MEDICAL LAUNDRY SERVICE, A DIVISION OF OPLCO, INC., PLAINTIFF-APPELLANT,
v.
THE BOARD OF TRUSTEES OF THE UNIVERSITY OF ALABAMA, BIRMINGHAM; S. RICHARDSON HILL, BOTH AS AN INDIVIDUAL AND IN HIS CAPACITY AS PRESIDENT OF THE UNIVERSITY OF ALABAMA ("UAB"); DENNIS SANCHEZ, BOTH AS AN INDIVIDUAL AND IN HIS OFFICIAL CAPACITY AS ASSISTANT DIRECTOR OF THE DEPARTMENT OF PHARMACY AT UAB; VANCE ALEXANDER, BOTH AS AN INDIVIDUAL AND IN HIS OFFICIAL CAPACITY AS ASSOCIATE DIRECTOR OF THE DEPARTMENT OF PHARMACY AT UAB; HERMAN LAZARUS, BOTH INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS DIRECTOR OF THE DEPARTMENT OF PHARMACY AT UAB; JAMES E. MOON, BOTH INDIVIDUALLY AND AS ADMINISTRATOR OF THE UNIVERSITY OF ALABAMA HOSPITALS; BOB CUMMINGS, BOTH INDIVIDUALLY AND AS ASSOCIATE DIRECTOR OF PURCHASING AT UAB; CLARK TAYLOR, BOTH INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS ASSOCIATE ADMINISTRATOR FOR OPERATIONS AT UAB; LESTER ELLIOT, BOTH INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS SUPERVISOR OF THE LINEN SERVICE DEPARTMENT AT UAB; MARTIN NOVAK, BOTH INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS ASSISTANT ADMINISTRATOR FOR OPERATIONS OF UAB; ET AL., DEFENDANTS-APPELLEES
PER CURIAM:
The court sua sponte amends the opinion issued on March 23, 1988, and published at 840 F. 2d 840, by deleting footnote 2 and substituting therefor the following footnote 2:
2. Other issues, including the issue raised by Chief Judge Roney’s dissent, res judicata, collateral estoppel, and the application of Parratt v. Taylor, 451 U.S. 527 [101 S.Ct. 1908, 68 L.Ed.2d 420] (1981), were neither addressed by the district court nor briefed on appeal, and therefore should be addressed initially on remand.
Chief Judge Roney in dissent raises the issue of whether a simple breach of contract by the state rises to the level of a constitutional deprivation. While we probably would agree with Chief Judge Roney’s resolution of this case, we exercise our discretion not to address and not to decide the issue because the issue has not been raised by the parties or briefed. We prefer that the issue be addressed and decided in the first instance by the district court on remand.
The court having been polled at the request of one of the members of the court and a majority of the circuit judges who are in regular active service not having voted in favor of it (Rule 35, Federal Rules of Appellate Procedure; 11th Circuit Rule 35-5), the case shall not be reheard in banc and the mandate shall issue in due course.
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Citator
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Med. Laundry Servs. v. The Bd. OF Trs. OF the Univ. OF Ala., 906 F.2d 571 (11th Cir. 1990)…deprivation, but because the issue had not been raised or briefed on appeal, we stated that “we prefer that the issue be addressed and decided in the first instance by the district court on remand.” Medical Laundry Service v. University of Alabama, 856 F. 2d 128, 129 (11th Cir.1988) (per curiam). On remand, the district court granted summary judgment to the defendants, finding that the action was a simple breach of contract not rising to the level of a constitutional deprivation. We affirm. Because the…1 / 2
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Loranger v. Merrett Stierheim, 3 F.3d 356 (11th Cir. 1993)…compensates Ray for the time value of money. I do not understand Ray's brief on appeal to raise the time value of money issue, and therefore I would not address it. See Medical Laundry Serv. v. Board of Trustees of the Univ. of Alabama, Birmingham, 856 F. 2d 128 (11th Cir.), cert. denied, 488 U.S. 826, 109 S.Ct. 77, 102 L.Ed.2d 53 (1988). . The genesis of the Norman hour-by-hour rule is somewhat problematic. It appears to have been first articulated in Fitzpatrick v. IRS, 665 F. 2d 327, 332-33 (11th Cir.198…
Authorities Cited
- Parratt v. Taylor, 451 U.S. 527 (U.S. 1981)
- Med. Laundry Serv. v. The Bd. OF Trs. OF the Univ. OF Ala., 840 F.2d 840 (11th Cir. 1988)