                        NOT RECOMMENDED FOR PUBLICATION
                               File Name: 20a0172n.06

                                          No. 19-1124

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

 CHARLES RUDOLPH,                                       )                        FILED
                                                        )                  Mar 26, 2020
        Plaintiff-Appellee,                             )              DEBORAH S. HUNT, Clerk
                                                        )
 v.                                                     )
                                                        )
                                                               ON APPEAL FROM THE
 SHERYL LLOYD; DONALD WRENCH; DAVID                     )
                                                               UNITED STATES DISTRICT
 HOULE; SANDRA HUGHES O’BRIEN; DAVID                    )
                                                               COURT FOR THE EASTERN
 NICHOLSON; MICHAEL BUSUITO; DIANE L.                   )
                                                               DISTRICT OF MICHIGAN
 DUNASKISS; MARK GAFFNEY; MARILYN                       )
 KELLY; DANA THOMPSON; KIM TRENT; M.                    )
 ROY WILSON,                                            )
                                                        )
        Defendants-Appellants.                          )

       Before: BATCHELDER, LARSEN, and MURPHY, Circuit Judges.


       LARSEN, Circuit Judge. Wayne State University fired Charles Rudolph, a United States

Army veteran, from his position as a custodian. He sought a hearing pursuant to the Michigan

Veterans’ Preference Act (VPA), which provides heightened job protections to veterans who work

for public employers in Michigan. When no hearing was forthcoming, he sued, arguing that the

VPA created a constitutionally protected property interest in his employment, and that he was,

therefore, entitled to a hearing consistent with the Due Process Clause of the Fourteenth

Amendment. The district court agreed. For the reasons stated, we AFFIRM.

                                               I.

       Rudolph worked as a custodian at Wayne State from 2001 until he was fired on February

24, 2015. Sheryl Lloyd, Associate Director of Custodial Operations, explained the reasons for his
No. 19-1124, Rudolph v. Lloyd, et. al.


termination in a letter. Lloyd stated that Rudolph had been missing from his assigned building

from 6:40 a.m. to 7:01 a.m. on the morning of January 26, 2015. The letter informed Rudolph:

       Your absence from your work area, and your failure to notify your supervisor of
       your absence from your work area (as required), constitutes failure to follow
       instructions and poor work performance.

               On February 13, 2015, an Investigative Interview was held to give you the
       opportunity to give your side of the story. . . . During the interview you were asked
       why you left your work area without prior authorization from your supervisor. You
       responded by saying that you put your work equipment in the trunk of your car and
       you went back to your car to get it. When you were asked if you notified your
       supervisor that you would be out of your work area, you admitted that you did not
       notify your supervisor. That explanation is not acceptable because you were out of
       your work area for an extended period without authorization.

The letter also noted four previous incidents in which Rudolph had been reprimanded at work,

once in 2010, once in 2012, and twice in 2013.

       Rudolph, a United States Army veteran, then sent a letter to the Governor of Michigan

requesting “a meaningful termination hearing, under the [VPA], concerning [his] job termination

from Wayne State University.” The Governor’s office replied that the University, not the

Governor, was responsible for the hearing. So, on March 25, 2015, Rudolph sent letters to the

University’s Board of Governors, Lloyd, and Donald Wrench, the Director of Custodial

Operations, requesting a hearing pursuant to the VPA. The University responded that Rudolph

had to use the grievance procedure outlined in the collective bargaining agreement covering his

employment.

       Rudolph then sued the defendants, some in their official capacities as members of the

Wayne State Board of Governors and as President of the University, and some in their individual

capacities for their direct involvement in his firing. He claimed that the defendants had violated

the Fourteenth Amendment by depriving him of a property interest in his continued employment

without due process. Against the official-capacity defendants, Rudolph sought reinstatement of



                                                 -2-
No. 19-1124, Rudolph v. Lloyd, et. al.


employment and declaratory relief. Against the individual-capacity defendants, Rudolph sought

money damages. For ease, we refer to the defendants collectively as “the University” or “Wayne

State.”

          Wayne State moved to dismiss, while Rudolph moved for partial summary judgment. The

district court denied the University’s motion to dismiss and granted Rudolph’s motion in part. The

district court concluded that the VPA applied to Wayne State and that it created a property interest

in Rudolph’s continued employment. Accordingly, the court held that Wayne State had violated

Rudolph’s due process rights by failing to provide him with notice and a hearing prior to

termination.     The court disagreed with Rudolph that reinstatement with backpay was the

appropriate remedy, however. Instead, the court ordered a hearing on whether the University could

demonstrate sufficient cause to terminate Rudolph’s employment under the VPA. The parties

agreed that the hearing could take place before an impartial decisionmaker, selected by the parties.

          The impartial decisionmaker determined that Rudolph’s termination violated the VPA and

that he was entitled to reinstatement. The district court entered an order giving effect to this

decision and reinstating Rudolph’s employment at Wayne State.1 The issue of damages against

the individual-capacity defendants remains outstanding. The defendants timely appealed.2

                                                II.

          Rudolph’s Fourteenth Amendment claim is premised on the existence of a property right

in his continued employment at Wayne State. If such a property right exists, “the State could not



1
 On appeal, the University does not argue that the district court erred by appointing an impartial
decisionmaker to hold the hearing, nor does it challenge any other procedural aspect of the hearing.
2
 Rudolph moved to dismiss this appeal for lack of jurisdiction, arguing that there was no final,
appealable order. This court previously concluded that we have jurisdiction because orders
granting injunctive relief, such as the order directing reinstatement here, are immediately
appealable. Appellate Record Entry 22.


                                                -3-
No. 19-1124, Rudolph v. Lloyd, et. al.


deprive [Rudolph] of this property without due process.” Cleveland Bd. of Educ. v. Loudermill,

470 U.S. 532, 538 (1985). “Property interests are not created by the [federal] Constitution, ‘they

are created and their dimensions are defined by existing rules or understandings that stem from an

independent source such as state law.’” Id. (quoting Bd. of Regents of State Colls. v. Roth, 408

U.S. 565, 577 (1972)). But the minimum level of process required to protect a state-created

property right is a question of federal constitutional law. See Silberstein v. City of Dayton, 440

F.3d 306, 315 (6th Cir. 2006) (“Although the existence of a property interest is defined by state

law, the procedures that must be followed in depriving an individual of that property interest are

defined by the federal Constitution.”).

       The VPA is the source of Rudolph’s claimed property right. The Michigan Legislature

enacted the VPA “for the purpose of discharging, in a measure, the debt of gratitude the public

owes to veterans who have served in the armed services in time of war, by granting them a

preference in original employment and retention thereof in public service.”           Valentine v.

McDonald, 123 N.W.2d 227, 230 (Mich. 1963). The VPA thus provides that “[n]o veteran . . .

holding an office or employment in any public department or public works of the state . . . shall be

removed or suspended, or shall, without his consent, be transferred from such office or

employment except for official misconduct, habitual, serious or willful neglect in the performance

of duty, extortion, conviction of intoxication, conviction of felony, or incompetency.” Mich.

Comp. Laws § 35.402.

       This court has previously said that “[t]he VPA takes veterans out of an at-will employment

regime and provides them with a property interest in their continued employment.” Young v.

Township of Green Oak, 471 F.3d 674, 684 (6th Cir. 2006). Michigan courts have said the same.

See Sherrod v. City of Detroit, 625 N.W.2d 437, 442 (Mich. Ct. App. 2001) (“The VPA is in the




                                                -4-
No. 19-1124, Rudolph v. Lloyd, et. al.


nature of civil service law, and because it converts at-will public employment into just-cause

employment, it granted the plaintiff a property right in continued employment.” (citations

omitted)); see also Vayda v. County of Lake, 909 N.W.2d 874, 879 (Mich. Ct. App. 2017).

        Wayne State does not contest that the VPA generally creates a property interest in

continued employment that is protected by the Fourteenth Amendment. It argues instead that the

VPA did not create a property interest in Rudolph’s continued employment because the VPA does

not apply to the University. This is not an argument that the statute, by its terms, does not reach

the University. Wayne State has not meaningfully contested, either here or before the district

court, that it qualifies as a “public department . . . of the state,” for the purposes of the VPA. Mich.

Comp. Laws § 35.402. Instead, the University says that applying the VPA to its employment

dispute with Rudolph would work an unconstitutional incursion on the autonomy provided to it by

the Michigan Constitution.

        Wayne State University is one of three universities named in the Michigan Constitution,

along with the University of Michigan and Michigan State University. See Mich. Const. art. VIII,

§ 5. Article VIII, § 5 of the Michigan Constitution provides:

                 The regents of the University of Michigan and their successors in office
        shall constitute a body corporate known as the Regents of the University of
        Michigan; the trustees of Michigan State University and their successors in office
        shall constitute a body corporate known as the Board of Trustees of Michigan State
        University; the governors of Wayne State University and their successors in office
        shall constitute a body corporate known as the Board of Governors of Wayne State
        University. Each board shall have general supervision of its institution and the
        control and direction of all expenditures from the institution’s funds. Each board
        shall, as often as necessary, elect a president of the institution under its supervision.
        He shall be the principal executive officer of the institution, be ex-officio a member
        of the board without the right to vote and preside at meetings of the board. The
        board of each institution shall consist of eight members who shall hold office for
        terms of eight years and who shall be elected as provided by law. The governor
        shall fill board vacancies by appointment. Each appointee shall hold office until a
        successor has been nominated and elected as provided by law.




                                                  -5-
No. 19-1124, Rudolph v. Lloyd, et. al.


Wayne State argues that this provision renders the VPA unconstitutional as applied to its personnel

decisions. Because the VPA cannot constitutionally apply to the University, it argues Rudolph

had no property right in his job and, therefore, no federal constitutional right to the hearing that

resulted in his reinstatement.

       The operative constitutional language provides: “Each board shall have general

supervision of its institution and the control and direction of all expenditures from the institution’s

funds.” Id. The text clearly reveals, therefore, a concern with the University’s fiscal autonomy.

Wayne State makes no argument, however, that applying the VPA to Rudolph’s employment

would impermissibly interfere with its finances.

       So, if the VPA is unconstitutional as applied to Wayne State, it must be because the statute

impermissibly interferes with the “general supervision of [the] institution,” which the Michigan

Constitution entrusts to “[e]ach board” and, presumably, not to the Legislature. That language is

capacious, but it does not offer universities complete immunity. The Michigan Supreme Court has

declared that universities are not exempt from all regulation. Federated Publ’ns, Inc. v. Bd. of Trs.

of Mich. State Univ., 594 N.W.2d 491, 497 (Mich. 1999). Instead, “the legislature can validly

exercise its police power for the welfare of the people of” Michigan, and a university “can lawfully

be affected thereby.” Id. (quoting Regents of the Univ. of Mich. v Mich. Emp’t Relations Comm’n,

204 N.W.2d 218, 224 (Mich. 1973)). A constitutional university like Wayne State “is not an

island.” Id. (citation omitted). The question, then, is how to define the boundaries of the

University’s constitutional immunity.

       The Michigan cases, although perhaps not marking all the boundaries with precision, do

provide some ready guideposts. First, it seems clear that by entrusting the “general supervision of

[the] institution” to each board, Article VIII, § 5 protects each University’s educational autonomy.




                                                 -6-
No. 19-1124, Rudolph v. Lloyd, et. al.


This concern featured prominently in Regents of the University of Michigan, which, like the case

before us, dealt directly with how to reconcile a university’s constitutional autonomy with

legislation governing the “resolution of public employee disputes.” 204 N.W.2d at 223. In

Regents, an association representing interns, residents, and post-doctoral fellows sought to

collectively bargain with the University of Michigan Hospital pursuant to the Michigan Public

Employees Relations Act (PERA). Id. at 219. The university declined to bargain, asserting

constitutional immunity under Article VIII, § 5. Id. The Michigan Supreme Court held that the

Michigan Constitution did not broadly exempt the university from PERA. Id. at 224. Instead, the

Court sought to “harmonize” PERA’s application to the university with the university’s

constitutional autonomy, which the Court repeatedly characterized as operating in “the educational

sphere.” Id. at 221, 223–24. Thus, the Court held that while PERA applied to the university

generally, “the scope of bargaining . . . may be limited if the subject matter falls clearly within the

educational sphere.” Id. at 224. The Court elaborated:

       For example, the Association clearly can bargain with the Regents on the salary
       that their members receive since it is not within the educational sphere. While
       normally employees can bargain to discontinue a certain aspect of a particular job,
       the Association does not have the same latitude as other public employees. For
       example, interns could not negotiate working in the pathology department because
       they found such work distasteful. If the administrators of medical schools felt that
       a certain number of hours devoted to pathology was necessary to the education of
       the intern, our Court would not interfere since this does fall within the autonomy of
       the Regents under Article VIII, section 5. Numerous other issues may arise which
       fall between these two extremes and they will have to be decided on a case by case
       basis. Our Court will not, as it has not in the past, shirk its duty to protect the
       autonomy of the Regents in the educational sphere.

Id.

       Other cases also suggest Article VIII, § 5’s concern with educational autonomy. For

example, in W.T. Andrew Co. v. Mid-State Surety Corp., the Michigan Supreme Court rejected the

University of Michigan’s claim that a public works bond statute, which required a contractor to



                                                 -7-
No. 19-1124, Rudolph v. Lloyd, et. al.


obtain performance and payment bonds at its own cost before entering into a university

construction contract, infringed on the university’s constitutional autonomy. 545 N.W.2d 351,

354 (Mich. 1996). The Court reasoned that the statute neither “affect[ed] the University of

Michigan financially, nor [did] it interfere with its educational autonomy. Instead, it serve[d] as

an exercise of the Legislature’s police power to protect the interests of contractors and materialmen

in the public sector.” Id. Similarly, in Western Michigan University Board of Control v. State of

Michigan, the Michigan Supreme Court upheld the application of Michigan’s prevailing wage act

to public universities, despite its “recogni[tion] that state universities must exercise a fair amount

of independence and control over their day-to day operations and the use of state university funds

in furtherance of their educational purposes.” 565 N.W.2d 828, 832 (Mich. 1997).

       We read these cases to say that the Michigan Constitution’s grant of autonomy over the

“general supervision of [the] institution,” Mich. Const. art. VIII, § 5, extends to decisions taken

“in the educational sphere.” Regents of the Univ. of Mich., 204 N.W.2d at 223. But Wayne State

seeks no shelter here. We can certainly envision circumstances that might pit a university’s

educational prerogatives against the application of the VPA to a particular employee. In this case,

however, the University makes no argument that applying the statute to Rudolph’s employment as

a custodian would interfere with its educational autonomy.

       The University instead suggests a broader immunity. It argues that the Michigan Supreme

Court’s decision in Federated Publications expanded the reach of Article VIII, § 5, such that “a

law that dictates the manner in which the university operates on a day-to-day basis” is also immune

from legislative interference. 594 N.W.2d at 498. And, the University continues, “the making of

personnel decisions is among the most basic of day-to-day activities of the university.” Appellants

Br. at 18 (citing Mayor of Detroit v. State, 579 N.W.2d 378, 390–91 (Mich. Ct. App. 1998)




                                                 -8-
No. 19-1124, Rudolph v. Lloyd, et. al.


(“Employing and managing personnel to carry out day-to-day operations is one of the most basic

administrative functions of any branch of government.”)). We do not quarrel with the latter

proposition—personnel decisions may surely be described as basic day-to-day activities. But we

do not read Federated Publications to stand for the proposition that any activity that might be

broadly described as “day-to-day,” or even any personnel decision, is constitutionally insulated by

Article VIII, § 5. To reach that conclusion would be to say that Federated Publications had

implicitly disavowed Regents, W.T. Andrew, and Western Michigan, all of which might easily be

described as involving a university’s “day-to-day” operations. See Regents, 204 N.W2d at 219

(whether to collectively bargain with University employees); W.T. Andrew, 545 N.W.2d at 354

(on what terms to contract with public contractors); W. Mich., 565 N.W.2d at 832 (what wages to

pay employees of government contractors). We see nothing in Federated Publications to suggest

that result.

        In Federated Publications, the Michigan Supreme Court considered whether Article VIII,

§ 5 permitted the application of Michigan’s Open Meetings Act (OMA) “to committees formed by

the governing boards of our public universities to assist in the selection of university presidents.”

594 N.W.2d at 493. The Court did describe OMA as “a law that dictates the manner in which the

university operates on a day-to-day basis.” Id. But nothing about the Court’s opinion suggests

that it meant by that language to overrule or cast doubt on Regents by extending the universities’

decisional autonomy to all personnel decisions, no matter how far removed from their educational

mission.       To the contrary, Federated Publications expressly cited Regents, explaining that

“although a university is subject to [PERA], the regulation cannot extend into the university’s

sphere of educational authority.” Id. at 497 (citation omitted). We are hard pressed to envision a




                                                 -9-
No. 19-1124, Rudolph v. Lloyd, et. al.


personnel decision more central to a university’s educational mission than the one at issue in

Federated Publications—the selection of the university’s president.

       Moreover, little in Federated Publications turned on the Court’s use of the phrase “day-to-

day”; instead, much turned on the specific text and original understanding of the Michigan

Constitution. Looking to the Official Records of the Constitutional Convention, the Court

determined that “the delegates to the Constitutional Convention of 1961 recognized that the

decision whether to open meetings of university governing boards to the public lay within the

boards’ sphere of authority.” Id. at 498. The Michigan Constitution of 1963 wrested that authority

from the boards with respect to their “formal sessions,” requiring that such meetings “be open to

the public.” See Mich. Const. art. VIII, § 4. But this implicitly left the boards with their original

“power to decide whether to hold ‘informal’ sessions in public.” Federated Publ’ns, 594 N.W.2d

at 499. The Court, accordingly, determined that Article VIII, § 5 “prohibits the Legislature from

intruding in this basic day-to-day exercise of the boards’ constitutional power”—the power to

choose whether to hold certain meetings in private. Id. (emphasis added).

       We are, therefore, unpersuaded that Federated Publications’ broad description of the OMA

problem before it meant to expand the sphere of university autonomy to any personnel decision it

might face.3 Indeed, Federated Publications also reiterated the Court’s longstanding formulation




3
  The University also cites Sterling v. Regents of the University of Michigan, 68 N.W. 253 (Mich.
1896), and State Board of Agriculture v. State Administrative Board, 197 N.W. 160 (Mich. 1924).
In the former, the Michigan Supreme Court held that a law requiring the University of Michigan
to move its homeopathic college from Ann Arbor to Detroit infringed on the University’s
autonomy. Sterling, 68 N.W. at 257. In the latter, the Michigan Supreme Court determined that a
law giving the state administrative board the authority to exercise supervisory control over certain
work at the Michigan Agricultural College [now Michigan State University] infringed upon the
university’s ability to manage its own affairs. State Bd. of Agric., 197 N.W. at 161–62. Both cases,
however, relied on Weinberg v. Regents of the University of Michigan, 56 N.W. 605 (Mich. 1893),
which the Michigan Supreme Court has since overruled. See W.T. Andrew, 545 N.W.2d at 355.


                                                -10-
No. 19-1124, Rudolph v. Lloyd, et. al.


of the general Article VIII, § 5 rule: “Legislative regulation that clearly infringes on the

university’s educational or financial autonomy must . . . yield to the university’s constitutional

power.” Id. at 497. The University does not explain how application of the VPA to Rudolph’s

employment would meet that test. Nor does it attempt to distinguish Regents, which applied

another employment law, PERA, to university employees, so long as its application would not

intrude on the “educational sphere.” 204 N.W.2d at 224. And, of course, it does not claim any

violation of its prerogative to decide whether to hold certain meetings in private. Guided by the

Michigan Supreme Court’s interpretation of Article VIII, § 5, we cannot conclude that the

Michigan Constitution prohibits application of the VPA to Rudolph’s employment.

       For the first time on appeal, the University raises a new constitutional argument, grounded

in separation-of-powers principles under the Michigan Constitution. The argument proceeds as

follows: The VPA mandates that the Governor conduct the good-cause hearings required by the

statute. See Mich. Comp. Laws § 35.402. But the Governor lacks the power under the Michigan

Constitution to supervise the Board of the University. Accordingly, giving the Governor power to

review University personnel decisions through the VPA violates the separation of powers under

the Michigan Constitution.

       We do not ordinarily entertain arguments not presented to the district court. See Armstrong

v. City of Melvindale, 432 F.3d 695, 700 (6th Cir. 2006). This argument, moreover, is not only

belatedly raised, it is entirely hypothetical. The only question for our review is whether the events

that actually transpired in this case were consistent with the federal Constitution. And in this case,

the Governor did not hold, or supervise, the good-cause hearing. Instead, Wayne State and




As such, Sterling and State Board of Agriculture are not representative of the current state of
Michigan law.


                                                -11-
No. 19-1124, Rudolph v. Lloyd, et. al.


Rudolph agreed upon an independent decisionmaker. It is no surprise that neither party complains

that this procedure, to which they consented, violated the VPA; neither does Rudolph complain

that these procedures were constitutionally inadequate.        See Silberstein, 440 F.3d at 315

(recognizing that the federal Constitution, not state law, defines the process required to protect a

property interest). Accordingly, our review of the procedural component is at its end.4 The facts

of this case give us no occasion to address the question of Michigan separation-of-powers law

belatedly posed by the University.

       Wayne State also argues, for the first time on appeal, that public policy prohibits the

application of the VPA to its personnel decisions. According to the University, “[l]egislative

intrusion into a university’s autonomy is permissible only if the legislation reflects ‘clearly

established public policy’ of the state.” Appellants Br. at 24 (quoting Regents of the Univ. of Mich.

v. State, 419 N.W.2d 773, 778 (Mich. Ct. App. 1998)). Wayne State says that no clearly

established public policy requires the University to comply with the VPA. Instead, it says that the

clear state policy is that the University must collectively bargain with its employees under PERA,

which, in its view, prevails over the VPA. To rule for the University on this forfeited claim, we

would need to decide that two Michigan statutes conflict, such that both cannot be given effect;

that one trumps the other (presumably as a matter of statutory construction); and that the

University’s preferred statute (PERA) reflects the “clear” public policy in Michigan’s public labor

relations sector at the expense of another duly enacted Michigan law (the VPA). Such weighty,

unresolved questions of state law deserve full consideration by a lower court before appellate




4
 We also express no view on whether the grievance procedure outlined in the collective bargaining
agreement governing Rudolph’s employment could have afforded sufficient process to satisfy the
federal Constitution. The University makes no such argument.


                                                -12-
No. 19-1124, Rudolph v. Lloyd, et. al.


review. We decline to exercise our discretion to review these forfeited arguments here. See In re

Morris, 260 F.3d 654, 664 (6th Cir. 2001).

                                              ***

       Wayne State has not shown that applying the VPA to Rudolph’s employment would

impermissibly infringe on the University’s authority under the Michigan Constitution as construed

by the Michigan Supreme Court. As a result, the district court did not err by concluding that

Rudolph had a property interest in his job, protected by the federal Due Process Clause.

We AFFIRM.




                                              -13-
