EBI-DETROIT, INC., Plaintiff-Appellant, v. CITY OF DETROIT, Detroit Water And Sewer Department, Gary Fujita, Victor Mercado, Kwame Kilpatrick, individually and in his capacity as Mayor of Detroit, Defendants-Appellees.
No. 07-1391.
United States Court of Appeals, Sixth Circuit.
May 22, 2008.
C. Heck
Under Heck v. Humphrey, if prevailing in a civil suit would necessarily imply the invalidity of a prior criminal conviction, the civil suit is barred. 512 U.S. at 487, 114 S.Ct. 2364. While the district court found for the defendants on this basis, we do not need to reach this issue because we find the officers’ actions reasonable.
III.
Because we find that the officers’ actions were objectively reasonable, we AFFIRM the grant of summary judgement by the district court.
Before BOGGS, Chief Judge; ROGERS, Circuit Judge; and SHADUR,* District Judge.
BOGGS, Chief Judge.
Construction contractor EBI-Detroit appeals the district court‘s grant of summary judgment in favor of the City of Detroit, the Detroit Water and Sewer Department (“DWSD“), Gary Fujita and Victor Mercado, two directors of DWSD, and Detroit‘s mayor, Kwame Kilpatrick. EBI claims that the defendants breached a contract and committed various intentional torts when they rejected EBI‘s bid on a DWSD project. The threshold question in this case is whether federal jurisdiction exists. We conclude that it does. EBI‘s allegation that Kilpatrick acted outside the powers granted to him by a federal court requires us to interpret the federal court order and thus presents a federal question. The second, easier question is whether EBI‘s claims can survive summary judgment. We conclude that they cannot, and therefore affirm.
I
Our jurisdiction turns on Kilpatrick‘s appointment as “Special Administrator” of DWSD under a consent decree between DWSD and the EPA, so we summarize the extended litigation between those two parties. Thirty-one years ago, in 1977, the United States sued DWSD over DWSD‘s noncompliance with the Clean Water Act (“EPA Case“). In September 1977, the parties entered a consent decree establishing a compliance schedule for bringing DWSD‘s wastewater treatment and pollution discharges in line with the Clean Water Act. District Judge Feikens oversaw the initial consent decree, and he has continued to oversee the litigation surrounding DWSD and the EPA to this day. In 1979, Judge Feikens found that DWSD was not following the compliance schedule and appointed Coleman Young, the mayor of Detroit, as “Special Administrator” of the DWSD. United States v. City of Detroit, 476 F.Supp. 512 (E.D.Mich.1979).
* The Honorable Milton I. Shadur, United States District Judge for the Northern District of Illinois, sitting by designation.
Since the initial consent decree, DWSD has drifted in and out of compliance with the Clean Water Act. During periods of compliance, Judge Feikens “temporarily suspended the Special Administratorship,” only to “revive” it when “compliance with the Clean Water Act or the Consent Judgments in this case was at risk.” United States v. Michigan, 409 F.Supp.2d 883, 886 (E.D.Mich.2006) (Feikens, J.). In August 1997, DWSD acknowledged that it was once again operating in violation of EPA regulations. Judge Feikens appointed a committee to investigate DWSD‘s noncompliance. The committee issued its report in January 2000, and the court again responded by appointing Detroit‘s mayor, Dennis Archer, as Special Administrator of DWSD. The court gave Archer the same powers it gave to Mayor Young in 1979. United States v. City of Detroit, No. 77-71100, 2000 WL 371795 (E.D.Mich. Feb. 7, 2000). DWSD‘s contracts were “subject to the requirement of competitive bidding,” but the mayor could waive the bidding rules when he deemed it “necessary.” Id. at *5. On December 3, 2001, the court transferred the authority of the Special Administrator to Detroit‘s new mayor, Kwame Kilpatrick.
This case arises from DWSD‘s rejection of EBI‘s bid on Contract PC-753, the Belle Isle Pump Station and Combined Sewer Overflow Control Improvements Project (the “Belle Isle Project“). The parties agree that the Belle Isle Project is required by DWSD‘s EPA permit. DWSD‘s Assistant Director Gary Fujita stated that the Belle Isle Project needed to be completed on a tight timetable to ensure compliance with the EPA‘s consent decree. DWSD solicited bids on the Belle Isle Project, and, after equalization, the two lowest bids came from EBI, at $13,265,009, and from Walsh Construction, at $13,588,680.1
DWSD made it clear that the Belle Isle Project would be awarded to the lowest bidder who was both responsive and responsible, “responsive” meaning that the bidder submitted a timely bid that conformed to DWSD‘s request, and “responsible” meaning that the bidder‘s record suggested that it could be expected to complete the project on time and in compliance with all relevant laws. DWSD sent EBI a letter on January 28, 2005, telling EBI that it was the lowest responsive bidder and that it needed to submit certain documents to prove that it was responsible. On February 4, 2005, EBI attended a bid evaluation meeting where EBI and DWSD discussed the items that EBI needed to submit. On March 21, 2005, DWSD‘s director, Victor Mercado, sent EBI a letter stating that due to EBI‘s deficient performance on an earlier project, the LH-391 Project, DWSD was deeming EBI a non-responsible bidder and awarding the contract to another bidder.
The LH-391 Project was also required by the consent decree, and EBI was the
EBI responded to the rejection of its bid on the Belle Isle Project on March 29, 2005, by sending a letter claiming that the decision was unfair and requesting a protest hearing. Sections 13.2 and 13.3 of the bidding document state that if a bid is rejected, the bidder may file a protest, and DWSD will review the protest and “if necessary” hold a hearing on the matter within ten days. DWSD sent EBI a letter on April 19 pointing out the permissive nature of its hearing obligations and informing EBI that DWSD had determined that a hearing was not necessary. Instead, on June 9 Kilpatrick invoked his powers as Special Administrator of DWSD and awarded the contract to Walsh Construction.
EBI sued the defendants on September 25, 2006, in Wayne County Circuit Court, asserting claims for breach of contract, defamation, tortious interference, and “abuse of power by the Special Administrator” against Kilpatrick. On October 11, 2006, the defendants removed the case to federal court. The case was initially assigned to Judge Paul Gadola, but it was reassigned on November 1, 2006, to Judge Feikens in light of his role in overseeing DWSD. EBI filed a motion to remand the case to state court on October 30, but it was denied on December 6.
The defendants filed a motion for summary judgment on December 27, and on April 25, 2007, the district court granted the motion. Judge Feikens reasoned that EBI was merely a disappointed bidder and lacked standing to assert any of its claims. EBI appealed.
II
A
The first question in this case is whether we have subject matter jurisdiction, an issue we review de novo. Taveras v. Taveraz, 477 F.3d 767, 771 (6th Cir.2007).
B
The bedrock principle of the federal judicial system is that federal courts are courts of limited jurisdiction. For a federal court to have jurisdiction over a case, “[t]he Constitution must have given to the court the capacity to take it, and an act of Congress must have supplied it.” Finley v. United States, 490 U.S. 545, 548, 109 S.Ct. 2003, 104 L.Ed.2d 593 (1989) (quoting Mayor v. Cooper, 73 U.S. 247, 6 Wall. 247, 252, 18 L.Ed. 851 (1867)). Generally speaking, the Constitution and Congress have given federal courts authority to hear a case only when the case raises a federal question or when diversity of citizenship exists between the parties. Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). The federal question must appear on the face of the plaintiff‘s well-pleaded complaint. Ibid.; see also Louisville & Nashville R.R. Co. v. Mottley, 211 U.S. 149, 150, 29 S.Ct. 42, 53 L.Ed. 126 (1908). When a case
The defendants counter by invoking
It seems likely that Kilpatrick is a “federal officer” because of his appointment as Special Administrator and that he has “a colorable federal defense” because of his powers as Special Administrator. However, we question the defendants’ ability to establish a “causal connection” between Kilpatrick‘s actions under federal authority and the lawsuit. Other courts have considered
C
EBI‘s allegation that Kilpatrick violated federal law appears on the face of EBI‘s complaint. The complaint states that:
99. Mr. Kilpatrick‘s actions awarding the Project to another contractor without seeking approval of the City Council constituted a violation of his powers as Special Master [Administrator].
100. Such disregard by the Mayor of Detroit constitutes an improper use of enumerated powers and as such Mr. Kilpatrick‘s actions are ultra vires.
...
107. Mayor Kilpatrick‘s actions awarding the Project contract to another contractor without consulting the City Council violated his powers as Special Master [Administrator].
...
116. Mr. Kilpatrick‘s actions abused the Special Master [Administrator] power granted by Judge Feikens because the awarding of this Project is outside the boundaries of Mr. Kilpatrick‘s power and contrary to the provisions of the Contract Documents (emphases added).
EBI even labels count 14 of its complaint “Willful Violation and Abuse of Power as Special Master of DWSD.” Therefore, EBI‘s “right to relief” against Kilpatrick turns on whether Kilpatrick exceeded the authority granted to him by the federal court order. The order was issued by a federal court, and therefore the interpretation of that order is a question of federal law. EBI cannot recover under count 14 of its complaint unless Kilpatrick violated federal law, so we have a classic federal question and therefore subject matter jurisdiction.
EBI attempts to avoid jurisdiction in two ways. First, at oral argument, its counsel asked us to look to the “substance” of EBI‘s complaint and find no federal jurisdiction. This is an ambiguous request. If EBI means that we should look at the words of EBI‘s complaint and see what legal violations are alleged, that is what we are doing. EBI alleged in count 14 that Kilpatrick broke federal law by exceeding his powers as Special Administrator, and it is this substantive legal allegation that creates jurisdiction. But if EBI means that we should find no jurisdiction because most of its claims are state-law claims, we reject this suggestion because when a complaint raises a single federal question, federal courts have jurisdiction over “all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.”
Second, EBI points to a forum-selection clause in the bidding documents. The clause states:
15.4.1 The Contractor [EBI] agrees to submit to the exclusive personal jurisdiction of, and not commence any action in other than, a competent State court in Michigan, regardless of residence or domicile, for any action or suit in law or equity arising out of or under the Contract Documents.
The clause is irrelevant because it says nothing about the defendants’ right to re-
EBI wants to be in state court, but that desire is not enough to avoid federal jurisdiction. While as the plaintiff EBI enjoys the long-established right to “decide what law he will rely upon,” Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25, 33 S.Ct. 410, 57 L.Ed. 716 (1913), that right does not allow EBI to escape the consequences of claiming that the defendants violated a federal court order. In another context we observed that “[n]othing prevents a plaintiff from pleading itself out of court, which is all that happened here.” NicSand, Inc. v. 3M Co., 507 F.3d 442, 458 (6th Cir.2007) (en banc). The reverse is also true. Nothing prevents a plaintiff from inadvertently pleading so as to subject itself to removal into federal court, and that is what happened here.
III
A
Having found jurisdiction, we turn now to the merits of EBI‘s case. The district court granted summary judgment to the defendants. We review grants of summary judgment de novo under the familiar standard of Federal Rule of Civil Procedure 56 and Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 521 (6th Cir.2008).
B
Count 1 of EBI‘s complaint alleges that DWSD breached a contract with EBI. But despite its best efforts, EBI cannot hide the fact that it never signed a contract with DWSD. Indeed, this dispute is in court precisely because Walsh Construction, not EBI, received the contract. The letter informing EBI that it was the lowest bidder told EBI that no contract had yet been awarded and that EBI would receive the contract only if it were found to be “responsible.”
EBI knows this. In a letter to Kilpatrick on April 7, 2005, EBI spoke of “delays in formally awarding the contract to EBI.” EBI‘s president admitted in his affidavit that EBI never received the contract. EBI‘s brief on appeal argues that “while it had not yet been finalized, all other necessary requirements for the formation of a contract had taken place.” But this is like saying that while a plaintiff has not yet filed his complaint, all other necessary requirements for the commencement of a lawsuit have taken place. Without a contract to breach, EBI‘s breach of contract claim cannot stand.
EBI seeks to avoid this inconvenient fact by re-framing its claim. At oral argument before the district court, EBI‘s counsel contended that the parties’ agreement
We reviewed the law surrounding standing and disappointed bidders in Club Italia Soccer & Sports Org., Inc. v. Charter Twp. of Shelby, 470 F.3d 286 (6th Cir.2006). Club Italia held that absent a statutory exception, “a disappointed bidder does not have standing before this court.” Id. at 293. Cases prior to Club Italia consistently refused to allow disappointed bidders4 to bring claims for violations of the bidding procedures. See, e.g., Expert Masonry, Inc. v. Boone County, Kentucky, 440 F.3d 336, 348 (6th Cir.2006) (disappointed bidder suffered no cognizable antitrust injury); Leo J. Brielmaier Co. v. Newport Housing Auth., 173 F.3d 855 (table), 1999 WL 236193, at *5 (6th Cir.1999) (disappointed bidder lacked standing to assert constitutional due process claim); United of Omaha Life Ins. Co. v. Solomon, 960 F.2d 31, 34 (6th Cir.1992) (per curiam) (disappointed bidder lacked standing). A bidder who, in addition to seeing his bid rejected, is disqualified from bidding on future projects may have standing, Club Italia, 470 F.3d at 297, United of Omaha, 960 F.2d at 34, but EBI cannot obtain standing this way because EBI was not disqualified from bidding on future projects.
EBI‘s contract claim would fare no better in state court. Michigan courts hold that:
[O]ne who is unsuccessful in bidding on a public contract does not have standing to challenge the result or the bidding process itself. This rule is based on the belief that statutes or ordinances requiring such bidding procedures for public contracts were adopted to benefit taxpayers or the general public.
WDG Inv. Co., LLC v. Mich. Dept. of Mgmnt. and Budget, Case No. 229950, 2002 WL 31424731, at *3 (Mich.Ct.App. 2002) (citing Talbot Pav. Co. v. Detroit, 109 Mich. 657, 67 N.W. 979, 980 (1896)).
United of Omaha is particularly fatal to EBI‘s claims because it held that a disap-
C
We turn now to EBI‘s state-law claims for defamation and tortious interference. EBI alleged other torts in its complaint, but raises only these two on appeal. Some confusion exists as to whether EBI alleged defamation against Mercado and Fujita as individuals, against DWSD as an entity, or against both. We will give EBI the benefit of the doubt and assume that it pleaded defamation claims against Mercado, Fujita, and DWSD.
The district court‘s grant of summary judgment never mentioned EBI‘s tort claims. The district court based its decision on a disappointed bidder‘s lack of standing, so we must assume that the district court concluded that EBI lacked standing to raise its intentional tort claims.
We have never determined whether disappointed bidders have standing to bring intentional tort claims, as opposed to breach of contract or constitutional due process and equal protection claims. The argument against granting standing is that doing so would allow disappointed bidders to circumvent the prohibitions on claims arising from the bidding document by pleading their contract claims as intentional tort claims. The argument for granting standing is that government agencies should not be given a free pass to commit intentional torts simply because the victim is a disappointed bidder. Some courts have addressed the issue and granted standing to disappointed bidders in intentional tort cases. See, e.g., A-Valey Eng‘rs. Inc. v. Bd. of Chosen Freeholders of County of Camden, 106 F.Supp.2d 711, 719 (D.N.J.2000) (tortious interference); United Prison Equip. Co. v. Bd. of County Comm‘rs of Caroline County, 907 F.Supp. 908, 913 (D.Md.1995) (defamation); Lacorte v. Hudacs, 884 F.Supp. 64, 70 (N.D.N.Y.1995) (defamation). Likewise, an unpublished case from our circuit assumed that a disappointed bidder had standing to raise a tortious interference claim. Leo J. Brielmaier Co., 1999 WL 236193 at *7. But we need not definitively answer the standing question now, because even if EBI has standing, its claims fail.
1
First, all defendants may be entitled to governmental immunity. We say “may” because while it is clear that DWSD and the City of Detroit, as government agencies engaged in a government function, are entitled to absolute immunity, confusion exists among Michigan courts about whether Michigan‘s governmental immunity statute covers intentional torts by government employees. The Michigan Supreme Court squarely held that there is “no intentional tort exception to the governmental immunity statute.” Smith v. Dept. of Pub. Health, 428 Mich. 540, 410 N.W.2d 749, 772 (1987). Smith has not been overruled and has been repeatedly cited by lower Michigan courts as holding that governmental immunity bars intentional tort claims against both government agencies and government employees. See, e.g., Bell v. Fox, 206 Mich.App. 522, 522 N.W.2d 869, 871 (1994) (relying on Smith
Unfortunately, the picture gets more complicated, particularly with respect to lower-level government employees. Several panels of the Michigan Court of Appeals have interpreted Smith as holding that governmental immunity shields only state agencies, not state officers, from tort liability. See, e.g., May v. Greiner, 2006 WL 2987709, at *3 (Mich.Ct.App.2006) (per curiam) (stating that Smith shields only government agencies, not individual government officers, from intentional tort liability); Sudul v. City of Hamtramck, 221 Mich.App. 455, 562 N.W.2d 478, 479 (1997) (holding that “an individual employee‘s intentional torts are not shielded by our governmental immunity statute“); see also ibid. at 489-90 (Murphy, P.J., concurring in part and dissenting in part) (saying that Smith is responsible for the confusion and arguing that “an analysis of Smith beyond the bare holding reveals” that governmental immunity does not apply to intentional torts committed by police officers).
As a federal court, we look to the Michigan Supreme Court for the authoritative interpretation of Michigan law. United States v. Philp, 460 F.3d 729, 732 (6th Cir.2006). Smith is a Michigan Supreme Court decision that has not been overruled and as such we are we are bound by it. Yet it is difficult to ignore the uncertainty created by Smith and the contradictory interpretations of Smith by the Michigan Court of Appeals as we attempt to interpret Michigan law correctly without intruding on the Michigan courts’ prerogative to interpret Michigan law. Clarification from the Michigan Supreme Court would be helpful, and we are grateful that it appears to be forthcoming.
In January of this year, the Michigan Supreme Court initially declined to hear a case that could have cleared this confusion. Odom v. Wayne County, 480 Mich. 1015, 743 N.W.2d 56, 57 (2008), reconsideration granted, order vacated by 480 Mich. 1184, 747 N.W.2d 249, 250 (2008). Justice Markman dissented from the initial denial, pointing out the contradictory opinions within the Michigan Court of Appeals, and explaining that “[b]ecause the law in this area is in such disarray, I would grant leave to appeal.” Id. at 57. Just before this opinion was issued, the Michigan Supreme Court vacated its denial of leave to appeal in Odom, granted leave to appeal, and asked for briefing on the scope of Michigan‘s governmental immunity statute. Odom v. Wayne County, 480 Mich. 1184, 747 N.W.2d 249, 250 (2008). Fortunately, we need not wait until Odom clears up this issue to decide this case because even if governmental immunity does not bar EBI‘s claims, the claims lack merit.
With that background, we turn to the immunity issue, where we consider first the question of absolute immunity with respect to DWSD and the City of Detroit. Although the defendants did not raise the issue of governmental immunity below, we may affirm if a district court‘s decision was correct for any reason, even if the reason was “not considered below.” United States Postal Serv. v. Nat‘l Ass‘n of Letter Carriers, AFL-CIO, 330 F.3d 747, 750 (6th Cir.2003); see also Mack v. City of Detroit, 467 Mich. 186, 649 N.W.2d 47, 53 (2002) (defendant‘s failure to raise governmental immunity defense at trial did not preclude court from considering the defense on appeal). Under Michigan law, governmental immunity is not an affirmative defense, but a characteristic of the government that bars tort liability unless an exception applies. Mack, 649 N.W.2d at 53-54. “A governmental agency is immune from tort liability if the governmental agency is engaged in the exercise or discharge of a governmental
Next, we ask if the individual defendants are entitled to absolute immunity. We answer that under our understanding of Michigan law, Mayor Kilpatrick and Director Mercado are absolutely immune from EBI‘s tort claims. Michigan‘s governmental immunity statute says that “the elective or highest appointive executive official of all levels of government are immune from tort liability for injuries to persons or damages to property if he or she is acting within the scope of his or her judicial, legislative, or executive authority.”
When a government official covered by
Whether Deputy Director Fujita also enjoys immunity is closer question. As the Deputy Director, he is not the highest official at his level of government. While some Michigan courts have been willing to expand absolute immunity to Deputy Directors, others have not. Compare, e.g., Chivas v. Koehler, 182 Mich.App. 467, 453 N.W.2d 264, 265 (1990) (granting immunity to both Director and Deputy Director of the Department of Corrections) with Taylor v. Bomar-Parker, 2003 WL 21978753, at *2 (Mich.Ct.App.2003) (stating that trial
2
Fortunately, we need not decide these questions because we hold that even if governmental immunity does not protect one or all of the individual defendants, EBI‘s tort claims lack merit. EBI claims that Mercado and Fujita defamed EBI by declaring that EBI was “non-responsible” based on its performance on the LH-391 Project, and by communicating that declaration of non-responsibility to other area contractors. It alleges that this statement was “knowingly false” because Mercado and Fujita knew that DWSD, not EBI, was responsible for the problems with the LH-391 Project.
Under Michigan law, “[t]he elements of a defamation claim are: (1) a false and defamatory statement concerning the plaintiff, (2) an unprivileged communication to a third party, (3) fault amounting at least to negligence on the part of the publisher, and (4) either actionability of the statement irrespective of special harm (defamation per se) or the existence of special harm caused by publication.” Mitan v. Campbell, 474 Mich. 21, 706 N.W.2d 420, 421 (2005). EBI cannot prove the second element. Defamation requires an unprivileged communication, but the only communication EBI points to is the letter notifying the other bidders that EBI was non-responsible. This communication was privileged because EBI consented to this communication by submitting a bid under bidding documents that plainly stated that if a bidder was disqualified, both the disqualification and the reasons for the disqualification would be sent to other bidders. See Merritt v. Detroit Mem.‘l Hosp., 81 Mich.App. 279, 265 N.W.2d 124, 127 (1978) (statements consented to are privileged).
EBI also claims that Mercado and Fujita tortiously interfered with EBI‘s business relationship with DWSD. Under Michigan law, the elements of a tortious interference claim are: “(1) [t]he existence of a valid business relationship or expectancy, (2) knowledge of the relationship or expectancy by the interferer, (3) an intentional and wrongful interference inducing or causing a breach or termination of the relationship or expectancy, and (4) resultant damage to the party whose relationship or expectancy was disrupted.” P.T. Today, Inc. v. Comm‘r of the Office of Fin. & Ins. Servs., 270 Mich.App. 110, 715 N.W.2d 398, 422 (2006).
EBI claims that it had a “valid promissory relationship” with DWSD, and that defendants Mercado and Fujita interfered with this relationship. The court cannot find a single legal authority that even contains the phrase “valid promissory relationship,” let alone one that defines the phrase or says that a “valid promissory relationship” can form the basis of a tortious interference claim. But however one describes EBI‘s relationship with DWSD, it is not the kind of relationship that can support a tortious interference claim. Michigan courts have already rejected the idea that a disappointed bidder has a valid business expectancy in a potential government contract. Timmons v. Bone, 2002 WL 745089, at *2 (Mich.Ct.App. April 23, 2002). We agree, and note that holding otherwise would give any low responsive bidder an immediate business expectancy in the government contract at issue. EBI had a “unilateral hope” of winning the contract, nothing more, so its tortious interference claim cannot proceed. United of Omaha, 960 F.2d at 35; see also NBT Bancorp, Inc. v. Fleet/Norstar Fin. Group, Inc., 87 N.Y.2d 614, 641 N.Y.S.2d 581, 664 N.E.2d 492, 497 (1996) (disappointed bidder in merger could not bring tortious interference suit because it had only an expectation of contractual relations).
D
Finally, we come to EBI‘s contention that Kilpatrick exceeded his powers as Special Administrator of the DWSD. As mentioned earlier, Judge Feikens‘s order appointing Kilpatrick Special Administrator of the DWSD gave Kilpatrick control over the “entering into and performance of all contractual obligations of the system related to the wastewater treatment plant.” United States v. City of Detroit, 2000 WL 371795 at *5. The same order gave Kilpatrick power to “waive” the competitive bidding requirements if he deemed it “necessary.” Ibid.
When Kilpatrick authorized Mercado and DWSD to award the Belle Isle Project to Walsh Construction instead of EBI, Kilpatrick specifically invoked this power and explained that the order was necessary to “ensure that DWSD complies” with the consent decree. Nevertheless, count 14 of EBI‘s complaint protests that awarding the Belle Isle Project was “outside the boundaries of Mr. Kilpatrick‘s power.” The protest is futile because the federal court order explicitly allows the Special Administrator to award the contract. EBI also complains that Kilpatrick never responded in writing to EBI‘s protest letter and that Kilpatrick never sought approval from the Detroit City Council when he short-circuited the bidding procedures. These complaints are irrelevant because nothing in the order appointing Kilpatrick Special Administrator requires him to seek the City Council‘s approval when awarding contracts, cf. United States v. City of Detroit, 2000 WL 371795 at *2 (stating that Special Administrator may exercise “all functions and powers of the Detroit City Council“), or to respond personally to every protest letter. Indeed, it is worth noting that if the Special Administrator is authorized to waive competitive bidding altogether, he is certainly authorized to waive EBI‘s right to appeal the denial of its bid to DWSD‘s Board.
IV
EBI raises, for the first time on appeal, an argument that Judge Feikens should have recused himself from hearing this case. We have little difficulty rejecting this contention. EBI bases its argument on
(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
(b) He shall also disqualify himself in the following circumstances:
(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
...
(5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:
(i) Is a party to the proceeding, or an officer, director, or trustee of a party.
We have held that “[i]n order to justify recusal under
V
By alleging that Kilpatrick exceeded the powers granted to him as Special Administrator, EBI pleaded itself into federal court. Cf. NicSand, 507 F.3d at 458. This gives our court jurisdiction, and while we cannot say whether the defendants’ actions were fair or wise, we hold that they were not illegal and therefore AFFIRM the judgment of the district court.
Alan J. BUTTS, Petitioner-Appellant, v. Michael SHEETS, Respondent-Appellee.
No. 06-4676.
United States Court of Appeals, Sixth Circuit.
May 27, 2008.