text:
    Catherine ROZAR, Wayne Beard, Anita Ashley, Vance Heard, Royel Lee Hines, Essie B. Brantley, Joyce Cummings, Maceo Rozar, Homer L. Berry, Sr., Tommy Lee Beard, Individually and as Representative of Save Our Neighborhood Community Neighborhood Association, Plaintiffs-Appellants, v. D.M. MULLIS, Individually and as Member of the Laurens County Board of Commissioners, Roscoe Brower, Individually and Member of the Laurens County Board of Commissioners, Emory Lake, Individually and as Member of the Laurens County Board of Commissioners, Michael Wolfe, Individually and as Member of the Laurens County Board of Commissioners, Harold Reheis, Individually and as Director of the Environmental Protection Division of the Georgia Department of Natural Resources, Environmental Protection Division of the Georgia Department of Natural Resources, Laurens County, Georgia, Defendants-Appellees.
    No. 95-8227.
    United States Court of Appeals, Eleventh Circuit.
    June 17, 1996.

      Lonzy F. Edwards, Edwards & Youmans, Macon, GA, for Appellants.
    Thomas F. Richardson, Christopher D. Balch, Chambless, Higdon & Carson, Macon, GA, Billy R. Eight, Billy R. Eight, P.C., Dublin, GA, for Laurens County.
    Cathy C. Taylor, Barbara Hefner Gallo, Robert S. Bomar, Atlanta, GA, for State Appellees.
    Before TJOFLAT, Chief Judge, and RONEY and CAMPBELL , Senior Circuit Judges.

       Honorable Levin H. Campbell, Senior U.S. Circuit Judge for the First Circuit, sitting by designation.

   LEVIN H. CAMPBELL, Senior Circuit Judge:

Plaintiffs, as individuals and representatives of Save Our Neighborhood Community Neighborhood Association, sued Laurens County in Georgia, members of its Board of Commissioners (“County Board”), the Georgia Environmental Protection Division (“EPD”), and its director, alleging racial discrimination in the siting and permitting of a solid waste landfill in their neighborhood. Plaintiffs appeal from orders, entered by the United States District Court for the Southern District of Georgia, denying an injunction and granting summary judgment to the defendants on the ground that the plaintiffs’ federal claims were time-barred. We affirm, although on grounds different in some respects from those stated by the district court.

I.

This case arises from Laurens County’s efforts to construct a solid waste landfill to replace its existing one, which had almost reached capacity and was becoming contaminated. In 1989 the County Board hired an engineering firm, Tribble & Richardson, Inc., and a local property expert, Curtis Beall, to investigate potential sites suitable for a new landfill. Beall prepared a list of more than twenty possible sites, some of which were readily rejected because of insufficient useable acreage or the owner’s unwillingness to sell. The record contains evidence that additional sites were added to the list as others were eliminated.

In January 1991 the County Board met to discuss a site at Scotland Road, which the engineers had recommended. Citing concerns such as the sufficiency of useable land there, the Board voted to table any action until alternatives were studied. Plaintiffs say that the site was not pursued because white residents protested. The record suggests, however, that most of the area resiboth an AM-church were dents were AMcan-American; can-Ameriean and a white nearby.

The list of potential landfill sites was expanded to include Old Macon Road, a mixed racial neighborhood located approximately three miles from the existing solid waste landfill. The record indicates that this site was brought to the County Board’s attention when the property owner offered to sell a sizable tract (more than 400 acres). Preliminary testing was done on the Old Macon Road property in February 1991, at which time a renewable option to purchase the property was signed. In November 1991, at a meeting attended by at least one plaintiff, the County Board voted to hold a public hearing the next month to decide whether to construct the landfill there and to apply to the state for a permit. Notice of the date, time, and purposes of the meeting was published in the local newspaper in the weeks before the meeting and was posted at the proposed site and at the local courthouse, where the meeting was to be held.

At least one named plaintiff attended the public meeting on December 3, 1991 and protested the proposed siting of the landfill near plaintiffs’ homes. The County Board, which was comprised of one AMcan-American and four white members, voted for the Old Macon Road site by three to two. The three who supported the site were white.

The County Board promptly applied to the state for a permit to construct the landfill at Old Macon Road, as required by the Georgia Comprehensive Solid Waste Management Act, O.C.G.A § 12-8-20 et seq. (“CSWMA”). In late December 1991, the Georgia EPD notified the Board that, after a preliminary review of the application, the Old Macon Road site seemed “quite complex from a hydrogeological point of view.” The letter stated that an expanded subsurface investigation was needed, and that it “may demonstrate that the site is not suitable.”

Land studies continued, and the property ultimately was determined to be acceptable for solid waste disposal. The EPD so notified the County Board in a “site suitability” letter on August 31,1992. The letter emphasized that before a permit could be granted, all state requirements had to be met, including the Board’s submission and the State’s approval of a solid waste landfill design and operational plan. The County Board, having received the site suitability letter, voted on September 15, 1992 to purchase the Old Macon Road property (for which an option to purchase had been renewed since the initial agreement in February 1991). The purchase took place on September 28,1992.

The following spring, the County Board initiated a “facility issues negotiation process” as required by state law. See O.C.G.A § 12-8-32(f). Some plaintiffs participated, voicing concerns with issues such as the hours and methods of the landfill’s operation, fencing around the property, and traffic flow. Race-related concerns were not raised, apparently because some plaintiffs had been advised by the facilitator that that was not an appropriate forum in which to do so. Following completion of the negotiation process, the Board proceeded with its permit application, and the EPD issued a permit on September 3,1993.

Plaintiffs appealed from the EPD’s issuance of the permit to the Georgia Board of Natural Resources. County Board representatives intervened as respondents. Plaintiffs challenged on numerous grounds whether respondents had complied with statutory and regulatory requirements {e.g., public notice provisions, protections against contamination of the wells). Allegations of race discrimination were not raised. An administrative law judge held an evidentiary hearing and issued an order in June 1994 affirming the issuance of the permit upon compliance with one condition (involving acceptance of out-of-county waste). The Laurens County Superior Court affirmed the ALJ’s order on November 4, 1994.

Meanwhile, on August 15, 1994, plaintiffs filed this civil complaint in the federal district court. Seeking damages and a preliminary and permanent injunction, they asserted various claims, including that the county and state defendants had committed acts of racial discrimination under color of law and had conspired to deprive them of federally secured rights. After a hearing, the district court denied a preliminary injunction in December 1994. The court subsequently allowed the county and state defendants’ motions for summary judgment on the solely asserted ground that plaintiffs’ federal claims were time-barred. This appeal followed.

II. Statute of Limitations

A. The District Court Opinion

In the complaint, defendants were charged with race discrimination in violation of the Equal Protection Clause and 42 U.S.C. § 1983, 1985, and 2000d et seq. They were also charged with a taking of plaintiffs’ life, liberty or property without due process of law, and a nuisance in violation of Georgia state law. Provisions of the Georgia CSWMA were challenged as being unconstitutional on their face and as applied.

In granting summary judgment to defendants on the ground that plaintiffs’ federal claims, filed on August 15, 1994, were untimely, the district court grouped together all federal claims against both the county and state defendants. It held that the applicable limitations period was two years, under the state statute of limitations for personal injury actions, O.C.G.A. § 9-3-33. The court accepted defendants’ argument that the two-year period began to run when the County Board voted on December 3, 1991 to select Old Macon Road as the new landfill site. The district court stated that at the time of that vote, several plaintiffs knew or should have known of the injuries of which they later complained. The district court rejected plaintiffs’ argument that the limitations period did not begin to run against the county defendants until the Board made final its selection of a site by exercising its option and purchasing the landfill property in September 1992. The court also rejected, without explanation, plaintiffs’ argument that, since state authorities were not yet involved by the time of the County Board’s site selection vote on December 3, 1991, plaintiffs’ action against the state defendants could not have accrued then, and must have accrued, at the earliest, when the EPD, a state agency, issued a site suitability letter on August 31, 1992 (if not later when the EPD issued a final permit on September 3, 1993). Accrual by these dates would have rendered the suit against the state defendants timely.

We review the district court’s grant of summary judgment de novo to determine whether the record shows “that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). In so doing, we construe the facts in the light most favorable to the non-movant, plaintiffs. E.g., Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 594 (11th Cir.1995).

B. Applicable Limitations Period

The district court ruled, and the parties do not dispute, that Georgia’s personal injury limitations period of two years, O.C.G.A. § 9-3-33, applies to all the federal claims. We fully agree, discussing the matter briefly only because this is the first time this circuit has had occasion to address the limitations period applicable to section 2000d (Title VI of the Civil Rights Act of 1964).

As to the claims brought here under 42 U.S.C. §§ 1983 and 1985, precedent is clear that these are measured by the personal injury limitations period of the state. Wilson v. Garcia, 471 U.S. 261, 269, 105 S.Ct. 1938, 1943, 85 L.Ed.2d 254 (1985) (section 1983); Mullinax v. McElhenney, 817 F.2d 711, 716 n. 2 (11th Cir.1987) (section 1983); Williams v. City of Atlanta, 794 F.2d 624, 625 n. 1 (11th Cir.1986) (applying Wilson retroactively to section 1983 claim and accepting appellants’ concession that the same limitations period applied to sections 1981, 1985, and 1988 claims); Drayden v. Needville Indep. Sch. Dist., 642 F.2d 129, 131-132 (5th Cir.1981) (section 1985).

As to the claim brought under section 2000d, while neither the Supreme Court nor this circuit has decided whether a state’s personal injury limitations period applies, the other circuits that have faced the question have so ruled, and we agree with their reasoning. In Baker v. Board of Regents, 991 F.2d 628 (10th Cir.1993), the Tenth Circuit reasoned that section 2000d is “closely analogous” to sections 1983 and 1981: all are civil rights statutes aimed at providing equal rights under the law and preventing discrimination against a person and the resulting “impairments to the rights and dignities of the individual.” Id. at 631. Characterizing section 2000d claims as personal injury actions for limitations purposes “promotes a consistent and uniform framework by which suitable statutes of limitations can be determined for civil rights claims,” and serves Congress’ objectives by avoiding uncertainty and “creat[ing] an effective remedy for the enforcement of federal civil rights.” Id. (internal citations omitted). The Eighth Circuit followed Baker in Egerdahl v. Hibbing Community College, 72 F.3d 615, 618 (8th Cir.1995) (noting that “a plaintiff suing a federally-supported program for racial discrimination may bring a claim under any one of these three laws [sections 1983, 1981, or 2000d]”). See also Taylor v. Regents of Univ. of Cal., 993 F.2d 710, 712 (9th Cir.1993) (applying same state personal injury limitations period to sections 1983 and 2000d claims), cert. denied, — U.S. -, 114 S.Ct. 890, 127 L.Ed.2d 83 (1994).

Finding our sister circuits persuasive as to section 2000d, we hold that Georgia’s two-year personal injury limitations period applies to the claim under that provision as well as those under sections 1983 and 1985.

C. Accrual of the Actions

We turn next to whether plaintiffs’ causes of action against each group of defendants accrued before or after August 15, 1992, this being the date two years before the present complaint was filed on August 15, 1994. Federal law determines when a federal civil rights claim accrues. Mullinax, 817 F.2d at 716. The general federal rule is that “ ‘the statute [of limitations] does not begin to run until the facts which would support a cause of action are apparent or should be apparent to a person with a reasonably prudent regard for his rights.’” Id. (internal citation omitted) (section 1983 claim); Drayden, 642 F.2d at 132 (section 1985 claim). Plaintiffs must know or have reason to know that they were injured, and must be aware or should be aware of who inflicted the injury. Mullinax, 817 F.2d at 716. This rule requires a court first to identify the alleged injuries, and then to determine when plaintiffs could have sued for them. See Kelly v. City of Chicago, 4 F.3d 509, 511 (7th Cir.1993).

The district court concluded that all of plaintiffs’ claims accrued against both state and county defendants on December 3, 1991, when the County Board voted to select Old Macon Road as the landfill site. While we agree as to the county defendants, we disagree that claims against the state defendants accrued by then.

1. County Defendants

We begin by identifying the injuries allegedly caused by the county defendants. Plaintiffs contend that the county defendants deprived them of the Fourteenth Amendment guarantee of equal protection of the laws by furthering a pattern and practice of siting landfills in predominantly minority areas. In support, plaintiffs assert that the county defendants (1) rejected the Scotland Road site because of white residents’ protests; (2) added plaintiffs’ neighborhood to an already-developed list of potential landfill sites, despite the presence of certain unsuitable land characteristics which had led other proposed sites to be rejected; and (3) voted by an all-white majority to construct the landfill in their neighborhood. These allegedly racially motivated acts are said to have had a discriminatory impact by harming the African-American residents’ property values, health, and welfare. Under the above theory, we readily agree with the district court that the constitutional injury allegedly inflicted by county defendants upon plaintiffs took place when the County Board — for what plaintiffs say were racially discriminatory reasons — -voted to select Old Macon Road as the site for the hew landfill.

This leaves as a remaining question when the plaintiffs knew or should have been aware of the injury. It is uncontroverted that following notice published in a local newspaper and posted at the courthouse and at the proposed site, the County Board’s vote occurred on December 3, 1991 at a public meeting attended and participated in by at least one named plaintiff. Plaintiffs did not argue in the district court, nor do they argue on appeal, that the remaining plaintiffs were justifiably unaware of what occurred at the December 3,1991, public meeting. The burden was on plaintiffs, had any of them wished to maintain that they were justifiably ignorant at the time of or immediately after the County Board’s allegedly discriminatory action, to make such a showing. See Cathedral of Joy Baptist Church v. Village of Hazel Crest, 22 F.3d 713, 717 (7th Cir.) (African-American church asserting that local board’s zoning vote was racially discriminatory has the burden of showing “that even with the exercise of reasonable diligence it could not have known of the purported injury inflicted by the Village” on the date of the vote), cert. denied, — U.S. -, 115 S.Ct. 197, 130 L.Ed.2d 129 (1994). Besides the evidence of public notice and the presence of one plaintiff at the meeting, the record indicates that at least one of the named plaintiffs then knew of county defendants’ earlier tabling of the proposal to use the Scotland Road site, an action plaintiffs say was done to favor white residents. Cf. Calhoun v. Alabama Alcoholic Beverage Control Bd., 705 F.2d 422, 425 (11th Cir.1983). On this record, we affirm the district court’s conclusion that plaintiffs’ constitutional equal protection claim accrued against the county defendants no later than December 3, 1991, at which time the alleged injury was inflicted by county action taken at a public hearing.

Plaintiffs argue below and on appeal that their equal protection claim did not accrue until the county defendants actually acquired an ownership interest in the landfill property (i.e., on September 21 or 28, 1992, the dates when county defendants exercised the option they held on the property and actually purchased it). But the Commissioners’ vote selecting the site in question, taken at their December 3, 1991 meeting — a vote that plaintiffs say was racially motivated — was the operative decision amounting to the alleged constitutional injury. While a state permit and final purchase still lay ahead, the county defendants’ unconstitutional act, if such it was, occurred when they formally committed the County Board to the choice of this site. See Chardon v. Fernandez, 454 U.S. 6, 8, 102 S.Ct. 28, 29, 70 L.Ed.2d 6 (1981) (employment discrimination claim accrued when “the operative decision was made — and notice given — in advance of a designated date on which employment terminated”; “the proper focus is on the time of the discriminatory act, not the point at which the consequences of the act become painful”) (citing Delaware State College v. Ricks, 449 U.S. 250, 258, 101 S.Ct. 498, 504, 66 L.Ed.2d 431 (1980)) (emphasis omitted); cf. Cathedral of Joy Baptist Church, 22 F.3d at 718-719; Kelly, 4 F.3d at 512; Calhoun, 705 F.2d at 425.

Plaintiffs also charge the county defendants with violating their due process rights. The precise nature of plaintiffs’ due process claim is unclear from the broadly worded complaint. Plaintiffs assert that the county defendants’ acts authorized a devaluing and a taking of their property without due process, endangering their health, welfare, and safety. At bottom, plaintiffs seem to be charging arbitrary and capricious governmental action.

Whatever its precise theory, and however it differed legally from the equal protection claim, the due process claim relied on the same factual scenario as the former. The county defendants were alleged to have acted arbitrarily in selecting Old Macon Road as the landfill site — their selection is said to have been influenced by impermissible racial considerations, rather than by the objective criteria (e.g. useable acreage, wetlands) that were applied in rejecting other fairly comparable sites. The alleged constitutional injury by the county flowed, therefore, from the same allegedly arbitrary vote, taken on December 3, 1991, selecting the Old Macon Road site. Accordingly, this claim against the county defendants was also time-barred, as the district court found.

Plaintiffs further allege that the county and state defendants conspired to violate their statutory right to equal protection of the laws under section 1985. Appellants’ briefs, however, do not suggest, and the record lacks any evidence to show, the date when the alleged conspiracy began; further, at oral argument, appellants’ counsel conceded the absence of any conspiracy claim against the state defendants. Accordingly, we hold that plaintiffs have abandoned on appeal their claim that the county and state defendants together conspired to deprive them of equal protection of the laws. To the extent that plaintiffs are deemed to have alleged a conspiracy among just the county defendants themselves, such a conspiracy would have accrued on the date of the site selection vote if not earlier, rendering the claim time-barred.

We therefore affirm the district court’s holding that plaintiffs’ federal statutory and constitutional claims against the county defendants are time-barred.

2. State Defendants

Plaintiffs’ claims against the state defendants, in contrast to those against the county defendants, were erroneously found to be untimely — although, for reasons stated below, we affirm the granting of summary judgment on a different ground. Nothing in the record suggests that the state defendants took part in the County Board’s allegedly biased vote on December 3, 1991 to select Old Macon Road for the new landfill. The state defendants only became significantly involved later, during the permitting process. If, therefore, the state defendants committed any equal protection and substantive due process violations at all, those wrongs were most likely inflicted, it would seem, either through some kind of impliedly discriminatory site suitability determination by the EPD (August 31, 1992), or impliedly discriminatory decision to issue the final permit (September 3, 1993). Even if plaintiffs learned of their injury on the earlier date, the complaint was filed on August 15,1994, within the two-year limitations period. Summary judgment based on the statute of limitations (the ground asserted by the state defendants in their summary judgment motion) was not warranted.

III. Lack of Any Supported Claim Against the State Defendants

While the statute of limitations did not bar the claims against the state defendants, an appellate court may affirm a grant of summary judgment on any alternative ground fairly supported by the record. E.g., Railway Labor Executives’ Ass’n v. Southern Ry. Co., 860 F.2d 1038 n. 2 (11th Cir.1988) (citation omitted). Here, we find as an alternative ground the complete absence of any showing of discriminatory conduct by the state defendants, coupled with the apparent abandonment of any such claims by concession during oral argument before us. We recognize, of course, that an appellate court’s authority to affirm summary judgment on an alternative ground is limited by the principle that the parties must have

had a full and fair opportunity to develop facts relevant to the decision____ Where summary judgment is granted on one issue, an appellate court may not extend that judgment to another issue under the guise of affirming the “result below” when the effect is to preclude the losing party from “disputing) facts material to that claim.”
Heirs of Ude C. Fruge v. Blood Servs., 506 F.2d 841, 844 n. 2 (5th Cir.1975) (citing Fountain v. Filson, 336 U.S. 681, 683, 69 S.Ct. 754, 755-756, 93 L.Ed. 971 (1949)) (remanding on question of negligence, where plaintiffs “were never called upon to produce any Rule 56(c) materials” on the merits of their claim).

In the present case, two considerations lead us to conclude that we properly may and should affirm the district court’s order granting summary judgment to the state defendants, on the alternative ground that plaintiffs have clearly failed to demonstrate the existence of any viable claim against the state defendants. First, the evidentiary hearing on plaintiffs’ request for a preliminary injunction against all the defendants, which forms a part of the record in this appeal, provided at least partial opportunity and inducement for plaintiffs to present whatever facts they could in support of their claims against the state defendants. At that hearing, plaintiffs had an opportunity — and to obtain an injunction were required — to show a substantial likelihood of success on the merits of their claims (including equal protection and due process) against the various defendants. The evidence they adduced not only failed to show a probability of success against the state defendants but, more to the point here, was wholly insufficient as a matter of law to support a finding that the state defendants had engaged in intentional racial discrimination including the pattern or practice of discrimination in the siting of landfills asserted as to the county defendants. It was the county, not the state, defendants who selected the site. The principal responsibility of the state defendants lay in ascertaining the technical suitability of an already chosen site. While plaintiffs and others opposed the state’s granting of a permit for the county’s choice on various technical grounds, they did not at that time charge the county with discrimination, raising the question of how state authorities would even know that discrimination was an issue. It remains unclear to this moment on what factual basis plaintiffs now charge that the state defendants’ granting of the permit was racially motivated. See Village of Arlington Heights v. Metropolitan Housing Devel. Corp., 429 U.S. 252, 266, 97 S.Ct. 555, 563-564, 50 L.Ed.2d 450 (1977) (evidence of both discriminatory intent and discriminatory impact are required to show an equal protection violation, absent an unusually stark pattern); Washington v. Davis, 426 U.S. 229, 242, 96 S.Ct. 2040, 2049, 48 L.Ed.2d 597 (1976); see also Terry Properties, Inc. v. Standard Oil Co., 799 F.2d 1523, 1535 (11th Cir.1986) (no equal protection violation where the record did not show discriminatory intent, but rather showed that legitimate decisionmaking factors were used in the siting of an industrial plant).

Having said this, we recognize that the hearing on the preliminary injunction was not the full equivalent of an opportunity to make submissions in response to a summary judgment motion based on an allegation that plaintiffs lacked a valid claim against the state defendants. If this were all, we would be reluctant to find that the injunctive hearing, standing alone, sufficed for present purposes. But there was more. At oral argument, appellants’ counsel conceded, in response to panel inquiry, that, “As to the state defendants, I’m not aware of anything [relative to violating the Fourteenth Amendment], in all candor with the court at this point.” Adding this concession to the failed opportunity to present evidence against the state defendants at the preliminary injunction hearing, we can see no unfairness in affirming the judgment in favor of the state defendants without affording plaintiffs a further opportunity on remand. We conclude that the summary judgment granted against the state defendants should stand for the independent reasons just stated.

IV. Preliminary Injunction

Plaintiffs also appeal from the district court’s refusal to issue a preliminary injunction enjoining defendants from carrying out the construction of the landfill at Old Macon Road. Among other factors, the granting of such an injunction would call for a finding by the district court that plaintiffs have a substantial likelihood of success on the merits. Since the claims against the county defendants were, as the court later found and as we affirm, time-barred, an injunction against them was properly denied. Further, for the reasons stated above, plaintiffs have failed to put forward any viable federal statutory or constitutional claims against the state defendants. It was therefore not an abuse of discretion to deny injunctive relief against the state defendants.

AFFIRMED.

      . Defendants include D.M. Mullís, Roscoe Brow-er, Emory Lake, and Michael Wolfe, individually and as members of the Laurens County Board of Commissioners, Laurens County (“county defendants") and Harold Reheis, individually and as director of the Environmental Protection Division of the Georgia Department of Natural Resources, Environmental Protection Division (“EPD”) of the Georgia Department of Natural Resources ("state defendants”), and John Doe.

      . The Act prohibits the construction or operation of a solid waste disposal facility without a permit obtained from the director of the EPD. A permit applicant must comply with many statutory and regulatory requirements, such as showing need for the facility, compliance with zoning or land use ordinances, data on the geologic and hydro-geologic suitability of the site, and a suitable design and operation plan. A county that is applying for a permit also must follow detailed procedures, including but not limited to notifying the public of the meeting at which a siting decision is to be made; notifying the public after receiving a site suitability determination from the state; holding a public hearing to inform affected residents of the opportunity to engage in a "facility issues negotiation process” to discuss facility operation issues; and notifying the state if the negotiating parties reach or do not reach consensus on negotiated issues, in order to continue the permit application process.

      . Having granted summary judgment on the federal claims, the district court declined to exercise supplemental jurisdiction over the state law nuisance claim.

      . In saying that the Georgia personal injury limitations period applies to plaintiffs' federal claims, we exclude the claims that the notice provisions of the Georgia CSWMA on their face and as applied violate the Due Process Clause of the Fourteenth Amendment. Plaintiffs included these claims in their complaint, but have not addressed them on appeal. Accordingly, we deem the matter to have been waived. E.g., Stepak v. Addison, 20 F.3d 398, 412 (11th Cir.1994).

      . Section 2000d provides:
      No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

      . Section 1983 provides:
      Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Teixitoiy ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

      .Section 1985(3) provides in relevant part that injured parties may have an action for damages if
      two or more persons in any State or Territory conspire, ... for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws, or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws; ____

      . At the hearing on the preliminary injunction, plaintiffs criticized the absence of individual notice to residents in advance of the meeting. Their witnesses indicated, however, having received notice of the site’s consideration by word of mouth; and no evidence complaining of a lack of plaintiffs’ actual awareness of the alleged injurious vote was introduced, nor was such a contention pursued on appeal.

      . Plaintiffs also allege racial discrimination by a state agency receiving federal funds, in violation of section 2000d (Title VI). Like the constitutional equal protection claim. Tide VI requires a showing of intentional discrimination absent reliance (of which there was none here) on an agency regulation proscribing acts with a discriminatory impact. See Elston v. Talladega County Bd. of Educ., 997 F.2d 1394, 1406 (11th Cir.1993) (citing Alexander v. Choate, 469 U.S. 287, 292-294, 105 S.Ct. 712, 715-716, 83 L.Ed.2d 661 (1985); Guardians Ass’n v. Civil Serv. Comm’n of New York City, 463 U.S. 582, 584 n. 2, 103 S.Ct. 3221, 3223 n. 2, 77 L.Ed.2d 866 (1983)). For accrual purposes, therefore, the Title VI and equal protection claims against the state defendants should be treated similarly.

      . We note in fairness to counsel, who was not the same counsel as appeared in the district court, that the panel's query was prefaced by a reference to whether, in light of Rule 11, Fed. R.Civ.P., the claim against state defendants would be pursued on remand. Rule 11 provides for imposition of sanctions for the pressing of unsupported claims.


source: Caselaw Access Project

author: KRAVITCH, Circuit Judge:

license: Public Domain

text:
    McKNIGHT CONSTRUCTION CO., INC., Plaintiff-Appellee, v. DEPARTMENT OF DEFENSE, William J. Perry, Secretary; Department of the Army, Togo D. West, Jr., Secretary, Robert C. Hoffman, Contracting Office, Savannah District of the United States Army Corps of Engineers, Defendants-Appellants, Conner Bros. Construction Co., Inc., Intervenor-Defendant-Appellant.
    No. 95-8811.
    United States Court of Appeals, Eleventh Circuit.
    June 17, 1996.

      Robert D. Marshall, Griffin Cochrane & Marshall, PC, Atlanta, GA, Melissa Stebbins Mundell, Savannah, GA, Peter R. Maier, Anthony J. Steinmeyer, U.S. Dept, of Justice, Civil Div., Appellate Staff, Washington, DC, for Appellants.
    Karl Dix, Jr., George Papaioanou, Smith Currie & Hancock, Atlanta, GA, John B. Long, Dye Tucker Everitt Wheale & Long, Augusta, GA, for Appellee.
    Before KRAVITCH and CARNES, Circuit Judges, and HILL, Senior Circuit Judge.
   KRAVITCH, Circuit Judge:

The Army Corps of Engineers (“Army”) and Conner Brothers Construction Co., Inc., appeal the district court’s grant of summary judgment in favor of McKnight Construction Co. Although McKnight was the low bidder on an Army construction project, McKnight’s bid was rejected because it did not conform to the Army’s guidelines. After the Army and the Comptroller General refused to accept McKnight’s bid corrections, McKnight appealed to the district court, which reversed the Army’s decision. We now reverse the decision of the district court.

I.

The Army, acting through its Corps of Engineers, solicited bids for construction of barracks at Fort Benning, Georgia. At bid opening, the Army had received bids from four companies. The low bidder was McKnight; Conner Brothers was the next lowest bidder. The following day, Conner Brothers notified the Army of apparent errors in McKnight’s bid and asked the Army to reject it as “nonresponsive.” The day after Conner Brothers’ protest, the Army began a review to determine whether McKnight’s bid was responsive.

A bid is nonresponsive when it is mathematically and materially unbalanced; such a bid must be rejected. See G.C. Ferguson 4-T Constr., 92-1 CPD ¶ 381, 1992 WL 143301 (CG1992); Sanford Cooling, 91-1 CPD ¶ 376, 1991 WL 86957 (CG1991). A bid is mathematically unbalanced when each line item in the bid does not reflect the actual costs to the bidder. See 48 C.F.R. §§ 14.404-2(g), 15.814. The Army determined that Lines 1 and 2 of McKnight’s bid were mathematically unbalanced because the amount listed in each line was significantly higher than that listed by other companies and the government’s own estimate. For both line items 1 and 2, McKnight bid $4,203,500; the next highest bid estimate for the work corresponding to those lines was the government’s estimate of $395,557 for line item 1 and $55,780 for line item 2. A chart with all the bids is reproduced as Table I.

TABLE I

Where a mathematically unbalanced bid is so grossly unbalanced that it will result in an advance payment, the bid is materially unbalanced and must be rejected. 48 C.F.R. § 15.814(b)(2); see Boston Graving Dock Corp., 91-2 CPD ¶ 178, 1991 WL 162533 (CG1991). Because the estimates in lines 1 and 2 front-loaded the bid with disproportionately high payments, the Army found that the bid was materially unbalanced. Approximately 50% of the bid’s total value of $16,850,000 was captured in the first two lines of McKnight’s bid; the next highest figure for the combined cost of each of the first two line items was the government’s estimate of approximately $450,000, which constituted less than 2.7% of. the overall bid price.

Although there is no suggestion that McKnight’s error was deliberate, a bidder could potentially manipulate the bidding process by intentionally front-loading a bid, and in the event that the “error” went unnoticed, collect extremely large advance payments. Advance payments are disfavored because a bidder that receives early payments gains an unfair advantage over other bidders through the potential use of interest-free money. In addition, because later work is undervalued, there is a reduced incentive to complete the work.

On the same day that the Army began its review of McKnight’s bid, McKnight notified the Army that its bid contained mistakes and sought permission to file a corrected bid. Two days later, McKnight formally requested permission to file a corrected bid and submitted an affidavit from its president, William McKnight. Later, McKnight sent the Army “post-bid opening” worksheets, which were created to “reconstruct ... [the] thought process in allocating the total bid price to the individual line items in the bid schedule.” The only pre-bid documentation provided was the bid papers, and “there is no dispute that these did not identify bid items, buildings, subcontractor pricing, or other aspects of the project by which McKnight’s intended allocation of bid line items could be ascertained.” McKnight Construction Co. v. Perry, 888 F.Supp. 1186, 1187 (S.D.Ga.1995).

In his affidavit, William McKnight stated that although the company’s overall bid was correct, in filling out the bid sheet he had made a transpositional error, mistakenly switching the bid prices for line items 1 and 2 with those intended for line items 4 and 5. The total bid would have been unchanged.

After reviewing McKnight’s request for bid correction, the Army found that although McKnight had made mistakes in computing its bid, it had not provided clear and convincing evidence of its intended bid with respect to each line item, as required by Federal Acquisition Regulations. See 48 C.F.R. § 14.406-3(a). Thus, the Army refused to permit McKnight to file a corrected bid. In reaching its conclusion, the Army noted McKnight’s inability to furnish independent corroboration for its intended bid. Because the original bid was rejected as nonresponsive, the next lowest bidder, Conner Brothers, was awarded the contract.

McKnight filed a bid protest with the General Accounting Office that was rejected by decision of the Comptroller General. The Comptroller General determined that although the evidence supported McKnight’s contention that it had made a mistake in its bid, there was not clear and convincing evidence of McKnight’s intended bid price. The Comptroller General found that the similarity of McKnight’s bid on lines 1 and 2 to the government’s estimates and the other bids for line items 4 and 5 supported McKnight’s contention that line items 1 and 2 should have been placed on lines 4 and 5. More importantly, however, the Comptroller General rejected as “implausible on its face” McKnight’s contention that the $250,000 listed on both lines 4 and 5 was the amount intended to be placed on lines 1 and 2. This conclusion was based on the gross disparity that would have resulted on line 2, where the next highest bid estimate would have been the government’s estimate of $55,780. Holding that there was a reasonable basis for the Army’s refusal to accept the corrected bid, the Comptroller General rejected the uncorreeted bid on reasoning similar to that of the Army.

Following the Comptroller General’s ruling, McKnight brought this action, challenging the Army’s refusal to permit it to correct its bid and the consequent award of the contract to Conner Brothers. Conner Brothers intervened as a defendant. McKnight argues that the Army’s actions violated the Administrative Procedures Act.

The district court initially granted a preliminary injunction barring the Army from implementing the contract award and later granted McKnight’s motion for summary judgment. The Army and Conner Brothers appeal that decision.

II.

When reviewing a district court’s decision to grant summary judgment, we apply the same legal standards as those applied by the district court. The main question before us, therefore, is whether the Army acted arbitrarily, capriciously, or otherwise not in accordance with law when it determined that McKnight failed to present clear and convincing evidence of what it intended to bid. See Choctaw Mfg. Co. v. United States, 761 F.2d 609, 616 (11th Cir.1985) (citing 5 U.S.C. § 706(2)(A)); see also Latecoere Int’l, Inc. v. United States Dep’t of the Navy, 19 F.3d 1342, 1356 (11th Cir.1994). In addition, if we hold that the Army did not act in accordance with law in refusing to allow McKnight to correct its bid, we must then determine whether the Army lacked a rational basis for finding that the uncorrected bid was not responsive.

A.

Under Federal Acquisition Regulations, a bid is subject to correction only if the bidder presents clear and convincing evidence that the submitted bid was mistaken and clear and convincing evidence of the actual intended bid. 48 C.F.R. § 14.406-3(a). The Army argues that, based on the evidence presented by McKnight, it reasonably concluded that McKnight had not presented clear and convincing proof of its intended bid. In considering William McKnight’s affidavit, the Army claims that it “afforded appropriate weight and probative value ... to the extent the post-bid created affidavit was consistent with documentation created contemporaneously with or prior to the bid.”

The district court found that this statement, along with others, indicated that the Army had adopted a per se rule against statements that were uncorroborated by bid workpapers. 888 F.Supp. at 1190. Such a rule, the district court held, contravened the procurement regulations and was also arbitrary.

The relevant portion of the Federal Acquisition Regulations provides that

[i]f the bidder alleges a mistake, the contracting officer shall advise the bidder to make a written request to withdraw or modify the bid. The request must be supported by statements (sworn statements, if possible) and shall include all pertinent evidence such as the bidder’s file copy of the bid, the original work sheets and other data used in preparing the bid, subcontractor’s quotations, if any, published price lists, and any other evidence that establishes the existence of the error, the manner in which it occurred, and the bid actually intended.

48 C.F.R. § 14.406-3(g)(2). Nothing in the regulation suggests that the Army must accept uncorroborated statements; the regulation simply indicates that a statement must support a request to withdraw or modify a bid.

Further, a rule stating that an uncorroborated statement is insufficient to satisfy the clear and convincing standard of proof is not arbitrary. The Comptroller General consistently has taken the position that the failure to provide worksheets or other contemporaneously produced documentation will result in the denial of a request for bid correction. See RJS Constructors, 94-2 CPD ¶ 130, 1994 WL 576114 (CG1994); Weather Data Services, Inc., 91-1 CPD ¶ 185, 1991 WL 73029 (CG1991); Apache Enterprises, Inc., 94-1 CPD ¶ 270, 1994 WL 148261 (CG1994); Fortec Constructors, 81-2 CPD ¶ 264, 1981 WL 23319 (CG1981). Such a rule makes sense:

To permit bidders to cure the nonresponsiveness of their bids merely on the basis of general, unsubstantiated allegations of inadvertent error would open the competitive bidding system to the possibility of manipulation. For example, a bidder could submit a flagrantly nonresponsive bid and then, depending on the outcome of the bidding results, seek to cure the nonresponsiveness as the bidder’s interest so dictated.

Bill Strong Enters., Inc., 86-2 CPD ¶ 173, 1986 WL 63835 at *2 (CG1986).

Given the Army’s strong interest in protecting the integrity of the bidding process, a policy requiring more than a contractor’s post-bid statement is not irrational. Unfortunately, some honest contractors may lose contracts because of minor errors on their part; this does not, however, render the Army’s rule arbitrary. Because the Army has provided a coherent and reasonable explanation for its refusal to permit McKnight to correct its bid, its decision is sustained. See Choctaw Mfg. Co., 761 F.2d at 616.

B.

McKnight argues that even if we affirm the Army’s refusal to permit McKnight to correct its bid, we should affirm the district court on the ground that the original bid was not materially unbalanced. As discussed above, a mathematically unbalanced bid is materially unbalanced when it will result in advance payments to the contractor.

The Army asserts that under procurement regulations specifically incorporated in the invitation for bids, the value of the work would be defined by the terms of the bid that the Army accepted. See 48 C.F.R. § 52.232-5; ACC Constr. Co., 93-1 CPD ¶ 142, 1993 WL 49266 (CG1993). Accordingly, the Army concluded that if the original bid were used, McKnight was “highly likely” to receive advance payment because “[t]he bid items with the exceptionally high prices must be done early on in the project whereas the work which will be performed at the latter stages of the project is priced ridiculously low.”

McKnight disagrees with this determination, contending that its bid, as originally submitted, would not have entailed advance payments because “all progress payments would be made from the actual work in place.” McKnight provides no authority or evidence in support of this claim; rather, it merely asserts that the Army was wrong. We cannot, therefore, say that the Army’s rejection of McKnight’s bid as nonresponsive was either arbitrary, capricious, or an abuse of discretion.

The judgment of the district court is REVERSED, and we REMAND this case with instructions to the district court to enter judgment for appellants.

      . Although the Comptroller General never found that this constituted clear and convincing evidence, the Army seems to have conceded that items 1 and 2 were intended to be placed on lines 4 and 5. The Government’s attorney stated:
      As the Court indicated, it is obvious that 1 and 2 are wrong and that those numbers belong in items 4 and 5, but it is not obvious that the opposite is true. That is, that a transposition occurred and that items 4 and 5 belonged in 1 and 2.

      . In finding that the Army required bid work papers, the district court overstated the requirement; rather, the Army requires only some form of evidence produced prior to, or contemporaneous with, the bid.

      . It is for this reason that McKnight’s reliance on Satellite Services, Inc., 86-2 CPD ¶ 521, 1986 WL 64270 (CG1986), is misplaced. In that case, the Comptroller General deferred to the Air Force's decision to allow a bidder to modify a bid by reallocating prices from one line to another. In contrast to the situation here, however, the bidder presented the Air Force with work papers that supported its position.

      .McKnight also argues that it would be precluded from receiving advance payments because of representations made in the course of its appeal of the original rejection of its bid. These representations are irrelevant here; the question is whether the bid was responsive when made.


author: FAY, Senior Circuit Judge:

text:
    Carl S. VEALE, Mary A. Veale, Plaintiffs-Appellants, v. CITIBANK, F.S.B., a Federal Savings and Loan fka Citicorp Savings of Florida, Inc., Defendant-Appellee.
    No. 94-4463.
    United States Court of Appeals, Eleventh Circuit.
    June 19, 1996.

      James A. Bonfiglio, Boynton Beach, FL, for appellants.
    Nancy Gregoire, Lawrence A. Gordich, Ruden, McClosky, Smith, Schuster & Russell, PA, Ft. Lauderdale, FL, Kenneth Hoffman, Miami, FL, for appellee.
    Before EDMONDSON, Circuit Judge, and FAY and GIBSON , Senior Circuit Judges.

       Honorable Floyd R. Gibson, Senior U.S. Circuit Judge for the Eighth Circuit, sitting by designation.

   FAY, Senior Circuit Judge:

This appeal arises from the District Court’s judgment as a matter of law in favor of the defendants. The plaintiffs, Carl and Mary Veale, brought suit under the Truth in Lending Act (TILA), alleging that Citibank did not provide the required material disclosures in connection with a home mortgage loan. Because Citibank did not violate TILA as a matter of law, we affirm.

I. BACKGROUND

In July of 1989, the Veales borrowed $361,-800 from Citibank. The loan was secured by a first security interest in the Veale’s primary residence. The Veale’s used the money to pay off $24,825.98 previously owed to Citibank and to pay off two other mortgages retained by two other lenders. The rest of the loan was used to pay $269.05 to Epic Mortgage, a $723.60 intangible tax, a $53.40 recording fee, a $6.60 release fee, $582.70 in documentary stamps, $2,571.00 in title insurance, a $21.00 Airborne fee, and $835.00 in prepaid finance charges. The Veales did not retain any of the loan proceeds.

According to the note, the loan was “payable in 84 installments, the first one of $3,582.87, 83 of $3,582.87, and 1 of $350,-565.12.” Thus the note obviously contained a typographical error, as it could not require both 84 and 85 payments. The Truth in Lending disclosure statement listed 84 payments: 83 plus the final balloon payment.

The Truth in Lending recision notice provided by Citibank gave the Veales until midnight of July 29,1989 to rescind the transaction. On July 31,1989, the Veales executed a Verification of Election not to Cancel.

In September of 1991, the Veales defaulted. Citibank sued for foreclosure in state court. In June of 1992, the Veales attempted to rescind the transaction under TILA, but Citibank rejected the demand for recision. Citibank purchased the property at the state court foreclosure sale.

The Veales brought suit in United States District Court, alleging that Citibank violated the TILA disclosure requirements and demanding recision. The Veales moved for summary judgment but the District Court denied the motion. At the close of the Veale’s case during a non-jury trial, Citibank moved for judgment as a matter of law under Rule 52(c) of the Federal Rules of Civil Procedure. The District Court granted the motion and entered judgment for Citibank.

II. STANDARD OF REVIEW

We review conclusions of law de novo but do not disturb findings of fact unless they are clearly erroneous. See U.S. v. Thomas, 62 F.3d 1332, 1336 (11th Cir.1995), cert. denied, - U.S. -, 116 S.Ct. 1058, 134 L.Ed.2d 202 (1996).

III. ANALYSIS

A. The $21 Federal Express Charge

The Truth in Lending Act requires a lender to disclose the amount financed and the finance charge in a loan transaction. 15 U.S.C. § 1638. In the TILA Disclosure Statement, Citibank included a $21 Federal Express charge in the Amount Financed but did not include that amount under the Finance Charge. The Veales contend that this was a material misstatement.

In Rodash v. AIB Mortgage Company, 16 F.3d 1142 (11th Cir.1994) this Court held that the Federal Express fee at issue was a transaction charge, imposed by the lender as an incident to the extension of credit. As such, it had to be included in the Finance Charge.

In this case, however, we are not convinced that the Federal Express fee was required by Citibank. If the borrower can choose to avoid the Federal Express fee by having the documents sent via regular mail, then the fee is not imposed as an incident to the extension of credit. See Berryhill v. Rich Plan of Pensacola, 578 F.2d 1092, 1099 (5th Cir.1978). The Veales did not produce any evidence that Citibank required the fee before it would extend credit to the Veales. To the contrary, although not covered as a specific finding of fact, it appears in this case that the delivery charge was the result of expediting the pay outs to the other financial institutions in an effort to save the Veales additional interest expense. Since the Veales could have chosen not to pay the Federal Express fee and the bank did not require it, then the fee was not imposed as an incident to the extension of credit and need not be included in the Finance Charge. Unlike Rodash, the charge here was not incidental to the extension of credit.

B.The Florida Intangible Tax

On the TILA Disclosure Statement, Citibank did not include the Florida intangible tax in the Finance Charge. This Court has held that the Florida intangible tax is a finance charge payable by the consumer as an incident to the extension of credit. Rodash, 16 F.3d at 1148. Of course, we are bound by Rodash; however this Court in Rodash was attempting to apply Florida law as Florida courts would. In matters of state law, federal courts are bound by the rulings of the state’s highest court. Huddleston v. Dwyer, 322 U.S. 232, 236, 64 S.Ct. 1015, 1017-18, 88 L.Ed. 1246 (1944). If the state’s highest court has not ruled on the issue, a federal court must look to the intermediate state appellate courts. Fidelity Union Trust Co. v. Field, 311 U.S. 169, 177-78, 61 S.Ct. 176, 177-79, 85 L.Ed. 109 (1940).

When this Court decided Rodash, no intermediate appellate court in Florida had ruled on the issue. Since then, a Florida court has ruled on the issue, and decided it differently than this Court anticipated. In such a situation, we must look to the Florida court’s ruling. See Roboserve, Ltd. v. Tom’s Foods, Inc., 940 F.2d 1441, 1451 (11th Cir.1991).

Under TILA, a tax is not a finance charge if it is prescribed by law and paid to a public official for perfecting a security interest. 12 C.F.R. § 226.4(e)(1). Thus the issue in this case is whether Florida law requires the intangible tax for perfecting a security interest. In Pignato v. Great Western Bank, 664 So.2d 1011 (Fla. 4th DCA 1995), the court held that the Florida intangible tax is prescribed by law and paid to a public official for perfecting a security interest. For that reason, we must conclude that the Florida intangible tax is not a finance charge.

C. The Required Number of Payments on the Disclosure Statement

According to the note signed by Citibank and the Veales, the loan was “payable in 84 installments, the first one of $3,582.87, 83 of $3,582.87, and 1 of $350,-565.12.” Thus the note obviously contained a typographical error, as it could not require both 84 and 85 payments. Such an error must be construed against Citibank, Landale Enterprises Inc. v. Berry, 676 F.2d 506, 508 (11th Cir.1982), and so the note must be read to require only 84 total payments. The Truth in Lending disclosure statement listed 84 payments (83 plus the final balloon payment) and accurately reflected the Veales’ obligations. This typographical error in the note does not rise to the level of a TILA violation particularly when the disclosure statement is correct.

D.The Recision Notice Form

The Truth in Lending recision notice provided by Citibank gave the Veales until midnight of July 29, 1989 to rescind the transaction. This notice was based on the form in Appendix H-8 of Regulation Z of the Federal Reserve Board Rules and Regulations Relating to Truth in Lending. 12 C.F.R. § 226.1 et seq.

The H-8 form does not apply perfectly to the Veales’ situation, because they already owed Citibank money and Citibank already had a mortgage on their home. Thus Citibank would still hold a mortgage on the home even if the Veales elected to rescind the current transaction; the Veales did not have the right to rescind the entire seeuriiy interest. Ideally, because no model form applied perfectly to this transaction, Citibank should have provided a nonstandard notice form. See In re Porter, 961 F.2d 1066, 1076 (3rd Cir.1992). However, TILA does not require perfect notice; rather it requires a clear and conspicuous notice of recision rights. See Rodash, 16 F.3d at 1146.

The H-8 form stated: “You have a legal right under federal law to cancel this transaction. ... If you cancel the transaction, the (mortgage/lien/security interest) is also canceled.” 12 C.F.R. Pt. 226, Appendix H (emphasis added). We hold that under these particular facts the H-8 form provides sufficient notice that the current transaction may be canceled but that previous transactions, including previous mortgages, may not be rescinded.

In the Porter case, the Third Circuit held that the H-8 form did not provide sufficient notice of recision rights in a refinancing and consolidation transaction such as this one. See Porter, 961 F.2d at 1077. The court acknowledged that the H-8 form could be read as saying that the reeision right only applied to the current transaction, and thus did not apply to previous security interests in the property. Id. However, the court in Porter also believed the form could be read to say that the reeision right applied to the old loan money as well as the new loan money and to the old mortgages as well as the new mortgage. Id. Thus the court concluded that the H-8 form did not clearly and accurately notify the borrower of her right to reeision.

We respectfully disagree. As we noted earlier, although the H-8 form does not apply perfectly to the Veales’ situation, TILA does not require perfect notice; rather it requires a clear and conspicuous notice of reeision rights. See Rodash, 16 F.3d at 1146. We find the H-8 form to be reasonably clear when applied to the particular facts involved in this ease; it provides sufficient notice that the current transaction may be canceled but that previous transactions, including previous mortgages, may not be rescinded. Such meets the requirements of the law.

E. Monthly Mortgage Payment

The Veales presented evidence at trial that Citibank miscalculated the mortgage monthly payments. The Veales’ expert testified that his analysis, utilizing a special software program, resulted in a different monthly payment. However, the expert also testified that when he used other calculation tools widely used in the financial industry, the resulting monthly payment was the same as Citibank’s calculated payment. Using those other calculation tools also resulted in the same finance charge, amount financed, and total of payments reported by Citibank. Certainly the trial court’s findings are not clearly erroneous; the record supports the conclusion that the computations are correct.

IV. CONCLUSION

Because Citibank did not violate the Truth in Lending Act, the judgment of the District Court is hereby AFFIRMED.

      . Citibank argues that the Veales waived certain issues raised in their summary judgment motion by not raising those issues at trial. This is simply not a fair characterization of what occurred. The issues were squarely before the court at trial through the pre-trial stipulation, through certain exhibits presented by the Veales, and through the argument of both counsel. Counsel for the Veales stated, “Your Honor, in light of your ruling on the summary judgment motion, we will rest." Citibank’s counsel moved for a directed verdict and stated, "Judge, there were two issues before Your Honor this morning that you had not disposed of before ..." Moreover, the District Court addressed all the issues in his final order. Thus the pre-trial rulings were incorporated into the trial judgment.


author: EDMONDSON, Circuit Judge:

text:
    Glenn WHITING, Plaintiff-Appellant, v. Ed TRAYLOR; R.H. Hamilton, Defendants-Appellees.
    No. 95-4268.
    United States Court of Appeals, Eleventh Circuit.
    June 19, 1996.

      James Kellogg Green, West Palm Beach, FL, Terry E. Allbritton, Appellate Advocacy Program, Tulane Law School, New Orleans, LA, for appellant.
    Robert W. Butterworth, FL Atty. Gen., Miami, FL, Douglas J. Glaid, Asst. Atty. Gen., Dept, of Legal Affairs, Civil Div., Hollywood, FL, for appellees.
    Before EDMONDSON and BIRCH, Circuit Judges, and FOREMAN , Senior District Judge.

       Honorable James L. Foreman, Senior U.S. District Judge for the Southern District of Illinois, sitting by designation.

   EDMONDSON, Circuit Judge:

Glenn Whiting appeals the Rule 12(b)(6) dismissal of his section 1983 claim against two Florida Marine Patrol Officers. He also appeals dismissal of a pendant state law tort claim. We vacate the dismissals and remand for further proceedings.

I.

In August 1988, Glenn Whiting — -while he was operating his boat on a Florida lake— was stopped by two Florida Marine Patrol officers. The officers approached Whiting because they were unable to see registration decals on Whiting’s boat. Whiting told the officers (defendants Ed Traylor and R.H. Hamilton) that he owned the boat and that he did not believe he was required to display registration numbers or a registration certificate. Whiting answered some of the questions asked of him by the officers, but he refused to tell the officers his name. For failing to display registration numbers, the officers seized Whiting’s boat and told him he could have it back if he came to the Marine Patrol offices and proved he owned it.

Two months later, Traylor obtained an arrest warrant for Whiting on a charge of obstructing officers without violence. This charge was based on Whiting’s failure to identify himself when he was stopped on the lake. Whiting voluntarily turned himself in during November 1988 after learning of the warrant. He was detained overnight and then released on bond; later, he was formally charged with Resisting an Officer Without Violence. In February 1989, he appeared for arraignment and pleaded not guilty. As he left the courtroom, he was again arrested by Traylor. This time, he was issued citations for various offenses related to the registration decal on his boat. During this arrest, Traylor allegedly abused Whiting and declined to inform Whiting of the charges against him.

The state’s attorney brought misdemeanor charges based on the registration decal allegations. Whiting asserts that Traylor made false written statements on a citation and on an arrest affidavit. And, Whiting alleges Hamilton backdated documents for use in the prosecution. Whiting also says Traylor falsely alleged to his superiors that he was involved in criminal conspiracy, that Hamilton and Traylor caused public records to be falsified, that Hamilton backdated documents which formed the basis of the criminal prosecution and that Traylor and Hamilton kept or caused to be damaged or destroyed personal property seized from Whiting in August 1988. In the criminal proceedings, Whiting had to appear in court 20 times.

In May 1990 the state’s attorney nol prossed some of the charges. Others were pursued by the state until a Florida state judge dismissed them. In the order of dismissal, the state judge found that Defendants and the prosecuting attorney had harassed "Whiting either through gross incompetence or by intention. "Whiting brought this action under 42 U.S.C. § 1983, alleging a prosecution without probable cause in violation of his Fourth Amendment rights. He also had pendant a state law malicious prosecution claim. The district court concluded that any Fourth Amendment claims based on "Whiting’s surrender or arrest were time barred. And, he concluded Whiting alleged no constitutional violation which occurred after these dates.

II.

Section 1988 is no source of substantive federal rights. Albright v. Oliver, 510 U.S. 266, -, 114 S.Ct. 807, 811, 127 L.Ed.2d 114 (1994) (plurality opinion) (citing Baker v. McCollan, 443 U.S. 137, 144 n. 3, 99 S.Ct. 2689, 2694 n. 3, 61 L.Ed.2d 433 (1979)). Instead, to state a section 1983 claim, a plaintiff must point to a violation of a specific federal right. Id. (again citing Baker). "Whiting has done so here; he says the Defendants violated his Fourth Amendment rights (which the Supreme Court says protects, through the Fourteenth Amendment, persons from state action). The Fourth Amendment prohibits “unreasonable ... seizures” and also says that “no Warrants shall issue, but upon probable cause.”

Whiting, however is not claiming just that he was seized unlawfully or that a warrant was issued without probable cause: he says he was “maliciously prosecuted” in violation of his Fourth Amendment rights. Defendants respond that no independent Fourth Amendment right exists to be free from a malicious prosecution. Because the Fourth Amendment protects against “searches” and “seizures” (and not “prosecutions”) Defendants’ statement of the law about prosecutions is persuasive.

But, this proposition does not end our inquiry. Labeling—as Whiting did here—a section 1983 claim as one for a “malicious prosecution” can be a shorthand way of describing a kind of legitimate section 1983 claim: the kind of claim where the plaintiff, as part of the commencement of a criminal proceeding, has been unlawfully and forcibly restrained in violation of the Fourth Amendment and injuries, due to that seizure, follow as the prosecution goes ahead. So, Whiting can avoid an order of dismissal if he based his claim—whatever he calls it—on some actual unlawful, forcible, restraint of his person.

Whiting’s allegations point to three possibly unlawful seizures: his surrender following the issuance of the arrest warrant, his arrest as he left the courtroom, and his being required to appear to answer the charges after being released on bond. If these alleged acts are seizures and are unlawful, they—whether or not there is a federal “right” (even in the absence of some moment of physical restraint) not to be prosecuted in state court without probable cause—are the proper basis for a section 1983 claim.

Because Whiting relies chiefly on what has been called a “continuing seizure” theory, we will discuss this claim a little. Under this theory—which is explained most completely in Justice Ginsburg’s concurring opinion in Albright—Whiting would have alleged a Fourth Amendment “seizure” because he alleged that, after his arrest, he was released on bond and obliged to appear to answer the charges against him. See Albright, 510 U.S. at - - -, 114 S.Ct. at 814-17 (Ginsburg, J., concurring). But, Justice Ginsburg’s opinion was not joined by other justices. And, the Seventh Circuit has recently (post-Albright) reaffirmed its rejection of the theory. See Reed v. City of Chicago, 77 F.3d 1049, 1052 n. 3 (7th Cir.1996). We also have questions about the theory, but we do not need to reach a final decision about it today.

Whiting also points us to two other possible seizures—his arrest and his surrender after he learned of a warrant. The district court appeared to agree — correctly, we think — that these kinds of physical restraints were seizures that could be the basis of a section 1983 claim; but, he concluded that claims based on these seizures would be time barred because the seizures occurred outside the four year limitation period.

The Supreme Court tells us that some section 1983 claims do not begin to accrue until well after the constitutional injury. See Heck v. Humphrey, — U.S. -, -, 114 S.Ct. 2364, 2374, 129 L.Ed.2d 383 (1994). So, sometimes a section 1983 claim can be timely even though the claim is based on an unlawful act which occurred outside the limitations period. In determining when a section 1983 claim accrues (as well as the elements which must be pled to state a claim) we must seek help from the common law tort which is most analogous to the claim in the case before us. Id. at -, 114 S.Ct. at 2367.

Here, Whiting says that Defendants applied for and obtained an arrest warrant and — based on the warrant — caused him to be unreasonably “seized” in 1988. He says also he was unlawfully arrested in February 1989. Obtaining an arrest warrant is one of the initial steps of a criminal prosecution. Under these circumstances (that is, where seizures are pursuant to legal process), we agree with those circuits that say the common law tort “most closely analogous” to this situation is that of malicious prosecution. See Calero-Colon v. Betancourt-Lebron, 68 F.3d 1, 3 (1st Cir.1995) (section 1983 claim for arrest and prosecution analogous to malicious prosecution tort where arrest pursuant to legal process); see also Singer v. Fulton County Sheriff, 63 F.3d 110, 115-16 (2d Cir.1995) (same). At common law, a plaintiff had no malicious prosecution claim until the underlying proceeding was terminated in his favor.

So, where a section 1983 plaintiff is seized following the institution of a prosecution (for example, after a warrant has been issued for arrest or after an information has been filed) and he seeks to recover damages for all the elements of the prosecution, he can properly wait until the prosecution terminates in his favor to bring his section 1983 claim which alleges that the seizure was unreasonable. See, e.g., Calero-Colon, 68 F.3d at 4; cf. Heck, — U.S. at -, 114 S.Ct. at 2371. The statute of limitations will not bar the action as long as the action is promptly brought when the prosecution has terminated.

In sum, a section 1983 plaintiff must always base his claim on the violation of a specific federal right. Where the right said to be violated is the Fourth Amendment, the plaintiff must establish a concrete violation of that right. When the seizure is part of the institution of a prosecution (that is, when the Fourth Amendment violation is of the kind making a section 1983 claim based on the violation analogous to the tort of malicious prosecution), the plaintiff may properly wait to sue until the prosecution terminates in his favor. And, also under analogous malicious prosecution principles, injuries caused by the unlawful seizure may include those associated with the prosecution. Applying these considerations to the allegations in Whiting’s complaint, we vacate the order of dismissal and remand for further proceedings.

VACATED and REMANDED.

      . Traylor later explained that this charge was brought so that Whiting could be held until more serious charges could be developed.

      . An internal investigation by the Marine Patrol concluded that Traylor used excessive force during this arrest and otherwise failed to follow proper procedures.

      . In Albright v. Oliver, 510 U.S. 266, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994), the Supreme Court—in a plurality opinion—held that no "substantive" due process right exists to be free from a malicious prosecution. But, the court left open the question of whether such a claim could be based on the Fourth Amendment or the due process clause’s procedural component.
      Whiting does not allege a procedural due process section 1983 claim. For a case holding that there is no violation of procedural due process in a malicious prosecution where the state recognizes the tort of malicious prosecution, see Perez-Ruiz v. Crespo-Guillen, 25 F.3d 40, 43 (1st Cir.1994).

      . This court has, at times, referred to a "federally guaranteed right to be free of malicious prosecution.” Strength v. Hubert, 854 F.2d 421, 426 (11th Cir.1988); see also NAACP v. Hunt, 891 F.2d 1555, 1563 (11th Cir.1990) (dictum). But, we have never defined with specificity the constitutional source of this “right.” The Albright opinions remind us that a plaintiff must point to a constitutional (or statutory) basis for his claim. See Taylor v. Meacham, 82 F.3d 1556, 1561 (10th Cir.1996) (section 1983 malicious prosecution plaintiff must prove a constitutional violation). To the extent Strength relied on a "substantive” due process theory it has been overruled by Al-bright, and the extent to which Strength is based directly on a Fourth Amendment violation is unclear.
      Support for the concept that an independent, classic Fourth Amendment violation is critical to a section 1983 claim called malicious prosecution, but based on the Fourth Amendment, is found in Kelly v. Curtis, 21 F.3d 1544, 1555 (11th Cir.1994). In Kelly, to present a section 1983 claim termed "malicious prosecution," the plaintiff alleged and proved a Fourth Amendment violation: arrest, in fact, followed by an unlawful warrant application and physical restraint. The plaintiff sought damages which included the prosecution following the arrest. Given the circumstances, we called the claim one for "malicious prosecution.” Id. at 1553; see also Barts v. Joyner, 865 F.2d 1187 (11th Cir.1989) (requiring unconstitutional seizure—as well as proof of causation—to obtain damages relating to prosecution). Whiting also recognized the rule of Al-bright in basing his complaint here on a Fourth Amendment seizure theory.
      Given Albright and Kelly and—in particular— the language of the Fourth Amendment, we think referring to a federal "right” to be free from malicious prosecution is actually a description of the right to be free from an unlawful seizure which is part of a prosecution.

      . In paragraph 35 of the complaint, for example, Whiting alleges that malice was implied "by the lack of probable cause in the underlying arrest.” He also says Traylor made material misstatements of fact in support of the prosecution. Knowingly making false statements to obtain an arrest warrant can lead to a Fourth Amendment violation. See U.S. v. Martin, 615 F.2d 318, 327-29 (5th Cir.1980) (extending Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), to arrest warrant cases).
      And, in paragraph 29, Whiting quotes from the order dismissing his criminal charges, where the Florida Court concluded as a matter of law that Whiting did not commit the crime which Defendants said they witnessed and for which Defendants obtained an arrest warrant. This language also suggests an allegation of a seizure in violation of the Fourth Amendment.

      . Justice Rehnquist observed in Albright that Albright’s "surrender to the State’s show of authority” (that is, his voluntary surrender following the issuance of an arrest warrant) "constituted a seizure for purposes of the Fourth Amendment.” 510 U.S. at -, 114 S.Ct. at 812. So, Whiting's initial surrender was a "seizure;” he subjected himself physically to the force of the state in response to an arrest warrant. And, we have no doubt that the forceful arrest of Whiting at the courthouse was a "seizure.”

      . From the allegations in Whiting’s complaint, it does not appear that the February 1989 arrest was pursuant to an arrest warrant. Instead, it seems Whiting was charged in a direct information and, on the charges in that information, arrested by Traylor at the courthouse. Then, an arrest affidavit was submitted by Traylor. An arrest following the issuance of an information is an arrest as part of a prosecution. See Erp v. Carroll, 438 So.2d 31, 40 (Fla.App.1983) (observing that "criminal prosecutions are commenced with the filing of an information ... or at least an arrest pursuant to a[n] ... arrest warrant”). Where an arrest is made after the filing of an information and the arrest is the basis of a Fourth Amendment section 1983 claim, we think the tort of malicious prosecution is the most analogous tort to the section 1983 claim.

      . In contrast, where an arrest is made before the commencement of a criminal proceeding, the most analogous tort might be that of “false arrest.” At common law, false arrest actions accrue before the termination of the proceeding. Also, false arrest actions provide recovery for injuries suffered between the time of the arrest and the issuance of legal process. See Heck, - U.S. at -, 114 S.Ct. at 2371.

      . The question of whether a disposition is "favorable” is not always an easy one. For example, in Singer, 63 F.3d at 118, the Second Circuit held that a dismissal in the interests of justice was not a favorable termination. The Florida Supreme Court discussed the meaning of “favorable termination” in Alamo Rent-A-Car, Inc. v. Mancusi, 632 So.2d 1352, 1356 (Fla.1994) (observing that not all nol pros dispositions result in a termination in defendant's favor).

      . Recovery of damages is limited to those injuries proved to be caused by the defendants. This lawsuit is against arresting officers. In many cases, arresting officers will not be responsible for the continuation of the prosecution because the prosecutor (or some other factor) will break the causal link between defendants’ conduct and plaintiff's injury. Cf. Eubanks v. Gerwen, 40 F.3d 1157, 1160-61 (11th Cir.1994) (affirming summary judgment for arresting officers because officers had nothing to do with decision to prosecute) (citing Barts v. Joyner, 865 F.2d 1187 (11th Cir.1989)); cf. also Reed, 77 F.3d at 1053 (observing "the State's Attorney, not the police, prosecutes a criminal action”) and Meacham, 82 F.3d at 1563 (preliminary hearing and ruling of judge breaks "chain of causation"). For now, we are deciding a case about pleadings and not one about proof of causation.

      . After dismissing the federal claim in Count I, the district court dismissed the state claim in Count II for lack of jurisdiction. We vacate the dismissal of Count II and remand for further proceedings on the state claim.


author: PER CURIAM.

text:
    Lawrence F. BALICK, Petitioner, v. OFFICE OF PERSONNEL MANAGEMENT, Respondent.
    No. 93-3326.
    United States Court of Appeals, Federal Circuit.
    May 31, 1996.

      Randall L. Shepard, Fitzsimmons and Shepard, Rochester, Michigan, argued, for petitioner.
    Steven E. Gordon, Trial Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, Washington, D.C., argued, for respondent. With him on the brief were Frank W. Hunger, Assistant Attorney General, David M. Cohen, Director, and, Richard E. Rice, Assistant Director.
    Before MAYER, MICHEL, and RADER, Circuit Judges.
   PER CURIAM.

Lawrence F. Balick petitions for review of a decision of the Merit Systems Protection Board, No. CH831M930039-I-1 (March 1, 1993), which affirmed, in part, the Office of Personnel Management’s reconsideration decision that Balick had underreported income resulting in disability annuity payments to which he was not entitled. We affirm.

Background

On July 18,1975, Balick retired on disability from his position as an Internal Revenue Agent, GS-11, with the Internal Revenue Service. His disability annuity was subject to the statutory condition that he continue to be medically disabled and that his income from wages and self-employment in any one year not exceed 80 percent of the then current pay of his former position.

From 1987 through 1991, Balick sold insurance for several different companies. Some of the companies reported his commissions on IRS Form 1099 (Miscellaneous Income) as non-employee compensation. Two of the companies reported his income as employee wages. Balick calculated the amount of income he reported to the Office of Personnel Management (OPM) each year for determining his earning capacity by deducting his business related expenses from the sum of his commissions and wages. He thus reported the taxable income he calculated for his federal income taxes as his income for determining earning capacity.

In 1992, OPM audited Balick’s income for the years 1987 through 1991. It calculated his income by adding the amount of his gross receipts from insurance sales, commissions, to the amount of reported wages. OPM did not allow any deduction for business related expenses. Based on this methodology, OPM concluded that Baliek received income which exceeded the 80 percent limit in each of the five audited years, and that therefore his earning capacity had been restored for those years. Because his earning capacity had been restored in 1987, pursuant to 5 U.S.C. § 8337(d) OPM determined that Baliek should not have received disability annuity payments beginning 180 days after December 31,1987, the last day of the year in which his income was restored. These payments totaled $59,973. An additional $11,589.96 was added for interest on the overpayments.

Baliek appealed the decision to the Merit Systems Protection Board which rejected his method of computing income in determining earning capacity, stating that section 8337(d) “defines the test for determining earning capacity in terms of “wages’ and wages is not the same as taxable income.” It held that OPM could reasonably define “wages” as the portion of income that was subject to federal employment taxes (e.g., social security and medicare). The board also held that Baliek could not deduct expenses from reported employee wages, but that he could deduct business related expenses from his self-employment income. As a result, it determined that OPM correctly computed the wage portion of Baliek’s income without deducting his business expenses, but had incorrectly determined that he was not permitted to deduct business related expenses from the income attributable to self-employment sales commissions. Therefore, all of Balick’s self-employment income was offset by business expenses. Looking only at wages, the board determined that he exceeded the income limit only in 1987, 1990, and 1991, and ordered OPM to recompute the overpayment based on those years. Baliek appeals.

Discussion

Judicial review of disability determinations under the Civil Service Retirement System is limited to determining whether “there has been a substantial departure from important procedural rights, a misconstruction of the governing legislation, or some like error ‘going to the heart of the administrative process.’” Lindahl v. Office of Personnel Management, 470 U.S. 768, 791, 105 S.Ct. 1620, 1633, 84 L.Ed.2d 674 (1985)(citing Scroggins v. United States, 184 Ct.Cl. 530, 397 F.2d 295, 297 (1968)); see also Anthony v. Office of Personnel Management, 58 F.3d 620, 624-25 (Fed.Cir.1995). We review this decision to determine whether the agency misconstrued the governing legislation.

Baliek argues that OPM misinterpreted 5 U.S.C. § 8337(d) when it did not allow him to calculate his earning capacity by deducting his business expenses from his wage earnings. He claims that the income he should be required to report to OPM is the “taxable income” figure used in determining his federal income tax. In calculating taxable income for the federal income tax, he deducts business related expenses from the sum of his self-employment income and his employee wages. Baliek claims this calculation of taxable income is permitted for a narrow class of taxpayers called “statutory employees” who are considered employees for some purposes and self-employed for others. See Rev. Rui. 90-93, 1990-2 C.B. 33.

As the board noted, Balick’s method of computation might be a reasonable interpretation of what constitutes his earning capacity under section 8337(d). His appeal fails, however, because his burden is to prove that the agency’s interpretation of the statute is unreasonable, not that his is reasonable. The interpretation of a statute by the agency charged with its implementation is entitled to substantial deference and we sustain the agency’s interpretation if it is reasonable and not at variance with the plain meaning of the statute. Congress has authorized OPM to administer the federal disability program. We thus give considerable weight to OPM’s interpretation of an arguably ambiguous statutory term within its administrative authority. There is no explicit statutory definition of “income ... from wages or self-employment” in section 8337. Absent a definition, OPM tells us it has interpreted “wage” to include all earnings that are subject to federal employment taxes such as social security and medicare. This is reasonable in light of the language and purpose of the statute.

Balick also argues that he should not be liable for repaying benefits erroneously disbursed to him because the agency’s income report form contains misleading instructions. The allegedly misleading instruction states:

Income from self-employment is any net profit you made from working or managing your own business, whether at home or elsewhere. Net profit is the amount remaining after deduction of business expenses and before deduction of any personal expenses or exemptions as allowed by the Internal Revenue Service.

The instruction merely defines the method for computing the amount of self-employment earnings that must be reported; it does not discuss reporting of employee wages. The instruction is completely consistent with the method the board employed to determine Balick’s reportable wage income. Finally, even if the government provides erroneous instructions; it is not estopped from later applying the correct law once the mistake is discovered. Office of Personnel Management v. Richmond, 496 U.S. 414, 433, 110 S.Ct. 2465, 2476, 110 L.Ed.2d 387 (1990).

Conclusion

Accordingly, the decision of the Merit Systems Protection Board is affirmed.

AFFIRMED.

       5 U.S.C. § 8337(d) (1994) provides:
      If an annuitant receiving disability retirement annuity from the Fund, before becoming 60 years of age, recovers from his disability, payment of the annuity terminates on reemployment by the Government or 1 year after the date of the medical examination showing the recovery, whichever is earlier. If an annuitant receiving disability retirement annuity from the Fund, before becoming 60 years of age, is restored to an earning capacity fairly comparable to the current rate of pay of the position occupied at the time of retirement, payment of the annuily terminates on reemployment by the Government or 180 days after the end of the calendar year in which earning capacity is so restored, whichever is earlier. Earning capacity is deemed restored if in any calendar year the income of the annuitant from wages or self-employment or both equals at least 80 percent of the current rate of pay of the position occupied immediately before retirement.


author: PAULINE NEWMAN, Circuit Judge.

text:
    HOSIDEN CORPORATION, Hitachi, Ltd., Matsushita Electric Industrial Corporation, Apple Computer, Inc., International Business Machines Corporation, COMPAQ Computer Corporation, Tandy Corporation, Plaintiffs, and Sharp Corporation, Plaintiff-Appellee, v. ADVANCED DISPLAY MANUFACTURERS OF AMERICA, Defendant-Appellant, and Planar Systems, Inc., Plasmaco, Inc., OIS Optical Imaging Systems, Inc., Cherry Display Products Corporation, ElectroPlasma, Inc., Photonics Technology, Inc., and Magnascreen Corporation, Defendants, and Texas Instruments, Incorporated, Defendant, v. The UNITED STATES, Defendant-Appellant.
    Nos. 94-1490, 95-1027.
    United States Court of Appeals, Federal Circuit.
    May 31, 1996.

      Paul C. Rosenthal, Collier, Shannon, Rill & Scott, Washington, DC, argued for Advanced Display Manufacturers of America, defendant-appellant. With him on the brief was Robin H. Gilbert.
    Shalom Brilliant, Senior Trial Counsel, Commercial Litigation Branch, Washington, DC, argued for United States, defendant-appellant. With him on the brief were Frank W. Hunger, Assistant Attorney General, David M. Cohen, Director, and Barbara C. Potter, Attorney-Advisor, Office of Chief Counsel for Import Administration, U.S. Department of Commerce, Washington, DC, of counsel were Bemiece A. Brown, and Stephen J. Powell, Office of Chief Counsel, for Import Administration.
    Christopher P. Johnson, Donovan, Leisure, Newton & Irvine, New York City, argued for plaintiff-appellee. With him on the brief were Peter J. Gartland, David S. Versfelt, and Fusae Nara.
    Before RICH, Circuit Judge, SKELTON, Senior Circuit Judge, and NEWMAN, Circuit Judge.
   PAULINE NEWMAN, Circuit Judge.

The Advanced Display Manufacturers of America (ADMA) and the United States appeal the Order of the Court of International Trade granting a writ of mandamus to implement the court’s decision in Hosiden Corp. v. United States, 852 F.Supp. 1050 (Ct. Int’l Trade 1994). In that decision the court had ordered.Commerce, through the International Trade Administration, to revoke the previously imposed antidumping duty order within ten days of the court’s decision, to refund cash deposits, and to terminate administrative reviews. Commerce then published a “Notice of court decision” announcing that “[i]f the case is not appealed, or is affirmed on appeal, then the antidumping duty orders on EL FPDs will be revoked.” Electroluminescent High Information Content Flat Panel Displays and Display Glass Therefor From Japan, 59 Fed.Reg. 23,690 (May 6, 1994). The Notice provided that liquidation would continue to be suspended until the time for appeal expired or the Federal Circuit decided the appeal. Id.

Appeal of the underlying decision was timely taken to the Federal Circuit. Meanwhile Sharp Corporation sought from the Court of International Trade a writ of mandamus, requiring Commerce immediately to revoke the antidumping duty order and end the suspension of liquidation. The Court of International Trade granted the writ, and Commerce complied with the court’s order. Electroluminescent High Information Content Flat Panel Displays (EL FPDs) and Display Glass Therefor From Japan, 59 Fed. Reg. 43,809 (Aug. 25, 1994). ADMA and the United States appeal, arguing that by statute such action shall not be taken until the issuance of a “final decision,” defined as the decision upon appeal to the Court of Appeals for the Federal Circuit when such appeal is taken.

DISCUSSION

In accordance with 19 U.S.C. § 1516a(e), entries of merchandise for which liquidation has been suspended by court order remain subject to suspension of liquidation until there is a “final court decision in the action”:

§ 1516a(e) Liquidation in accordance with final decision
If the cause of action is sustained in whole or in part by a decision of the United States Court of International Trade or of the United States Court of Appeals for the Federal Circuit—
(2) entries, the liquidation of which was enjoined under subsection (c)(2) of this section, shall be liquidated in accordance with the final court decision in the action. Such notice of the court decision shall be published within ten days from the date of the issuance of the court decision.

A decision of the Court of International Trade that has been appealed “is not a ‘final court decision’ within the plain meaning of § 1516a(e).” Timken Co. v. United States, 893 F.2d 337, 339 (Fed.Cir.1990); see also Smith Corona Corp. v. United States, 915 F.2d 683, 688 (Fed.Cir.1990) (“Suspension of liquidation continues until a ‘conclusive’ court decision is reached, i.e., a decision that is not subject to further appeal or collateral attack.”); NTN Bearing Corp. v. United States, 892 F.2d 1004, 1006 (Fed.Cir.1989) (“return of final duties must await a final court decision and liquidation by the agency in accordance with that decision”); Melamine Chems., Inc. v. United States, 732 F.2d 924, 934 (Fed.Cir.1984) (“administrative handling of the involved entries of melamine from the Netherlands can be affected only by (1) a preliminary injunction pursuant to 19 U.S.C. § 1516a(c)(2), or (2) a final court decision adjudicating the legality, vel non, of the challenged determination. 19 U.S.C. § 1516a(e)”) (emphasis in original, footnote omitted).

Statute and precedent are clear that the decision of the Court of International Trade is not a “final court decision” when appeal has been taken to the Federal Circuit. The Court of International Trade does not have discretion to require liquidation before the final decision on appeal. 19 U.S.C. § 1516a(e) requires that liquidation, once enjoined, remains suspended until there is a “conclusive court decision which decides the matter, so that subsequent entries can be liquidated in accordance with that conclusive decision.” Timken, 893 F.2d at 342.

The Court of International Trade cited 19 C.F.R. § 353.20(d),. which requires Commerce or the Commission to terminate an antidumping investigation when either Commerce or the Commission makes a final negative determination in an investigation. Sharp argues that the Commission’s negative injury determination on remand from the Court of International Trade is of similar effect, and required termination of the investigation without further proceedings. Indeed, that rule applies when the matter has not reached the court, but remains in the administrative process. However, in this case an antidumping order and injunction had been imposed, the matter was reviewed by the Court of International Trade, was returned to that court after remand, and was appealed to the Federal Circuit.

The Court of International Trade’s order upon writ of mandamus is contrary to law, and is vacated.

WRIT VACATED.

      . Hosiden Corp. v. United States, 861 F.Supp. 115 (Ct. Int'l Trade 1994) (Order).