Flint Elec. Membership Corp. v. Whitworth

• Decision Date: 15 November 1995
• Docket Number: 94-9227,Nos. 94-9199,s. 94-9199
• Citation: 68 F.3d 1309
• Parties: FLINT ELECTRIC MEMBERSHIP CORPORATION, Plaintiff-Appellee, v. Bobby WHITWORTH, Individually and in his official capacity as Department of Corrections Commissioner, Clyde Stovall, Individually and in his official capacity as Assistant Commissioner of Department of Corrections, Defendants-Appellants, Georgia Power Company, Defendant. PATAULA ELECTRIC MEMBERSHIP CORPORATION, Plaintiff-Appellee, v. Bobby WHITWORTH, Individually and in his official capacity as Department of Corrections Commissioner, Clyde Stovall, Individually and in his official capacity as Assistant Commissioner of Department of Corrections, David C. Evans, Individually, Defendants-Appellants, Georgia Power Company, Defendant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1309

68 F.3d 1309

FLINT ELECTRIC MEMBERSHIP CORPORATION, Plaintiff-Appellee, v. Bobby WHITWORTH, Individually and in his official capacity

as Department of Corrections Commissioner, Clyde Stovall,

Individually and in his official capacity as Assistant

Commissioner of Department of Corrections, Defendants-Appellants,

Georgia Power Company, Defendant.

PATAULA ELECTRIC MEMBERSHIP CORPORATION, Plaintiff-Appellee, v. Bobby WHITWORTH, Individually and in his official capacity

as Department of Corrections Commissioner, Clyde Stovall,

Individually and in his official capacity as Assistant

Commissioner of Department of Corrections, David C. Evans,

Individually, Defendants-Appellants,

Georgia Power Company, Defendant.

Nos. 94-9199, 94-9227.

United States Court of Appeals, Eleventh Circuit.

Nov. 15, 1995.

Michael J. Bowers, State Attorney General, Atlanta, GA, Daryl Alan Robinson, Asst. Atty. Gen., Neal Bradley Childers, William F. Amideo, Atlanta, GA, for Appellants.

James Allen Orr, Dulaney L. O'Roark, III, Sutherland, Asbill & Brennan, Atlanta, GA, Kathy Renee Bess, FSIC, Legal Division, Atlanta, GA, Robert P. Edwards, Jr., Kevin Charles Greene, Charles Frederick Palmer, Susan P. Wilkerson, Troutman Sanders Lockerman & Ashmore, Atlanta, GA, for Appellee in No. 94-9199.

Robert P. Edwards, Jr., Kevin Charles Greene, Charles Frederick Palmer, Susan P. Wilkerson, Eric A. Szweda, Troutman Sanders Lockerman & Ashmore, Atlanta, GA, for Ga. Power.

James Allen Orr, Dulaney L. O'Roark, III, Sutherland, Asbill & Brennan, Atlanta, GA, James Elwood Friese, Office of James Elwood Friese, Cuthbert, GA, Kathy Renee Bess, FDIC, Legal Division, Atlanta, GA, for Appellee in No. 94-9227.

Appeals from the United States District Court for the Northern District of Georgia.

Before BARKETT, Circuit Judge, and HENDERSON and CLARK, Senior Circuit Judges.

PER CURIAM:

Bobby Whitworth, Clyde Stovall and David C. Evans, officials of the Georgia Department of Corrections (the "DOC"), ¹ appeal from orders entered in the United States District Court for the Northern District of Georgia denying their motions for summary judgment asserting qualified immunity from 42 U.S.C. Sec. 1983 damages. For the reasons stated below, we reverse the denial of qualified immunity and remand the case to the district court for further proceedings consistent with this opinion.

I. BACKGROUND

These appeals arose out of separate lawsuits brought by Flint Electric Membership Corporation and Pataula Electric Membership Corporation (the "EMCs"), against the DOC officials ² and Georgia Power Company ("Georgia Power"). The substantially identical amended complaints alleged that, under Georgia's State Purchasing Act and as "lowest responsible bidders," the EMCs were entitled to receive licenses to supply certain electrical services to the DOC, which were awarded instead to Georgia Power in contravention of the state statute. Counts One and Two contended that by entering into the contracts with Georgia Power, the DOC defendants violated the EMCs' substantive and procedural due process rights, giving rise to Sec. 1983 claims for injunctive relief and damages. Count Three asserted a state law cause of action based upon the same allegations. The district court initially dismissed the actions on the pleadings for failure to state a claim under Sec. 1983, finding that the EMCs had no federally protected property interest in the contracts. In an earlier appeal from that decision a panel of this court reversed, holding that Georgia law requires electrical service contracts with the state to be awarded to the lowest responsible bidder "whenever possible." Pataula Elec. Membership Corp. v. Whitworth, 951 F.2d 1238, 1241-42 (11th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 302, 121 L.Ed.2d 225 (1992). The court explained that competitive bidding for electrical service is not possible in most cases because the Georgia Territorial Electric Service Act allows only one electricity supplier to provide service in a particular locality. Id. at 1241 n. 3. Here, however, more than one provider was eligible to furnish this service. The court consequently held that "there [was] no impediment to competitive bidding, [and] the State Purchasing Act and relevant rules mandate[d] competitive bidding." Id. at 1242. The court found further that, "[a]t a minimum, then, plaintiffs state[d] a cognizable [due process] claim by alleging that defendants abused their discretion by arbitrarily ignoring competitive bidding requirements." Id. at 1243. The court concluded that the DOC officials should have known they were required to follow competitive bidding procedures under clearly established state law, thus, they were not entitled to qualified immunity from Sec. 1983 monetary liability. Id. at 1244.

On remand, the parties proceeded with discovery. Thereafter, Georgia Power and the DOC defendants filed motions for summary judgment. The motions addressed the merits of the actions and, in addition, the DOC officials again asserted a qualified immunity defense. The district court denied all the motions. The DOC officials then filed the current appeals, which have been consolidated for our review.

II. DISCUSSION

Although final orders have not been entered in these cases, we have jurisdiction to review the district court's denial of the motions for summary judgment grounded on qualified immunity. Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411, 427 (1985). Our consideration of this issue is de novo. Elder v. Holloway, 510 U.S. ----, ----, 114 S.Ct. 1019, 1023, 127 L.Ed.2d 344, 351 (1994). This court's prior decision that the DOC defendants were not entitled to qualified immunity from Sec. 1983 damages is binding here as the law of the case unless (1) new and substantially different evidence material to the issue has been presented; (2) controlling authority has been rendered which is contrary to the law of the previous decision; or (3) the earlier ruling was clearly erroneous and would work a manifest injustice if implemented. United States v. White, 846 F.2d 678, 685 (11th Cir.), cert. denied, 488 U.S. 984, 109 S.Ct. 537, 102 L.Ed.2d 568 (1988).

The main thrust of the current appeal is the defendants' insistence that, contrary to this court's earlier observation that there was no impediment to competitive bidding, later discovery revealed that it was impossible to determine a "lowest responsible bidder" because neither the EMCs nor Georgia Power could guarantee a fixed rate for electrical service over the life of the contracts. They also maintain that the EMCs failed to adhere to competitive bidding procedures. They claim that now it is clear that the EMCs did not in fact have a property right in the contracts because competitive bidding was either impossible and/or did not take place due to the EMCs' own failure to follow the competitive bidding rules. They postulate that, in the absence of a property interest, they are entitled to qualified immunity.

In keeping with the district court's decision, we must reject these arguments. The record shows that the EMCs had sufficient awareness of the competitive bidding procedures to form a valid expectation of entitlement to the contracts if they submitted the lowest bids. See Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548, 561 (1972). The record also supports the district court's finding that the EMCs were the "lowest responsible bidders." The appellants have offered no legal authority for their suggestion that the prospect of a subsequent rate increase rendered competitive bidding impossible. Furthermore, there is undisputed evidence that the EMCs have refrained from retail rate increases in the past despite rises in wholesale costs. The consultant employed by the DOC to analyze and evaluate the bids specifically found that Georgia Power had historically promulgated greater rate increases than the EMCs and that, over the long run, their rates would probably "approach each other." For this reason, the consultant viewed the rate increase issue as an insignificant factor in determining cost over the life of the contracts. By contrast, in choosing the EMCs, the DOC stood to realize definite and substantial savings in the shorter term, both in the rates charged and the cost of leasing equipment. Consequently, this court's earlier decision that the EMCs were vested with a property right in the contracts remains the law of the case. ³

Even though the EMCs' rights to a property interest in the contracts remain, we nevertheless hold that because of a change in the law governing the viability of their due process claims, the defendants are now entitled to qualified immunity from Sec. 1983 damages. In McKinney v. Pate, 20 F.3d 1550 (11th Cir.1994) (en banc), cert. denied, --- U.S. ----, 115 S.Ct. 898, 130 L.Ed.2d 783 (1995), decided after the prior appeal in these cases, the court held that Sec. 1983 substantive due process claims arising from nonlegislative deprivations of state-created property interests are no longer cognizable in this circuit. Id. at 1560. ⁴ It has also become evident, in light of McKinney, that the EMCs' procedural due process claims are not ripe for review. In McKinney the court observed that, unlike the deprivation of a right provided by substantive federal law, which gives rise to a Sec. 1983 lawsuit as soon as the wrongful action is taken,

a procedural due process violation is not complete "unless and until the State fails to provide due process." In other words, the state may cure a procedural deprivation by providing a later procedural remedy; only when the state refuses to provide a process sufficient to remedy the procedural deprivation does a constitutional violation actionable under section 1983 arise.

Id. at 1557 (quoting Zinermon v. Burch, 494 U.S. 113, 126, 110 S.Ct. 975, 983, 108 L.Ed.2d 100, 114 (1990)). Thus, even when a plaintiff has "suffered a...