Atlanta Progressive News

(APN) ATLANTA — On Tuesday, January 15, 2013, the Eleventh Circuit Court of Appeals ruled against the Metro Atlanta Task Force for the Homeless in the shelter’s appeal of an earlier federal court ruling in its case against the City of Atlanta.

The federal court ruling of US District Court Judge Thrash, dated September 21, 2011, had granted summary judgment to the City, rejecting numerous claims made by the Task Force; and granted a judgment to the City for the Task Force to pay 147,288 dollars and 83 cents in unpaid water bills.

The federal litigation, as previously reported by Atlanta Progressive News, is just one component in an ongoing, multi-pronged set of litigation by the Task Force, in connection with its claims that the City of Atlanta and other parties, such as Central Atlanta Progress, developer Manny Fialkow, and Emory University, engaged in an illegal, tortious conspiracy to deprive the Task Force of public and private moneys and force them out of their downtown building at the corner of Peachtree and Pine.  The federal case specifically makes federal claims against the City of Atlanta.

The record, including email exhibits as well as sworn depositions, as reviewed by APN in depth, reveals a clear and compelling case that such a conspiracy did, in fact, occur.

“When the City of Atlanta terminated water service, the Metropolitan Atlanta Task Force for the Homeless sued the City, alleging breach of contract and violation of its constitutional rights pursuant to 42 U.S.C. § 1983,” the Court of Appeals wrote.

“The district court granted summary judgment to the City on all of the Task Force’s claims and entered judgment in the amount of $147,288.73 on the City’s counterclaim for unpaid water and sewer services.  The Task Force appealed.  Following oral argument and review of the record, we affirm,” the Court of Appeals wrote.

Two separate cases currently proceed, including one that is currently before the Court of Appeals of Georgia, and another that is in DeKalb County Superior Court.

Steve Hall, an attorney for the Task Force, says that they are considering a Motion for Reconsideration and/or appealing to the Supreme Court of the US.

Should the Task Force exhaust its appeals, it is not immediately clear that the City would be able to foreclose on the building at Peachtree and Pine, despite the fact that it has an upheld judgment and a lien against the Task Force for unpaid water.  That is because the question of who currently owns the building is the subject of a dispute that is currently before the Court of Appeals.

At that point, the City could attempt to join the lawsuit that is currently before the Court of Appeals in order to assert its right to the disputed property, but Hall does not see that as likely.

“They would have to go through this title issue with Premium Funding Solutions that would have to get resolved first… I think a ruling from the Court of Appeals will come out before a new lawsuit by the City could reach a conclusion,” Hall said.

In the lower court ruling, Judge Thrash dismissed several claims that the Task Force had made under state law on the basis that the City of Atlanta had sovereign immunity.  However, the Task Force did not enumerate an error on appeal regarding that issue.

“What we tried to show, and what we thought we had showed, was deprivation in our right to equal protection, due process, and our First Amendment right for freedom of assembly.  You saw the Court of Appeals didn’t agree with any of those,” Hall said.

With respect to its First Amendment claim, the Court of Appeals ruled that “we agree with the district court that paragraph 78 of the Second Amended Complaint (which merely alleged that the City’s actions deprived the Task Force of ‘its rights under the Fifth and Fourteenth Amendments’) did not properly plead a First Amendment claim,” the Court of Appeals wrote.

The Task Force did not specifically make reference to the First Amendment of the Constitution of the US in its complaint.

According to Hall, the Task Force pled a cause of action under a code section called 42 U.S.C. § 1983, where the Task Force argued “they’re liable for violating our federal rights including but not limited to… My belief is, you don’t have to state every single federal right that was violated.  Normally the standard is notice pleading, then you flesh out your pleading in discovery.  I thought we had done that adequately and obviously the Court of Appeals disagreed with me.”

“2. As for the equal protection claim,” the Court of Appeals wrote, “the district court correctly found that the Task Force did not demonstrate an equal protection violation under a ‘class of one’ theory because it failed to show it was treated differently from others who were similarly situated.”

“That’s what the Court of Appeals ruled, but that’s not what we argued.  What we argued was, this was a classification based on race.  That was the theme of my argument,” Hall said.

Hall said that both the US District Court and the Court of Appeals completely ignored the Task Force’s arguments regarding race-based discrimination.

“If you’re claiming equal protection that is not based on race, gender, national origin, one of the big classifications that already exist, what you have to do is show I was treated differently from all other similarly situated people.  However, if you’re saying you’re being treated differently because of your race, you don’t have to go and point to some different entity,” Hall said

“We [the Task Force] are being viewed as an organization that supports and advocates for African American males.  Therefore we’re arguing we’re not being treated differently as a Class of One, but we’re been treated differently because we are perceived as being an African American organization,” Hall said.

“None of the courts have addressed that argument in any of the opinions – it’s not been touched on.  That’s something we would want to address in a motion for reconsideration… People see us putting homeless Black males on Peachtree Street,” Hall said.

Third, the Court of Appeals ruled, “Turning to the due process claim, it fails because the Task Force failed to show that there was a deprivation caused by the City and because the Task Force does not have a constitutionally protected property interest in the certificates or eligibility for grants.  As we and other circuits have explained, where the statutes or regulations for the issuance of permits, licenses, or grants are discretionary, an applicant has no protected property interest.”

Here the Task Force had made an argument regarding the City’s granting of a certificate of compliance to the shelter and then taking it away, which made it ineligible for state and federal funding.

Gerry Weber, a constitutional law professor at Emory University, was not surprised by the logic used by the Court in this aspect of the ruling.

“There is a trend in the courts to require to show you were assured the thing that you claim.  To the extent it’s a licensing or a grant that is contingent on several factors that are discretionary, the Courts have sometimes decided you don’t have a property interest,” Weber said, adding that one has to have a liberty or a property interest in order to have a due process claim.

But again, the Task Force claims that the Court did not address its actual argument.

“We argued that we lost property [the building] because of what the City did, it conspired with other groups to take the title to the building.  Apparently the Court of Appeals didn’t agree with that at all.  We also argued the certificates were another piece of property that were taken,” Hall said.

Finally, the Court of Appeals rejected the Task Force’s breach of contract claims, in which the Task Force argued that the City had failed to produce evidence that the water bill charges were valid and based on an actual reading of the meters.

The Court noted that in a deposition, a City official claimed the City had a policy of reading all meters.  But Hall noted that while the City has that policy, the evidence shows that the City did not follow that policy with respect to the Task Force’s water meters.

“We are very pleased with today’s ruling,” Cathy Hampton, City Attorney, said in a statement.  “We believed that this lawsuit had no merit, and we are gratified that both Judge Thrash and the Eleventh Circuit agreed with us.”

(END/2013)