Opposition Brief — Konarski v. City of Tucson (No. 08-1118)

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\ 2) No:.08:1118 APR 6- 2009.

OFFICE OF THE CLERK

SUPREME COURT, U.S.

In The

Supreme Court of the Gnited States

FRANK KONARSKI, et al.,

Petitioners,

vs.

CITY OF TUCSON, ARIZONA, et al.,

Respondents.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

BRIEF IN OPPOSITION

MICHAEL G. RANKIN

City Attorney

MARTHA M. DURKIN*™

Chief Deputy City Attorney

OFFICE OF THE TUCSON

CiTy ATTORNEY

255 W. Alameda

Tucson, AZ 85701

Telephone: (520) 791-4211

Attorneys for Respondents

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO (S00) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

PEs SOP PART ETRE FICO ner ceisccsccccvesconscscessonnnes il

Ts ceil adevacaeceardinnnnasvcsnvinesscaceorssee 1

COUNTERSTATEMENT OF THE CASES............ 4

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PR EAI ..ncccccnrscscccscsccsccovenssesss 10

REASONS FOR DENYING THE WRIT ............... 13

I. THERE IS NO CONFLICT WITH COURTS

Soe age iw Ee bl yy. 14

yee ye Ce eS 14

B. WHISTLEBLOWER CASE.................... 15

Il. RES JUDICATA WAS PROPERLY APPLIED

Be Me ST Oia ines hak ccndecaedisenneyneysncancasess 17

III oo cal gece iccepda nada veda binarcuncheieivnvcnes 18

APPENDIX

1. Dismissal Order of United States District

Court, District of Arizona, CV 01-503............ App. l

2. Judgment in Civil Case CV 01-5038.............. App. 22

Be ee WEED benvicnsccncaevespncsasanecatacauannina App. 23

4. Code of Federal Regulations:

eI II ihc cniiscksendneandcesdcnsescecesancouinaess App. 24

EN os Cincy xpasdeSidansaresierecveteaneien App. 24

Be I vi isc be cvs dene sctacsvcnennssenensedes App. 25

24 C.F.R. § 24.600.......... Pete pine anaduiear eke App. 25

REN I occas Sincincnonsecadsnpcnvasivdcnccts App. 27

TABLE OF AUTHORITIES

Page

CASES

Allen v. McCurry, 449 U.S. 90 (1980) ....2...... ee 7

Buckeye Terminix Company v. United States

Department of Housing and Urban Develop-

ment, 900 F.2d 259, 1990 WL 47472 (6th Cir.

1990) ... .:naineuessdnh eee aM EEE Sacekenecssnvscecesosse 14

Constantini v. Trans World Airlines, 681 F.2d

1199 (Otis (pe ee, ................. 17

DeRoche v. United States, 2 Cl.Ct. 809 (1983)............. 5

Eubanks v. United States, 25 Cl.Ct. 131 (1992) .......... 5

Hazel-Atlas Glass Co. v. Hartford-Empire Co.,

322 U.S. 238, 64 S. Ct. 997 (1944)................ 3, 16, 16

Headwaters Inc. v. U.S. Forest Serv., 399 F.3d

LOGT CORR Ca i vvesn ps nceses..0..... yj

Hells Canyon Preservation Council v. United

States Forest Service, 403 F.3d 683 (9th Cir.

ZOD) ..<canesueeeee I iiahceceanscnssas+ccese. 17

In re Schimmels, 127 F.3d 875 (9th Cir. 1997).......... 13

Kunkler v. Fort Lauderdale Housing Authority,

FG4 FB Fer ee cans paneseses.ecce0. 14

Peoria Area Landlord Association v. City of

Peoria, Illinois, 168 F. Supp. cy2d 917 (C.D.

VM} ee 8

Rice v. Sioux City Memorial Park Cemetery,

S49 U.S. TO, Fo ee Gre. eee ornare esececssecec ss cccees

ill

TABLE OF AUTHORITIES — Continued

Page

Robi v. Five Platters, Inc., 838 F.2d 318 (9th

Ee) Sane eRe SN AUR eerste ol Ses helae healt ees 17

Rogers v. United States of America, Operating

Through the United States Department of

Housing and Urban Development, 58 Fed. Appx.

595, 2003 WL 261771 (5th Cir. 2003)..................8. 14

Roth v. City of Syracuse, 96 F. Supp. 2d 171

(N.D.N.Y. 2000), affirmed, 4 Fed. Appx. 86,

2001 WL, 178088 (2 Civ. BOO) ..ccscsccesccssecceshccvesees 6

Rucker v. Davis, 203 F.3d 627 (9th Cir. 2000) ............. 4

Sunshine Anthracite Coal Co. v. Adkins, 310

er ek ee Rida vs ncivresi ieiainlavei¥eccaleceonaa pe akees 12, 13

Williams v. Hanover Housing Authority, 871

Be I. Te CED ob isicctnssecacavenssnvancsopiceveosrduosersveners 5

CONSTITUTION

Se he | Pt eRaRN RE TOLER MEER Tne: 6, 7,8

Mit SE, COIL: RAY vss sckncesccicscnceceseinsiues 6,7,8

STATUTES

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er IN atts ps eases a een elnssass aes 10

OF Rte fe BROCE vicitiecasiccn naan 4

TABLE OF AUTHORITIES — Continued

Page

IES hirrvececccndeds tees estslerrccdnixcaereens 4

Arizona Revised Statutes § 36-1404 ......0.00.0 ee. 5

RULES

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Se a cere cugsgis secilcsnsatomspesiedexsselsspsaceasenieccmmaeaal: 1

REGULATIONS

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es ics sicsnnvnsnnncusantichosipunstecenenieweess 7

a io caionaicnass pnnenndwbuiadeowabneneie’ 6

OTHER AUTHORITIES

64 Fed. Reg. 56,901 (Oct. 21, 1999) .................sesccsseeeee 6

INTRODUCTION

There is no “right of review” on a writ of certio-

rari and Petitioners present no “compelling reasons”

for this Court to exercise its discretion and grant

review. Sup. Ct. R. 10. Their Petiticn encompasses

two suits dismissed in district court, combined by the

Ninth Circuit Court of Appeals, both involving the

same parties and arising out of the same issues.’ The

Petitioners misstate and misapply federal regula-

tions, statues, court orders and case law trying to

create “a matter of exceptional importance.” Pet. at 6.

Petitioners accuse the Ninth Circuit Court of

Appeals of “defying” the Code of Federal Regulations

and rendering a decision “that is inconsistent with

the jurisprudence of this Court and courts of other

circuits.” Pet. at 6-7. Petitioners are wrong. The

Ninth Circuit followed well-established case law in its

application of the doctrine of res judicata. Pet. App.

la-19a.

The Petitioners first question, their flawed

application of the Code of Federal Regulations

(C.F.R.), seriously misleads this Court. They insist

that the Respondent City of Tucson (“City”) has

suspended application of the C.F.R.s and is operating

in violation of the debarment provisions of the C.F.R.s

as pertain to the Section 8 program. They are wrong.

Pet. at 8.

’ Cases 06-17139 and 07-16062 were consolidated for oral

argument by the Ninth Circuit Court of Appeals.

Petitioners, by intentionally ignoring the plain

language of the relevant sections of the C.F.R.s delib-

erately misinform this Court. They cite to sections

found in 24 C.F.R. part 24’ that set forth the process

used by the Department of Housing and Urban

Development (“HUD”), as a federal agency, to

initiate a debarment or suspension. The same C.F.R.s

also establish that debarment is a discretionary

action. App. at 24. The debarment regulations found

at 24 C.F.R. part 24 are inapplicable to the City. The

district court agreed observing that Petitioners failed

“to present any authority to support their contentions

and interpretation of the statutory and regulatory

language relied upon.” Pet. App. 10a. Only HUD

could initiate a debarment action against Petitioners

and, if there were a violation, it could have or should

have been raised in the original 2001 lawsuit.

Petitioners’ efforts to resurrect an alleged due

process violation are barred by res judicata. Two

District Court judges agreed, as did the Ninth Circuit

holding, “(W]e agree with the district court that the

two suits are barred by res judicata, and affirm.” Pet.

App. 2a.

* In March 2007, HUD published a proposed rule (72 FR

14,015) (March 23, 2007) that would redesignate 24 C.F.R. part

24 to 2 C.FR. part 2424. The final change was made at the final

stage of the March 23, 2007 rule making. See 72 FR 61,270 (Oct.

29, 2007). The designations in the Petition were those in effect

at the time of the 2005 lawsuit.

The second question, that “an extraordinarily

methodical and systematic clandestine public corrup-

tion scheme ... should be considered as part of what

is today’s ‘certain instances’ that are deemed suffi-

ciently gross to demand a departure from rigid ad-

herence to the doctrine of res judicata ...” is simply

not worthy of review. Pet. at 11-12. Here the Petition-

ers literally seek to commit fraud on this Court by

inserting words into the quote they attribute to

Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322

U.S. 238, 244 (1944) that nowhere exist in the origi-

nal.* Pet. at 13, 16, 25. This Court should not counte-

nance such dishonest conduct from Petitioners.

Petitioners do not dispute that the Ninth Circuit

correctly found that the requirements of res judicata

were met. There is no dispute that the doctrine of res

judicata bars claims from being re-litigated. Petition-

ers’ sole argument about why this Court should

accept jurisdiction in the “Whistleblower” case is as

follows: the particular facts of this case required the

Ninth Circuit to conclude that some equitable excep-

tion to the doctrine of res judicata in the Hazel-Atlas

Glass case applied to allow Petitioners to present

* The exact quote from Hazel-Atlas Glass reads “This equity

rule, which was firmly established in English practice long

before the foundation of our Republic, the courts have develoy<d

and fashioned to fulfill a universally recognized need for correct-

ing injustices which, in certain instances, are deemed suffi-

ciently gross to demand a departure from mngid adherence to the

term rule.” Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322

U.S. 238, 244, 64S. Ct. 997, 1000 (1944).

their whistleblower claim to a jury. Petitioners are

wrong.

The Ninth Circuit’s August 18, 2008, Opinion

was unanimous; it was not in conflict with other

Courts of Appeal or with any decision of this Court.

The Petition for Writ of Certiorari should be denied.

COUNTERSTATEMENT OF THE CASES

Facts

1. Pursuant to the United States Housing Act of

1937 as amended (“Housing Act”), Congress estab-

lished the Section 8 housing program to provide safe,

decent, affordable housing for low-income families. 42

U.S.C.A. § 1437f." The Housing Act also vests the

“maximum amount of responsibility and flexibility in

program administration” in the local public housing

authorities rather than in the federal government.

Rucker v. Davis, 203 F.3d 627, 631 (9th Cir. 2000); 42

U.S.C.A. § 1437. App. at 23. Congress recognized

the importance of local decision-making in housing

and allowed local PHAs a great deal of power and

* Section 42 U.S.C.A. § 1437f(b\1) authorizes the Secretary

of HUD to enter into annual contributions contracts (ACC) with

local PHAs, whereby the PHA may enter into contracts to make

housing assistance payments (HAP contracts) to owners for

Section 8 housing. Prior to the City decision to no longer enter

into new contracts with the Petitioners, they were recipients of

housing assistance payments as owners of rental properties.

responsibility. Williams v. Hanover Housing Author-

ity, 871 F. Supp. 527, 530 (1994).

The City serves as the local Public Housing

Authority (“PHA”) in the administration of federally

funded and subsidized Section 8 housing. The PHA

was created in accordance with the provisions of the

United States Housing Act and Arizona Revised

Statutes § 36-1404. App. at 27. The PHA is an entity

of the city and is neither a federal agency nor an

agent of HUD. It is well settled that a local authority

does not become an agent of the federal government

due to a federal agency’s control and supervision of

funds. DeRoche v. United States, 2 Cl.Ct. 809, 812

(1983). HUD’s statutory and regulatory control over

the use of funds provided to the City PHA does not

convert the PHA into an agent of the United States as

the courts have recognized that “it is both appropriate

and necessary in disbursing federal grant funds that

the federal government establish standards and

requirements for projects....” Eubanks v. United

States, 25 Cl.Ct. 131, 138 (1992), citing DeRoche v.

United States, 2 Cl.Ct. 809, 812 (1983).

The PHA (City) decision in March 2001 to no

longer conduct business with Petitioners is neither a

suspension nor a debarment, as both of these actions,

if implemented, are initiated by federal officials, not

PHAs. App. at 24-25. The City’s action did not violate

Petitioners’ rights or defy the C.F.R.s, rather it fell

within the discretion contemplated by the United

States Housing Act of 1937.”

2. Petitioners filed suit May 8, 2001, alleging

deprivation of their Fifth and Fourteenth Amendment

due process rights as a result of the City action.

Petitioners, claiming a right to participate as owners

in the Section 8 housing program, alleged that the

City deprived them of this right without due process.

The district court dismissed the case on August 21,

2002, expressly finding that “[P]laintiffs have no

property interest or right in the Section 8 housing

program and Defendants’ decision to no longer renew

contracts with Plaintiffs did not rise to the level of a

constitutional deprivation.” App. at 20-21. The dis-

trict court dismissal was based in part on relevant

provisions of the C.F.R.s and case law.’ The Ninth

* The district court cited to the problems and complaints

generated against Petitioners by tenants and PHA staff in its

decision. App. at 2-6.

“ “The Code of Federal Regulations regarding Section 8

housing expressly and uncquivocally states, ‘Nothing tn this rule

is intended to give any owner any right to participate in the

program.” 24 C.F.R. §982.4(b); HUD’s response to public

comment which suggested am appeal process for owners prohib-

ited from participating in Section 8 was as follows: “Owners have

no statutory or regulatory right to participate in the housing

choice voucher program, and consequently have no due process

right to a hearing on a PHA’s decision to disapprove owner

participation.” 64 Fed. Reg. 56,901 (Oct. 21, 1999); Roth v. City

of Syracuse, 96 F. Supp. 2d 171 (N.D.N.Y. 2000), affirmed, 4 Fed.

Appx. 86, 2001 WL 178033 (2nd Cir. 2001), and, Peoria Area

Landlord Association v. City of Peoria, Illinois, 168 F.Supp.2d

917 (C.D. Ill. 2001) both held that owner/landlords had no

(Continued on following page)

Circuit, 67 Fed. Appx. 458 (9th Cir. 2003) affirmed

the district court.

The instant case (06-17139) and misapplication

of the debarment sections of the Code of Federal

Regulations is simply Petitioners’ latest effort to get

around the 2002 decision. Pet. at 3-11. Petitioners are

trying to enforce rights that do not exist based on an

incorrect reading of 24 C.F.R. §§ 600 e¢ seq.

3. Petitioners’ “Whistleblower” case (07-16062)

requires a charitable reading to even begin under-

standing what is claimed. In April 2006 Petitioners

filed a complaint alleging a Racketeering claim, a

Sherman Antitrust claim, a 42 U.S.C. § 1985 claim

for conspiracy, and a 42 U.S.C. § 1983 claim under

the Commerce Clause, the Fifth and Fourteenth

Amendments.

The district court held, contrary to Petitioners’

position, that the multiple claims and issues raised

were barred by the doctrine of res judicata, that there

was privity between the parties and that they were

precluded “from relitigating issues that were, or that

could have been raised in a previous action where a

final judgment on the merits was reached.” Allen v.

McCurry, 449 U.S. 90, 94 (1980). Pet. App. 16a-18a.

The court looked specifically at cases 01-503 (the

2002 decision) and 04-260 (06-17139 in the instant

property interest right to participate in the Section 8 program

All these authorities were found to be persuasive by the District

Court Judge. (emphasis added by court) App. at 13-18

action). Describing the parties, the court stated, “(I]t

is clear to the Court that the current Defendants, as

employees of the City of Tucson, or its subdivisions

related to the section 8 program, are clearly identified

with the interests of the defendants named in both

civil cases 01-503 and 04-260.” Pet. App. 17a.

4. Calling this a “Whistleblower” case is mis-

leading. There are no “whistleblowers,” these are

simply Petitioners’ conspiracy theories given a new

name. Petitioners fail to advise this Court that they

obtained the statements attributed to these individu-

als’ six months prior to their filing an Amended

* Petitioners have filed multiple claims against the City,

naming many of the same employees and department heads, the

statements in the large quote at Pet. 17-23 have been used

multiple times in these claims. Briefly, Petitioners have alleged

conspiracy, harassment, retaliatory actions, ulterior motive, etc.

against the City and its employees in district court since 1998:

case 98-528, allegations (arising out of Frank Konarski's 6-18-97

arrest) were excessive force, harassment, assault, battery,

negligence and 42 U.S.C. § 1983, case dismissed for Petitioners’

failure to comply with court orders and failure to prosecute; case

99-582, sued same Defendants as above, allegations arising out

of 6-18-97 arrest included malicious prosecution, false arrest,

false imprisonment, and 42 U.S.C. § 1983, case dismissed on

statute of limitations, res judicata and failure to comply with

court orders; case 01-503 Petitioners (five family members)

alleged City violated their Fifth and Fourteenth Amendment

rights by no longer entering into Section 8 HAP contracts,

asserting retaliation, humiliation, and conspiracy between HUD

inspectors and City, one of the allegations “there is an ongoing

conspiracy to force the Plaintiffs (sic) into submission of his civil

rights,” and “overwhelming evidence of [City's] obvious wrongful

termination of business, conspiracy, corruption, discrimination,

(Continued on following page)

Complaint in a prior case against the City. Thus there

is no genuine dispute that these claims could have

and should have been brought in the prior case.

Because these claims were brought in the earlier

case, res judicata bars them from being raised in the

case at hand.

More significant to the instant case, Petitioners

never made their “equitable exception to res judicata

in the Hazel-Atlas Glass case” argument to the Ninth

Circuit. As such, that argument has been waived.

Petitioners mislead this Court when they state: “{A]s

part of seeking relief from the dismissal order, as an

alternative to their appellate arguments, Petitioners

still sought the Court of Appeals to depart from the

rigid adherence to the doctrine of res judicata, ... ”

Pet. at 14. The language at page 14 of the Petition

does not support Petitioners’ assertion that they

raised the “issue” to the Ninth Circuit. The language

cited by Petitioners concerns the “privity” prong of res

judicata, which is not at issue in this Petition. Peti-

tioners’ argument to the Ninth Circuit was that there

was no privity between the parties and as such the

doctrine of res judicata did not apply. This attempt at

an “argument in the alternative” cannot properly

constitute the basis for acceptance of this Petition.

prejudice, etc.” case dismissed (see footnote 6 above); case 04-260

(“Section 8”) and 06-177 (“Whistleblower”) barred by res judi-

cata, cases dismissed by Ninth Circuit August 16, 2008.

Proceedings Below

Petitioners filed a pro se Complaint against the

City on May 17, 2004 in the United States District

Court for the District of Arizona alleging violations

under 42 U.S.C. §§ 1982 and 1988. On September 26,

2005, the district court granted the Defendants’

(City’s) Motion to Dismiss pursuant to Fed. R. Civ. P.

12(b\(6) for failure to state a claim upon which relief

can be granted. Pet. App. 5a-6a.

The dismissal was without prejudice and Peti-

tioners were granted leave to file an amended com-

plaint. In the dismissal the court noted that the

claims may be barred by res judicata. Petitioners,

through their attorney, filed an Amended Compliant

on October 26, 2005 (district court case 04-260/Court

of Appeals 06-17139). On September 29, 2006, the

district court granted Fed. R. Civ. P. 12(b)(6). Motions

to Dismiss were filed by HUD and the City. The court

found that “(T]he arguments for dismissal are well

supported with authority presented.” Pet. App. 13a.

The court also observed “[Petitioners] oppose the

Defendants’ motions to dismiss, but do not dispute

the legal standards or authority relied upon by the

Defendants.” Pet. App. 13a. The court went on,

(U]pon review and consideration of the mat-

ters presented, the Court finds that the

causes of action raised in the case at bar are

precluded by res judicata.* See Lanphere En-

terprises, Inc. v. Koorknob Enterprises, 145

Fed. Appx. 589, 590-592 (9th Cir. 2005);

Providence Health Plan v. McDowell, 385

F.3d 1168, 1173 (9th Cir. 2004); Littlejohn v.

United States, 321 F.3d 915, 919 (9th Cir.

2003).

Pet. App. 13a.

Case 06-177 was filed on April 7, 2006 in the

United States District Court for the District of An-

zona. The Defendants (City) filed their Motion to

Dismiss and Plaintiffs (Petitioners) admitted in their

Response “that some of their causes of action are not

appropriate” joining with the City in asking that they

be dismissed. Pet. App. 15a-16a. Petitioners admitted

that “the Sherman Antitrust Act claim is invalid,

their Commerce Clause claim is without factual

support and agree that there is insufficient evidence

to support the 42 U.S.C. § 1985 claim.” Pet. App. 16a.

The Court determined the Racketeering claim was

legally invalid as pled. Pet. App. 16a.

“(Fljollowing a careful review of the Defendants’

Motion to Dismiss, the Plaintiff’s Response and the

Defendant’s Reply, the Court will grant the Motion to

" Petitioners specifically excluded HUD and Secretary of

HUD Alfonso Jackson from their appeal to the Ninth Circuit in

case 06-17139. IIUD filed a Motion for Summary Affirmance,

dated January 10, 2007 which was granted by the Ninth Circuit

on April 6, 2007. The Order indicated HUD was no longer a

party to the appeal.

Dismiss and deny the Plaintiff’s Motion for Leave to

File an Amended Complaint.” Pet. App. 15a.

The court noted that in case 01-503 the defen-

dants were City officials and employees and the

Inspector General of the U.S. Department of Housing

and Urban Development. Pet. App. 17a. The court

also noted that in 04-260 the defendants included the

City of Tucson, City officials and employees and the

U.S. Department of Housing and Urban Develop-

ment. Pet. App. 17a. Then the court identified the

defendants in the pending case, noting that they

included two Tucson City Attorneys, five employees of

the City of Tucson Department of Neighborhood

Resources, an employee of the City of Tucson Com-

munity Services Department, an employee of the City

of Tucson Section 8 Housing Program, the City of

Tucson Office of the City Attorney, the Department of

Neighborhood Resources and the City of Tucson. Pet.

App. 17a-18a.

Relying in part on Sunshine Anthracite Coal Co.

uv. Adkins, 310 U.S. 381, 402-403 (1940), the court

found that “there is privity between officers of the

same government so that a judgment in a suit be-

tween a party and a representative of the United

States is res judicata in relitigation of the same issue

between that party and another officer of the gov-

ernment.” The City asserted and the court agreed

that the issues raised by Petitioners were barred by

res judicata based on the August 21, 2002 order in

civil case 01-503 granting summary judgment in

favor of the City in an action brought by the same

Plaintiffs (Petitioners) now before the Court. Pet.

App. 16a. The court denied Petitioners’ Request for

Leave to File an Amended Complaint “because their

claims are barred by the doctrine of res judicata.” Pet.

App. 17a.

On August 18, 2008, the Ninth Circuit affirmed

the district courts’ dismissal of the cases stating “|WlJe

agree with the district court that the two suits were

barred by res judicata, and affirm.” Pet. App. 2a. The

court rejected Petitioners’ arguments that res judi-

cata did not apply, stating.

(There is privity in these cases because each

current defendant is a government or govern-

ment employee who is ‘so identified in interest

with a party to former litigation that he repre-

sents precisely the same right in respect to the

subject matter involved.’ In re Schimmels, 127

F.3d 875, 881 (9th Cir. 1997); see also Sunshine

Anthracite Coal Co. v. Adkins, 310 U.S. 381,

402-03 (1940) (holding that there is privity

between officers of the same government).

Pet. App. 4a.

REASONS FOR DENYING THE WRIT

The court of appeals correctly applied the long-

standing principles firmly established by this Court

for addressing the doctrine of res judicata. There is no

conflict with this Court’s precedents or the decisions

of other circuits.

I. There is no conflict with courts of other

circuits

Nothing in the Petition supports the statement

that the Ninth Circuit’s decision “is inconsistent with

the jurisprudence of this Court and courts of other

circuits.” Pet. at 6-7.

A. Section 8 case

Neither the Sixth Circuit decision in Buckeye

Terminix Company v. United States Department of

Housing and Urban Development, 900 F.2d 259, 1990

WL 47472 (6th Cir. 1990) nor the Fifth Circuit deci-

sion in Rogers v. United States of America, Operating

Through the United States Department of Housing

and Urban Development, 58 Fed. Appx. 595, 2003 WL

261771 (5th Cir. 2003)” are in conflict with the Ninth

Circuit. Neither of the decisions support Petitioners’

claim; they are complaints brought against HUD and

the United States challenging debarment proceedings

initiated by HUD.

Petitioners’ arguments also ignore the primary

purpose of HUD-funded housing programs; the in-

tended beneficiaries of the programs are low-income

tenants, not the landlords who may derive a financial

benefit from the program. Kunkler v. Fort Lauderdale

* In the Fifth Circuit, “(uJnpublished opinions issued on or

atter January 1, 1996 are not precedent except under the doctrine

of res judicata, collateral estoppel, or law of the case (or similarly

to show double jeopardy, notice, sanctionable conduct, entitlement

to attorney’s fees, or the like).” An unpublished opinion may be

cited pursuant to Fed. R. App. P. 32.1(a). (5th Cir. R. 47.5.4).

Housing Authority, 764 F.Supp. 171, 175 (1991).

Petitioners’ complaint and misapplication of the Code

of Federal Regulations does not create a “right” that

has been violated. There is nothing that is presented

in their Petition that “is of importance to the public,

as distinguished from that of the parties ... ” Rice v.

Sioux City Memorial Park Cemetery, 349 U.S. 70, 75

S. Ct. 614, 620 (1955), citing Layne & Bowler Corp. v.

Western Well Works, Inc., 261 U.S. 387, 393, 43 S. Ct.

422, 423, 67 L.Ed. 712.

There is no “injustice” in the Ninth Circuit deci-

sion. The City PHA has neither the ability nor the

obligation to commence debarment proceedings.

Petitioners have cited no cases that so hold, let alone

any that create a conflict with the Ninth Circuit.

B. Whistleblower case

The 65-year-old Hazel-Atlas Glass case has been

overturned and is no longer good law. Even if Hazel-

Atlas Glass were good law, it does not appiy here.

Hazel-Atlas Glass involves the question of a party’s

ability to obtain equitable relief from a judgment that

is fraudulently obtained against that party. Hazel-

Atlas Glass held that the court could set aside a

judgment it entered in a patent case where there was

subsequent evidence presented that the judgment

was obtained through fraudulent means and that the

set aside could occur even after the term of the court

expired.”

The setting aside of a judgment, post term, has

nothing to do with res judicata or this case. In fact,

Petitioners outrageously try to mislead this Court by

unilaterally inserting the term “res judicata” into the

quote they attribute to Hazel-Atlas Glass as support

for their position that it was not proper for the Dis-

trict Court to dismiss their “Whistleblower” case or

for the Ninth Circuit to affirm that dismissal. Pet. at

13, 16, 25. Petitioners did not allege, and there is no

evidence of, any fraud by the City in obtaining prior

judgments against Petitioners. The City is not aware

of and the Petitioners do not cite any cases where,

like this case, all of the elements of res judicata are

met but a judge simply decided not to apply the

doctrine because s/he felt such application would be

inequitable or unjust.

There are no inconsistent circuit decisions on this

point as claimed by Petitioners. Pet. at 16. There are

no cases that hold there is an equitable exception to

res judicata even where all the elements of the doc-

trine are satisfied.

'* “Federal courts, both trial and appellate, long ago estab-

lished the general rule that they would not alter or set aside

their judgments after expiration of the term at which the

judgments were finally entered.” Hazel-Atlas Glass Co. v.

Hartford-Empire Co., 322 U.S. 238, 244 (1944), citing Bronson v.

Schuiten, 104 U.S. 410, 26 L-Ed. 797.

II. Res Judicata was properly applied by the

courts

These issues have been fully and fairly litigated.

“(T]he doctrine of res judicata provides that a ‘final

judgment on the merits bars further claims by parties

or their privies based on the same cause of action,

and is central to the purpose for which civil courts

have been established, the conclusive resolution of

disputes within their jurisdiction.’” Hells Canyon

Preservation Council v. United States Forest Service,

403 F.3d 683, 686 (9th Cir. 2005), citing Headwaters

Inc. v. U.S. Forest Serv., 399 F.3d 1047, 1051-52 (9th

Cir. 2005). Res judicata or claim preclusion treats a

judgment, once rendered, as the full measure of relief

to be accorded between the same parties on the same

cause of action. Robi v. Five Platters, Inc., 838 F.2d

318, 321 (9th Cir. 1988).

Petitioners’ argument that the C.F.R. “violation”

could not have been brought in the 2001 case not only

ignores the inapplicability of those regulations to the

City, but also incorrectly states that “the law would

not permit the doctrine of res judicata to apply to this

situation.” Pet. at 9. This posture disregards the facts;

they litigated their Section 8 case and lost. A new or

change of legal theory and new factual allegations do

not create a new cause of action. Constantini v. Trans

World Airlines, 681 F.2d 1199, 1201 (9th Cir. 1982).

The district courts and the Ninth Circuit Court of

Appeals, looking to the August 21, 2002 decision

dismissing the original Section 8 case correctly ap-

plied the doctrine of res judicata. App. 1-22. Pet. App.

la-21la.

CONCLUSION

There are no “diverging legal holdings” among

the circuits. There is no “matter of exceptional impor-

tance” warranting this Court’s exercise of jurisdiction.

For the foregoing reasons, the petition for writ of

certiorari should be denied.

Respectfully submitted,

MICHAEL G. RANKIN

City Attorney

MARTHA M. DuRKIN*

Chief Deputy City Attorney

OFFICE OF THE TUCSON

CiTy ATTORNEY

255 W. Alameda

Tucson, AZ 85701

Telephone: (520) 791-4211

Attorneys for Respondents

*Counsel of Record

App. 1

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

Frank Konarski, et al.,

Plaintiffs, CV 01-503 TUC DCB

)

v. | ) ORDER

Susan Gaffney, et al., (Filed Aug. 21, 2002)

Defendants. )

Pending before this Court is Defendants Valfre

and Keene’s (“Defendants”) Motion for Summary

Judgment. Defendants seek summary judgment on

Plaintiffs’ constitutional claims under the Fifth and

Fourteenth Amendments, as well as Title VII of the

Civil Rights Act of 1964. 42 U.S.C. § 2000, et seq. For

the reasons set forth below, Defendants’ Motion for

Summary Judgment is granted. Plaintiffs have no

protected interests under either the Fifth or Four-

teenth Amendment. In addition, Plaintiffs suffered no

adverse employment decision required for Title VII's

protections. Even if Plaintiffs did suffer such a depri-

vation, this Court lacks subject matter jurisdiction

over Plaintiffs’ Title V1l claim inasmuch as Plaintiffs

never filed the requisite administrative claim with

the Equal Employment Opportunity Commission

(“EEOC”).'

' Neither party filed the required scparate notice of hear-

ing. Local Rule 1.10(f), District of Arizona. Therefore, pursuant

(Continued on following page)

App. 2

INTRODUCTION

Plaintiffs are landlords who operate under the

business name FGPJ Apartments. Defendants are

employees of the City of Tucson, responsible for

managing federally funded housing programs, includ-

ing low-income “Section 8” housing, pursuant to the

United States Housing Act of 1937, 42 U.S.C. § 14387f.

Plaintiffs rented apartments to Section 8 clients of

Defendants. Plaintiffs rented their apartments exclu-

sively to Section 8 clients and apparently never

sought to rent to the private sector.

In 1993, a Section 8 resident of Plaintiffs’ apart-

ments filed a complaint against Plaintiff Frank

Konarski with the Office of Fair Housing and Equal

Opportunity of the United States Department of

Housing and Urban Development. In that complaint,

the Section 8 resident alleged that Plaintiff Frank

Konarski threatened her, entered her apartment

without authorization, and verbally abused her based

upon her Hispanic descent. On November 30, 1994,

the Civil Rights Section of the Arizona Attorney

General’s office issued its Findings of Fact and Con-

clusions of Law. In those Findings and Conclusions,

the Arizona Attorney General’s office determined that

Plaintiff Frank Konarski “did, in fact, engage in

unwelcome and unsolicited verbal conduct of an

ethnic nature which was _ sufficiently severe and

to Rule 1.10(f) of the Local Rules for the District of Arizona, this

Court shall decide the matter based upon the pleadings alone

App. 3

pervasive as to create a hostile, intimidating and

offensive living environment for Complainant and

other Hispanic tenants.” (Exhibit A, Attachment 1,

Defendants’ Statement of Facts.) The Arizona Attor-

ney General’s office further determined that,

“Cajlthough [Plaintiff Frank Konarski] denies making

the comments attributed to him, the overwhelming

evidence establishes that his denials are not credible

and that he did, in fact, made (sic) the comments

alleged.” (/d.)

In January of 2000, another Section 8 resident of

Plaintiffs’ apartments filed a complaint against

Plaintiff Frank Konarski with the Office of Fair

Housing and Equal Opportunity. Like the previous

complaint, the complaining Section 8 resident alleged

that Plaintiff Frank Konarski subjected her to ra-

cially motivated verbal abuse. Like the previous

complaining resident, this Section 8 resident was

Hispanic.

In January of 2001, the Southern Arizona Hous-

ing Center (“SAHC”) investigated Plaintiff Frank

Konarski for violations of the Fair Housing Act.

Plaintiff Frank Konarski allegedly threatened his

Section 8 tenants with eviction if they showed any

support for the Section 8 tenant who filed the com-

plaint with SAHC. SAHC considered Plaintiff Frank

Konarski's threats as retaliation against the Section 8

resident who made the Fair Housing Complaint with

SAHC.

App. 4

On March 5, 2001, Defendant Valfre advised

Plaintiffs in writing that the Community Services

Department, Section 8 Housing, of the City of Tucson

would not initiate any new Section 8 housing con-

tracts with Plaintiffs. Defendant Valfre’s stated bases

for this decision were “the numerous complaints

expressed by the tenants and the continuing prob-

lems imposed on our staff.” (Exhibit A, Attachment 5,

Defendants’ Statement of Facts.) Defendant Valfre

also advised that the Community Services Depart-

ment would honor any proper existing contracts, but

such contracts would not be renewed upon their

expiration. (Jd. )

In a letter dated May 3, 2001, Defendant Valfre

provided Plaintiff Frank Konarski’s attorney with a

detailed explanation of the bases for Defendant

Valfre’s decision to not renew any contracts with

Plaintiffs. In that letter, Defendant Valfre described

Plaintiff Frank Konarski’s abusive, argumentative,

accusatory, and abrasive demeanor toward employees

of the City of Tucson’s Community Services Depart-

ment, Section 8 Housing. (/d.) Defendant Valfre

explained that Plaintiff Frank Konarski’s behavior

rendered him “persona non grata” at the offices of his

City Council member, the City Manager (Defendant

Keene), and the Mayor. (Jd. )

In that same letter, Defendant Valfre described

the numerous complaints filed by Section 8 residents,

typically of Hispanic descent, against Plaintiff Frank

Konarski. Plaintiff Frank Konarski was also charged

with verbally assaulting a guest of a Section 8

App. 5

resident on December 26, 2000. Defendant Valfre

also explained to Plaintiff Frank Konarski’s attorney

that four (4) of Plaintiffs’ apartment units failed

mandatory inspections under Section 8. Finally,

Defendant Valfre explained that there were numer-

ous clauses and provisions in Plaintiffs’ community

policies and leases that violated the Arizona Residen-

tial Landlord Tenant Act, A.R.S. § 33-1301, et seq.

On May 8, 2001, Plaintiffs filed this suit in the

United States District Court for the District of Co-

lumbia. On June 11, 2001, the District Court for the

District of Columbia transferred this case to this

Court based upon improper venue. On July 30, 2002,

* In their Complaint, Plaintiffs allege that Plaintiff Frank

Konarski was “brutalized” by Tucson Police as some sort of

retaliatory action by the United States Department of Housing

and Urban Development (“HUD”) and that a lawsuit had been

filed accordingly. (Plaintiffs’ Complaint, p. 4, ] “6.”) In fact,

Plaintiff Frank Konarski filed two lawsuits with the District

Court of Arizona arising out of his alleged brutalization. (See

Konarski v. City of Tucson, et al. (CV 98-528 TUC-RCC and CV

99-582 TUC-ACM). Both actions were dismissed for Plaintiff

Frank Konarski’s failure to prosecute. Additionally, some of

Plaintiff Frank Konarski’s claims in the second suit were

dismissed on the basis of res judicata.

In the Order dismissing Plaintiff Frank Konarski’s first

action, District Judge Raner Collins noted Plaintiff Frank

Konarski’s “persistent belligerent behavior,” as well as Plaintiff

Frank Konarskis “uncooperative behavior.” Plaintiff Frank

Konarski’s behavior was of such a degree that it led to Judge

Collins’ “unprecedented . .. Minute Order advising Mr. Konarski

that future attempts to contact the judge or his staff by tele-

phone would not be permitted.” (CV 98-528, 8/30/99.)

App. 6

after more than a year without any meaningful

activity by Plaintiffs, Defendants filed their Motion

for Summary Judgment.

On May 14, 2001, Defendant Valfre provided

written notice to all Section 8 residents in Plaintiffs’

apartments of his March 5, 2001 decision. In that

notice, Defendant Valfre advised the Section 8 resi-

dents that, inter alia, they could move to a new

location without interruption of their Section 8 bene-

fits.

STANDARD FOR MOTIONS

FOR SUMMARY JUDGMENT

A motion for summary judgment shall be granted

if there are no genuine issues of material fact, enti-

tling the moving party to judgment as a matter of

law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

249, 106 S.Ct. 2525, 2511 [sic] (1986). A motion for

summary judgment should be granted if reasonable

minds could not differ that the moving party must

prevail as a matter of law. Jd. at 250-251, 106 S.Ct. at

2511-2512. A mere scintilla of evidence is insufficient

to defeat a motion for summary judgment. Jd. at 251,

106 S.Ct at 2512. The party opposing a motion for

summary judgment may not rest upon his pleadings,

but must set forth specific facts which indicate that

there is a genuine issue for trial. Jd. at 250, 106 S.Ct.

at 2511; Rule 56(e), Fed.R.Civ.P. The party with the

burden of proof at trial also bears that same burden

when making or opposing a motion for summary

App. 7

judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 322,

106 S.Ct. 2548, 2552 (1986).

When determining a motion for summary judg-

ment, the Court is not required to comb the record for

some reason to deny the motion. Carmen v. San

Francisco Unified School District, 237 F.3d 1026,

1029 (9th Cir. 2001). To require otherwise would

render the Court the lawyer for the nonmovant,

performing the lawyer’s duty of setting forth specific

facts creating a genuine issue sufficient to defeat the

motion. /d. at 1031.

Motions for summary judgment should be viewed

“not as a disfavored procedural shortcut, but rather

as an integral part of the Federal Rules as a whole,

which are designed ‘to secure just, speedy and inex-

pensive determination of every action,” Celotex, 477

U.S. at 327, 106 S.Ct. at 2548. (Citations omitted.)

Accordingly, the rules governing motions for sum-

mary judgment should be enforced with regard not

just for rights of the nonmovant, but also for the

rights of the party contending that there exists no

genuine issue of material fact. Jd.

PROCEDURAL ISSUES.

On July 2, 2002, this Court ordered, among other

things, that Plaintiffs were required to respond to any

dispositive motions by Defendants in strict compli-

ance with Local Rule 1.10, District of Arizona. (docu-

ment 35) The July 2, 2002 Order arose out of a

previous Order, dated April 12, 2002. (document 24)

App. 8

In the April 12, 2002 Order, Plaintiff’s counsel was

“cautioned that he must comply with the Local Rules

of this District... .” Id.) On May 30, 2002, this Court

issued another Order wherein it was noted that

Plaintiffs’ counsel continued to violate and ignore the

Local Rules of this District. (document 30) Accord-

ingly, in its Order of July 2, 2002, this Court warned

Plaintiffs that if they failed to respond to Defendants’

dispositive motions “in strict and substantial compli-

ance with Local Rule 1.10, such non-compliance will

be deemed by this Court as Plaintiffs’ consent to the

granting of Defendants’ dispositive motions. Local

Rule 1.10(i), District of Arizona.” (document 35)

On August 12, 2002, Plaintiffs timely filed their

“Answer to Defendant City of Tucson (sic) Motion for

Summary Judgment.” (document 42) In their Answer,

Plaintiffs do not actually respond to Defendants’

Motion, but merely make numerous unsubstantiated

allegations. More importantly, however, Plaintiffs

failed to “set forth separately from the memorandum

of law, and in full, the specific facts” upon which

Plaintiffs oppose Defendants’ Motion. Local Rule

1.10(1)(1), District of Arizona. The required statement

of facts are required to be “set forth in serial fashion

and not in narrative form” and “shall refer to a spe-

cific portion of the record where the fact may be

found.” Jd. Nevertheless, despite the plain and un-

ambiguous requirements of Local Rule 1.10(1)1) and

this Court’s Order that Plaintiffs strictly and sub-

stantially comply with Local Rule 1.10, Plaintiffs

inexplicably failed to file the mandatory separate

App. 9

statement of fact. Therefore, pursuant to Local Rule

1.10(i), and for Plaintiffs’ disregard of the orders of

this Court, Defendants’ Motion for Summary Judg-

ment will be granted.

Despite Plaintiffs’ refusal to comply with the

Local Rules of this District, Defendants’ Motion for

Summary Judgment may also be granted pursuant to

Rule 56(e), Fed.R.Civ.P. Under Rule 56(e), “[wlhen a

motion for summary judgment is made and supported

as provided in this rule, an adverse party may not

rest upon the mere allegations or denials of the ad-

verse party’s pleading, but the adverse party’s re-

sponse, by affidavits or as otherwise provided in this

rule, must set forth specific facts showing there is a

genuine issue for trial.” Rule 56(e), Fed.R.Civ.P.

(Emphasis added)

Plaintiffs do, in fact, rest upon the mere allega-

tions or denials of their Answer. In their Answer,

Plaintiffs avow that they will establish and prove

their allegations. (Plaintiffs’ Answer, p. 2.) However,

Plaintiffs never set forth any specific facts which

show there is a genuine issue of material fact suffi-

cient to defeat Defendants’ Motion for Summary Judg-

ment. In other words, Plaintiffs fail to comply with the

express requirements of Rule 56(e), Fed. R.Civ.P. Inas-

much as Plaintiffs fail to respond to Defendants’

Motion for Summary Judgment in compliance with

Rule 56(e), an appropriate summary judgment “shall”

be entered against them. 7d. As is fully explained

below, summary judgment is appropriate in this case,

App. 10

and will be entered against Plaintiffs pursuant to

Rule 56(e).

Finally, in the first sentence of their Answer,

Plaintiffs declare that “reasonable discovery in this

case has not yet taken place.” (Plaintiffs’ Answer, p.

2.) This statement is belied by the open-court avowal

of Plaintiffs’ counsel on July 1, 2002, that Plaintiffs

were prepared to oppose any dispositive motion filed

by Defendants’ and that no additional discovery was

required to do so.

THE COURT: All right. And I want to

make sure that the plaintiff has had an op-

portunity to respond to any such motions, in-

cluding any documents that may be required

by the plaintiff. And I would ask whether, at

this point, there has been an exchange of any

exhibits or documentary evidence, including

the file —- the government files that the plain-

tiff may need in this case.

MS. HUGHES (COUNSEL FOR DEFEN-

DANTS): Ihave —

THE COURT: I’m asking Ms. Hughes for

now.

MS. HUGHES: I sent — and this was prob-

ably almost a year ago ~ I have received

nonuniform interrogatories from Mr. Bach.

And I sent him several documents. | sent

him copies of memorandums (sic), e-mails,

rules, regulations. He received a packet that

was probably easily three inches thick and

he’s not indicated to me that he was lacking

App. 11

anything else. We hadn’t begun disclosure,

but he has a substantial amount of informa-

tion at this point.

THE COURT: Mr. Bach, do you need any