The appeal of a federal judge's decision to dismiss claims involved in the Bob McCloskey bribery civil case has stalled after the U.S. 6th Circuit Court of Appeals released a decision Thursday saying it didn't yet have jurisdiction to hear the case.
The appellate court issued the four-page decision in the appeal filed by EJS Properties relating to a lawsuit against both the City of Toledo and McCloskey. The court ruled that because some issues were still pending in the lower court before Judge James Carr, it could not hear the appeal.
EJS Properties LLC, sued the city and McCloskey in 2004 claiming the city violated constitutional rights to property, liberty, and due process when it denied EJS's application for rezoning in East Toledo in 2002.
The Michigan company planned to buy part of the former Pilkington PLC technical research center complex and lease it to a charter school. It said the rezoning application was defeated because then-Councilman McCloskey didn't get a $100,000 payment he demanded, and council followed his lead. The money was to be for a Pilkington retiree prescription fund.
The city has denied that council acted under McCloskey's influence and contended the rezoning decision was based on valid reasons.
Judge Carr dismissed the city from the $10 million case in August, 2009, and dismissed the federal claims against McCloskey. However, the judge found that other state claims could proceed against the former councilman.
It is these open claims that prompted the appellate court to question jurisdiction.
However, the appellate court found that the language utilized by the judge in the order was insufficient to convince the judges that they had jurisdiction. The decision did note that the appeal had already been argued before them by attorneys so that they would consider the issue once the proper order was issued.
"Because the district court failed to make an express determination that there was no just reason for delay, we lack jurisdiction to hear this appeal. However, we recognize that this appeal has already been fully briefed and argued. Therefore, if Appellant can obtain a valid final judgment properly certified … from the district court within 30 days from the date of filing of this opinion, Appellant may seek reinstatement of this appeal. We will then decide the merits of any claims properly certified without further briefing or argument," the opinion stated.
"My client and I are reviewing it," said attorney Jay Feldstein, who represents McCloskey. "We'll decide in short order the best course in moving forward."
McCloskey was criminally charged in both state and federal courts on bribery charges and served about 20 months of a 27-month federal prison sentence. He was released in May, 2008.
Contact Erica Blake at: email@example.com or 419-213-2134.