Owner-Operator Independent Drivers Association, Inc. Mark P. Nye Kenneth D. McFadden v. Keith Bissell

DAVID A. NELSON, Circuit Judge, concurring.

I concur in the judgment and in the opinion Judge Siler has written for the court. As a member of the panel that vacated the district court’s injunction, however, I should like to add a few words explaining why I do not believe that the district court misunderstood what it was being asked to do on remand.

By way of background, it is worth noting that the district court had already delivered itself of a 43-page memorandum opinion, entered on August 10, 1994, following an 11-day bench trial. The opinion contained extensive findings on how out-of-state truckers were discriminated against in favor of in-state truckers in the enforcement of Tennessee’s motor carrier safety regulations.

The district court found, for example, that enforcement officers in East Tennessee were told by Public Service Commissioner Bissell to stop checking for safety defects in trucks that were leaving Tennessee. Bissell, the court determined, told the officers to limit their safety inspection efforts to trucks coming from outside the state. The court further found that “[t]he policy followed in East Tennessee tended to favor in-state trucking companies over out-of-state trucking companies;” that trucks traveling in both directions should have been inspected for safety violations; and that there were inspection points in Middle and West Tennessee where trucks going in both directions were inspected.

Discrimination against out-of-state truckers was linked to extensive fund-raising efforts conducted among Tennessee trucking companies by and on behalf of individual commissioners, including Commissioner Bissell. A Public Service Commission enforcement officer testified, for example, that he drove Bissell’s administrative assistant — Jackie Pope, whom Bis-sell described as his “alter ego”• — from one Tennessee trucking company to another to solicit campaign funds for Bissell. Another enforcement officer testified that his superior told him to “go over to Jefferson County and lean on a certain trucking company because they had not contributed to Commissioner Bissell’s campaign.” And, as the district court further found,

“Fund-raising tickets were sold by enforcement officers while in uniform and on duty. Jackie Pope reminded officers that the commissioner’s election was coming and they needed to help ‘keep our man in office.’ He sent a list of past contributors to officers in the field to assist in their fund-raising efforts. On occasion, the request to sell fund-raising *600tickets came directly from Commissioner Bissell, Jackie Pope, or other PSC staff members. Other such requests came from supervisors in the field. One sergeant told an enforcement officer that ‘it was better to sell tickets than work midnight at the scales.’ One officer was asked to go to the office of an owner of a regulated company to replace a corporate check written to Commissioner Bissell’s campaign, which is illegal, with cash or a personal check.”

Commissioner Bissell’s fund-raising efforts were hardly isolated, and I do not believe that we intended to suggest otherwise when this case was last before us.

The generosity of the Tennessee trucking companies did not go unrewarded, the district court found: “The proof at trial presented a significant connection between the perceived, and sometimes actual, political clout of some in-state motor carriers and the decisions of enforcement officers in administering the truck safety regulations.” A graphic illustration of the connection may be found in the following passage from the district court’s opinion:

“One officer testified that after writing a citation on a Tennessee truck company, he received a call from his supervising sergeant who told him that the trucking company had just contributed to the commissioner’s campaign and the owners had asked Jackie Pope, Commissioner Bissell’s administrative assistant, if they could get some help on the ticket. Pope conveyed the request for help directly to the issuing officer’s supervisor and the sergeant went to court and had the citation dismissed.” (Footnote omitted.)

After noting that it was the plaintiffs’ burden to establish that “each” defendant had deliberately deprived the plaintiffs of a constitutional or statutory right, the district court found that

“the Defendants engaged in a continuous pattern and practice of intentional discrimination against out-of-state trucking companies and in favor of in-state trucking companies, and those trucking companies which had supported or contributed to the political campaigns of PSC Commissioners.”

This intentional discrimination, the court concluded, constituted a violation of the plaintiffs rights under the Equal Protection and Commerce Clauses of the United States Constitution. The district court issued an express declaration to that effect in the concluding portion of its opinion, and went on to enjoin defendant Bissell “from continuing to violate the plaintiffs rights.”

On appeal, we vacated the injunction. We did so not because we thought the district court had erred in any of its factual findings, but because we thought it unclear to what extent the district court intended to find involvement by Bissell in various categories of discriminatory conduct attributed to “the defendants” generally, just as we thought it unclear how broad the injunction against Bissell was intended to be and what specific'acts he was to be enjoined from performing.1

We did not question the proposition that the orders given by Bissell to stop checking out-bound trucks for safety defects and to limit safety inspections to in-bound vehicles could support the claims — found meritorious by the district court — of Equal Protection and Commerce Clause violations. With respect to the injunction, however, we directed the district court to consider, on remand, “whether that specific conduct warrants injunctive relief against [Bissell], and indeed the propriety of any such relief since Bissell was just one of *601three commissioners, is no longer a commissioner, and the Commission itself was abolished to be replaced by an agency whose directors are no longer elected.”

Unlike our dissenting colleague, I do not read this language as an unconditional mandate to determine what unconstitutional activities Bissell had engaged in beyond directing that safety inspections be limited to in-bound traffic. Such a determination would have been necessary, to be sure, if the district court had decided to issue an injunction going beyond the in-bound outbound matter — but unless the district court knew something that we did not, it seemed obvious to us that the need for any injunction at all had become moot. The district court agreed; soon after the remand, the court entered a brief order saying that no further injunction would issue. This order was in no way inconsistent with our mandate.

The plaintiffs then filed a supplemental application for attorney fees under 42 U.S.C. § 1988. The district court granted the application as to defendant Bissell, finding that as far as he was concerned the plaintiffs were the prevailing parties because the lawsuit “acted as a ‘catalyst,’ ” within the meaning of Perket v. Sec’y of HHS, 905 F.2d 129, 132 (6th Cir.1990), “in prompting [defendant Bissell] to take the desired action.”

What was the “desired action?” For one thing, as the amended complaint makes clear, it was that the defendants stop “undertaking, enforcing, maintaining or adopting any policies, procedures or acts which result in any discrimination against out-of-state trucks or their operators or owners.”

The fact that Bissell personally had been guilty of such discrimination is evident from the district court’s findings. The fact that Bissell ultimately stopped discriminating is evident from his resignation. The plaintiffs may not have expected to achieve their desired goal — an end to the unconstitutional discrimination — through the resignation of Commissioner Bissell and the abolition of the Commission itself, but the goal seems to have been achieved.

I am not prepared to say that the district court — more familiar with this situation than I — was out of bounds in concluding that the lawsuit, with its rather dramatic judicial findings, had a catalytic effect in ending the discrimination complained of. I therefore concur in the af-firmance of the challenged order.

. The dissenting opinion questions my use of the plural pronoun in this and the following two paragraphs. The point, I believe, is well taken — I cannot, and should not purport to, speak for the other members of the earlier panel. I am entitled to express my individual views as to what the earlier panel did and did not do, however, and those views, as reflected in this concurring opinion, remain unchanged.