Opposition Brief — Georgia Power Co. v. Pataula Electric Membership Corp.

— a

No. 01-7681

In the

Supreme Court

of the

Gnited States of America

October Term, 1992

GEORGIA POWER COMPANY,

and

BOBBY K. WHITWORTH, CLYDE STOVALL.

and DAVID C. EVANS

Petitioners,

V.

PATAULA ELECTRIC MEMBERSHIP CORPORATION

and

FLINT ELECTRIC MEMBERSHIP CORPORATION,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court of Appeals

For The Eleventh Circuit

RESPONDENTS’ BRIEF IN OPPOSITION TO

PETITIONS FOR WRIT OF CERTIORARI

PAUL, HASTINGS JANOFSKY James A. Orr

& WALKER . Counsel of Record

Forty-Second Floor Kathy R. Bess

Georgia-Pacific Center

133 Peachtree Street, N.E. Counsel for Respondents

Atlanta, Georgia 30303

(404) 588-9900)

201 Blakely Street James E. Fnese

Cuthbert, Georgia 31740

(912) 732-3470 Counsel for Respondent

Pataula Electric

Membership Corporation

“

l

QUESTIONS PRESENTED

Whether a lowest responsible bidder who has a

property interest in award of the contract under state

law can bring a claim for deprivation of its property

interest under 42 U.S.C. § 1983?

Whether the Eleventh Circuit properly refused to

grant qualified immunity to state officials where the

court found that the officials refused to comply with

Georgia legal directives of which they knew or should

have known?

il

TABLE OF CONTENTS

(FUESTIAND PRES EES 656 ces ea we eh sabe eee ees

TAmee OF CAAWERINGS: 6 sce dees Vee Oh ee ee il

TABLE OF ALIPRMRES EE 6 6 eke eae eee eee ee 1V

SIALTEMGINE Ce Tats GA 6 kc ecu eee apweea een 2

REASONS FOR DENYING THE PETITIONS

PU WEE OF CRUE 6b es ee ve a bee k bee Oo 7

k. CERTIORARI SHOULD BE DENIED

BECAUSE A FINAL DECREE HAS NOT

BEEN ISSUED IN THIS CASE. ......... 7

IT. FEDERAL COURT DECISIONS DO NOT

CONFLICT AS TO SECTION 1983

DISAPPOINTED BIDDER CLAIMS ....... 8

lll

Il. CERTIORARI SHOULD NOT BE

GRANTED TO REVIEW THE LOWER

COURTS’ INTERPRETATION OF

GEORGIA STATUTES AND

6 re 1]

[V. THE. SUPREME COURT HAS NOT

RULED THAT POSSESSION IS

REQUIRED FOR THE CREATION OF A

PRIMERA CRORE. occ sec es sees 14

V. THE SUPREME COURT SHOULD NOT

GRANT CERTIORARI TO CONSIDER A

SUBSTANTIVE DUE PROCESS

ARGUMENT NOT RAISED IN THE

CAPE GM APPEND. 6 ee eee ees 16

VI. THE ELEVENTH CIRCUIT PROPERLY

DENIED THE DOC OFFICIALS’ CLAIM

OF QUALIFIED IMMUNITY. ........... 17

CONCLUSION.

iv

TABLE OF AUTHORITIES

Anderson v. Creighton,

Ue We A REED on kh as ee eS Ck ee 18

Ara Servs., Inc. v. School Dist.,

590 F. Supp. 622 (E.D. Pa. 1984) .......... 9

Ashwander v. Tennessee Valley Authority,

Rr Ce EE Na a 6 6 hw ea alee

Board of Pardons v. Allen,

ee See Oe CAPD os ecw eee ae es 14, 15

Board of Regents v. Roth,

eo ee ty) rr rar 8,9

Brotherhood of Locomotive Firemen v. Bangor &

Aroostock R.R., 389 U.S. 327 (1967) ......... Ff

City of Atlanta v. Ashland-Warren, Inc.,

No. C81-106a (N.D. Ga. Aug. 20, 1981)

(LEXIS, Genfed library, Dist. file)........... 10

City of Atlanta v. J. A. Jones Constr. Co.,

260 Ga. 658, 398 S.E.2d 369 (1990),

cert. denied, 111 S. Ct. 2042 (1991) ........ 12

Coyne-Delany Co. v. Capital Dev. Bd.,

G16 F.2a S41 (7G) Gir. 1960) wn. kh ee ee eee 9

Curtis Ambulance, Inc. v. Board of

County Comm'rs,

Sil P.2e0 1377 (item Ge. 1967) 2... nec anes 9

Estey Corp. v. Matzke,

431 F. Supp. 468 (N.D. Ill. 1976) .......... 10

Greenholtz v. Inmates of Nebraska

Penal and Correctional Complex,

ee WF EPO 6 es a ae eo 15

Hamilton-Brown Shoe Co. v: Wolf

Bros. & Co.,

EE AMATO 60.6 42 owe ene eee 7

Harlow v. Fitzgerald,

ae Wa OE COPED 6s 6 ko 6k ka ee oe 18

Hilton Constr. Co. v. Rockdale County

Bd. of Educ., 245 Ga. 533,

266 S.E.2d 157 (1980) .......... 5, 11, 17, 19

J.P. Mascaro & Sons, Inc. v. Township of Bristol,

497 F. Supp. 625 (E.D. Pa. 1980) ......... 10

Kendrick v. City Council,

516 F. Supp. 1134 (S.D. Ga. 1981) ........ 10

L & H Sanitation, Inc. v. Lake City Sanitation, Inc.,

769 F.2d 517 (6th Cir. 1985) ............ 10

Liverpool, N.Y. & Phila. S.S. Co. v.

Commissioners of Emigration,

RAD Ok ee LR 6 6 be ee oS ee ae 8

Malley v. Briggs,

STD UE PO NLOOE 55 es CA eS ERT ES 19

Metric Constructors, Inc. v. Gwinnett County,

729 F. Supp. 101 (N.D. Ga. 1990) ...... 12, 17

oOo

Mitchell v. Forsyth,

CTE The OE RAGE “a Niaerea ee eee eee 18

O’Bannon v. Town Court Nursing Ctr.,

OOF US: Fee Clee Sn ee eee eee ees 16

PFZ Properties, Inc. v. Rodriguez,

928 F.2d 28 (1st Cir. 1991), cert. dismissed,

bia a Gas SEE SED: aa eae eee ae 16

Pataula Elec. Membership Corp. v. Whitworth,

9$1 F.2d 1238 (lithe Car. 1992) ......... 6, 13

Peterson Enters., Inc. v. Ohio Dep’t of

Mental Retardation & Developmental

Disabilities,

No. 89-3347 (6th Cir. Nov. 29, 1989)

(1989 U.S. App. LEXIS 17616) .........005%. 9

Regents of University of Mich. v. Ewing,

R74 US. Be ee he eek eee 14

Sowell’s Meats & Servs., Inc. v. McSwain,

706 F.2G 220 (GGG. TH) ee ee ee 9

Teleprompter of Erie, Inc. v. City of Erie,

Sor ©. Sapp. © CW. PR. BSB) 0 ks ees ses 10

Three Rivers Cablevision, Inc. v. City of Pittsburgh,

502 F. Supp. 1118 (W.D. Pa. 1980) ........ 11

Wolff v. McDonnell,

S18 US. SAP CIGD 6 66-6 595508 ees 15

SS ea Lae

Statutes

Sd UGhe, G RGee CEP) 6 oe baw se va cae 5, 7, 10

O.C.G.A. §850-5-50 through 50-5-81 (1990 &

SS a Noo eh as eh ek Oo ea eee 5

OAS Barn LOPE 6 kee ek ce eae has 5

O.C.G.A. §50-5-67(b) (Supp. 1992) ........... 12, i3

Miscellaneous

Op. Ga. Alty Gen. 74-16 CIG7S) ok. oe ee ces 13

Pod. Bi. Sie. B Bee. od eee sb ks i wee eee 5

Geuegsh Venmor WHMIS 5. 6k ko ee ee a ta, bo

No. 91-2081

No. 92-19

IN THE SUPREME COURT OF THE

UNITED STATES OF AMERICA

OCTOBER TERM, 1992

GEORGIA POWER COMPANY,

and

BOBBY K. WHITWORTH, CLYDE STOVALL

and DAVID C. EVANS

Petitioners,

V-

PATAULA ELECTRIC MEMBERSHIP CORPORATION

and FLINT ELECTRIC MEMBERSHIP CORPORATION,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court of Appeals

For The Eleventh Circuit

RESPONDENTS’ BRIEF IN OPPOSITION TO

PETITIONS FOR WRIT OF CERTIORARI

Respondents Pataula Electric Membership Corporation

(“Pataula EMC") and Flint Electric Membership Corporation

2

("Flint EMC") (collectively “Respondents")” hereby submit

their Brief in Opposition to the Petitions for Writ of Certiorari

to the United States Court of Appeals for the Eleventh Circuit,

filed by Georgia Power Company ("Georgia Power") and

Department of Corrections officials Bobby Whitworth, Clyde

Stovall and David Evans. For the reasons set forth herein,

Respondents respectfully pray that this Court deny the

Petitions for Wnt of Certiorari.

STATEMENT OF THE CASE

This dispute arises out of the Georgia Department of

Corrections’ ("DOC") selection of Georgia Power over Flint

EMC and Pataula EMC as electric suppliers for two new

prisons, even though the Respondents were the lowest

responsible bidders for the utility contracts for the prisons.

In 1989, the DOC decided to build a new prison in

Calhoun County, Georgia. Pataula EMC’s Amended Complaint

(Georgia Powers Appendix at 165a-166a).” Thereafter, the

1/ All parties to the proceedings below are identified in the caption of

Respondents’ Brief In Opposition to the Petitions for Writ of Certiorari.

See Supreme Court Rule 14.1(b). Respondents do not have any parent

companies or subsidiaries. A party with an interest in this litigation,

however, is Oglethorpe Power Corporation ("Oglethorpe"). Oglethorpe

was formed by its 39 electric cooperative members, including Flint EMC

and Pataula EMC, to supply their generation and transmission needs.

See Supreme Court Rule 29.1.

2/ Respondents will hereinafter refer to Georgia Power's Appendix as

follows: “(App. at a)."

3

DOC received bids from Pataula EMC and Georgia Power for

the provision of electric service to the prison. (App. at 166a).

Pataula EMC’s proposal for electric service constituted the

lowest responsible bid, being substantially lower in both cost

per kilowatt hour and estimated annual operating cost. (App.

at 166a). Under Pataula EMC’s bid, the electric bill for the

Calhoun County Prison would be approximately $35,000 less

during the first year of operation than under Georgia Power's

bid. (App. at 166a). Additionally, Pataula EMC’s bid would

save the DOC at least $16,800 a year in equipment leasing

costs during the first ten years and at least $57,600 a year

thereafter. (App. at 166a).

As part of its process of evaluating the proposals to

supply electricity to Calhoun County Prison, the DOC asked

consulting engineers Rosser Fabrap International ("Rosser

Fabrap") to review the proposals submitted by Georgia Power

and Pataula EMC. (App. at 167a). After reviewing the

proposals, Rosser Fabrap recommended Pataula EMC because

of its lower operating costs and lower lease costs. See Exhibit

A to Pataula EMC’s Amended Complaint (App. at 174a-177a).

Despite Pataula EMC’s lower bid and Rosser Fabrap’s

recommendation, DOC officials Whitworth, Stovall and

4

Evans* ("DOC Officials") awarded the contract for electric

service to the prison to Georgia Power. (App. at 1674).

Another bidding opportunity for a prison arose in 1990

when the DOC approved construction of a prison in Macon

County, Georgia. Flint EMC’s Amended Complaint. (App. at

138a). Georgia Power and Flint EMC submitted bids for

electtic service to the prison, and once again the EMC was the

lowest responsible bidder for the contract. (App. at 138a-

139a). The estimated cost under Flint EMC’s bid was

approximately $35,000 less during the first year of operation

than under Georgia Power's bid. (App. at 139a).

The DOC again turned to consulting engineers Rosser

Fabrap to review the proposals from Georgia Power and Flint

EMC. (App. at 139a). After reviewing the proposals, Rosser

Fabrap recommended Flint EMC because of its lower operating

costs and superior service. See Exhibit A to Flint EMC’s

Amended Complaint (App. at 147a-152a). The DOC Officials

again ignored the cost savings to Georgia taxpayers and

awarded Georgia Power the contract for electric service for the

Macon County Prison. (App. at 139a-140).

3/ Pataula EMC’s Complaint names David C. Evans as a defendant

because Mr. Evans was Commissioner of the DOC when Pataula EMC

and Georgia Power submitted bids to the DOC for the electric utility

contract at issue. Mr. Evans, however, had resigned as commissioner

before Flint EMC sought to obtain the contract at issue in Flint EMC’s

Complaint. Therefore, Flint EMC did not name Mr. Evans as a

defendant.

ee

5

The Respondents filed separate complaints challenging

the DOC Officials’ unlawful award of electric utility contracts

to Georgia Power. In their complaints, as amended, the

Respondents contend that Georgia procurement statutes and

regulations require the DOC Officials to award the utility

contracts to the lowest responsible bidder. (App. at 138a,

166a). See O.C.G.A. § 50-5-51(1) (1990); Georgia Vendor

Manual, Art. VIII, § 3 (App. at 62a, 107a). In such situations,

Georgia law recognizes that the lowest responsible bidder has

a legal entitlement or property interest in award of the

contracts. See Hilton Constr. Co. v. Rockdale County Bd. of

Educ., 245 Ga. 533, 538, 266 S.E.2d 157, 161 (1980). The

DOC Officials’ refusal to award the utility contracts to the

Respondents, the lowest responsible bidders, has deprived the

Respondents of their property interest, legally protected by 42

U.S.C. § 1983 (1988). (App. at 141a-143a; 168a-170a). The

Respondents seek injunctive and monetary relief for the DOC

Officials’ deprivation of the Respondents’ property interest.

(App. at 141a-144a, 168a-171a). The Respondents also seek

damages based on the DOC Officials’ violations of the State

Purchasing Act, O.C.G.A. §§ 50-5-50 through 50-5-81 (1990 &

Supp. 1992), and the procedures of the Georgia Vendor

Manual. (App. at 144a-146a, 171a-173a).

Georgia Power and the DOC Officials moved to dismiss

the Respondents’ amended complaints for failure to state a

6

claim for which relief might be granted (Fed. R. Civ. P.

12(b)(6)). The DOC Officials also requested dismissal on the

basis of the defense of qualified immunity.

The District Court for the Northern District of Georgia,

Judge Horace T. Ward, consolidated the two cases for pre-trial

proceedings and granted Georgia Powers and the DOC

Officials’ motions to dismiss the consolidated cases. Order of

the Court dated November 20, 1990 (App. at 21a-30a). The

District Court held that under Georgia law a disappointed

bidder may possess a constitutionally protected property

interest in award of a contract with the state. However, the

District Court found that unlike other state purchases, electric

utility contracts were not governed by Georgia’s bidding laws.

On that basis, the District Court concluded that the

Respondents had not demonstrated a property interest in

award of the contracts. The Respondents appealed to the

Court of Appeals for the Eleventh Circuit.

The Eleventh Circuit reversed and remanded. Pataula

Elec. Membership Corp. v. Whitworth, 951 F.2d 1238 (11th Cir.

1992) (App. at la-12a). The Eleventh Circuit interpreted

Georgia law as requiring that electric utility contracts, like

other state purchases, be awarded to the lowest responsible

bidder. Accordingly, the Eleventh Circuit ruled that

Respondents have a property interest in award of the utility

contracts at issue, and Respondents have stated a claim under

an aceeceemeee anemia

7

42 U.S.C. § 1983 for deprivation of that interest. Id. at 1242.

The Eleventh Circuit also refused to grant the DOC Officials

qualified immunity. Jd. at 1244.

REASONS FOR DENYING THE PETITIONS

FOR WRIT OF CERTIORARI

I. CERTIORARI SHOULD BE DENIED BECAUSE A FINAL

DECREE HAS NOT BEEN ISSUED IN THIS CASE.

The Petitions for Writ of Certiorari of Georgia Power

and the DOC Officials (collectively Petitioners") should be

denied because a final decision has not been rendered in the

case. This Court has emphasized that certiorari jurisdiction is

"to be exercised sparingly, and only in cases of peculiar gravity

and general importance, or in order to secure uniformity of

decision. And, except in extraordinary cases, the writ is not

issued until final decree." Hamilton-Brown Shoe Co. v. Wolf

Bros. & Co., 240 U.S. 251, 258 (1916) (citations omitted).

The lack of finality in the underlying case may “of itself alone"

serve as grounds for denial of certiorari. Jd. See also

Brotherhood of Locomotive Firemen v. Bangor & Aroostock R.R.,

389 U.S. 327, 328 (1967) (Supreme Court denied certiorari

“because the Court of Appeals remanded the case, [and] it is

not yet ripe for review by this Court.").

The Supreme Court’s refusal to accept certiorari until a

final decree has been entered serves important purposes. First,

waiting until final resolution of the case promotes judicial

8

efficiency by allowing all claims relevant to a case to be

presented in a single petition. Second, the Supreme Court may

be relieved from addressing important constitutional questions,

depending on the final resolution of the case. See Ashwander

v. Tennessee Valley Authority, 297 U.S. 288, 346 (1936) ("The

Court will ‘not anticipate a question of constitutional law in

advance of the necessity of deciding it.

N.Y. & Phila. S.S. Co. v. Commissioners of Emigration, 113 U.S.

) (quoting Liverpool,

33, 39 (1885)). Accordingly, the Petitions of Georgia Power

and the DOC Officials, sought well before a final decree in the

case, should be denied.

IT. FEDERAL COURT DECISIONS DO NOT CONFLICT AS

TO SECTION 1983 DISAPPOINTED BIDDER CLAIMS.

Georgia Power contends that certiorari should be

granted because "there is a great deal of confusion in the lower

federal courts" regarding a section 1983 challenge by an

unsuccessful applicant or bidder for a state contract. Georgia

Power's Petition for Writ of Certiorari, p. 9 ("Georgia Power's

Petition"). The starting point for analysis of a section 1983

claim by a disappointed bidder is this Court’s description of a

property interest in Board of Regents v. Roth, 408 U.S. 564

(1972). |

[Property interests] are created

and their dimensions are defined

by existing rules or understandings

that stem from an independent

9

source such as state law - rules or

understandings that secure certain

benefits and that support claims of

entitlement to those benefits.

Id. at 577.

In the cases cited by Georgia Power in pp. 9-10 of its

Petition, the federal courts undertook the analysis of a property

interest described in Roth. After examining the applicable state

statutes and regulations, certain of the courts determined that

the applicable state law did not create any property interest or

entitlement in award of a contract. See, e.g., Peterson Enters.,

Inc. v. Ohio Dep’t of Mental Retardation & Developmental

Disabilities, No. 89-3347 (6th Cir. Nov. 29, 1989) (1989 U.S.

App. LEXIS 17818) (Ohio state law did not create in a bidder

a legitimate claim of entitlement to award of the contract.);

Curtis Ambulance, Inc. v. Board of County Comm’rs, 811 F.2d

1371 (10th Cir. 1987) (Applicable Kansas law did not give the

bidder a constitutionally protected property interest in award

of the contact.); Sowell’s Meats & Servs., Inc. v. McSwain, 788

F.2d 226 (4th Cir. 1986) (South Carolina law did not confer

a property interest on unsuccessful bidders for public

contracts.); Coyne-Delany Co. v. Capital Dev. Bd., 616 F.2d 341

(7th Cir. 1980) (A potential supplier had no property interest

under [llinois law in having its product purchased or

specified.); Ara Servs., Inc. v. School Dist., 590 F. Supp. 622

(E.D. Pa. 1984) (Applicable Pennsylvania law did not grant a

10

bidder any legitimate claim of entitlement to award of a public

contract.); City of Atlanta v. Ashland-Warren, Inc., No. C81-

106a (N.D. Ga. Aug. 20, 1981) (LEXIS, Genfed library, Dist.

file) (Federal law did not vest a bidder with a property interest

in award of a contract.); J.P. Mascaro & Sons, Inc. v. Township

of Bristol, 497 F. Supp. 625 (E.D. Pa. 1980) (Under

Pennsylvania law, a disappointed bidder does not have a

property interest in award of the contract because the

requirement that a contract be awarded to the lowest

responsible bidder is solely for the protection of the

taxpayers.). Cf. Estey Corp. v. Matzke, 431 F. Supp. 468 (N.D.

Ill. 1976) (District court did not examine Illinois law to

determine if state law created a property interest, and court

held, without discussion, that a property interest may not be

vindicated under 42 U.S.C. § 1983.).

Other courts, after examining the applicable state law,

have found that state law created a property interest in the

lowest responsible bidder. See, e.g., L & H Sanitation, Inc. v.

Lake City Sanitation, Inc., 769 F.2d 517 (8th Cir. 1985);

(Arkansas law created a protected property interest in the

lowest responsible bidder if its bid complied with bid

specifications.); Teleprompter of Erie, Inc. v. City of Erie, 537 F.

Supp. 6 (W.D. Pa. 1981) (Pennsylvania statutory provisions

created a property interest in award of a cable franchise for the

lowest responsible bidder.); Kendrick v. City Council, 516 F.

EEE

1]

Supp. 1134 (S.D. Ga. 1981) (Georgia municipal regulations

could create a property interest in a bidder, but the bidder

must allege facts sufficient to state a claim for depnivation of

his property interest.); Three Rivers Cablevision, Inc. v. City of

Pittsburgh, S02 F. Supp. 1118 (W.D. Pa. 1980) (Pennsylvania

law vested in the lowest responsible bidder a property interest

in award of the cable television contract.).

The federal court decisions cited by Georgia Power do

not conflict simply because federal courts are interpreting

different state laws and finding that some Statutory provisions

create a property interest while other statutes do not. This

Court should not grant certiorari simply to parse Georgia

competitive bidding statutes and regulations to determine

whether these provisions create a property interest.

If. | CERTIORARI SHOULD NOT BE GRANTED TO REVIEW

THE LOWER COURTS’ INTERPRETATION OF GEORGIA

STATUTES AND REGULATIONS.

In its Petition for Writ of Certiorari, Georgia Power fails

accurately to characterize what Respondents are seeking in the

underlying action. Respondents claim a property interest in

award of the utility contracts at issue pursuant to Georgia’s

competitive bidding statutes and regulations. Georgia Supreme

Court decisions have recognized that the lowest responsible

bidder for a state contract may have 4 property interest in

award of that contract. See Hilton Constr. Co. v. Rockdale

12

County Bd. of Educ., 245 Ga. 533, 266 S.E.2d 157 (1980); City

of Atlanta v. J. A. Jones Constr. Co., 260 Ga. 658, 398 S.E.2d

369 (1990) (Georgia Supreme Court recognized that an

injured bidder has a cause of action for failure to obtain the

bid, but the bidder’s damages are limited to bid preparation

costs), cert. denied, 111 S. Ct. 2042 (1991).

While emphasizing the competitive nature of the

process, Georgia Power ignores the entitlement created by

Georgia law. Georgia statutes and regulations mandate that

state contracts shall be awarded to the lowest responsible

bidder.” An entitlement to award of the contract arises under

the mandatory language of the Georgia competitive bidding

provisions. In this case, the Eleventh Circuit found that

Georgia’s statutes and regulations dictate that electric utility

contracts shall be awarded to the lowest responsible bidder.”

4/ The applicable Georgia competitive bidding provisions do not simply

prohibit awards to “insiders or friends of State ofticials," as contended by

Georgia Power. See Georgia Power's Petition p. 15. Further, the state of

Georgia’s decision to require contracts to be awarded to the lowest

responsible bidder is a sound policy in times of runaway budget deficits.

S/ The Georgia competitive bidding provisions permit a state official to

reject any and all bids. See O.C.G.A. § 50-5-67(b) (Supp. 1992). Thus,

a state official can solicit bids and then decide not to contract for a

specific purchase. Nevertheless, once a state official decides to award a

contract, the official must follow competitive bidding requirements and

award the contract to the lowest responsible bidder. See O.C.G.A.

§ 50-S-67(b) (Supp. 1992); Georgia Vendor Manual, Art. VIII, § 3. (App.

at 72a, 107a). See also, Metric Constructors, Inc. v. Gwinnett County,

729 F. Supp. 101 (N.D. Ga. 1990).

—eeeeeee

13

Georgia Power conveniently fails to cite a section of the

Attorney General’s opinion which confirms the mandatory

nature of the competitive process in Georgia: :

[O]nce DOAS [Department of

Administrative Services] has

considered all relevant factors, it

must award the contract to the

lowest bidder meeting its

standards. DOAS may not award

a contract to a higher bidder if the

products are equal in view of all

relevant factors.

Op. Ga. Att'y Gen. 74-16, at 30 (1974). (App. at 133a).

Thus, Georgia’s competitive bidding requirements create for

Respondents a property interest in award of the contracts.

The Eleventh Circuit did not, as Georgia Power

contends, find that the "presence of criteria to guide state

officials was sufficient to give rise to an entitlement." Georgia

Power's Petition, p. 14. The Eleventh Circuit found that

certain objective factors to be considered under Georgia law in

choosing a lowest responsible bidder did not negate the

mandatory language of Georgia’s competitive bidding

provisions.” Pataula, 951 F.2d at 1242-43. (App. at 8a-9a).

6/ Under 0.C.G.A. § 50-5-67(b) (Supp. 1992) and the Georgia Vendor

Manual, Art. VIII, §3, the DOC Officials must consider certain objective

factors such as price, performance and capacity to perform of the bidder,

quality of merchandise offered, transportation charges and date of

delivery.

14

Moreover, where discretion is granted, it cannot be abused by

the state official. Id. at 1243. (App. at 11a).”

The District Court’s dismissal of Respondents’ claims and

the Court of Appeals’ reversal turned on an interpretation of

Georgia’s state purchasing laws. The District Court found that

those laws did not apply to electnce utility contracts; the

Eleventh Circuit disagreed and reversed. An interpretation of

state statutes and regulations is not an "extraordinary" issue

warranting Supreme Court review. The Supreme Court should

not grant certiorari to duplicate the Eleventh Circuit’s analysis

of state statutes and regulations.

IV. THE SUPREME COURT HAS NOT RULED THAT

POSSESSION I[S REQUIRED FOR THE CREATION OF A

PROPERTY INTEREST.

Georgia Power contends that an entitlement pursuant to

state statutes and regulations only arises after a person has

acquired or possesses the specific benefits. Georgia Power's

Petition, p. 8. The Supreme Court has refused to adopt this

limitation on due process rights. In Board of Pardons v. Allen,

482 U.S. 369, 374-75 (1987), this Court ruled that an

applicant for parole may have a liberty interest in parole

7/ Cf. Regents of University of Mich. v. Ewing, 474 U.S. 214, 225-26

(1985) (Supreme Court upheld district court’s evidentiary finding that

the University did not act arbitrarily in dropping Ewing from medical

school program).

ee

15

release, Cepending on the parole rules and regulations. The

Montana parole statute in Allen used “mandatory language

(‘shall’) to ‘creat[e] a presumption that parole release will be

granted’ when the designated findings are made." Id. at

377-78, (quoting Greenholtz v. Inmates of Nebraska Penal and

Correctional Complex, 442 U.S. 1, 12 (1979) (footnote

omitted). This Court found that the Respondents had a liberty

interest in or entitlement to parole release pursuant to the

mandatory language of the Montana Statute, even though the

Respondents had not acquired or possessed parole or its

benefits. 482 U.S. at 381. See also Greenholtz, 442 U.S. at 12

(expectancy of parole release provided in Nebraska’s parole

statute was entitled to some measure of constitutional

protection).

The same reasoning that applies to a liberty interest in

a parole release would also apply to a property interest in

award of a contract. See, e.g., Wolff v. McDonnell, 418 U.S.

939, 557 (1974) ("This analysis as to liberty parallels the

accepted due process analysis as to property.") Thus,

possession should not be required to create a property interest.

Furthermore, the Respondents’ claim is not based on the

contention that the state officials could have made a better

decision. The limited judicial question considered by the

Eleventh Circuit was whether Respondents stated a claim based

on a violation of mandatory provisions of state law. This

16

question is entirely consistent with other § 1983 decisions and

will not give rise to a legion of cases in which federal courts

are second-guessing state officials, as contended by Georgia

Power.

V. THE SUPREME COURT SHOULD NOT GRANT

CERTIORARI TO CONSIDER A SUBSTANTIVE DUE

PROCESS ARGUMENT NOT RAISED IN THE COURT

Oi APPEALS.

Georgia Power raises for the first time the argument

that the deprivation of Respondents’ property interest does not

rise to the level of a constitutional violation. Georgia Power

did not raise this argument before the Eleventh Circuit, and

this argument should not serve as a basis for granting

certiorari. See O’Bannon v. Town Court Nursing Ctr., 447 U.S.

773, 783 n.14 (1980) ("[W]e would not normally allow a

party to make an argument it had not raised below . . . .").

Georgia Power bases its substantive due process

argument on a First Circuit decision, PFZ Properties, Inc. v.

Rodriguez, 928 F.2d 28 (1st Cir. 1991), cert. dismissed, 112

S. Ct. 1151 (1992). In the PFZ case, a real estate developer

was denied a construction permit by a state agency in Puerto

Rico. The developer brought a section 1983 action, alleging

that the agency’s continued refusal to grant its permit deprived

the developer of its procedural and substantive due process

rights. Under First Circuit precedent, rejections of development

EE aa———————ee

17

permits did not implicate substantive due process law. Georgia

and Eleventh Circuit decisions, however, have not reached the

same conclusion as to a property interest in award of a

contract. See Hilton Constr. Co. v. Rockdale County Bd. of

Educ., 245 Ga. 533, 266 S.E.2d 157 (1980); Metric

Constructors, Inc. v. Gwinnett County, 729 F. Supp. 101 (N.D.

Ga. 1990).

Moreover, the First Circuit does not reference any

mandatory guidelines which required the permit to be granted.

The case appears to be a typical permit situation, with no

requirement that the agency “shall issue" a permit to the

applicant. In contrast, the DOC Officials were required by

Georgia statutes and regulations to award the electric utility

contracts to the lowest responsible bidders. Thus, the PFZ

decision is not applicable to the issues in this case.

VI. THE ELEVENTH CIRCUIT PROPERLY DENIED THE

DOC OFFICIALS’ CLAIM OF QUALIFIED IMMUNITY.

The DOC Officials ask this Court to grant certiorari to

review the Eleventh Circuit’s refusal to dismiss, on grounds of

qualified immunity, the damages claims against the DOC

Officials in their individual capacities.Y The Eleventh Circuit’s

8/ The qualified immunity defense only protects a defendant from

damages claims against the defendant in his individual capacity. Harlow

v. Fitzgerald, 457 U.S. 800, 819 n.34 (1982). Thus, qualified immunity

is not a defense to the Respondents’ claims for injunctive relief against

(continued...)

18

analysis of the application of qualified immunity complies with

federal precedent. The Eleventh Circuit evaluated the actions

of the DOC Officials under a reasonable person standard.

"[G]overnment officials . . . generally are shielded [by the

doctrine of qualified immunity] 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." Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982).” See also Anderson v. Creighton, 483 U.S. 635, 639

(1987) (defense of qualified immunity turns on objective legal

reasonableness of action).

The Eleventh Circuit found that the State of Georgia’s

competitive bidding statutes and regulations clearly mandate

that procurers such as the DOC Officials must award contracts

to lowest responsible bidders whenever possible. (App. at

12a). The DOC Officials obtained competitive bids from

Respondents and Georgia Power, but the DOC Officials refused

to award the contracts to Respondents, the lowest responsible

8/(...continued)

the DOC Officials. The DOC Officials in their Petition for Writ of

Certioran fail to acknowledge this distinction.

9/ The DOC Officials incorrectly contend that the law is not clearly

established for qualified immunity purposes unless previously decided by

the Supreme Court or the Eleventh Circuit. See Mitchell v. Forsyth, 472

U.S. 511, 528 (1985) (For a qualified immunity defense to apply it must

be shown that "the legal norms allegedly violated by the defendant were

clearly established at the time of the challenged actions or . . . the law

clearly proscribed the actions the defendant . . . took.").

19

bidders. Since 1980, the Georgia Supreme Court has

recognized that a lowest responsible bidder has a

constitutionally protected property interest in award of a

contract under Georgia competitive bidding statutes and

regulations. (App. at 12a). See Hilton Constr. Co. v. Rockdale

County Bd. of Educ., 245 Ga. 533, 266 S.E.2d 157 (1980).

The Eleventh Circuit concluded that the DOC Officials, by

ignoring statutory and regulatory competitive bidding

directives, knew or should have known that they deprived the

Respondents, as lowest responsible bidders, of a property

interest.

This case does not merit certiorari simply to have the

United States Supreme Court substitute its analysis of the

defense of qualified immunity under the facts of this case for

that of the Eleventh Circuit. Further, analysis of the defense

is not of such national importance to warrant review by the

Supreme Court.

The DOC Officials misconstrue the holding in Malley v.

Briggs, 475 U.S. 335, 346 n.9 (1986). In that case, the

Supreme Court noted that a magistrate is more qualified than

a police officer in making a probable cause determination for

issuing a warrant. Id. If the magistrate issues a warrant,

when no officer of reasonable competence would issue the

warrant, the magistrate’s action is "an unacceptable error

indicating gross incompetence or neglect of duty." Id.

20

Nevertheless, a police officer must exercise his own reasonable

professional judgment when seeking the warrant. An officer

cannot rely on the greater incompetence of the magistrate to

excuse his own conduct. Thus, the defense of qualified

immunity applies only if the officer’s own actions do not satisfy

a standard of objective reasonableness.

This holding does not translate into a general rule that

a state official is protected by qualified immunity for his illegal

actions if a judge or magistrate makes an erroneous ruling.

The acticas of the DOC officials alone must be judged against

the standard of objective reasonableness. The Eleventh

Circuit's evaluation of the DOC Officials’ actions do not

warrant a writ of certiorari.

CONCLUSION

For the foregoing reasons, Respondents respectfully

request that this Court deny Georgia Powers and the DOC

Defendants’ Petitions for Writ of Certiorari to the United States

Court of Appeals for the Eleventh Circuit.

Respectfully submitted,

James A. Orr

Counsel of Record

Kathy R. Bess

PAUL, HASTINGS, JANOFSKY

& WALKER

Forty-Second Floor

21

133 Peachtree Street, NE

Atlanta, Georgia 30303

404/588-9900

Counsel for Respondents

James E. Friese

201 Blakely Street

Cuthbert, Georgia 31740

Counsel for Respondent Pataula Electric

Membership Corporation