dissenting.
I must respectfully dissent from the court’s decision to resolve this case on an issue not discussed by the district court. In my view, Cassidy, at least arguably, did have a protected property interest under Kentucky law in the overpayments at the time of the attempted recoupment.
My brothers conclude that Cassidy had no vested property rights in the over-payments because the statute of limitations for recoupment was extended from three to five years in 1980, after the state’s right had accrued, but prior to the running of the original three-year period. In such a situa*734tion, the court tells us, the longer statute of limitations applies retroactively to give the state an additional two years to recover the overpayments. In support of this holding, the court cites the decisions of the Kentucky Court of Appeals, then the state’s highest court, in Stone v. Thompson, 460 S.W.2d 809, 810 (Ky.1970), and Kiser v. Bartley Mining Co., 397 S.W.2d 56, 57-58 (Ky.1965).
The court’s conclusion ignores the distinction, long recognized in Kentucky law, between a limitation period which qualifies the right, and one which merely affects the remedy. As this court has explained in a decision governed by Kentucky law:
A statute of limitations may be interpreted either as going to the right or to the remedy. See, e.g., Davis v. Mills, 194 U.S. 451, 454 [24 S.Ct. 692, 693, 48 L.Ed. 1067] (1904). If the limitation “qualifies the right,” an amendment lengthening it will not serve to alter the limitation period with respect to causes of action which have already accrued. However, if the limitation period is not contained within the statute creating the right itself (or is not directed to the newly created liability) it is said to go to the remedy and is applicable to causes of action which are then viable.
Herm v. Stafford, 663 F.2d 669, 681 n. 17 (6th Cir.1981). As Kentucky’s highest court put it long ago, “[w]here a statute creates a new legal liability, with a right to a suit for its enforcement, provided that the suit is brought within a designated period, the time within which the suit must be brought operates as a limitation of the liability itself as created and not of the remedy alone.” United States Fidelity & Guaranty Co. v. Tafel Electric Co., 262 Ky. 792, 91 S.W.2d 42, 44 (1936).
The cases cited by the court today do not require a different result. In Stone, the limitation period in question was not contained within the statute setting forth the right of action; therefore, it affected only the remedy and could be applied retroactively under Kentucky law. 460 S.W.2d at 810 (“[s]uch enactments prescribing limitations on time relate only to remedy and may be enlarged or restricted as the legislature so desires”). In Kiser, the court applied the limitation period contained within a workmen’s compensation statute retroactively. In reaching that conclusion, however, the court did not consider the right/remedy doctrine. Rather, the court simply observed that “[s]ome jurisdictions hold that an amendment to a workmen’s compensation law extending the period of limitations on a claim should not be construed as being applicable to claims that arose before the amendment took effect, ... [while others hold] that such an amendment properly may be considered applicable to claims that arose before the amendment, where the previously existing limitation had not run on those claims at the time the amendment became effective.” 397 S.W.2d at 57-58 (citing 79 A.L.R.2d at 1100-03, 1109-13). Given this choice, the court decided, without offering any reasons, to adopt the policy of extending the period of limitations in accordance with the amendment for cases that arose prior to the amendment. I do not believe this decision can be construed as a repudiation of the right/remedy doctrine in Kentucky. This view is supported by the decision of the intermediate appellate court in Everman v. Miller, 597 S.W.2d 153, 154 (Ky.App.1979), which distinguished cases adopting the rule the majority adopts here by observing that “the facts of those cases relate to special limitations affecting special situations, ones in which remedies and rights are directly disconnected through legislative enactment, e.g., workmens’ compensation.” (Emphasis added.)
The district court granted summary judgment in this case on the ground that plaintiff failed to pursue adequate state post-deprivation remedies. However, the district court failed to recognize that the rule requiring a plaintiff to avail himself of the state’s post-deprivation remedy “is inapplicable ... when ‘a deprivation of property is caused by conduct pursuant to establish state procedure, rather than random and unauthorized action.’ ” Spruytte v. Walters, 753 F.2d 498, 509 (6th Cir.), cert. denied, 474 U.S. 811, 106 S.Ct. 50, 88 L.Ed.2d 41 (1985) (quoting Hudson v. *735Palmer, 468 U.S. 517, 532, 104 S.Ct. 3194, 3203, 82 L.Ed.2d 393 (1984)). Cassidy unquestionably alleges that the Cabinet for Human Resources denied his application for benefits pursuant to established state policy. I would therefore reverse the decision of the district court granting defendant summary judgment and remand for a determination of whether the limitation upon the state’s right to recoup the overpayment creates a positive property interest in Cassidy.