NOT RECOMMENDED FOR PUBLICATION File Name: 17a0271n.06
No. 16-2134 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT EESAM ARABBO, Plaintiff-Appellant,

v. CITY OF BURTON, et al., Defendants-Appellees. ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

BEFORE: GUY, CLAY, and WHITE, Circuit Judges. HELENE N. WHITE, Circuit Judge. Eesam Arabbo alleges that three of the six city councilmembers in Burton, Michigan, and their outside legal counsel, rejected a proposal that the city help refinance his commercial mortgage becau se of their anti-Arab animus against him. Arabbo’s complaint asserts (1 ) a 42 U.S.C. § 1983 equal-prot ection claim against city councilmembers Paula Zelenko, Stephen Heffner, and Thomas Martinbianco, and attorney Michael Joliat, and (2) a Michigan Elliot-La rsen Civil Rights Act claim under M.C.L.A. § 37.2301 against each of the individual defendants, as well as the City of Burton (the city). Defendants all moved for summary judgment on Arabbo’s equal-protection claim, which the district court granted following a hearing on the motion. The distri ct court declined to exercise supplemental jurisdiction over the state claim a nd dismissed it without prejudice. Arabbo now appeals, and we AFFIRM

.No. 16-2134, Arabbo v. City of Burton, et al.

-2- I Arabbo is the developer of Blackberry Creek Village (Blackberry), a 228-unit apartment complex completed in 2004 and located in the c ity. The Federal Housing Administration insured the property’s approximately $18 million non-recour se mortgage loan, and the Department of Housing and Urban Development (HUD) held the not e. The city contribu ted to the development of Blackberry by enacting a payment-in-lieu-of-t axes special ordinance intended to reduce the project’s tax burden and increase its financial flexibility. By 2007, Arabbo struggled to meet Blackberr y’s financial obligations and asked HUD to modify his financing terms. HUD reviewed Arabbo’s request a nd determined that he did not qualify for assistance. After HUD denied his refi nancing request, Arabbo sought assistance from the city’s then-mayor, Charles Smiley. In July 2009, Smiley proposed to HUD that the city purchase the note at a discounted $3.5 million purchase price. On November 12, 2009, HUD offered to sell the note to the city at a smaller discount, for approximately $6.3 million. Arabbo, as borrower, could not purchase the note at a discount directly from HUD. On March 25, 2010, he proposed to the city council that th e city act as an intermediary buyer on his behalf, purchase the Blackberry note at a disc ounted $6.3 million price, as HUD had offered, and become the noteholder. Arabbo would then buy the note from the city. The city charter required that such a transaction be appr oved by at least five city coun cilmembers. HUD’s deadline for the city to purchase the note was noon the next da y. Arabbo presented $126,000 in certified funds for the required two-percent down payment, and st ated that he would obtain financing for the balance and use it to purchase the note from the city. He admitted, however, that he was still working to obtain financing for the balance of the purchase price.No. 16-2134, Arabbo v. City of Burton, et al.

-3- Some councilmembers questioned whether the proposal would violate the city’s investment policy, while others expressed concern about potential financial exposure should Arabbo fail to secure financing to purchase the note. Jo liat, the city’s attorn ey, explained that the draft loan-sale agreement with HUD would require the city to operate the Blackberry property and comply with HUD requirements, including making $640,000 in scheduled repairs, should Arabbo not come through with financing. Joliat al so advised the council that the use of city funds to purchase the note would violate the city’s investment policy because the policy did not list mortgage notes as a permissible investment. Despite these risks, Councilmember Duane Haskins suggested that if the deal fell through because Arabbo lacked financing, the city should be able to avoid any loss by selling the note to someone else. The council tabled the proposal to the next day, when it would vote before HUD’ s noon deadline. The next day, the council voted 4-2 against purchasing the note, with Ze lenko, Heffner, Martinbianco, and another councilmember voting no. In his amended complaint, Arabbo claimed that the city council ’s rejection of his proposal was the result of anti-Arab animus agains t him on the part of the individual defendants. The district court granted summary judgment to each individual defendant on the basis of legislative or qualified immunity.
II We review the grant of summary judgment de novo. Gillis v. Miller , 845 F.3d 677, 683 (6th Cir. 2017). Summary judgment is appropriat e when the movant shows that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “The burden of establis hing the nonexistence of a ‘genuine issue’ is on the party moving for summary judgment.” Celotex Corp. v. Catrett , 477 U.S. 317,No. 16-2134, Arabbo v. City of Burton, et al.

-4- 330 (1986) (quoting 10A Wright, Miller & Kane, Federal Practice and Procedure § 2727 (2d ed. 1983)). We do not consider claims not first raised in a complaint. See Guzman v. U.S. Dep’t of Homeland Sec. , 679 F.3d 425, 429–30 (6th Cir. 2012). Legislators, such as city councilmembers, en joy absolute immunity from suits relating to “all actions taken in the sphere of legitimate legislative activity.” Bogan v. Scott-Harris , 523 U.S. 44, 54 (1998) (citation and quotation marks omitted). However, not all actions taken by a city councilmember entitle hi m or her to legislative immun ity. “Instead, the scope of immunity depends on the nature of the activity involved.” Haskell v. Washington Twp. , 864 F.2d 1266, 1278 (6th Cir. 1988). For instance, discre tionary policymaking re garding a locality’s budgetary priorities is an ex ample of a quintessentially legislative activity. See Bogan , 523 U.S. at 55–56. Government officials who perform “discret ionary functions” enj oy qualified immunity from suits relating to their publi c functions, provided that thei r “conduct does not violate clearly established statutory or constitu tional rights of which a reas onable person would have known.” Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982). With re spect to attorneys who advise government officials, private attorneys enjoy qualified immunity in connection with their representation of gove rnment clients. Filarsky v. Delia , 566 U.S. 377, 394 (2012).
III A. The Defendant City of Burton Arabbo’s amended complaint asserts only a stat e-law claim against th e city, and he did not seek leave to file a second amended complaint that would add the city as a defendant to his § 1983 claim. Because Arabbo does not challenge th e dismissal of his state-law claim, we haveNo. 16-2134, Arabbo v. City of Burton, et al.

-5- no claim against the city to review, and accord ingly dismiss the appeal as to the city. See Guzman , 679 F.3d at 429–30. B. The Defendant City Councilmembers The decision to decline to engage in a financ ial transaction that could affect the city’s budgetary priorities and that could expose it to financial risk is a legislative decision. Cf. Bogan , 523 U.S. at 55–56

. Relying on Kamplain v. Curry Cty. Bd. of Comm’rs. , 159 F.3d 1248 (10th Cir. 1998), Arabbo asserts that when a governing body’s act is directed at an individual, that act is administrative, not legislative. However, in Kamplain , an elected board banned a man from attending its public meetings, and subsequently permitted his attendance while prohibiting him from speaking; the Tenth Circuit distinguishe d this regulation of individual conduct from legislative activity because it did not deal with the promulgation of public policy. Id. at 1252. In contrast, Burton’s city c ouncil considered and rejected legislation —a resolution to approve the Blackberry proposal—that an individual requested the council to consider. Arabbo further cites Cinevision v. City of Burbank , 745 F.2d 560 (9th Cir. 1989), in which a city councilman voted to prohibit a promoter’s concerts from being performed at a municipal amphitheater. This vote was an administra tive, rather than a legislative, act, because it involved the councilman monitoring and administeri ng an existing contract between the city and the promoter. Id. at 580. Here, Arabbo provides no evidence that the city had an existing custom or policy of assisting real-estate develo pers in refinancing their commercial properties. Rather, he asked the city to enact a new policy— that it purchase his note and re-sell it to him— and the council declined to do so. 1 In considering Arabbo’s proposal, the councilmember

1 Arabbo does assert that the city acquired financially distressed real-estate project s. Indeed, in 2012, the city acquired the projects of two non-Arab developers. However, unlike Blackberry, these developments, Mallard Pond and Pebble Creek, were in special a ssessment districts (SADs) that the city created to finance infrastructure in the developments. The city asserts that it took over these projects to preserve its infrastructure investments in them.No. 16-2134, Arabbo v. City of Burton, et al.

-6- defendants acted in their legislative capacities, a nd are thus entitled to absolute immunity from suits arising from their rejection of it. 2 C. The Defendant City Attorney Arabbo’s evidence of discriminatory conduct by Joliat consists of Arabbo’s handwritten notes and personal recollection of Joliat’s statem ents. Arabbo’s notes, however, contain nothing indicating that Joliat acted based on anti-Arab an imus. According to the notes, Joliat remarked that “it was the happiest day of his life” when the council rejected the proposal. R. 71-6, PID 695. The notes also state that Joliat was critical of the transaction becau se it would result in a financial windfall for Arabbo, a nd that Zelenko, along with othe r councilmembers, would never let that happen. Arabbo testifie d that Joliat’s tone of voice offe nded him and suggested he acted with discriminatory intent. He also testified to overhearing Joliat refer to him as Middle Eastern when speaking to a councilmember. Smiley testified that he personally never heard Joliat make any disparaging comment about Arabbo’s ethnicity, but th at he had “heard there were so me comments made” by Joliat. Smiley Dep., R. 73-5, PID 1164. Smiley could not re call who told him about these comments. No other witness testified to hear ing Joliat make disparaging comments. Taken in the light most favorable to Ara bbo, this evidence does not show that Joliat intentionally discriminated against him. Jolia t’s primary role regarding the proposal was providing legal counsel. Arabbo di d not allege facts supporting hi s claim that Joliat improperly

Whatever the explanation, this was a different type of transaction, and, more importantly, when an Arabbo development (Burton Estates) that was located in an SAD fell into financial distress, the city acquired the development, just as it had the two other properties.
2 Arabbo argues that Zelenko made ethnically derogatory comments about him, that her vote against his proposal was motivated by her anti-Arab views, and that she influenced Martinbianco and Heffner to vote with her, thus tainting their votes with her discriminatory motivation. Because we dismiss these claims based on legislative immunity, we need not engage in an extended discussion of the merits of the allegations against the individual city councilmembers.No. 16-2134, Arabbo v. City of Burton, et al.

-7- influenced the council to reje ct his proposal based on anti-Ara b bias. Because there is no evidence that Joliat violated “clearly establ ished statutory or c onstitutional rights,” Harlow , 457 U.S. at 818, he is entitled to qualified immunity from suits arising from his representation of the city. Filarsky , 566 U.S. at 394.
IV For the foregoing reasons, we AFFIRM the grant of summary judgment as to each individual defendant and DISMISS the appeal with respect to the City of Burton.