United States District Court, E.D. Michigan, Southern Division
Nancy Englar, Carol Diehl, Plaintiffs
(2:04-cv-73977-PDB-DAS): Deborah L. Gordon, LEAD ATTORNEY,
Sarah Prescott, Deborah L. Gordon Assoc., Bloomfield Hills,
Linda Davis, Chief Judge, 41B District Court, Defendant
(2:04-cv-73977-PDB-DAS): Timothy S. Ferrand, Cummings,
McClorey, Sterling Heights, MI; Peter W. Peacock, Plunkett &
Cooney (Mount Clemens), Mount Clemens, MI.
William Cannon, Interested Party (2:04-cv-73977-PDB-DAS):
Marvin D. Sharon, Royal Oak, MI.
Patricia Barachkov, Nancy Englar, consolidated from 04-73977,
Carol Diehl, consolidated from 04-73977, Plaintiffs
(2:04cv73957): Deborah L. Gordon, LEAD ATTORNEY, Sarah
Prescott, Deborah L. Gordon Assoc., Bloomfield Hills, MI USA.
Sebastian Lucido, Chief Judge, 41B District Court, Defendant
(2:04cv73957): Peter W. Peacock, LEAD ATTORNEY, Plunkett &
Cooney (Mount Clemens), Mount Clemens, MI USA; Timothy S.
Ferrand, LEAD ATTORNEY, Cummings, McClorey, Clinton Township,
AND ORDER GRANTING PLAINTIFFS' EMERGENCY MOTION FOR
REINSTATEMENT AND OTHER DECLARATORY RELIEF (ECF NO. 225) AND
ORDERING DEFENDANT CHIEF JUDGE SEBASTIAN LUCIDO IN HIS
OFFICIAL CAPACITY TO DEVELOP A PLAN WITHIN
60 DAYS TO REINSTATE PLAINTIFFS TO COMPARABLE POSITIONS WITH
THE 41B DISTRICT COURT AND EDIT PLAINTIFFS' PERSONNEL
FILES TO REFLECT THE JURY'S VERDICT
BORMAN, UNITED STATES DISTRICT JUDGE.
before the Court is Plaintiffs Patricia Barachkov, Nancy
Englar, and Carol Diehl's (" Plaintiffs" )
Emergency Motion for Reinstatement (Case no. 04-73957, ECF
No. 225). Defendant Chief Judge Sebastian Lucido
(in his official capacity) has responded to this motion
through his attorney Peter Peacock and Plaintiffs filed a
reply. (Case no. 04-73957, ECF Nos. 244, 245).
Court previously held oral argument on this motion and
Plaintiffs' Motion to Substitute Proper Party in Interest
on March 24, 2015. (Case no. 04-73957, ECF No. 231). Then
Defendant Judge Linda Davis' attorney Timothy Ferrand had
responded to both Plaintiffs' motion to substitute and
their Emergency motion for reinstatement. However, after oral
argument and briefing the Court granted in part the
Plaintiffs' motion to substitute, finding that the
current Chief Judge of the 41B District Court, Judge
Sebastian Lucido, was the proper party in interest, striking
then Defendant Judge Davis' responses to Plaintiffs'
motion for reinstatement, ( see case no. 04-73957
ECF No. 243, Court Order granting Motion to Substitute), and
providing Defendant Chief Judge Lucido (" Chief Judge
Lucido" ) the opportunity to respond to Plaintiffs'
Motion for Reinstatement. ( Id. ). Defendant Chief
Judge Lucido filed his response on April 27, 2015. (Case no.
04-73957, ECF No. 244). Thereafter, in accordance with the
Court's order, Plaintiffs filed a supplemental reply.
(Case no. 04-73957, ECF No. 245).
argument on this issue was held on July 29, 2015. For all the
following reasons, the Court will GRANT IN PART
Plaintiffs' Emergency Motion for Reinstatement.
BACKGROUND AND PROCEDURAL POSTURE
Court recently summarized the long procedural posture of this
case in its April 6, 2015 Opinion and Order reopening this
action and granting in part Plaintiffs' Motion to
Substitute Proper Party in Interest and therefore adopts that
summary here. ( See case no. 04-73957, ECF No. 243
to the issues before the Court now, the Sixth Circuit held in
its most recent decision in this case that (1) the
Plaintiffs' constitutional right to procedural due
process was violated because the they received no
pre-termination process and there was " sufficient
evidence from which a reasonable juror could conclude the
Employees had a legitimate expectation of just-cause
employment", Barachkov v. Davis ( Barachkov
II ), 580 Fed.Appx. 288, 296 (6th Cir. 2014); and (2)
former Defendant Judge Davis in her individual capacity was
entitled to qualified immunity for the decision to fire the
Plaintiffs without a pre-termination hearing because she
" made an objectively reasonable determination that the
Employees served at will", Id. at 298. The
Sixth Circuit also recited the well-settled law that "
[q]ualified immunity shields a defendant sued in his or her
individual capacity from monetary liability; it does not
shield a defendant from official-capacity claims for
equitable relief, Hall v. Tollett, 128 F.3d 418, 430
(6th Cir. 1997), nor does it shield a defendant form
individual-capacity claims for equitable relief, Flagner
v. Wilkinson, 241 F.3d 475, 483 (6th Cir. 2001)."
Barachkov II, at 294.
pertinent to the issues before this Court are those issues
that the Sixth Circuit did not address, overturn, or mention
in its most recent treatment of this case. Most notably,
Barachkov II did not disturb or implicate the
Jury's finding (as set forth in the verdict form) that
there was not " just cause" to terminate any of the
Plaintiffs. Indeed, relevant to this motion, Barachkov
II only addressed issues relating to whether there was
sufficient evidence that Plaintiffs' constitutional
rights had been violated (finding in the affirmative) and
whether Defendant Judge Davis' determination that the
Plaintiffs served at-will was a reasonable determination
given the facts such that qualified immunity was appropriate
(finding in the affirmative).
Plaintiffs now come before this Court in a legal scenario
where a jury has determined that their constitutional right
to due process was violated and that there was no " just
cause" to terminate them, but are not entitled to the
compensatory or punitive damages because former Defendant
Judge Davis was entitled to qualified immunity. Plaintiffs
now renew their request for prospective injunctive relief
against the proper party in interest, Defendant Chief Judge
Lucido, and seek " an Order compelling Defendant to
remove negative information relating to their terminations
from their personnel files, reinstating the Plaintiffs to the
same or similar positions as the ones from which they were
illegally removed, and issuing a declaratory judgment in
their favors." (Case No. 04-73957, ECF No. 225, at 3).
Chief Judge Lucido opposes Plaintiffs' request for
reinstatement for a number of reasons. The Court will address
each in turn.
Whether reinstatement is an available remedy in the context
of a 14th Amendment Claim
It is a
" well-settled principle that the nature and scope of
the remedy are to be determined by the violation, means
simply that federal-court decrees must directly address and
relate to the constitutional violation itself."
Milliken v. Bradley, 433 U.S. 267, 282, 97 S.Ct.
2749, 53 L.Ed.2d 745 (1977); Carey v. Piphus, 435
U.S. 247, 259, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978) (holding
that compensation for injuries flowing from the deprivation
of a constitutional rights " should be tailored to the
interests protected by the particular right in question"
); see also Brody v. Village of Port
Chester, 345 F.3d 103, 119 (2d Cir. 2003) (when due
process is violated the appropriate remedy " depends on
the stage at which the violation is found and the relief
sought." ). In this action, Defendant Chief Judge Lucido
argues that reinstatement is not " appropriate" in
the context of a Fourteenth Amendment Due Process claim in
part because such a remedy would not address the
constitutional violation that occurred. Rather, Defendant
Chief Judge Lucido contends that Plaintiffs are only entitled
to have him provide a " notice and hearing" to
determine whether good cause existed for their terminations.
(Def.'s Resp. at 13).
Chief Judge Lucido's current argument is without merit.
First, the Sixth Circuit in Barachkov I already
indicated that equitable prospective relief was a possible
available remedy in this action. Barachkov v. Davis
( Barachkov I ), 311 Fed.Appx. 863, 872-73 (6th Cir.
2009). Indeed, in Barachkov I, the Sixth Circuit
specifically reversed this Court's previous holding that
prospective relief " e.g., injunction against further
retaliation and reinstatement" was not available, and
clarified that " [i]t is settled law that " [a]
state official in his or her official-capacity, when sued for
injunctive relief, would be a person under § 1983
because 'official-capacity actions for prospective relief
are not treated as actions against the state.'"
this Court has previously addressed the issue of damages and
potential remedies. ( See case no. 04-73977, ECF
Nos. 123, 125, briefing by former Defendant Judge Davis
regarding whether prospective injunctive relief was
appropriate or merely futile; case no. 04-73975: ECF No. 84
Opinion and Order allowing equitable claims to proceed; ECF
No. 171 Defs.' Mot. To Amend Damages; ECF No. 200 Order
Denying Motion to Amend Damages). More specifically, after
the first remand this Court addressed and rejected former
Defendant Judge Davis' argument that reinstatement was
not a proper remedy against her in her official capacity
because it amounted to an end-around sovereign immunity.
(Case no. 04-73975, ECF No. 84, at 4-7). In its April 14,
2011 Order this Court stated that " Plaintiffs'
claims for prospective injunctive relief against Defendant
Chief Judge Linda Davis [in her official capacity] should be
allowed to go forward -- but not Plaintiffs' claims with
regard to damages and back pay." ( Id. at 7).
After the jury trial in this matter, this Court also rejected
former Defendant Judge Davis' arguments that only nominal
damages (if any) were appropriate. ( See Case no.
04-73975, ECF No. 200).
only is Defendant Chief Judge Lucido's current argument
(and former Defendant Judge Davis' previous argument) one
in which it appears the Sixth Circuit and this Court have
already previously addressed, but Defendant Chief Judge
Lucido's argument is not supported by law.
touchstone for damages in procedural due process cases is
Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55
L.Ed.2d 252 (1978). In Carey, the Supreme Court held
that compensation for injuries flowing from the deprivation
of a constitutional right " should be tailored to the
interests protected by the particular right in question"
. Id. at 259. In Carey, the Supreme Court
held " compensatory damages for a procedural due process
violation may not be awarded absent proof of actual injury.
The Court further held, however, that even in the absence of
such proof, 'the denial of procedural due process should
be actionable for nominal damages.'" Franklin v.
Aycock, 795 F.2d 1253, 1263 (6th Cir. 1986) (quoting
Carey, 435 U.S. at 266)). The Sixth Circuit has
interpreted Carey to provide that the issue of
whether compensatory damages should be awarded consists of
two inquiries: " [t]he first inquiry concerns causation;
whether the action taken without due process is justified or,
in the other words, whether the same action would have been
taken been if due process had been afforded....[t]he second
inquiry is whether there is proof of actual injury, such as
emotional or mental distress caused by the denial of due
process, to support an award of compensatory damages."
Franklin, 795 F.2d at 1263. Carey, however,
did not reach the particular issue of equitable relief.
analogous case in the Eighth Circuit is instructive and
persuasive on this issue. In Hopkins v. Saunders,
199 F.3d 968 (8th Cir. 2000), an employee was terminated from
his job as director of the Division of Grain Inspection with
the Missouri Department of Agriculture and brought a §
1983 action against the departmental official for, inter
alia, a violation of procedural due process for failing
to receive notice or a hearing before his termination. In
Saunders, the Eighth Circuit had previously remanded
the action to the district court to determine whether
reinstatement and other equitable damages were appropriate
after finding the defendant officials were entitled to
qualified immunity in their individual capacities (but not
shielded from prospective injunctive relief in their official
capacities). Id. at 972-73; see also
Hopkins v. Saunders, 93 F.3d 522 (8th Cir. 1996). On
remand, the district court, after a hearing, determined that
the plaintiff had a property interest in his job and his
constitutional right to due process was violated when he did
not receive notice or a hearing prior to termination.
Id. at 975. However, the district court also found
that the plaintiff was dismissed for cause " and
therefore refused to reinstate him, instead awarding him only
nominal damages." Id.
parties both appealed and the Eighth Circuit affirmed the
plaintiff's protected property interest in his position
but held that the district court's award of nominal
damages constituted " legal relief" rather than
equitable and was therefore contrary to the earlier decision
and remand (and also vacated the award). The Eighth Circuit
then relied upon Carey in holding that federal law
dictated the proper remedy for a procedural due process
claim, explaining that
[t[he Supreme Court defined the proper remedy for the denial
of procedural due process in Carey v. Piphus,
holding that the remedy for a procedural due process
violation is defined by the extent of the injury that
resulted from the denial of constitutionally required
process. 435 U.S. at 263-64; see also Peery v.
Brakke, 826 F.2d 740, 747 (8th Cir. 1987). Thus, in the
context of public employment, reinstatement is proper only
where a tenured employee would not have been dismissed if his
procedural due process right had been observed. ... Where an
employee would have been discharged even if he had received
due process, i.e. was discharged for cause, his sole injury
is the lack of process and only nominal damages are proper.
Saunders, 199 F.3d at 979 (emphasis added); see
also Clark v. St. Joseph Pub. School Dist., 130
F.Supp.2d 899, 905 (W.D. Mich. 2000) (relying on
Saunders in finding that where an employee's due
process rights were violated but she would have been
discharged for cause regardless, " her sole injury is
the lack of process and only nominal damages are
proper." ). The Eighth Circuit then went on to find that
under the " Carey remedial framework" the
district court's finding (post-evidentiary hearing) that
the plaintiff " would have been dismissed even if he had
received due process" was supported by evidence and was
not " clear error" . Id.
the Eighth Circuit's holdings in Saunders are in
line with the Sixth Circuit's interpretation of
Carey - that the pertinent inquiry in determining
the proper scope of damages in the context of a violation of
procedural due process is " whether the action taken
without due process is justified or, in the other words,
whether the same action would have been taken if due process
had been afforded" . Franklin, 795 F.2d at 1263
(analyzing Carey ). Indeed, this was borne out in
Newsome v. Batavia Local Sch. Dist., 842 F.2d 920,
928 (6th Cir. 1988). In Newsome, the Sixth Circuit
addressed a plaintiff's claim of a violation of
procedural due process in the context of a school expulsion.
The Sixth Circuit found that the plaintiff had been deprived
of due process when a superintendent disclosed evidence to
the school board during closed deliberations that had not
been previously presented during an open hearing.
Id. at 927. In reversing and remanding the case to
the district court the Sixth Circuit relied upon
Carey and explained:
To the extent that Newsome seeks money damages to compensate
him for the violation of his fourteenth amendment right, he
must demonstrate, on remand, that he suffered actual
injury (such as mental and emotional distress) caused by the
violation. To the extent that Newsome seeks reparative relief
aimed at restoring him to the position he would have occupied
but for the due process violation, he is entitled to such
relief unless the school district can prove, by a
preponderance of the evidence, ...