DOES NOT CONFLICT

WITH DECISIONS OF THE SUPREME COURT,

THE FOURTH CIRCUIT’S OWN PRIOR

DECISIONS OR DECISIONS OF OTHER

FEDERAL COURTS OF APPEAL BECAUSE A

FORMER STATE EMPLOYEE WHO WAS

EMPLOYED UNDER A_ TIME-LIMITED

CONTRACT WHICH HAS EXPIRED IS NOT

ENTITLED TO REINSTATEMENT AS

PROSPECTIVE INJUNCTIVE RELIEF.

A. First Amendment

The respondents acknowledge that “{i]t is clearly

established that a State may not discharge an employee on a

basis that infringes that employee's constitutionally protected

interest in freedom of speech.” Rankin v McPherson, 483 U.S.

378, 383 (1987) (citing Perry v. Sindermann, 408 U.S. 593, 597

(1972)). See Mt. Healthy City Board of Education v. Doyle,

429 U.S. 274, 283-84 (1977); Pickering v. Board of Education,

391 U.S. 563, 568 (1968). In addition. this Court further stated

in Rankin: “Even though McPherson was merely a probationary

employee, and even if she could have been discharged for any

reason or for no reason at all, she may nonetheless be entitled

6

to reinstatement if she was discharged for exercising her

constitutional right to freedom of expression.” 483 U.S. at 383-

84. However, it is important to note that Ardith McPherson

was employed as a deputy in the office of the Constable of

Harris County, Texas. Id. at 380. Marvin L. Pickering was

employed as a teacher in Township High School District 205,

Will County, Illinois. Pickering, 391 U.S. at 564. Fred Doyle

was employed by the Mt. Healthy Board of Education which

was a local school board. Mt. Healthy, 429 U.S. at 280.

However, because the Eleventh Amendment does not protect

cities or counties, Will v. Michigan Dep’t of State Police, 491

U.S. 58, 70 (1989), none of the foregoing cases implicate

Eleventh Amendment immunity applicable to state employees’

First Amendment suits. Although Robert Sindermann was

employed as a teacher in the state college system of the State of

Texas, the Sindermann case was essentially decided on whether

Sindermann was entitled to demonstrate that he possessed a

protected property interest in his employment sufficient to

require procedural due process in the form of a hearing “where

he could be informed of the grounds for his nonretention and

challenge their sufficiency.” 408 U.S. at 603.

Our research does not reveal any case where this Court

has directly addressed the issue of whether the Eleventh

Amendment permits injunctive relief in the form of

reinstatement against a state employer found to have

wrongfully discharged a state employee in violation of the

employee’s constitutional rights.

B. Eleventh Amendment Sovereign Immunity

The Eleventh Amendment to the United States

Constitution provides: “The Judicial power of the United States

shall not be construed to extend to any suit in law or equity,

commenced or prosecuted against one of thc United States by

7

Citizens of another State, or by Citizens or Subjects of any

Foreign State.” U.S. Const. amend. XI.

This language expressly encompasses only suits

brought against a State by citizens of another State,

. but this Court long ago held that the Amendment

bars suits against a State by citizens of that same

State as well. See Hans v. Louisiana, 134 U.S. 1

(1890), 10 S. Ct. 504, 33 L. Ed.2d 842. “[In]} the

absence of consent a suit in which the State or one

of its agencies or departments is named as the

defendant is proscribed by the Eleventh

Amendment.” Pennhurst State School and Hospital

v. Halderman, 465 U.S. 89, 100, 104 S. Ct., at 907-

909 (1984). This bar exists whether the relief

sought is legal or equitable. Id., at 100-101.

Papasan v. Allain, 478 U.S. 265, 276 (1986) (footnote omitted).

Sovereign immunity not only encompasses states qua

states and state entities, but includes government officials as

well. As this Court explained:

Personal-capacity suits seek to impose personal

liability upon a government official for actions he

takes under color of state law. See, e.g., Scheuer v.

Rhodes, 416 U.S. 232, 237-238, 94 S. Ct. 1683,

1686-87, 40 L. Ed. 2d 90 (1974). Official-capacity

Suits, in contrast, “generally represent only another

way of pleading an action against an entity of which

an officer is an agent.” Monell v. New York City

Dept. of Social Services, 436 U.S. 658, 690, n.55,

98 S. Ct. 2018, 2035 n.55, 56 L. Ed. 2d 611 (1978).

As long as the government entity receives notice

and an opportunity to respond, an official-capacity

8

Suit is, in all respects other than name, to be treated

as a Suit against the entity. Brandon, supra, 469

U.S., at 471-472, 105 S. Ct., at 878.

Kentucky v. Graham, 473 U.S. 159, 165-66 (1985).

C. Ex parte Young and Prospective Injunctive Relief

A narrow exception to Eleventh Amendment immunity

has long been recognized by this Court which applies to

individuals named as defendants in their official capacity.

The landmark case of Ex parte Young, 209 U.S.

123, 28 S. Ct. 441, 52 L. Ed.2d 714 (1908), created

an exception to this general principle by asserting

that a suit challenging the constitutionality of a state

official's action in enforcing state law is not one

against the State. Id., at 159-160, 28 S. Ct., at 453-

54. The theory of Young was that an

unconstitutional statute is void, id., at 159, 28S. Ct.,

at 453-54 and therefore does not “impart to [the

official] any immunity from responsibility to the

supreme authority of the United States.” Id., at 160,

28 S. Ct., at 454. Young also held that the Eleventh

Amendment does not prevent federal courts from

granting prospective injunctive relief to prevent a

continuing violation of federal law. Id., at

155-156, 159, 28S. Ct., at 452-53. We have refused

to extend the reasoning of Young, however, to

claims for retrospective relief.

Green v. Mansour, 474 U.S. 64, 68 (1985) (emphasis added)

(citations omitted). As this Court explained more recently:

9

The doctrine of Ex parte Young, which ensures

that state officials do not employ the Eleventh

Amendment as a means of avoiding compliance

with federal law, is regarded as carving out a

necessary exception to Eleventh Amendment

immunity. See, e. g., Green v. Mansour, 474 U.S.

64, 68, 106 S. Ct. 423, 88 L. Ed. 2d 371 (1985).

Moreover, the exception is narrow: It applies only

to prospective relief, does not permit judgments

against state officers declaring that they violated

federal law in the past, id. at 73, 106 S. Ct., at 428,

and has no application in suits against the States and

their agencies, which are barred regardless of the

relief sought, Cory v. White, supra. Rather than

defining the nature of Eleventh Amendment

immunity, Young and its progeny render the

Amendment wholly inapplicable to a certain class of

suits. Such suits are deemed to be against officials

and not the States or their agencies. which retain

their immunity against all suits in federal court.

Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy,

Inc., 506 U.S. 139, 146 (1993). See also Will, 491 U.S. at 71

n.10 (1989) (“{O]fficial-capacity actions for prospective relief

are not treated as actions against the State.”); Edelman v.

Jordan, 415 U.S. 651, 664 (1974) (“[T]he relief awarded in Ex

parte Young was prospective only; the Attorney General of

Minnesota was enjoined to conform his future conduct of that

office to the requirement of the Fourteenth Amendment.”).

D. Requirements For Applying Ex parte Young

In Papasan, this Court addressed the issue raised in this

Petition; namely, the circumstances under which an individual

.

10

defendant acting in his/her official capacity can be subject to a

mandatory injunction.

In accordance with its original rationale, Young

applies only where the underlying authorization

upon which the named official acts is asserted to be

illegal. See Cory v. White, 457 U.S. 85, 102 S. Ct.

2325, 72 L. Ed. 2d 694 (1982)...

... Consequently, Young has been focused on cases

in which a violation of federal law by a state official

is ongoing as opposed to cases in which a violation

of federal law has been violated at one time or over

a period of time in the past, as well as on cases in

which the relief against the state official directly

ends the violation of federal law as opposed to cases

in which that relief is intended indirectly to

encourage compliance with federal law through

deterrence or directly to meet third-party interest

such as compensation. As we have noted:

“Remedies designed to end a continuing violation of

federal law are necessary to vindicate the federal

interest in assuring the supremacy of that law. But

compensatory or deterrence interestsare insufficient —

to overcome the dictates of the Eleventh

Amendment.” Green v. Mansour, 474 U.S. 64, 68,

106 S. Ct. 423, 426, 88 L. Ed. 2d 371 (1985)

(citation omitted).

Papasan, 478 U.S. at 277-78 (emphasis added).

The requirement that a violation be ongoing is in accord

with traditional equitable principles which require that an

“equitable remedy is unavailable absent a showing of

irreparable injury, a requirement that cannot be met where there

ae

11

is no showing of any real or immediate threat that the plaintiff

will be wronged again — a ‘likelihood of substantial and

immediate irreparable injury.” City of Los Angeles v. Lyons,

461 U.S. 95, 111 (1983) (internal citation omitted) (no

injunction would issue to enjoin future use of illegal

chokeholds by the police).

E. Circuit Courts of Appeal Decisions

Defendants acknowledge that several Circuit Courts of

Appeal, including the Fourth Circuit, have held that

reinstatement is a form of prospective injunctive relief. See

cases cited at page 6, Petition. See also Doe v. Lawrence

Livermore Nat. Laboratory, 131 F.3d 836, 839-42 (9th Cir.

1997) (discussing rationale of reinstatement of physicist as

prospective injunctive relief), rev’d on other grounds sub nom.

Regents of the University of California v. Doe, 519 U.S. 425

(1997); Treleven v. University of Minnesota, 73 F.3d 816, 819

(8th Cir. 1996) (Eleventh Amendment did not bar state

employed faculty member’s reinstatement); Cross v. State of

Alabama, 49 F.3d 1490, 1503 (11th Cir. 1995) (Eleventh

Amendment did not bar reinstatement of state mental health

worker); Dube v. State University of New York, 900 F.2d 587,

595 (1990) (reinstatement of state university professor);Russell

v. Dunston, 896 F.2d 664, 668 (2nd Cir. 1990) (state retiree’s

reinstatement to medical leave not barred by Eleventh

Amendment). Virtually all of these cases authorizing

reinstatement as prospective injunctive relief do so with little or

no analysis related to the requirements set forth in Papasan.

Instead, they rely on the fact that reinstatement does not affect

the public fisc in the sense of awarding back pay or damages

and thus fall within the Ex parte Young exception. See

Edelman, 415 U.S. at 677 (“[A] federal court's remedial power,

consistent with the Eleventh Amendment, is necessarily limited

to prospective injunctive relief . . . and may not include a

OR Ee Re Ge Oe ae em ee PAP

12

retroactive award which requires the payment of funds from the

state treasury... .”). Notably, none of the foregoing Circuit

Court cases, or the cases cited by petitioner, involve a time-

limited contract such as the one applicable in this case.

F. Fourth Circuit Court of

The Fourth Circuit has likewise held that, under

appropriate circumstances, reinstatement constitutes

prospective injunctive relief. In Cromer v. Brown, 88 F.3d

1315 (4th Cir. 1996), an African American sheriff's deputy

sued his former employer, the sheriff of Greenville County,

South Carolina, for racial discrimination and First Amendment

violations. Id. at 1318. The Fourth Circuit affirmed the district

court’s holding that the sheriff, as a state official, was immune

from suit for money damages and reversed the district court’s

determination that the doctrine of official immunity protected

the sheriff from claims for injunctive relief stating:

[T]o the extent Cromer sought injunctive relief (e.g.,

reinstatement) against Sheriff Brown in his official

capacity, the district court should not have granted

summary judgment to Sheriff Brown. Eleventh

Amendment immunity does not protect state

officials in their official capacities from § 1983

claims for injunctive relief. Will v. Michigan Dep't

of State Police, 491 U.S. 58, 71 n.10, 109 S. Ct.

2304, 105 L. Ed. 2d 45 (1989).' Therefore, we

reverse the district court's dismissal of Cromer’s §

‘ Cromer incorrectly relied on Will v. Michigan Dep’t of State

Police which was an appeal: from a state court determination of

whether the state official in his official capacity is a “person” within

the meaning of 42 U.S.C. § 1983. The Eleventh Amendment does

not apply in state court. 491 U.S. at 63-64.

13

1983 claims against Sheriff Brown in his official

capacity insofar as they request injunctive relief.

Cromer, 88 F.3d at 1332.

In Coakley v. Welch, 877 F.2d 304 (4th Cir. 1989), the

court affirmed the district court’s refusal to dismiss several

officials of the South Carolina State Ports Authority (“SPA”)

from a suit brought by a terminated SPA employee. The court

stated:

Coakley granted to the district court that a

decision barring his damages action against the SPA

on eleventh amendment grounds would equally bar

a damages action against Welch. The decision as to

damages having favored Welch, the oniy question

for us is whether the court ought also to have held

Welch immune from Coakley's claim for the

injunctive remedy of reinstatement. We believe the

district court was correct to permit Coakley to

pursue injunctive relief.

Papasan v. Allain, 478 U.S. 265, 106 S. Ct.

2932, 92 L. Ed. 2d 209, (1986), and McConnell v.

Adams, 829 F.2d 319 (4th Cir. 1987), cert. denied,

[486] U.S. [1006], 108 S. Ct. 1731. 100 L. Ed. 2d

195(1988), supply authority on this issue. Papasan

indicates that Coakley has alleged a claim that falls

within the purview of the Young exception. All that

this requires is an assertion that "the underlying

authorization upon which the named official acts is

... illegal." Id. at 277, 106 S. Ct. 2940. The SPA

regulations containing the hearing requirement that

Coakley believes flouts due process supply an

underlying authorization.

14

Papasan held, though, that "the balance of

federal and state interests that [Young] embodies"

recommends applying the Young exception only to

cases alleging ongoing violations of federal law. Id.

Papasan offered as a final observation on the matter

that the difference between suits barred and litigable

"will not in many instances be that between day and

night." Id. 478 U.S. at 278, 106 S. Ct. at 2940

(quoting Edelman v. Jordan, 415 U.S. 651, 667, 94

S. Ct. 1347, 39 L. Ed. 2d 662 (1974)). The narrow

issue with which we must grapple, then, is the

shadowy one of whether Welch has alleged an

"ongoing violation" of law.

Papasan was an equal protection suit brought by

a number of Mississippi municipal school officials

and school children against various officials of the

State of Mississippi. The suit alleged that a history

of poor treatment by the State, amounting to a

breach of trust, had resulted in severe financial

disadvantages to the plaintiffs’ school districts.

The Court found the defendants subject to suit

under the eleventh amendment, holding that the

"alleged ongoing constitutional violation -- the

unequal disiribution by the State of the benefits of

the State's school lands -- is precisely the type of

continuing violation for which a remedy may

permissibly be fashioned under Young." 478 U.S.

at 282, 106 S. Ct. at 2942. The Court found the

essence of the complaint to be the present, and

presumably ongoing, disparity in educational

opportunity, and not the past actions of the State that

had created the disparity. Id.

15

Coakley, 877 F.2d at 306.

McConnell v. Adams, 829 F.2d 1319 (4th Cir.1987),

involved a political patronage violation of the First and

Fourteenth Amendments. In affirming the district court, the

Fourth Circuit stated:

The appellants’ actions in failing to rehire the

appellees violated the appellees’ rights guaranteed

by the first and fourteenth ariendments. The

decision of the district court finding such a violation

is accordingly affirmed. Since the state's eleventh

amendment immunity does not protect it from suits

for injunctive relief governing its officials’ future

conduct, the order of the district court requiring the

appellants to rehire the appellees is also affirmed.

Ex parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L.

Ed. 714 (1908).

McConnell, 829 F.2d at 1329-30.

In another recent Fourth Circuit Court of Appeals

decision, the court discussed the nature of prospective

injunctive relief and discussed prior decisions of this Court.

Both [Papasan and Milliken] involve classic

examples of presently experienced harmful

consequences of past conduct, hence of ongoing

violations of federally protected constitutional

rights. As the district court put it, the state-official

defendants in Milliken “were in violation of federal

law at the precise moment when the case was filed.”

? Milliken v. Bradley, 433 U.S. 267 (1977).

16

The Republic of Paraguay v. Allen, 134 F.3d 622, 628 (1998)

(citation omitted). In discussing its own prior decisions, the

court stated:

For the same reason, Paraguay's reliance on this

court's decisions in Coakley v. Welch, 877 F.2d 304

(4th Cir. 1989), and Thomas S. by Brooks v.

Flaherty, 902 F.2d 250 (4th Cir. 1990), is misplaced.

Coakley held that a _ state employee

unconstitutionally discharged from his employment

suffers a "continuing violation" of that property

right that could be remedied by a federal injunctive

decree requiring his reinstatement. Thomas S. held

that persons subjected to unconstitutional treatment

when formeriy in state mental institutions suffered

continuing violations of those constitutional rights

after their release that could be remedied by a

federal injunctive decree for their care. Again, those

cases concerned classicclaims of ongoing violations

of federally-protected property and liberty rights.

As in Milliken and Papasan, at the time that those

actions were filed, responsible state officials were

presently violating the claimants’ ongoing rights.

Paraguay, 134 F.3d at 628.

It is clear that the Fourth Circuit adheres to the majority

view that reinstatement - in an appropriate case - is a valid

form of prospective injunctive relief. The Circuit Courts of

Appeal have extended Ex parte Young from enjoining an

ongoing constitutional violation to enjoining an ongoing harm

resulting from prior constitutional violations, assuming such an

extension is the law. It is equally clear that the case at bar is

not such a case.

17

G. Application of the Law to the Case At Bar

1. No Underlying Authorization

In this case, petitioner does not and cannot point to any

underlying authorization upon which the individually named

defendants based their allegedly impermissible conduct in

terminating petitioner for her exercise of constitutionally

protected speech. If, in fact, their conduct was wrongful, it

certainly was not grounded in any policy or procedure officially

endorsed by the Tarheel Challenge Academy or any of the other

named state defendants. It was a single decision involving a

single employee.

2. No Ongoing Wrong

The conduct complained of is not ongoing. There are two

aspects to the concept of “ongoing.” First, the entire rationale

of the Young exception to Eleventh Amendment immunity is

grounded in the notion that, pursuant to the Supremacy Clause,

state officials may be enjoined from continuing to violate

federal law. “Remedies designed to end a continuing violation

of federal law are necessary to vindicate the federal interest in

assuring the supremacy of that law.” Green, 474 U.S. at 68

(citations omitted).’ Petitioners’s claim is that the individually

* Edelman acknowledged that the Eleventh Amendment did

not bar an injunction requiring the state to comply with federal

standards for processing welfare applications in the future. 415 U.S.

at 664. Papasan held that the equal protection claim that

Mississippi's disparity in school land grant funding was not barred

by the Eleventh Amendment where the essence of the equal

protection allegation was the present disparity in the distribution of

the benefits of state-held assets, and not the past actions of the state.

478 U.S. at 282. In Green, this Court affirmed the denial of a

declaratory judgment that state officials violated federal law in the

past when there was no ongoing violation of federal law. 474 U.S.

18

named respondents violated her First Amendment rights in the

past. Petitioner cannot show any likelihood that respondents

will violate her rights in the future anymore than the plaintiff in

Lyons could show that he was in jeopardy of being subjected to

future illegal chokeholds. See also Mumford v. Basinski, 105

F.3d 264, 270 (6th Cir. 1997) (“[A] claim for retrospective

relief for past violation(s) of federal law . . . are not exempted

from the Eleventh Amendment’s jurisdictional bar.”).

3. Damages Are An Adequate Remedy.

A second rationale typically utilized inemployment cases

is that due to the wrongful discharge, the state employee suffers

an “ongoing” harm by being deprived of the benefits of

employment in which he/she has a constitutionally protected

property interest. Even if this rationale met the requirements of

Papasan, it is inapplicable in this case. Petitioner did not have

any permanent or “ongoing” employment relationship with the

Tarheel Challenge Academy. She had a one-year renewable

contract. Petitioner was discharged on May 17, 1995. Her

contract terminated on August 31, 1995. Petitioner's property

interest is clearly limited by the terms of her one-year contract

which expired on August 31, 1995. App. at 2a. Pearce v.

Employment Sec. Comm'n of North Carolina, 349 N.C. 315,

321, 507 S.E.2d 272, 277 (1998) ("Under North Carolina law,

an employee has a protected ‘property’ interest in continued

employment only if the employee can show a legitimate claim

to continued employment under a contract, a state statute or a

local ordinance."). An injunction cannot restore petitioner to

the status quo ante because the contract term has expired. Such

an order would be the functional equivalent of a breach of

contract action which implicates the sovereignty of the state.

at 73 (“There is no claimed continuing violation of federal law, and

therefore no occasion to issue an injunction.”).

a a ee ae ee

19

See Idaho v. Coeur d’ Alene Tribe of Idaho, 521 U.S. 261, 281

(1997) (ongoing violation of property rights i is the functional

equivalent of a quiet title action);

Florida, 517 U.S. 44, 74 (1996) (detailed remedial scheme for

enforcement forecloses Ex parte Young action). Sucharemedy —

may not be available under a state breach of contract action.

See Caudell v. Dellinger, 129 N.C. App. 649, 660, 501 S.E.2d

99, 106 (1998) (plaintiff not entitled to reinstatement because

she had resigned and district attorney was entitled to hire an

administrative assistant to “serve at his pleasure”), aff'd per

curiam, 350 N.C. 89, 54 S.E.2d 304 (1999).

If she prevails, petitioner’s remedy is money damages for

the three and one-half months remaining on her contract at the

time of her discharge. The availability of legal damages

forecloses injunctive relief under traditional equitable

principles. See Reuber v. United States, 750 F.2d 1039 (D.C.

Cir. 1984) (discussing rationale for disallowing reinstatement

as prospective injunctive relief).

The fact that reinstatement is not available pursuant to her

section 1983 claim does not affect her state law claim for

money damages for breach of contract. See Smith v. State of

North Carolina, 289 N.C. 303, 320, 222 S.E.2d 412, 423-24

(1976) (“[W]henever the State of North Carolina, through its

authorized officers and agencies, enters into a valid contract,

the State implicitly consents to be sued for damages on the

contract in the event it breaches the contract.”) In addition,

petitioner retains the potential to an award of damages from the

individually named defendants in their individual capacity.

Alden v. Maine, 527 U.S. 706, 757 (1999). Petitioner may not

be entitled to reinstatement, but she is not without a remedy.

20

H. Mootness

Since the contract has long since expired, the issue of

reinstatement is now moot. "'[A] case is moot when the issues

presented are no longer ‘live’ or the parties lack a legally

cognizable interest in the outcome.” County of Los Angeles

v. Davis, 440 U.S. 625, 631 (1979) (quoting Powell v.

McCormack, 395 U.S. 486, 496 (1969)). "’The central question

of all mootness problems is whether changes in the

circumstances that prevailed at the beginning of litigation have

forestalled any occasion for meaningful review’ of the issue

presented." 13A Charles A. Wright, et al., Federal Practice and

Procedure § 3533.3 at 261 (1984). A federal court may

adjudicate a claim only if “an actual controversy [is] extant at

all stages of review, not merely at the time the complaint is

filed.” Preiser v. Newkirk, 422 U.S. 395, 401 (1975), quoted in

Arizonans for Official English v. Arizona, 520 U.S. 43, 67

(1997). In Arizonans for Official English, this Court

unanimously held that a state employee’s change to private

employment rendered moot a claim for prospective injunctive

relief. 520 U.S. at 72. Petitioner’s one-year contract has

expired therefore her claim is moot and the individually named

defendants in their official capacity were properly dismissed.

Il. PETITIONER IS NOT ENTITLED TOA TRIAL IPF,

AFTER FURTHER DISCOVERY, THE DISTRICT

COURT DISMISSES ALL FEDERAL CLAIMS.

Petitioner asserts that having twice defeated Respondents’

dispositive motions to dismiss and for summary judgment, that

she should be allowed to proceed to trial under Rule 56(d) of

the Federal Rules of Civil Procedure because such a result

would be “just.” The Petitioner asks this Court to “unpack” the

term “just” as it is used in Rule 56(d) as a matter of first

impression. The respondents contend that the use of the term

21

“just” in Rule 56(d), under the facts of the case at bar, does not

foreclose disposition of this case short of a trial on the merits.

Although this case has twice been reviewed by the Fourth

Circuit Court of Appeals, protracted proceedings do not

suspend the Rules of Civil Procedure. The Federal Rules of

Civil Procedure are “as binding as any statute duly enacted by

Congress, and federal courts-have no more discretion to

disregard the Rule{s’] mandate than they do to disregard

constitutional or statutory provisions.” Bank of Nova Scotia v.

United States, 487 U.S. 250, 255 (1988). See also Chambers v.

Nasco, Inc., 501 U.S. 32, 66 (1991) (Scalia, J., dissenting).

In its most recent opinion, the Fourth Circuit expressed

concern that the factual record, consisting of affidavits, was

insufficient to dispose of petitioner’s claims on a motion for

summary judgment. Pet. App. at 5. The Court remanded the

case to the district court for further proceedings. Pet. App. at

5. The Court further noted that “the scant record and the

parties’ discussion at oral argument raise significant doubts

about the ultimate viability of Godon’s claims.” Pet. App. at 5.

Further discovery may well develop facts sufficient to

allow the district court to grant summary judgment on all issues

in respondents’ favor. Whether petitioner’s federal claim(s)

have twice been revived on appeal should not bear on the

manner in which the case is ultimately determined.

22

CONCLUSION

For the reasons stated above, petitioner's claim for

injunctive relief does not meet the criteria of prospectively

remedying an ongoing wrong. Even so, the issue is moot.

Therefore, the Fourth Circuit Court of Appeals did not err in

affirming the dismissal of Defendants Stalls, Autry and Everett

in their official capacities. In addition, there is no need for this

Court to construe the term “just” as it is used in Rule 56(d) of

the Federal Rules of Civil Procedure. °

This Petition for Writ of Certiorari should be denied.

Respectfully submitted,

ROY COOPER

North Carolina Attorney General

Isaac T. Avery, III*

Special Deputy Attorney General

Patricia A. Duffy

Assistant Attorney General

June 22, 2001 ~ * Counsel of Record

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TABLE OF CONTENTS

Employment Contract, between Kimberly Fern Godon

" and the State of North Carolina, Department of Crime

Control and Public Safety

la

“STATE OF NORTH CAROLINA

CONTRACTOR NAME:

COUNTY OF WAKE BUDGET CODE: 14900

_ FUND SOURCE: 1218

AGREEMENT*

THIS AGREEMENT is hereby made between the State of

North Carolina, Department of Crime Control and Public

Safety, hereinafter referred to as "Agency and

IBBQCreekEstates/

Contractor Name yr meee

(919) 499-4898 and 364-55-8489.

Telephone Taxpayer [D/SSN

hereinafter referred to as the "CONTRACT OR";

WITNESSETH

That WHEREAS, the AGENCY desires to engage the

CONTRACTOR to perform the professional services

hereinafter described:

Therefore, the AGENCY and the CONTRACTOR do

mutually agree as follows:

|. Contractual Status. © The AGENCY and the

CONTRACTOR agree that the CONTRACTOR shall perform

" This original agreement was amended effective March 1,

1995 to increase petitioner’ s salary to $26,123. In all other respects

the two agreements are identical.

2a

the services required of the CONTRACTOR herein set forth;

provided that the CONTRACTOR is not and will not by virtue

of this contract acquire the status of an employee of the

AGENCY.

2. Time and Place of Performance. The effective date of this

agreement is 26 Aug 94 and the termination date is 31 Aug 95.

The place of performance of this contract will be at a location

as designated by the North Carolina National Guard, currently

the Halls-Piney Grove School located in Clinton, Sampson

County, North Carolina.

3. Compensation. The Agency agrees to pay the

CONTRACTOR the annual sum of $23,859 and to pay the

Agency's portion of social security taxes. The sum of those

two figures shall represent complete and total compensation for

the services to be rendered by the Contractor as set forth in

paragraph four. In addition, however, all necessary and

appropriate travel expenses and subsistence will be reimbursed

at the current State rates, subject to the requirement that written -

approval must be obtained from the Director of the "Tarheel

Challenge Program.” In no event will there be reimbursement

for commuting expenses.

4. Scope of Services to be Rendered. The CONTRACTOR

hereby agrees to perform in a manner satisfactory to the

AGENCY services in support of the North Carolina National

Guard’s "Tarheel Challenge Program” and shall serve in the

capacity of Team Leader with the following description of

services to be rendered by CONTRACTOR: The person in this

position receives directionand guidance from the Commandant

of Cadets. The purpose of this position is to provide daily

supervision to Academy cadets in the residential portion of the

program; Provide 24 hour, 7 days a week supervision for

Academy cadets; assist instructors, Counselors and others in

3a

cadet development activities; Conduct inspections of cadets,

cadet quarters, cadet activates and activity areas; Provide for

accountability, control and safety of cadets; Supervise training

site preparation and training operations; Assist with awards and

graduation ceremonies; Assist with in-processing and out-

processing of cadets; Provide limited fire line counseling and

assistance to cadets until appropriate staff are present;

Transport and supervise cadets when participating in off-site

Academy activities; Participate in and supervise cadet physical

training activities; Provide instruction assistance when required

and qualified; Coordinate with and assist other Squad Leaders

in providing for cadet development and supervision; Perform

all other duties as assigned. Additionally, Contractor agrees to

comply with all applicable federal and state regulations relating

to the Challenge Program, to include, but not limited to,

submission to urinalysis and blood screening/testing.

5. Invoice. Payment under this AGREEMENT will be made.

monthly upon full compliance with this contract and upon

receipt of an original invoice from the CONTRACTOR setting

forth a time sheet and work/services performed and showing

the amount due and payable pursuant to Paragraphs 3 and 4 of

this AGREEMENT. All services must be performed to the

satisfaction of the AGENCY prior to any payment being made.

6. Contract Administrator. Leslie T. Everett; Jr., Director of

the Tarheel Challenge Program, is designated as the contract

administrator for this AGREEMENT. The contract

administrator is responsible for monitoring the

CONTRACTOR'S performance, approving payment to the

CONTRACTOR and for providing evaluation of the

CONTRACTOR.

7. Funding. All terms and conditions of this AGREEMENT

are dependent upon and subject to the allocation of funds for

4a

the purposes set forth and the AGREEMENT shall

automatically terminate if funds cease to be available.

8. Taxes. The CONTRACTOR shall be considered to be an

independent contractor and as such shall not be entitled to any

benefits and shall be responsible for all taxes except as set forth

in paragraph three above. The CONTRACTOR authorizes the

Agency to withhold for state and federa! income taxes, social

security taxes, Medicare taxes and any otiier amount due and

payable under this agreement as provided by the provisions of

the Internal Revenue Code, Title 26, United States Code.

Contractor agrees to reimburse the Agency, or its assigns, for

any penalty due to Contractor's failure to make any tax

payments.

9. Warranty. As an independent contractor, the

CONTRACTOR will hold the AGENCY harmless for any

liability and personal injury that may occur from or in

connection with the performance of the AGREEMENT. Any

and all insurance coverage of Contractor, including liability

coverage, shall be the sole responsibility of Contractor.

10. Termination of Agreement. If, through any cause, the

CONTRACTOR shall fail to fulfill in a timely and proper

manner the obligations under this Agreement, the AGENCY

shall thereupon have the right to terminate this Agreement by

giving written notice to the CONTRACTOR of such

termination specifying the effective date thereof, at least (1)

day before the effective date of termination. Upon termination

pursuant to this paragraph, the CONTRACTOR shall be liable

for any costs or expenses the AGENCY may incur in obtaining

the completion of the services described in paragraph four

hereof.

Sa

11. Situs. This contract shall be governed by the laws of

North Carolina and any claim for breach or enforcement of the

AGREEMENT shall be filed in State court in Wake County,

North Carolina.

12. Antitrust Laws. This contract is entered into in

compliance with all State and Federal antitrust laws.

13. Compliance with Law. The CONTRACTOR shall

remain an independent contractor and as such shall be wholly

responsible for the work to be performed under the supervision

of his employees. The CONTRACTOR shall be responsible

for compliance with all laws, ordinances, codes, rules,

regulations, licensing requirements and other regulatory matters

that are applicable to the conduct of the CONTRACTOR's

business and work performance under this AGREEMENT,

including those of Federal, State and local agencies having

appropriate jurisdiction.

14. Assignment. This AGREEMEN Forany interest herein

shall not be assigned or transferred by the CONTRACTOR.

The CONTRACTOR shall not subcontract any work to be

performed pursuant to this AGREEMENT without the written

approval of the AGENCY.

15. Advertisement. This AGREEMENT shall not be used

for advertising by the CONTRACTOR without prior written

approval, of the Purchase and Contract Division of the

Department of Administration.

16. Entire Agreement. This AGREEMENT, including any

exhibits and amendments annexed hereto and any documents

incorporated specifically by reference, represents the entire

agreement between the parties and supersedes all prior oral and

written statements; or agreements. This AGREEMENT may

6a

be amended only by written amendments duly executed by the

AGENCY and the CONTRACTOR.

17. This agreement does not become binding until approved

by all required governmental agencies and executed by all

parties.

IN WITNESS WHEREOF, the AGENCY and _ the

CONTRACTOR have each executed this AGREEMENT, this

the 25 day of August , 1994.

ATTEST: NORTH CAROLINA

By: \s\ Stephanie L. Scot DEPARTMENT OF CRIME

CONTROL & PUBLIC

SAFETY:

By:\s\ Thurman B. Hampton _

Thurman B. Hampton,

Secretary

ATTEST:

By:\s\ Jimmy T. Crawford By: \s\ Kimberly Godon

CONTRACTOR

APPROVED AS TO AVAILABILITY OF FUNDS:

By: \s\ Jack W. Reavis

Jack Reavis, Controller

APPROVED AS TO FORM SUBJECT TO EXECUTION

BY THURMAN B. HAMPTON, SECRETARY OF CRIME

CONTROL AND PUBLIC SAFETY.

MICHAEL F. EASLEY

ATTORNEY GENERAL OF NORTH CAROLINA

BY: _ \s\ Linda M. Fox

Assistant Attorney General

7a

(Original letter on letterhead)

ChalleNGe

7780 Hobbton Hwy

Clinton, NC 28328

1-800-573-9966

May 17, 1995

Ms. Kim Godon

1 BBQ Creek Estates

Broadway, NC 27505

SUBJECT: Notice of Termination of Contract

This is to notify you of the termination of your contract with

the Tarheel ChalleNGe Academy, effective May 21, 1995.

This termination is based on the following:

a) By your own admission to Mr. Autry on May 9, 1995,

you acknowledged you had given permission for female

cadets to sleep together in single/one person beds for

“safety and security reasons”. You also acknowledged

that Mr. Boone, the Commandant of cadets, had

specifically told you such a practice was not allowed.

b) You received a verbal counseling on April 28 and a

written on May 5, 1995 regarding certain aspects of your

performance of duty (Team Leader) in which you were

placed on probation for the remainder of your contract.

On May 6, 1995, you told the cadets that you had been

counseled and placed on probation. Later that day, Mr.

Autry was presented a copy of a petition signed by

approximately 60 personnel, (mainly cadets) asking

that we (the Academy) keep you here as Team

Leader for Team 1.

8a

It is inconceivable to me you would take either of the two

actions listed abeve. Not only was the first action prohibited

(females sleeping together), it gives two erroneous perceptions:

first, that the Academy supported your concurrence of females

sleeping together and secondly, that we have a “safety and

security” problem here.

Your second action is seen as a deliberate attempt to involve

cadets in what is purely a management/supervisor matter. Our

cadets have enough demands and stress without being solicited

to take sides in a situation in which they have absolutely no

reason to be involved in.

I regret the necessity to terminate your contract. Your contract

termination is deemed to be in the best interest of the Tarheel

ChalleNGe Academy program.

Questions may be addressed to the undersigned or in my

absence to Mr. Stalls.

\s\

Leslie T. Everett

Director

Tarheel ChalleNGe Academy