source: Caselaw Access Project

author: FELDMAN, District Judge.

license: Public Domain

text:
    JEFFERSON DISPOSAL COMPANY, INC. v. PARISH OF JEFFERSON, LOUISIANA and Patrick J. Koloski, in his capacity as Director of the Solid Waste Management Department, Parish of Jefferson, Louisiana.
    Civ. A. No. 83-5487.
    United States District Court, E.D. Louisiana.
    March 5, 1985.

      Ernest E. Barrow, II, of Grant & Barrow, Gretna, La., Richard J. Conway, Garret G. Rasmussen and Michael G. Plantamura of Patton, Boggs & Blow, Washington, D.C., for plaintiff.
    Charles W. Lane, III, George P. Manson, Jr., of Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, La., Hubert A. Vondenstein, Parish Atty., Gretna, La., for defendants.
   OPINION

FELDMAN, District Judge.

This is an antitrust suit against a local government, the Parish of Jefferson, a subdivision of the State of Louisiana, and a local official, Patrick Koloski, in his capacity as the Director of the Solid Waste Management Department of the Parish of Jefferson. In November 1983, the Plaintiff, Jefferson Disposal Company, Inc. (“JDC”), a private corporation, instituted this suit against the Defendants. JDC alleges that the Defendants have violated Sections 1 and 2 of the Sherman Act, 15 U.S.C. sections 1 & 2, and seeks treble damages in an amount exceeding $6,000,000 under Section 4 of the Clayton Act, 15 U.S.C. section 15.

JDC is engaged in the business of municipal solid waste collection and disposal and has previously performed such services for Jefferson Parish under contracts relating to the unincorporated areas of the Parish. Jefferson Parish, pursuant to the express and implied powers granted to it by its Home Rule Charter, provides garbage collection and disposal services in the Parish. To fulfill this governmental function, it created the Solid Waste Management Department of Jefferson Parish, which has direct administrative supervision over solid waste management for the Parish. In January 1981, Patrick Koloski became the Director of the Waste Management Department. As Director, he is responsible for the preparation of bid specifications and the evaluation of bid proposals and contracts relating to solid waste collection and disposal for the various Garbage Districts in the Parish. The Parish Council, however, approves the award of such contracts.

The Plaintiff claims that the Defendants engaged in concerted action with American Waste and Pollution Control Company, another private company and a competitor of JDC, to restrain trade in the market for the collection and disposal of municipal solid waste in Jefferson Parish in violation of section 1 of the Sherman Act. According to the Plaintiff, in November 1981, Mr. Koloski and his Waste Management Department prepared bid specifications for the collection and disposal of municipal solid waste within Garbage Districts Two and Six on the West Bank of Jefferson Parish; Plaintiff says that the specifications were intentionally designed to favor American Waste and discriminate against JDC; the specifications, Plaintiff charges, purposefully contained unreasonable and unnecessary requirements preventing JDC from submitting a competitive responsive bid. JDC also claims that Jefferson Parish has attempted to monopolize and in fact monopolized the market for garbage disposal on the West Bank of the Parish in violation of Section 2 of the Sherman Act by requiring that all municipal solid waste collected from Garbage Districts Two and Six be disposed of only in a Parish-owned sanitary landfill tract.

In January 1985, the Defendants moved to dismiss Plaintiff’s claim for monetary damages, interest, costs and attorney’s fees for Sherman Act violations on the ground that the Local Government Antitrust Act of 1984, Pub.L. No. 98-544, 98 Stat. 2750 (1984), prohibits the Plaintiff from obtaining such relief from a local government and its officials.

Section 3(a) of the Local Government Antitrust Act of 1984 (“Act”), which became effective as of September 24, 1984, states that “[n]o damages, interest on damages, costs, or attorney’s fees may be recovered under section 4, 4A or 4C of the Clayton Act (15 U.S.C. 15, 15a or 15c) from any local government, or official or employee thereof acting in an official capacity.” JDC does not dispute that Jefferson Parish is a “local government” as defined by Section 2(1)(A) of the Act and that Patrick Koloski is being sued as an official of the Parish for acts performed in his official capacity as the Director of the Waste Management Department of the Parish. JDC, however, strongly contests the retroactive application of the Act to its pending case against the Defendants.

A brief background sketch of the dilemma local governments were in before passage of the Act will help to highlight the serious public policy questions the Act tries to resolve. Public policy questions which are central to the present motion to dismiss.

The Act represents a logical extension of the well-known doctrine enshrined in antitrust dogma in Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943) that insulated state action from antitrust inquiry. Parker v. Brown and its progeny reflect a vital and important public policy, but for years local governments were still left open to the threat of bankruptcy from Federal antitrust treble damage awards. Although states were free to conduct operations which might otherwise be open to antitrust challenges, the same conduct by local governments was not similarly emancipated unless it was authorized by specific state legislation. See Community Communications Co. v. City of Boulder, 455 U.S. 40, 102 S.Ct. 835, 70 L.Ed.2d 810 (1982). Boulder spawned an avalanche of antitrust suits against local governments; the spectre of treble damages numbering in the multi-millions of dollars threatened the financial life of many cities and counties. Against that setting, Congress began to examine various proposals for legislative relief. In early October 1984, a compromise bill was enacted which exempts local governments only from the damages provisions of the antitrust laws; parties may still seek injunctive relief. Thus, the Act is a clear affirmation of the strong and judicially sanctioned public policy against subjecting governmental agencies and their officials to the chilling financial threat of antitrust damages.

The question here is whether the Act should be applied retroactively and, if so, whether constitutional infirmaties are triggered.

Congress was aware that plaintiffs would question the retroactive application of the Act and addressed this problem in Section 3(b) of the Act. It provided the following guidelines for Federal courts to apply:

Subsection (a) shall not apply to cases commenced before the effective date of this Act [September 24, 1984] unless the defendant establishes and the court determines, in light of all the circumstances, including the stage of litigation and the availability of alternative relief under the Clayton Act, that it would be inequitable not to apply this subsection to a pending case. In consideration of this section, existence of a jury verdict, district court judgment, or any stage of litigation subsequent thereto, shall be deemed to be prima facie evidence that subsection (a) shall not apply.

This case has not passed the pre-trial discovery stage of litigation. Thus, the question presented is whether, in light of all the circumstances, including the stage of litigation and the availability of alternative relief, it would be inequitable for this Court to allow JDC to proceed against Jefferson Parish and Patrick Koloski for monetary damages under the Clayton Act.

This Court holds that it would, indeed, be inequitable not to apply Section 3(a) of the Act here. Furthermore, retroactive application of the Act does not violate JDC’s rights under the Constitution. Finally, while the Court is not insensitive to the fact the JDC has dedicated sizable resources to pursue this litigation in the hope of receiving a treble damage award for Federal antitrust law violations, it is important to underscore that the national concern expressed by the Act in protecting local governments and their citizens from the potentially devastating effects of such awards deserves paramount consideration.

Legislative Intent

The legislative history of the Local Government Antitrust Act reflects Congress’ deep concern over the increasing number of Federal antitrust suits against local governments arising after two recent Supreme Court opinions restricted the availability of antitrust immunity to local governments. In City of Lafayette v. Louisiana Power & Light Co., 435 U.S. 389, 98 S.Ct. 1123, 55 L.Ed.2d 364 (1978), the Supreme Court held that “state action” immunity established in Parker v. Brown did not automatically extend to local governments; rather, according to the Court, local government antitrust immunity is dependent upon whether the conduct alleged to be anticompetitive was performed pursuant to a state policy to displace competition with regulation or monopoly public service. Then, in Boulder the Supreme Court held that a state’s grant of homerule powers to a local government was insufficient authorization by the state to cloak the local government with antitrust immunity. The Boulder Court explained that in order for the action of a local government to constitute the action of the state itself the local government’s action had to be in furtherance or implementation of a “ ‘clearly articulated and affirmative expressed,’ ” state policy. 455 U.S. at 51, 102 S.Ct. at 840-41. As the Senate Judiciary Committee has pointed out, prior to Lafayette and Boulder, “it was generally assumed that the ‘State action’ doctrine applied not only to States, but to local units of government as well.” Report to the Senate Committee on the Judiciary on the Local Government Antitrust Act, S.Rep. No. 593, 98th Cong., 2d Sess. 1 (1984). Thus, when Congress discovered that this general assumption was mistaken, it decided to act and fill the void the Court created.

The Senate Judiciary Committee studied the effects of Lafayette and Boulder on the operation of local governments over a two year period. It found that “[m]ore than one hundred Federal antitrust suits seeking treble damages [were presently] pending against cities, counties, townships and virtually every other type of local government.” Report of the Senate Committee on the Judiciary on the Local Government Antitrust Act, S.Rep. No. 593, 98th Cong., 2d Sess. 2 (1984). After considering the testimony of several antitrust scholars, the Committee concluded that “in many instances, the practical impact of Boulder and Lafayette has been to paralyze the decisionmaking functions of local government. The threat of antitrust treble damage actions has caused local officials to avoid decisions that may touch on the antitrust laws even when such decisions have involved critical public services.” Id. at 3. The Committee also concluded that “regardless of whether a local government has violated the antitrust laws, it is inappropriate to assess damages which ultimately must be borne by taxpayers.” Id. at 6-7.

The congressional debates over the Local Government Antitrust Act show that many Congressmen believed that there was an immediate need to take a “remedies approach” to saving local governments and their taxpayers from the potential financial ruin occasioned by large monetary awards under the Clayton Act. See H.R. 6027, 98th Cong., 2d Sess., 130 Cong.Rec. H8471 (daily ed. Aug. 6, 1984). The Act does appear to be a thoughtful response to the problem. Although some Congressmen may have desired that Congress go further and grant local governments and their officials complete antitrust immunity, other Congressmen made clear that Congress was only taking a “remedies approach” and that persons injured by anticompetitive conduct of local governments retained the right to sue for injunctive relief under Section 16 of the Clayton Act, 15 U.S.C. section 26. As Congressman Edwards stated, the Act “offers a measured response to both the problems of local government and the needs of private parties.” H.R. 6027, 98th Cong., 2d Sess., 130 Cong.Rec. H11695 (daily ed. Oct. 9, 1984.)

The legislative history of the Act also demonstrates that Section 3(b) of the Act, which pronounces the criteria for retroactive application of the Act, was a compromise between those Congressmen who thought that retroactive application was not in accord with Congress’ traditional approach to changing existing law and those who felt that denial of retroactive application would unjustly penalize those localities that were defendants in pending suits for treble damages. A primary concern was that retroactive application would divest a plaintiff of a favorable jury verdict or district court judgment.

An early version of the House Bill, which passed overwhelmingly by a vote of 414 to 5 in August, 1984, was silent on its application to pending cases. Representatives Crane and Hyde brought this matter to the House’s attention; they both agreed that this silence was consistent with the general rule of law that pending cases are subject to the law in effect at the time they are actually and finally decided. The Congressmen were referring to Bradley v. School Board of City of Richmond, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974), in which the Supreme Court established “the principle that a court is to apply the law in effect at the time it renders its decision, unless doing so would result in manifest injustice or there is statutory direction or legislative history to the contrary.” 416 U.S. at 711, 94 S.Ct. at 2016. Thus, if the Bill that originally passed the House had been enacted without change, the Bradley rule would have mandated retroactive application of the Act unless the court found that manifest injustice would result. The Senate, however, passed a version of the Bill that specifically addresses the retroactive application of the Act with a provision almost identical to Section 3(b).

On October 10, 1984, the Conference Committee met to resolve the differences between the House and Senate versions of the Bill. The Local Government Antitrust Act of 1984 wqs passed by the House and the Senate as H.R. 6027 on October 11, 1984. H.R. 6027, 98th Cong., 2d Sess. 130 Cong.Ree. H12175-89 (daily ed. Oct. 11, 1984); id. at S14364-69 (daily ed. Oct. 11, 1984). The retroactive application provision in the Senate’s version of the Bill was accepted by the House with minor changes.

The Joint Explanatory Statement of the Conference Committee, which accompanied the Conference Report on the Bill, discusses the application of the Act to pending cases. The Statement provides:

The application to pending cases of the money damage protection afforded by section 3 will be based upon a case-by-case determination by the district court. The local government has the burden of proof to establish to the court’s satisfaction that it would be inequitable not to apply this act to the pending case. The court is to consider all relevant circumstances. The statute mentions two of the factors that the court should consider — stage of litigation and the availability of alternative relief under the Clayton Act. Where a pending case is in an early stage of litigation and where injunctive relief can remedy the problem, the defendant local government may be able more easily to sustain its burden. Where a case is in more advanced stages of litigation or where injunctive relief is unavailable or incomplete, the burden would become more difficult. If a case has progressed to or beyond a jury verdict or district court judgment, a local government defendant would need compelling equities on its side to justify the application of this section to the pending case.

Conference Report, on H.R. 6027, 98th Cong., 2d Sess., 130 Cong.Ree. H11850-51 (daily ed. Oct. 10, 1984). This Statement makes clear that as either of the two factors specifically mentioned in Section 3(b) of the Act (stage of litigation and availability of alternative relief under the Clayton Act) moves towards weighing against retroactive application, the defendant’s burden to establish that denial of such application would be inequitable becomes more difficult. On the other hand, unless a verdict or judgment has been rendered, there is no presumption against retroactive application of the prohibition contained in Section 3(a) of the Act to a pending case.

Defendants’ Burden: Stage of Litigation and Availability of Injunctive Relief

A. Defendants’ Burden

When the Local Government Antitrust Act was enacted on October 24, 1984, this case was in the pre-trial discovery stage of litigation. It still is. The record reflects that prior to October 1984 most of the discovery that took place was by way of interrogatories and requests for production of documents. It was not until November and December 1984 that the parties took most of the depositions of fact witnesses. Furthermore, there have been no rulings by this Court on the substantive issues presented by this case. This motion is the first nondiseovery-related motion which has been presented to the Court. Moreover, at least for the Defendants, if not for the Plaintiff, much more trial preparation remains to be done in this case.

This Court does not ignore JDC’s assertion that prior to October 1984 its attorneys and in-house management personnel spent substantial time reviewing the numerous documents involved in this suit and working with its primary expert witness. Nor is this Court unaware that JDC has already incurred a considerable amount of legal fees and other litigation-related expenses. Indeed, those factors weigh against retroactive application of the Act. But they only make the Defendants’ burden here more difficult; they do not preclude the Defendants from satisfying it.

The Defendants’ burden is also made more difficult by the fact that injunctive relief could be an incomplete remedy in this case. JDC is seeking monetary compensation for economic harm to its business allegedly suffered since 1982 when American Waste was awarded and began to perform its contract to serve Garbage Districts Two and Six of Jefferson Parish. JDC contends that if the Parish’s bidding process had not intentionally discriminated against it — that is, had not violated the antitrust laws — that it would have been the lowest bidder and, thus, awarded the contract instead of American Waste. Retroactive application of the Act would preclude recovery for the past damages. The Court also recognizes that JDC should not be unjustly penalized for failing to seek injunctive relief prior to the award of the contract to American Waste. JDC should not be asked to predict that in 1984, Congress would pass a law jeopardizing its damage claim under the Clayton Act. On the other hand, it is undisputed that injunctive relief was available to JDC at the time of the alleged anticompetitive acts of the Defendants and, while injunctive relief might not be a complete remedy now, it is still available to JDC. Further, and most important, the very purpose of the Act is to insulate local governments from the kind of economic damages Plaintiff claims to have suffered.

This Court finds that the Defendants’ burden here to establish that denial of the application of the Act to this pending case would be inequitable is a fairly difficult one. Defendants have met their burden.

B. The Availability of Injunctive Relief Would Make It Inequitable to Deny Application of the Act

There is significant doubt that this Court, under its equity powers, could set aside the contract entered into between Jefferson Parish and American Waste in 1982 for the collection and disposal of municipal solid waste. See H.K. Porter Company v. Metropolitan Dade County, 650 F.2d 778 (5th Cir.1981); Save the Bay, Inc. v. The United States Army, 639 F.2d 1100 (5th Cir.1981). Injunctive relief, however, is available prospectively. The Supreme Court in National Society of Professional Engineers v. United States, 435 U.S. 679, 98 S.Ct. 1355, 55 L.Ed.2d 637 (1978), instructed that a district court is empowered to fashion appropriate restraints on a defendant’s future activities “both to avoid a recurrence of the violation and to eliminate its consequences.” 435 U.S. at 697, 98 S.Ct. at 1368 (citations omitted). Thus, so long as the injunctive relief is “a reasonable method of eliminating the consequences of the illegal conduct,” it may be rendered. Id. In the instant case, the availability of prospective injunctive relief is of major importance; although it does not satisfy JDC’s more pecuniary concerns, it provides JDC with the opportunity to challenge the legality of Jefferson Parish’s bidding process and, if successful in proving a violation of the antitrust laws, to have the Court correct the process for the future.

JDC claims that injunctive relief is now foreclosed to it because, subsequent to the allegedly anticompetitive conduct complained of in this case, the State of Louisiana enacted a statute prospectively authorizing local governments to grant exclusive garbage disposal rights. The statute provides local governments in Louisiana with state authorization to create a public service monopoly in the garbage disposal and collection market in their jurisdictions, when necessary and appropriate. Under the statute, a parish may create such a public monopoly by granting an exclusive franchise to a private company or companies or by itself engaging in the collection and disposal of garbage to the exclusion of private companies.

The argument that the new Louisiana statute forecloses prospective injunctive relief here is only speculative. As was made clear by the First Circuit in Corey v. Look, 641 F.2d 32 (1981), there is an important difference between competitive means and ends. The Corey court explained that the statutory power to monopolize a market does not exempt all means to achieve the monopoly from antitrust scrutiny. 641 F.2d at 37. In the instant case, the Court could arguably correct the alleged anticompetitive nature of the Parish’s bidding process without interfering with the Parish’s statutory privilege to create a monopoly public service. Indeed, the Louisiana statute states that the Parish can grant exclusive franchises only after complying with the State’s public bid laws and “other provisions of law." Thus, not all means are necessarily exempted to achieve a public monopoly goal.

Since prospective injunctive relief is still available to cure future violations of the Federal antitrust laws, it would be inequitable to the taxpayers of Jefferson Parish for this Court to deny the Parish immunity from treble damages. This Court does not need to inquire whether there are sufficient funds in Jefferson Parish’s budget to pay a treble damage award in the millions of dollars. It cannot be denied that a judgment of that magnitude would have an adverse impact on any community in this country and would be totally at odds with the spirit and intent of the Act. Thus, even if it is true, as JDC claims, that the Defendants’ alleged anticompetitive behavior resulted in the Parish’s citizens paying more for garbage collection and disposal, it would be in the best interest of the community to tailor some prospective injunctive relief rather than threaten the public fisc. This approach is mandated by the national concern behind the Local Government Antitrust Act of 1984.

Constitutionality of the Retroactive Application of the Act

Any discussion of the constitutionality of the retroactive application of a statute must begin with the first principle “that a court is to apply the law in effect at the time it renders its decision, unless doing so would result in manifest injustice or there is statutory direction or legislative history to the contrary.” Bradley v. School Board of City of Richmond, 416 U.S. 696, 711, 94 S.Ct. 2006, 2016, 40 L.Ed.2d 476 (1974). The Bradley Court found justification for this principle in the words of Chief Justice Marshall in United States v. Schooner Peggy, 1 Cranch 103, 2 L.Ed. 49 (1801). There, the Chief Justice observed:

It is true that in mere private cases between individuals, a court will and ought to struggle hard against a construction which will, by retroactive operation, affect the rights of parties, but in great national concerns ... the court must decide according to existing laws, and if it be necessary to set aside a judgment, rightful when rendered, but which cannot be affirmed but in violation of the law, the judgment must be set aside.

416 U.S. at 712, 94 S.Ct. at 2016 (emphasis added).

The Bradley Court also discussed its concern that injustice could result from the retroactive application of a change in the law. It acknowledged that the Court, on several occasions, had refused to apply a change retroactively because it concluded that doing so “would infringe upon or deprive a person of a right that had matured or become unconditional.” 416 U.S. at 720, 94 S.Ct. at 2020. Of course, a legislature may not divest an individual of a vested property right protected by the due process clause of the Federal Constitution. But not all retroactive legislation is constitutionally infirm.

The Supreme Court has observed that “[t]he mere fact that a statute applies to a civil action retrospectively does not render it unconstitutional.” Cohen v. Beneficial Industrial Loan Corporation, 337 U.S. 541, 554, 69 S.Ct. 1221, 1229, 93 L.Ed. 1528 (1949). ' When, however, a legislative change alters the substantive rights of the parties the constitutional validity of applying the change to a pending case does become suspect. Id. On the other hand, when a statute changes only remedies or procedures, and does not affect substantive rights, there is no constitutional barrier to applying it to a pending case. Friel v. Cessna Aircraft Company, 751 F.2d 1037 (9th Cir.1985); see also Bradley, 416 U.S. at 721, 94 S.Ct. at 2021; Ettor v. City of Tacoma, 228 U.S. 148, 155, 33 S.Ct. 428, 430, 57 L.Ed. 773 (1913); Keller v. Dravo Corporation, 441 F.2d 1239, 1242 (5th Cir. 1971), cert. denied, 404 U.S. 1017, 92 S.Ct. 679, 30 L.Ed.2d 665 (1972). As the Ninth Circuit stated in Friel, the reason for this difference is that

Non-retrospective application of a statute “prevents the assigning of a quality or effect to acts or conduct which they did not have or did not contemplate when they were performed.” Union Pacific R.R. Co. v. Laramie Stock Yards Co., 231 U.S. 190, 199, 34 S.Ct. 101, 102, 58 L.Ed. 179 (1913). This danger is not present where statutes merely affect remedies or procedures.

Friel, at 1039. Thus, where “there [is] no change in the substantive obligation of the parties,” or “the changing or repealing statute leaves the parties a substantial remedy,” or “one remedy is substituted for another,” there is no Fifth Amendment encroachment.

In order to determine whether retroactive application of the Local Government Antitrust Act to the instant case violates JDC’s Fifth Amendment due process rights, this Court, following the lead of the cases cited above, must take three factors into consideration. First, whether the national concern behind the Act compels retroactive application. Second, whether retroactive application of the Act changes the parties’ substantive rights or only alters the remedy. Third, if retroactive application affects the parties substantive rights, whether JDC has a vested, constitutionally protected interest in a claim for treble damages under the Clayton Act.

As discussed earlier in this opinion, the Act deals with a matter of great national concern, as anticipated in Bradley. “Indeed, the circumstances surrounding the passage of [the Act], and the numerous expressions of congressional concern and intent with respect to the enactment of [the Act], all proclaim its status as having to do with a ‘great national concern.’ ” Bradley, 416 U.S. at 719, 94 S.Ct. at 2020. Furthermore, Congress entrusted Federal district courts with the task of giving effect to its intent to “protect [local governments] from these treble damage lawsuits that are devastating to the very people that the antitrust laws were designed to protect.” H.R. 6027, 98th Cong., 2d Sess., 130 Cong.Rec. H12184 (daily ed. Oct. 11, 1984) (statement of Representative Sawyer). This Court also recognizes that Congress has great power, under the Commerce Clause, to regulate as it perceives what is in the best interest of the public and that sometimes, unfortunately, such regulation may frustrate well-founded hopes and expectations that are nevertheless not in any legal sense vested property rights under the Constitution. This Court, then, is hesitant to find a constitutional violation when one does not clearly exist.

Retroactive application of Section 3(a) of the Local Government Antitrust Act does not, in any manner, alter the substantive rights of the parties to the pending proceeding. JDC’s existing cause of action under the Sherman Act is not abated. The conduct of local governments and their officials remains subject to scrutiny under the Federal antitrust laws. The Act does not assign an effect to the acts of Jefferson Parish and Patrick Kiloski that is different from the effect when those acts were performed three years ago. The Act merely takes a remedial approach to the problem by precluding an award of damages under the Clayton Act. It leaves JDC with a remedy in the form of prospective injunctive relief. Thus, the hint of a possible constitutional violation is not even present.

Even if the retroactive application of the Act in some way affected the substantive rights of the parties, there would still be no constitutional violation here. This Court holds that a plaintiff does not have a vested property right under the due process clause of the Fifth Amendment in a mere claim for damages. Many courts have held that Congress may abate existing causes of action without violating the due process clause so long as there is no final nonreviewable judgment. Daylo v. Administrator of Veterans Affairs, 501 F.2d 811, 818 (D.C.Cir.1974); Fisch v. General Motors Corporation, 169 F.2d 266, 270 (6th Cir.1948); Seese v. Bethlehem Steel Company, 168 F.2d 58 (4th Cir.1948); United States ex rel. Rodriguez v. Weekly Publications, Inc., 144 F.2d 186 (2d Cir. 1944); Hospital Association of New York State, Inc. v. Toia, 435 F.Supp. 819, 829 (S.D.N.Y.1977); Jones v. American Window Cleaning Corporation, 210 F.Supp. 921, 923 (E.D.Va.1962). This interpretation of the due process clause is in accord with the general rule that “ ‘an appellate court must apply the law in effect at the time it renders its decision.’ ” Bradley, 416 U.S. at 714, 94 S.Ct. at 2017. Also, it is-constitutionally and conceptually sound to make a distinction between inchoate rights, rights that are contingent or expectant, and rights to the present, unalterable, enjoyment of property. See Fisch, 169 F.2d at 270. Only the latter type of right requires constitutional protection. Thus, only final nonreviewable judgments should be accorded the dignity of vested constitutionally guarded rights. Since JDC’s claim for treble damages under the Clayton Act has not ripened to a final nonreviewable judgment, and might never do so, it is not a vested, constitutionally protected, right.

Tucker Act Remedy

The Defendants contend that, even if JDC had a vested property right in its damage claim, retroactive application of the Act would not violate the Fifth Amendment because JDC can seek compensation from the Federal government in the Court of Claims pursuant to the Tucker Act, 28 U.S.C. section 1491. This issue does not need to be resolved here because retroactive application of the Act neither alters JDC’s substantive rights under the Federal Antitrust laws nor divests JDC of a vested right. To the extent, however, that JDC’s loss of its monetary remedy could be considered a taking under the Fifth Amendment and that the Tucker Act may provide compensation, a brief discussion of the issue might be useful.

The Tucker Act provides that “(t)he Court of Claims shall have jurisdiction to render judgment upon any claim against the United States founded ... upon the Constitution....” 28 U.S.C. section 1491. Although the Tucker Act itself does not create any substantive rights for compensation from.the United States, a substantive right to such compensation could be grounded in the Constitution. United States v. Mitchell, 463 U.S. 206, 103 S.Ct. 2961, 2967, 77 L.Ed.2d 580 (1983). In Regional Rail Reorganization Act Cases, 419 U.S. 102, 95 S.Ct. 335, 42 L.Ed.2d 320 (1974), the Supreme Court held that “[a] claim founded upon a taking of property for public use by operation of [a Federal statute] without just compensation in violation of the Fifth Amendment plainly would fall within the literal words of ‘any claim against the United States founded ... upon the Constitution....’” 419 U.S. at 125, 95 S.Ct. at 350. The Supreme Court, in Regional Rail, further instructed that Tucker Act compensation is available as long as the Federal statute causing the taking and the legislative history of the statute do not evince congressional intent to withdraw the Tucker Act remedy. If the Tucker Act remedy is available, there is no violation of the Just Compensation Clause of the Fifth Amendment because there is simply no uncompensated taking.

Neither the Local Government Antitrust Act itself nor the legislative history of the Act evinces a congressional intent to withdraw a claim against the United States for a taking of a vested property right by the Act. Therefore, it appears that any unlawful taking caused by the retroactive application of the Act would not go uncompensated and, thus, such a taking would not violate the Just Compensation Clause. This Court holds, however, that retroactive application of the Act does not result in any constitutional infirmity.

CONCLUSION

For the foregoing reasons, this Court holds that Section 3(a) of the Local Government Antitrust Act of 1984 applies to this pending case. Accordingly, the Defendants’ motion to dismiss the Plaintiff’s claim for monetary damages, interest, costs and attorney’s fees under Section 4 of the Clayton Act on the ground that such a claim is prohibited by the Local Government Antitrust Act is GRANTED.

      . In January 1985, more than a year after this suit was filed, the Plaintiff amended its complaint. It is unclear whether the Plaintiff, by way of the amended complaint, voluntarily dismissed Patrick Koloski as a Defendant from this case. However, in order to fully dispose of the motion, the Court will treat Mr. Koloski as if he were a Defendant here.

      . JDC also claims that the Defendants violated the Louisiana antitrust laws, La.Rev.Stat.Ann. 51:122 & 51:123 (West 1965), and the Civil Rights Act of 1871, 42 U.S.C. section. 1983. These claims are not affected by this opinion.

      . Neither American Waste nor its parent corporation, Waste Management, Inc., were named as defendants in this action. Furthermore, JDC has not sought damages or any other relief from American Waste in any other proceeding. It is interesting to note, however, that American Waste was identified as a co-conspirator with Jefferson Parish and Koloski in the Plaintiffs unamended complaint. In its amended complaint, JDC dropped the charge of co-conspirator but maintained that the Defendants engaged in concerted action with American Waste to restrain competition.

      . In December 1981, five firms submitted bids for the contract for the collection and disposal of solid waste for Garbage Districts Two and Six on the West Bank of Jefferson Parish. JDC submitted the third lowest bid. American Waste was the lowest bidder. The Parish Council approved the contract award by resolution in January 1982. American Waste began to perform the contract in June 1982. JDC also contends that the contract between the Parish and American Waste is a long-term exclusive dealing agreement which unreasonably forecloses competition in the market. The contract has an initial five year term with a provision for extensions of up to five more years.

      . The Honorable J. Paul McGrath, Assistant Attorney General of the Antitrust Division of the United States Department of Justice, Professors Phillip Areeda and Milton Handler testified before the Senate Judiciary Committee.

      . The Senate Judiciary Committee also recognized "the tremendous financial burden which can be placed on local governments in merely defending antitrust suits regardless of the outcome.” Report of the Senate Committee on the Judiciary on the Local Government Antitrust Act, S.Rep. No. 593, 98th Cong., 2d Sess. 7 (1984).

      . Congressman Moorehead called H.R.6027 a "save government bill”. H.R.6027, 98th Cong., 2d Sess., 130 Cong.Rec. H8471 (daily ed. Aug. 6, 1984). Impetus for the passage of the Local Government Antitrust Act was initiated by Unity Ventures v. County of Lake and Village of Grays-lake, No. 81 C 2745 (N.D.Ill. Jan. 12, 1984). In Unity Ventures, a jury awarded the plaintiff $9.5 million in damages in an antitrust action against the local governments and their officials. The court trebled the award to $28.5 million. See id. at H8473 (statement of Congressman Hyde). Congressman Crane, who represents the district in which Unity Ventures is pending on appeal, stated during the House debates that this judgment, if upheld on appeal, could very well bankrupt Lake County. See id. at H8472-73.

      . See, e.g., id. at H8474 Congressman Hyde stated that "[t]his legislation is an explicit statement that the antitrust laws were not intended to oversee or interfere with the decision making process at the local government level.”

      . See also H.R.6027, 98th Cong., 2d Sess. 130 Cong.Rec. HI 1696 (daily ed. Oct. 9, 1984). Congressman Rodino explained that the Act does not immunize local governments from the antitrust laws, but precludes the use of damage suits, which many members of Congress believe to be an inappropriate remedy; id. at S14364 (daily ed. Oct. 11, 1984) Senator Thurmond remarked that the Act strikes an appropriate balance for "[w]hile taxpayers will not have to pay treble damage awards, injunctive relief will still be available to halt and prevent antitrust violations” of local governments.

      . See H.R.6027, 98th Cong., 2d Sess., 130 Cong. Rec. H8622-23 (daily ed. Aug. 8, 1984) (statement of Rep. Brooks).

      . See id. at H8475 (daily ed. Aug. 6, 1984) (statement of Rep. Fish); id. at H11696 (daily ed. Oct. 9, 1984) (statement of Rep. Sawyer); id. at H11697 (statement of Rep. Crane); id. at H12176 (daily ed. Oct. 11, 1984) Rep. Porter stated that ‘‘[o]ne inequity that is terribly compelling ... would be that which allows a recovery of money damages against just one, or a small group of defendant municipalities, while all others, before [Boulder and Lafayette ] and after [the Local Government Antitrust Act], engaging in the same type of conduct have no such penalty."

      . See, e.g., id. at S13574 (daily ed. Oct. 4, 1984) (colloquy between Senator Eagleton and Rudman); id. at H12187 (daily ed. Oct. 11, 1984) (colloquy between Rep. Seiberling and Rep. Rodino).

      . Id. at H8622-24 (daily ed. Aug. 8, 1984).

      . Id. at H8473 (daily ed. Aug. 6, 1984).

      . Id. at S13574-75 (daily ed. Oct. 4, 1984).

      . The Act is silent about the date from which courts should determine the stage of litigation. Defendants waited approximately six weeks from the enactment of the Act to bring to the Court’s attention their intention to move to dismiss the Plaintiffs claim for monetary damages under the Clayton Act on the ground that the Local Government Act prohibited this claim. See District Court’s Minute Entry of Dec. 5, 1984 (document No. 57 in District Court Record). The Plaintiff, however, was or should have been on notice of the potential consequences of the Act on this case by the time of the Act’s date of enactment, October 24, 1984. Indeed, as early as November 27, 1984, JDC admitted that the Act ”place[d] a cloud over the certainty of JDC's recovering damages under the Clayton Act in the event JDC prevails in its substantive antitrust claims." Plaintiffs Memorandum in Opposition to Defendants’ Motion for Leave to File Supplemental and Amended Answer p. 3 (document No. 54 in District Court Record). Thus, this Court does not believe that it is unfair to use October 24, 1984 as the date from which to determine the stage of litigation. Furthermore, the Plaintiff is not prejudiced by the use of this date because the case has progressed very little since then.

      . A colloquy between Congressmen Seiberling and Rodino, who were members of the Conference Committee that submitted the final version of the Act to Congress, indicates that Congress believed that a case in which pre-trial discovery is not yet complete should be considered to be in an early stage of litigation. See H.R. 6027, 98th Cong., 2d Sess., 130 Cong.Ree. H12187 (daily ed. Oct. 11, 1984).

      . JDC complains that it was forced to take these depositions in November and December 1984 to comply with the Court’s preliminary pre-trial order requiring factual discovery to be completed by December 10, 1984. The Plaintiff is correct that the Court’s minute entry of July 10, 1984 set a discovery deadline of December 10, 1984. (document No. 14 in District Court Record). The Court, however, when it learned of Defendants’ intention to file this motion, extended the deadline to March 1, 1985. See District Court’s Minute Entry of Dec. 5, 1984 (document No. 57 in District Court Record). This extension was granted on December 5, 1984 at a status conference at which counsel for JDC was present.

      . Section 3(b) of the Act states that the Court should look at the availability of alternative relief under the Clayton Act. The only other remedy available is injunctive relief provided by Section 16 of the Clayton Act, 15 U.S.C. section 26. Also, it should be noted that although the Act prohibits awarding costs and attorney’s fees under Section 4 of the Clayton Act, a plaintiff who prevails in obtaining an injunction under Section 16 is still entitled to an award of costs and attorney’s fees.

      . In its unamended complaint, which was initially filed in this case, JDC requested injunctive relief. See Plaintiffs Complaint (document No. 1 in District Court Record). For some reason not known to this Court, JDC, in its amended complaint, dropped this request. See Plaintiffs Amended Complaint (document No. 82 in District Court record). Regardless of whether or not the Plaintiff seeks injunctive relief, this Court is not precluded from determining if such an alternative remedy is available under the Clayton Act.

      . See also United States v. United Shoe Machinery Corp., 391 U.S. 244, 250, 88 S.Ct. 1496, 1500, 20 L.Ed.2d 562 (1968) (explaining that a court may enter a decree to restore workable competition to the market place and ensure that there are no practices likely to result in future antitrust violations); International Telephone and Telegraph Corp. v. General Telephone & Electronics Corp., 518 F.2d 913, 925 (9th Cir.1975) stating that *‘[i]njunctive remedies under section 16 [of the Clayton Act] may be as broad as necessary to ensure that 'threatened loss or damage’ does not materialize or that prior violations do not recur.”

      . In August 1982, Louisiana enacted a statute, La.Rev.Stat.Ann. 33:4169.1 (West Supp.1985), which provides in relevant part:
      A. The governing authority of every parish or municipality shall have the following powers:
      (1) To engage in the collection and disposal of garbage and trash within its jurisdiction in cooperation with, or to the exclusion of, other garbage and trash collectors.
      (2) To grant permits, licenses, exclusive or non-exclusive franchises, or any combination thereof to garbage and trash collectors and disposers. Any exclusive franchise shall be granted only after advertising for bids, reception of bids, and awarding of the contract or contracts in accordance with the public bid laws of the state and other provisions of law.
      (3) To enter into time contracts for the collection and transportation of garbage or trash for a term of up to ten years, and for disposal of garbage or trash for a term of up to twenty-five years.
      ....
      D. The governing authority of any municipality or parish is authorized to carry out the provisions of this Section as acts of government on behalf of the state of Louisiana as soverign, and, to the extent the governing authorities deem necessary or appropriate, are further authorized to displace competition and provide a monopoly public service.

      . In Corey, the plaintiff sued the town and the Steam Boat Authority, alleging that they conspired to deprive the plaintiff, who was in the business of operating parking lots, of an award to run a particular lot. The contract was awarded to the Authority, plaintiff’s competitor. State statutes authorized the Authority to operate parking lots and the town to regulate parking, but neither statute authorized the displacement of competition. The court stated that
      Even had the authority been granted the statutory power to monopolize the parking market, this would not necessary exempt all means to áchieve this end. For instance, simply because one can enforce zoning laws does not necessarily mean that one can burn down a neighbor's offending building. Thus the Authority cannot establish that there is a "clearly articulated and affirmatively expressed” sovereign state policy favoring the Authority’s boycott of competitors in the parking market.
      641 F.2d at 37.

      . La.Rev.Stat.Ann. 33:4169.1(A)(2) (West Supp. 1985) (emphasis added).

      . This Court has already determined that criteria of Section 3(b) of the Local Government Antitrust Act direct that the Act be applied to this pending case. The statutory directive is not to the contrary. See text accompanying notes 16-24.

      . The Court cited Greene v. United States, 376 U.S. 149, 160, 84 S.Ct. 615, 621, 11 L.Ed.2d 576 (1964); Claridge Apartments Co. v. Commissioner of Internal Revenue, 323 U.S. 141, 65 S.Ct. 172, 185, 89 L.Ed. 139 (1944); Union Pacific R. Co. v. Laramie Stock Yards Co., 231 U.S. 190, 199, 34 S.Ct. 101, 102, 58 L.Ed. 179 (1913). Both Greene and Claridge stand for the proposition that antecedent rights to a damage award cannot be subsequently revoked unless there is clear legislative intent to the contrary.

      . Bradley, 416 U.S. at 721, 94 S.Ct. at 2021.

      . Ettor, 228 U.S. at 155, 33 S.Ct. at 430. Cf. Duke Power Co. v. South Carolina Tax Commission, 81 F.2d 513, 517 (4th Cir.1936), cert. denied, 298 U.S. 669, 56 S.Ct. 834, 80 L.Ed. 1392 (1936).

      . Keller, 441 F.2d at 1242.

      . See Fisch v. General Motors Corp., 169 F.2d 266, 270-72 (6th Cir.1948), cert. denied, 335 U.S. 902, 69 S.Ct. 405, 93 L.Ed. 436 (1949); Seese v. Bethlehem Steel Co., 168 F.2d 58, 62-64 (4th Cir.1948).

      . This Court recognizes that there is case law supporting JDC’s contention that one has a vested property right in a cause of action once it has somehow accrued. See Hartford Fire Insurance Co. v. Lawrence, Dykes, Goodenberger, Bower & Clancy, 740 F.2d 1362, 1367 (6th Cir.1984); Ducre v. Mine Safety Appliances, 573 F.Supp. 388, 392 (E.D.La.1983), rev’d in part on other grounds Ducre v. Executive Officers of Halter Marine, Inc., 752 F.2d 976 (5th Cir.1985) (the constitutional issue was not discussed); Edwardsen v. Morton, 369 F.Supp. 1359 (D.D.C. 1973); Jacklitch v. Redstone Federal Credit Union, 463 F.Supp. 1134, 1139 n. 2 (N.D.Ala. 1979). Those cases are conceptually difficult to reconcile with cases that hold that a plaintiff does not have a vested property right in a claim unless there is a final nonreviewable judgment. This Court disagrees with the former group of cases. They deal too loosely with the notion of what is property or a right. Additionally, the Court does not agree with the Plaintiff that Ducharme v. Merrill-National Laboratories, 574 F.2d 1307 (5th Cir.), cert. denied, 439 U.S. 1002, 99 S.Ct. 612, 58 L.Ed.2d 677 (1978), stands for the proposition that an existing cause of action is a vested property right protected by the Constitution. The holding in Ducharme was that "a plaintiff has no vested right in any tort claim for damages under state law.” 574 F.2d at 1309. In dicta, the court rioted that the plaintiffs’ action against the manufacturer under Louisiana law, which was abrogated by the Federal Swine Flu Act, did not even accrue until the passage of the Act. Thus, according to the court, the “[plaintiff had no prior vested right in a cause of action” under Louisiana law. Id. at 1310. The court, however, ended its discussion there without discussing whether a so-called vested right in a cause of action would mandate constitutional protection under the due process clause of the Fifth Amendment.
      Furthermore, retroactive application of Section 3(a) of the Act to the pending case does not impair a previously vested contractual right. A possible violation of the Contract Clause of the Federal Constitution is not at issue here. Therefore, Lynch v. United States, 292 U.S. 571, 54 S.Ct. 840, 78 L.Ed. 1434 (1934); Coombes v. Getz, 285 U.S. 434, 52 S.Ct. 435, 76 L.Ed. 866 (1932); and Richmond Screw Anchor Co. v. U.S., 275 U.S. 331, 48 S.Ct. 194, 72 L.Ed. 303 (1928), are not relevant here.

      . See also Dames & Moore v. Regan, 453 U.S. 654, 688-89, 101 S.Ct. 2972, 2991, 69 L.Ed.2d 918 (1981) (holding that a party has an action in the Court of Claims for an unconstitutional taking by the Federal government).

      . See Duke Power Co. v. Carolina Environ. Study, 438 U.S. 59, 94 N. 39, 98 S.Ct. 2620, 2641 N. 39, 57 L.Ed.2d 595 (1978).

      . The only mention of the Tucker Act in the legislative history is in a memorandum read into the record by Senator Symms. See H.R. 6027, 98th Cong., 2d Sess., 130 Cong.Rec. S14366 (daily ed. Oct. 11, 1984). This memorandum merely discusses the possibility of a Tucker Act remedy if retroactive application of the Act was held to be a taking of property without just compensation. It does not state whether or not Congress intended to withdraw the remedy.


author: BENSON, Chief Judge.

text:
    Leland PATZNER, Plaintiff, v. Joyce BURKETT a/k/a Joyce McLaughlin, Deborah Myerchin and Stutsman County, North Dakota, a political subdivision, Defendants.
    Civ. No. A3-84-105.
    United States District Court, D. North Dakota, Southeastern Division.
    March 5, 1985.

      James A. Wright, Hjellum, Weiss, Nerison, Jukkala, Wright & Paulson, Jamestown, N.D., for plaintiff.
    Paul Grinnell, Gunhus, Grinnell, Klinger, Swenson & Bye, Moorhead, Minn., for defendants.
   MEMORANDUM AND ORDER

BENSON, Chief Judge.

Defendants in the above-entitled action have moved for partial or complete summary judgment dismissing Plaintiff’s claims that Defendants Joyce Burkett and Deborah Myerchin made an illegal home arrest without consent or probable cause, violated Plaintiff’s rights by using excessive force, and violated Plaintiff’s rights against cruel and unusual punishment. Defendants further move the court for dismissal of all claims against Defendant Stutsman County, on the basis there is no vicarious liability under 42 U.S.C. § 1983, or in the alternative for dismissal of punitive damage claims against the County.

Plaintiff has opposed Defendants’ motion for summary judgment. In addition, Plaintiff has moved for partial summary judgment on the issue of the legality of the home entry and arrest for driving under the influence (D.U.I.).

FACTS

On April 17, 1983, sometime between 1:30 and 2:50 a.m., Plaintiff Leland Patzner drove his custom built passenger van off a road, through a ditch, and up onto a paved county road. In doing so, his van struck a car driven by his ex-sister-in-law, Pam Marsolek, which was travelling on the paved road. Marsolek’s car was forced off the road into a ditch.

Patzner stopped near Marsolek’s car, spoke with her, and offered her some money. There was a dispute between Patzner and Marsolek as to the amount of money Patzner would pay her. Patzner then informed Marsolek that if she was going to call the police he would be at home. Patzner left the scene of the accident and went immediately to his residence, which was located about three to four city blocks from the accident scene.

Pam Marsolek immediately contacted the Stutsman County Sheriff’s Department, and Deputy Joyce Burkett and Special Deputy Deborah Myerchin were dispatched to the accident scene. Joyce Burkett is a 25-year old female deputy sheriff employed by Stutsman County. Deborah Myerchin is a 24-year old female who was participating in the volunteer special deputy ride along program for Stutsman County. Deborah Myerchin, as a special deputy, was required to periodically ride along with full deputies, to observe and gain experiences for her training. The full deputy was responsible for the patrol unit and was the supervisor of the special deputy. Deborah Myerchin was wearing a uniform and badge, but did not have a handgun or a night stick.

Defendants Burkett and Myerchin drove 15 to 20 miles south from Jamestown, North Dakota, to the accident scene near Ypsilanti, North Dakota. They inspected the scene and Marsolek’s vehicle and interviewed Marsolek and her passengers. Marsolek informed Burkett and Myerchin of Patzner’s offer of money to Marsolek, and that Patzner had been drinking and appeared to be intoxicated. Burkett and Myerchin immediately drove to Patzner’s house.

Burkett inspected the damage to Patzner’s van, which was parked outside Patzner’s house. She observed a man, later identified as Lester Naatus, inside the van removing something, which Burkett believed to be beer. Burkett asked Naatus if Patzner was home, and he responded in the affirmative. Burkett asked if she could talk with him. Naatus said he would get him and went into the house. Burkett waited outside and returned to the squad car.

Burkett then went to the front door of Patzner’s house. The screen door was open, and Burkett asked. Naatus if she could speak with Patzner. Naatus walked back to the kitchen and found Patzner fixing something to eat on the stove. Patzner told Naatus to tell the deputy he was in the kitchen eating. Naatus walked back by the door and told Burkett that Patzner was in the kitchen eating. Naatus then sat down on the couch and Burkett walked through the living room into the kitchen.

Patzner admits that if the officers would have waited until he came out to the living room, he would have asked them in.

Deputy Burkett informed Patzner he was under arrest, and Patzner replied he was not going with her._ Burkett, in an attempt to take Patzner into physical custody, pulled Patzner from his chair, which was at a height of 12 to 18 inches off the floor.

Patzner had both of his legs amputated as the result of a war injury. He weighs over 175 pounds without his prosthetic legs, and he refused to go with Burkett voluntarily. Burkett dragged Patzner into the living room, where Patzner told Burkett that he would go with her. Patzner did not physically cooperate, however, or tell Burkett where his wheel chair or prosthetic legs were. At the time of his arrest, Patzner’s prosthetic legs were in a bedroom in his home. The devices were not fitting him well, and he was waiting to go for a refitting. His wheelchair was in his living room, but Burkett and Myerchin did not know where the wheelchair was located. Patzner never made a request for it.

Burkett continued to drag Patzner another 15 feet to the front door, where they were met by Myerchin. Burkett then handcuffed Patzner and she and Myerchin attempted to carry him to the squad car. They carried and dragged Patzner to the squad car and placed him on the back seat.

Burkett drove Patzner directly to the Stutsman County jail, arriving at about 3:30 to 4:00 a.m. Patzner was dragged and carried up several stairs to the jail booking area, where he was placed on the floor. There were no chairs in the booking area due to the danger they present in the event a prisoner becomes violent. All prisoners are required to stand or sit on the floor or stairs.

While Patzner was being transported to the jail he was asked if he would take a blood test for alcohol. Patzner told Burkett and Myerchin he would not take the blood test until he talked to his lawyer. Patzner was booked with D.U.I. and held for detoxification. He immediately called his lawyer, who arrived at 4:40 a.m.

The jailer took a mattress from a cell bunk and laid it on the floor for Patzner. Patzner was held in the jail overnight until 4:00 p.m. on Sunday, April 17, when he was released.

Patzner did not receive any medical treatment nor has he made any claim for personal injuries. He has made no claim for lost wages or psychological injury.

Patzner was charged with D.U.I. and prosecuted in Stutsman County Court before the Honorable Harold B. Herseth. Patzner moved to suppress evidence and for dismissal of the charges on the basis that his arrest was illegal. Following the evidentiary hearing in the County Court, the court ruled there was no question there was probable cause to make an arrest and that Burkett thought she had consent to enter Patzner’s home, but in fact, there was no consent. The court noted while there was no authority presented to show an officer could enter someone’s home to make a warrantless arrest for a misdemeanor, there was no authority submitted by Patzner that flatly stated the opposite. The court concluded that because the prosecution could not present any authority in support of its position, a warrantless arrest could not be made under the circumstances. The court suppressed all evidence received as a result of the entry into Patzner’s house and the State’s Attorney dismissed the D.U.I. charges against Patzner.

DISCUSSION

Plaintiff brought this action under 42 U.S.C. § 1983 alleging four specific rights violations: (1) arrest without probable cause; (2) warrantless and nonconsentual entry into Plaintiff’s house to perfect an arrest; (3) excessive use of force; and (4) cruel and unusual punishment.

The qualified immunity defense is available to government officials performing discretionary functions. Qualified immunity shields officials from liability from civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person should have known. Harlow v. Fitzgerald, 457 U.S. 800, 815-819, 102 S.Ct. 2727, 2737-2739, 73 L.Ed.2d 396 (1982).

A. Probable Cause to Arrest

In Patzner’s criminal case on the D.U.I. offense, the state court, in ruling on Plaintiff’s motion to suppress and dismiss, specifically held there was probable cause for Patzner’s arrest on the D.U.I. offense. The state court’s finding of probable cause is binding for purposes of this civil rights action under section 1983. Principles of res judicata and collateral estoppel are fully applicable to civil rights actions brought under section 1983. Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980). Therefore, Plaintiff’s claim the arrest was without probable cause cannot be relitigated and fails.

B. Warrantless and Nonconsentual Entry Into Plaintiffs House to Effect an Arrest

Defendants are shielded from liability if their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person should have known. Harlow, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396. The state court judge found that Burkett thought she had been given consent to enter Patzner’s house, but in fact, consent had not been given. The state court judge did not address the pertinent issue here, however, whether Burkett was violating clearly established statutory or constitutional rights of which a reasonable person should have known.

Under section 29-06-15 of the North Dakota Century Code a peace officer, without a warrant, may arrest a person on a charge, made upon reasonable cause, of driving or being in actual physical control of a vehicle while under the influence of alcoholic beverages. In Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), the Court held a warrantless home arrest could not be made for a felony violation upon a showing of probable cause and absent exigent circumstances.

In May 1984, subsequent to the April 1983 incident in this case, the United States Supreme Court decided Welsh v. Wisconsin, — U.S. —, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984), holding that a warrant-less night time entry into the petitioner’s home to arrest him for a civil nonjailable traffic offense was prohibited by the fourth amendment. The petitioner was arrested for driving under the influence of an intoxicant, in violation of a Wisconsin statute which provided that a first offense was a noncriminal violation subject to a civil forfeiture proceeding for a maximum fine of $200. The Court held before government agents may invade the sanctity of the home, the government must demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries. An important factor the Court considered in determining whether an exigency existed was the gravity of the underlying offense for which the arrest was made. The Court held the exigent circumstances exception in the context of a home entry should rarely be sanctioned when there is probable cause to believe only a minor offense has been committed. 104 S.Ct. at 2099.

The Court limited its holding to the facts of the case, in which the offense of driving while intoxicated was classified as a noncriminal, civil forfeiture offense for which no imprisonment was possible. Id. at 2100. The classification and penalty for the offense were said to be the best indication of the state’s interest in precipitating an arrest, and they could be easily identified by both the courts and the officers faced with a decision to arrest. Id. The Court specifically left open the issue of whether the fourth amendment may impose an absolute ban on warrantless home arrests for certain minor offenses. Id. at 2097 n. 11. Since the State of Wisconsin did not have a strong interest in arresting individuals suspected of committing D.U.I. offenses, as shown by the classification of the offense by the State, the Court did not reach the issue of whether the need to ascertain petitioner’s blood-alcohol level supported a finding of exigent circumstances. Id. at 2099-2100.

Defendant Burkett argues the Welsh case illustrates how unclear the status of the law applicable to the facts of the present case is. The North Dakota D.U.I. charge does not constitute a felony, but it does provide for a confinement sentence. N.D.Cent.Code § 39-08-01 (1979). The State of North Dakota has a greater interest than the State of Wisconsin has in the arrest of persons suspected of committing D.U.I. offenses; and the ruling in the Welsh case is not controlling.

Plaintiff moves this court to make a finding that the arrest in this case was illegal under the Welsh case. The relevant issue in this case, however, is whether Defendants violated clearly established statutory or constitutional rights of which a reasonable person should have known. The Welsh court noted that most lower federal and state courts have refused to permit warrantless home arrests for nonfelonious crimes, but specifically left the issue open. 104 S.Ct. at 2097, 2099. Therefore, the legality of a warrantless home arrest for D.U.I. in this case is not clearly established, and a reasonable person would not have known the legality of such an arrest. Therefore, qualified immunity applies to shield the defendants from liability for the warrantless home arrest of Plaintiff.

C. Excessive Force

The court of appeals in Bauer v. Norris, 713 F.2d 408 (8th Cir.1983), discussed the principles to guide the court’s consideration of the use of force by a law enforcement officer. 713 F.2d at 412. The court stated:

[A] court must look to such factors as the need for the application of force, the relationship between the need and the amount of force that was used, the extent of the injury inflicted, and whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.

Id. Plaintiff may recover on his civil rights claim relating to Defendants’ use of force if: (1) Defendants used more force than a reasonable person would have used in the circumstances; or (2) if the force was used for an improper purpose. Id.

In the Bauer case the Eighth Circuit noted there was virtually no evidence the plaintiffs actually physically resisted or physically threatened the law enforcement officers at the time of the arrests. Verbal abuse alone does not justify the use of any force, and force can only be used to overcome physical resistance or threatened force. Id. at 413.

In the present case Patzner admits when Burkett tried to arrest him he told Burkett he wasn’t going with her. Burkett then tried to carry or drag Patzner. When Burkett had dragged Patzner about halfway out to the living room, Patzner told Burkett he’d go with her, but he made no attempt to cooperate physically and he did not tell Burkett where his wheel chair or prosthetic legs were. Burkett then handcuffed Patzner, and Burkett and Myerchin attempted to carry Patzner to the squad car to the extent of their abilities.

Patzner’s claim for excessive use of force is based on his allegations that two female officers were not able to transport Patzner’s weight of approximately 175 pounds from his house to the squad car and from the squad car to the jail booking desk. The force applied was minor, and the actions of Defendants in attempting to move Patzner, who initially refused to come with them and did not cooperate by telling the deputies where his wheelchair or prosthetic legs were, were not unreasonable as a matter of law. The deputies in a rural area did what they could under the circumstances, and their actions do not rise to the level of a constitutional violation.

D. Cruel and Unusual Punishment

Plaintiff contends he was confined for 15 hours to a hard mattress on the floor of a jail cell and was not given the opportunity for release. The critical inquiry is “whether particular restrictions and conditions accompanying pretrial detention amount to punishment in the constitutional sense of that word.” Davis v. Smith, 638 F.2d 66, 68 (8th Cir.1981), quoting Bell v. Wolfish, 441 U.S. 520, 538, 99 S.Ct. 1861, 1873, 60 L.Ed.2d 447 (1979). In Davis, after a nonjury trial, the district court held conditions in the cell constituted cruel and unusual punishment in violation of the eighth amendment. 638 F.2d at 68. The Eighth Circuit stated this finding was clearly sufficient to establish a violation of Davis’ due process rights under the fourteenth amendment. Id. (16 days imprisonment in 6 by 10 foot concrete cell with up to six prisoners; no mattresses, blankets, or pillows; hole in the floor for a toilet; no personal hygiene articles; no wash basin or running water; unheated cell in which prisoners slept huddled together for warmth on steel bunk or concrete floor).

The treatment of Plaintiff in this case does not reach the level of a constitutional violation. Further, if Plaintiff had a constitutional right to some other type of bedding arrangement, the officers were not aware of such right and are immune under the Harlow objective test. See Ford v. Board of Managers of New Jersey State Prison, 407 F.2d 937 (3d Cir.1969) (no cause of action for cruel and unusual punishment, one of the allegations was that an old mattress with a clean cover on a cement shelf was provided for bedding); Carlisle v. Bensinger, 355 F.Supp. 1359 (N.D.Ill.1973) (no cause of action for cruel and unusual punishment; one of allegations was that prisoner was required to sleep on a 2½ inch deep mattress placed on the floor).

E. Liability of Stutsman County

Even though complete summary judgment in favor of Defendants Burkett and Myerchin is appropriate, and thus summary judgment in favor of Defendant Stutsman County is appropriate, the theories of liability alleged against the County will be discussed briefly. Plaintiff alleged Stutsman County is responsible for the policies, procedures, and practices implemented through its agents and employees of the Stutsman County Sheriff’s Department and for injuries occasioned thereby. Plaintiff further alleges that the County was grossly negligent in conducting training and supervising of Burkett and Myerchin. Plaintiff alleges Stutsman County had notice that Burkett was not properly qualified to make a legal arrest based on her past performance.

In Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the Court held that a political subdivision cannot be held liable under section 1983 solely because it employs a tortfeasor, and the conduct of the city must have caused the constitutional violation. A political subdivision can, however, be held liable when execution of a government’s policy or custom, whether by its lawmakers or by those whose acts may fairly be said to represent official policy, inflicts the injury. 436 U.S. at 694, 98 S.Ct. at 2037; See Williams v. Butler, 746 F.2d 431, 438 (8th Cir.1984).

Negligent failure to supervise, control, or train the offending individual officers is not actionable absent a showing that the County either encouraged the alleged specific incident of misconduct or in some other way directly participated in it. At a minimum Plaintiff must show the County at least implicitly authorized, approved, or knowingly acquiesced in the alleged unconstitutional conduct. Hays v. Jefferson County, Ky., 668 F.2d 869, 874 (6th Cir.), cert. denied, 459 U.S. 833, 103 S.Ct. 75, 74 L.Ed.2d 73 (1982); Wing v. Britton, 748 F.2d 494, 498 (8th Cir.1984). When the constitutional violation is not alleged to be part of a pattern of past misconduct, a supervisory official or municipality may be held liable only when there is essentially a complete failure to train the police force, or training is so reckless or grossly negligent that future police misconduct is almost inevitable. 668 F.2d at 874.

Plaintiff has not suggested facts exist to show the County had prior knowledge of Defendants’ propensity for improper conduct. In addition, Plaintiff has not shown that a policy of the County caused the alleged violations in this case, or that there was a total lack of or gross negligence in training and supervision, as required for section 1983 liability.

The punitive damage claim against the County is also improper, as the Supreme Court has held municipalities are immune from punitive damages. City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981). An award of punitive damages would have little deterrent value and would create a risk to the financial integrity of governmental entities. Id.

No genuine issue exists as to any material facts.

IT IS ORDERED judgment be entered for dismissal of Plaintiffs complaint and cause of action against all Defendants.

IT IS FURTHER ORDERED Defendants’ motions to compel Plaintiff to answer interrogatories and to exclude photographs are moot.


author: WEXLER, District Judge.

text:
    Charlotte KADUSHIN, Plaintiff, v. The PORT AUTHORITY OF NEW YORK AND NEW JERSEY, Albert F. Mon-cure, Marvin Weiss, Alfred T. Robertson, Thomas A. Duff and Murray Mahl, Defendants.
    No. CV 83-0535.
    United States District Court, E.D. New York.
    March 5, 1985.

      Eleanor Jackson Piel, New York City, for plaintiff.
    Patrick J. Falvey by James Begley, New York City, for defendants.
   MEMORANDUM AND ORDER

WEXLER, District Judge.

This is an action primarily for employment discrimination. In the Second Cause of Action, however, plaintiff contends that she was illegally discharged by defendant Port Authority without a hearing, in violation of the Due Process Clause of the Fourteenth Amendment. Both sides have moved for partial summary judgment with respect to the Second Cause of Action.

I. FACTS

In July 1967 defendant hired plaintiff as a buyer. In July 1968 plaintiff became a permanent employee. On January 11,1982 plaintiff’s supervisor sent a memorandum to defendant’s Executive Director, recommending that plaintiff be dismissed. On January 26, 1982 defendant’s Assistant Personnel Director sent plaintiff a letter stating that (1) plaintiff’s supervisor had recommended that plaintiff be dismissed because of poor attendance, lack of punctuality, poor performance, and insubordination, and that (2) “you may, within fourteen days from the date hereof, request an appearance before a department head. You may appear in person or by an authorized representative and, after receiving the explanation for the recommended action, may make a written or oral statement.” On March 19, 1982 plaintiff and her attorney met with defendant’s comptroller to discuss the matter. On April 20, 1982 plaintiff responded in writing to the charge. On May 13, 1982 defendant’s Executive Director dismissed plaintiff. At no time was plaintiff given an opportunity to call witnesses.

At the time plaintiff was hired, there was in effect a document known as “General Resolution 76” which had been adopted by the defendant Port Authority in 1941. The resolution provided that a permanent employee may not be discharged “except for good and sufficient reason”, and may be discharged “only after a hearing under such rules and regulations of The Port of New York Authority as may then be in effect.” At the time plaintiff was hired she received a booklet titled “Guide for Port Authority Personnel.” The Guide stated, at page 13, that “an employee who has worked continuously for the Port Authority for at least 12 months shall not be removed from his position for as long as the Port Authority has need for the work he does, except for good and sufficient cause, and only after a hearing.” The Guide also stated, at page 2: “In times to come, some of the policies and procedures described in the following pages may be changed to fit new situations. The basic idea behind them, however, will never change ... fair treatment for everyone, and fitting recognition for meritorious service.” There was also in effect at the time plaintiff was hired a document known as “General Circular No. 67”, which had been issued by the Executive Director in 1942 and revised in 1946. The document provided, in Part I, § 6A, that disciplinary actions against professional and managerial employees would be governed by Part Y. Part V provided for a hearing before the employee’s Department Head, with the employee having the right to make a statement, and for an appeal to the Executive Director, with the employee having the right to make a statement to the Executive Director.

On February 13, 1969, the Port Authority modified General Resolution 76, by providing that professional and managerial employees “may be removed by the Executive Director with the approval of the Chairman of the Committee on Operations, for any cause or reason under procedures established by the Executive Director and filed with the Committee on Operations.” At the same time, the Executive Director adopted a new procedure for the discharge of professional and managerial employees, which (with minor modifications) is still in effect and is incorporated in Port Authority Instruction 20-1.11. The procedure currently provides that a discharge proceeding is initiated by a memorandum written by the employee’s own Department Head. The employee may request an interview with a different Department Head designated by the Executive Director. Such different Department Head then reports to the Executive Director, who makes the decision whether to discharge the employee.

The Port Authority, it should be noted, was created pursuant to a compact between New York and New Jersey.

II. DISCUSSION

Plaintiff contends that the relevant tenure regulations gave plaintiff a vested property interest in her job, and that her discharge without a full-scale evidentiary hearing constituted a taking of property without due process and an impairment of contract.

A. The Arnett Case

The case most directly on point is Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974). In that case plaintiff, a federal employee, was administratively charged with having libeled his superior. Statutory and regulatory provisions provided that plaintiff could not be discharged without cause, that plaintiff was entitled to a pre-termination opportunity to rebut any charges by submitting affidavits to the superior, and that plaintiff was entitled to a post-termination evidentiary trial-type hearing. Plaintiff failed to request a pre-termination opportunity to rebut the charges, and was discharged by the superior. A three-judge District Court held that plaintiff was entitled to a pre-termination hearing before an impartial tribunal with a right to present witnesses. The Supreme Court. reversed and remanded. Justice Rehnquist, in a plurality opinion joined in by Chief Justice Burger and Justice Stewart, stated that although plaintiff had a statutorily created property interest in his job, such interest was entirely subject to statutorily created procedures, which permitted discharge without a full-scale evidentiary pre-termination hearing before an impartial tribunal. Justice Rehnquist apparently regarded the right to a post-termination evidentiary hearing as being relevant only insofar as such right was necessary to protect an employee against damage to his reputation, and apparently thought that no such right would be constitutionally required in the absence of potential damage to reputation. Justice Powell, in a concurring opinion joined by Justice Blackmun, contended that once a substantive property interest has been created, the Constitution rather than a statute determines what minimum of procedure is needed to extinguish such right. Justice Powell found that the Constitution did not require a pre-termination evidentiary hearing before an impartial tribunal under the facts of the case, but apparently believed that a post-termination evidentiary hearing before an impartial tribunal was essential. Justice White, concurring in part and dissenting in part, stated that a post-termination evidentiary hearing was essential, although he noted that a different rule might apply where an employee is discharged for “reasons of pure inefficiency” rather than “specific charges of misconduct.” Justice White further stated that while it was permissible that a pre-termination hearing be without witnesses, serious constitutional difficulties would arise if a statute were interpreted as permitting a pre-termination hearing without an impartial hearing examiner.

B. Existence of Substantive Property Right

In the instant case, the first issue is whether plaintiff had a substantive property interest in her job. We hold that she did. At the time plaintiff became a permanent employee in July 1968, General Resolution 76 (as reflected in the Guide) unequivocally provided that plaintiff could be discharged only for good and sufficient cause, and only after a hearing. We hold that these provisions were sufficient to create a substantive property right under New York law. See Weiner v. McGraw-Hill, Inc., 57 N.Y.2d 458, 457 N.Y.S.2d 193, 443 N.E.2d 441 (1982). Although it is true that the Resolution and Guide contemplated the possibility of changes concerning hearing procedure, no suggestion was made that the right to continued employment in the absence of just cause for discharge was itself subject to abolition.

Since state law gave plaintiff a substantive property interest in her job, the Due Process Clause of the Fourteenth Amendment prohibited the defendant state agency from depriving plaintiff of her job without due process. Arnett v. Kennedy, supra. The question remains, however, as to what process was “due” and as to what source should be looked to on this point.

C. Adequacy Of Pre-Termination Procedures and Standards

Let us leave aside for the moment the question of whether plaintiff was entitled to a post-termination evidentiary hearing before her discharge could become final. Let us first determine whether plaintiff received all the pre -termination process to which she was constitutionally entitled.

In Arnett, six justices agreed that the Due Process Clause does not require a pre-termination evidentiary hearing. We therefore hold that the instant pre-termination hearing was not invalid on the ground that plaintiff was not allowed to present witnesses.

In Arnett, five justices agreed that the Due Process Clause does not require that a pre-termination hearing be conducted by an impartial examiner. In the instant case, unlike in Arnett, there is no self-evident reason to doubt the impartiality of the pretermination hearing official. However, we will assume for the sake of argument that the pre-termination hearing was not conducted by an impartial official. We hold that the pre-termination hearing did not violate due process on this ground.

In Arnett, three justices implied that a pre-termination hearing comports with the Due Process Clause if conducted under procedures established by the same legal provisions creating the underlying substantive right. The justices presumably meant not only that due process does not require procedures superior to those provided by the legal provision creating the underlying substantive right, but also that due process does require procedures not inferior to those provided by the legal provision creating the underlying substantive right. As will be shown below, it is unnecessary for us to decide whether we agree with this reasoning in order to determine the validity of the instant pre-termination hearing.

In the instant case, the Port Authority on February 13, 1969 (subsequent to plaintiff becoming a permanent employee) modified General Resolution 76 by providing that certain employees “may be removed ... for any cause or reason”, whereas previously such employees could not be discharged “except for good and sufficient reason”. This was not a mere change in procedure, but a change in the substantive standard for discharge of employees. If an employee had acquired rights under the old substantive standard and was subsequently discharged as a result of the adoption of the new, inferior substantive standard, such discharge would constitute a violation of substantive due process. This is so quite independently of whether the reasoning of the three-justice plurality opinion in Arnett concerning procedural due process is correct. We find, however, that plaintiffs discharge did not result from the adoption of the new, inferi- or substantive standard. Plaintiff was accused of poor attendance, lack of punctuality, poor performance, and insubordination. These charges, if true, would surely constitute “good and sufficient reason” for discharge. Consequently, plaintiff’s discharge was not caused by the adoption of the new, inferior substantive standard, and did not violate substantive due process.

The question remains, however, of whether the change in procedures from those authorized by General Circular No. 67 at the time plaintiff became a permanent employee to those authorized by Port Authority Instruction 20.1-11 at the time of the pre-termination hearing violated plaintiff’s right to procedural due process. The new procedures provided that the pretermination hearing would be conducted not by an employee’s own Department Head but rather by a different Department Head, and also abolished the right to make a separate statement to the Executive Director. The first change is a change in favor of an employee. Instead of requiring that the pre-termination hearing be conducted by an employee’s own Department Head (who might well be biased against such employee), the new procedures require the hearing to be conducted by another Department Head designated by the Executive Director, and thus increase the chance that the hearing will be conducted by an impartial official. The other change, the loss of the right to make a separate statement to the Executive Director, does not appear to us to represent a significant loss on the part of an employee, as the first change in our view largely removed the rationale for a de novo review by a second official. Certainly the combined effect of the two changes did not produce a net loss for employees. Consequently, it is unnecessary to determine the validity of the reasoning of the three-justice plurality opinion in Arnett in order to note that the pre-termination hearing in the instant case met the standards of that opinion.

For the above reasons, we conclude that the pre-termination hearing in the instant case was consistent with the Due Process Clause of the Fourteenth Amendment and the Contracts Clause of Article I, § 10 of the Constitution.

D. Post-Termination Hearing

The question remains as to whether defendant should have provided plaintiff with a post-termination evidentiary hearing before an impartial tribunal.

If we were to follow the reasoning of Justice Rehnquist’s plurality opinion in Arnett, supra, that the government in depriving a person of a substantive right need provide only such procedures as were guaranteed in the legislation creating the underlying substantive right, we would find that plaintiff is not entitled to a post-termination hearing. However, in Vitek v. Jones, 445 U.S. 480, 490-491, 100 S.Ct. 1254, 1262-1263, 63 L.Ed.2d 552 (1980) the Court rejected this reasoning and held that, under the Due Process Clause of the Fourteenth Amendment, once the state creates a substantive property or liberty right the state cannot deprive a person of such right without meeting certain minimal procedural requirements set by federal constitutional law rather than by state law. Although this holding was not the sole basis for the decision (since the Court held that the plaintiff possessed a substantive liberty interest created by federal constitutional law as well as one created by state law), Justice Rehnquist himself has now apparently adopted this holding. Santosky v. Kramer, 455 U.S. 745, 775 n. 3, 102 S.Ct. 1388, 1406 n. 3, 71 L.Ed.2d 599 (Rehnquist, J., dissenting) (1982). We therefore hold that where, as here, the state has created a substantive property or liberty interest, the state cannot deprive a person of such interest without meeting certain minimum procedural requirements set by the Due Process Clause of the Fourteenth Amendment rather than by state law.

The Supreme Court has explained that due process ordinarily requires an opportunity to confront and cross-examine adverse witnesses, and an impartial decision-maker. Goldberg v. Kelly, 397 U.S. 254, 269-271, 90 S.Ct. 1011, 1021-1022, 25 L.Ed.2d 287 (1970). In the instant case, although (as we have held) defendant was not required to supply plaintiff with a pretermination evidentiary hearing, defendant was required to supply plaintiff with (at the least) a post-termination evidentiary hearing before an impartial tribunal. Consequently, without definitively resolving the question of whether the pre-termination non-evidentiary hearing was conducted by an impartial official, we note that defendant did not supply plaintiff with any evidentiary hearing whatsoever, before or after the termination, and hold that defendant has therefore deprived plaintiff of property without due process, in violation of the Due Process Clause of the Fourteenth Amendment.

The question remains as to what remedy plaintiff is entitled to. Possible remedies include money damages, an injunction requiring a post-termination evidentiary hearing before an impartial tribunal, or a combination of both. We need not determine the remedy at the present time. Determination of the form and scope of the remedy can await trial.

III. CONCLUSION

Plaintiff is granted partial summary judgment with respect to thé Second Cause of Action. The Clerk shall not enter judgment at this time, as determination of the remaining Causes of Action and of the remedy for the Second Cause of Action must await trial.

SO ORDERED.

      . Although that case dealt with the Due Process Clause of the Fifth Amendment, its reasoning is equally applicable to the instant case involving the Due Process Clause of the Fourteenth Amendment and the Contracts Clause of Article I, § 10 of the Constitution.

      . In Williams v. Port Authority, 584 F.2d 974 (2nd Cir.1978), the Court stated that "[s]ince the Port Authority’s internal regulations permitted managerial employees like appellant to be dismissed for any reason, appellant cannot claim any protectible right in an expectation of job retention.” Given that the Court did not have before it the issue of the significance of General Resolution 76 and the Guide, and given that that opinion was not published, that opinion is not dispositive of the instant case.