Saturday, October 20, 2018

Substantive and procedural due process in the Third Circuit

An actionable claim under 42 USC § 1983 requires: (1) a violation of a right provided under the U.S. Constitution or federal law (2) resulting from a state sanctioned act. Some 1983 plaintiffs allege violations of both their substantive and procedural due process rights under the Fourteenth Amendment. These are distinct species of 1983 claims.

A plaintiff seeking relief under § 1983 for a violation of procedural due process must demonstrate that "(1) he was deprived of an individual interest that is encompassed within the Fourteenth Amendment's protection of 'life, liberty, or property,' and (2) the procedures available to him did not provide 'due process of law.'" Hill v. Borough of Kutztown, 455 F.3d 225, 233-34 (3d Cir. 2006). Due process usually requires at least "the opportunity to be heard 'at a meaningful time and in a meaningful manner.'" Mathews v. Eldridge, 424 U.S. 319, 333, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S. Ct. 1187, 14 L. Ed. 2d 62 (1965)). The taking of a constitutionally protected property interest without a hearing is nearly a per se violation of procedural due process.

Within the Third Circuit, a cognizable substantive due process claim may require deprivation of a protected interest by executive action "so ill-conceived or malicious that it shocks the conscience."

When a plaintiff specifically invokes PROCEDURAL due process, one might assume procedural due process is the species of claim intended.

More broadly than in the Third Circuit, "substantive" claims under the 14th Amendment may involve taking of property interests. Within Dolan v. City of Tigard, 512 U.S. 374 (1993):

Later cases have interpreted the Fourteenth Amendment's substantive protection against uncompensated deprivations
of private property by the States as though it incorporated the text of the Fifth Amendment's Takings Clause
See, e. g., Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U.S. 470, 481, n. 10, 94 L. Ed. 2d 472, 107 S. Ct. 1232 (1987).
There was nothing problematic about that interpretation in cases enforcing the Fourteenth Amendment
against state action that involved the actual physical invasion of private property. See Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 427-433, 73 L. Ed. 2d 868, 102 S. Ct. 3164 (1982); Kaiser Aetna v. United States, 444 U.S. at 178-180.
Justice Holmes charted a significant new course, however, when he opined that a state law making it
"commercially impracticable to mine certain coal" had "very nearly the same effect for constitutional purposes
as appropriating or destroying it." Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 414, 67 L. Ed. 322, 43 S. Ct. 158 (1922).
The so-called "regulatory [page 407] takings" doctrine that the Holmes dictum the text of the note kindled
has an obvious kinship with the line of substantive due process cases that Lochner exemplified.
Besides having similar ancestry, both doctrines are potentially open-ended sources of judicial power
to invalidate state economic regulations that Members of this Court view as unwise or unfair.

Within the Third Circuit, a violation of substantive due process involves conscience-shocking actions:

"A substantive due process violation occurs if a government official engages in
'an abuse of executive power so clearly unjustified by any legitimate objective of law enforcement'
that it is barred by the Fourteenth Amendment." Button v. Snelson, No. 16-1835,
679 Fed. Appx. 150, 2017 U.S. App. LEXIS 2411, 2017 WL 543184, at *2 (3d Cir. Feb. 10, 2017)
(quoting City of Sacramento v. Lewis, 523 U.S. 833, 840, 118 S. Ct. 1708, 140 L. Ed. 2d 1043 (1998)).
To establish a valid substantive due process claim, a plaintiff must "prove that
'the particular interest at issue is protected by the substantive due process clause and
the government's deprivation of that protected interest shocks the conscience.'" Id.
(quoting Chainey v. Street, 523 F.3d 200, 219 (3d Cir. 2008)).
""[O]nly the most egregious official conduct' shocks the conscience."
Perano v. Twp. of Tilden, 423 F. App'x 234, 238 (3d Cir. 2011) (quoting United Artists Theatre Circuit, Inc., 316 F.3d at 400).

HOWEVER, one notes that "what is conscience-shocking" may be in the eye of the beholder; from

"The substantive component of the Due Process Clause 'protects individual liberty against 'certain government actions regardless of the fairness of the procedures used to implement them.'" Gottlieb ex rel. Calabria v. Laurel Highlands Sch. Dist., 272 F.3d 168, 172 (3d Cir. 2001) (quoting Collins v. Harker Heights, 503 U.S. 115, 125, 112 S. Ct. 1061, 117 L. Ed. 2d 261 (1992)). "To establish a substantive due process claim, a plaintiff must prove the particular interest at issue is protected by the substantive due process clause and the government's deprivation of that protected interest shocks the conscience." Chainey v. Street, 523 F.3d 200, 219 (3d Cir. 2008). "[C]onduct intended to injure in some way unjustifiable by any government interest is the sort of official action most likely to rise to the conscience-shocking level." Cty. of Sacramento v. Lewis, 523 U.S. 833, 849, 118 S. Ct. 1708, 140 L. Ed. 2d 1043 (1998).


First, with respect to the nature of Frompovicz's property interest, "[t]he United States Court of Appeals for the Third Circuit has recognized that ownership interests in property are interests protected by the substantive aspect of due process." See M & M Stone Co. v. Pennsylvania, Dep't of Envtl. Prot., No. CIV.A. 07-CV-04784, 2008 U.S. Dist. LEXIS 76050, 2008 WL 4467176, at *21 (E.D. Pa. Sept. 29, 2008) (citing Indep. Enterprises Inc. v. Pittsburgh Water & Sewer Auth., 103 F.3d 1165, 1179 n.12 (3d Cir. 1997)). Moreover, "[t]he Third Circuit has explicitly held that cases involving 'zoning decisions, building permits, or other governmental permission required for some intended use of land owned by the plaintiffs . . . implicat[e] the "fundamental" property interest in the ownership of land.'" Id. (quoting Indep. Enterprises, 103 F.3d at 1179 n.12); see DeBlasio v. Zoning Bd. of Adjustment for Twp. of W. Amwell, 53 F.3d 592, 601 (3d Cir. 1995), abrogated on other grounds by UA Theatre Circuit, Inc. v. Twp. of Warrington, 316 F.3d 392 (3d Cir. 2003) (recognizing that a substantive due process right is implicated where a "government decision . . . impinges upon a landowner's use and enjoyment of property").

Here, Frompovicz alleges that Defendants interfered with his use of a DEP operations permit that allowed Frompovicz to "remove and resell spring water for the bottled water industry" from his property in Auburn, Pennsylvania. Compl. ¶¶ 1, 31. The Court finds that Frompovicz's interest in the permit is protected by substantive due process because this interest concerns the use and enjoyment of his real property. See M & M Stone, 2008 U.S. Dist. LEXIS 76050, 2008 WL 4467176, at *22 ("Plaintiff's mining license implicates plaintiff's fundamental property interest in the use, control and enjoyment [*15] of its real property.").

Second, the Court must consider whether Frompovicz has alleged conduct on the part of Defendants that both impinges on his protected property right and "shocks the conscience." Frompovicz's Complaint is replete with allegations of "conscience-shocking" conduct on the part of Defendants, but many of these allegations concern alleged conduct that occurred before June 2015 (which Frompovicz admits is irrelevant to his claims) or concern Defendants' alleged failure to enforce DEP regulations with respect to Frompovicz's competitor, MCR. This latter conduct—regardless of whether it was "conscience shocking"—did not impinge on Frompovicz's use and enjoyment of his land. At most, this alleged conduct reduced the value of Frompovicz's operations permit by providing his competitor with an allegedly unfair advantage. But "a decline in property value, by itself, cannot support a substantive due process claim." Kriss v. Fayette Cty., 827 F. Supp. 2d 477, 493 (W.D. Pa. 2011), aff'd, 504 F. App'x 182 (3d Cir. 2012). Accordingly, to the extent Frompovicz seeks to assert a substantive due process claim on the basis of Defendants' alleged conduct vis-à-vis MCR, he fails to state a claim. But Frompovicz's allegations that Defendants have prevented him from removing and [*16] selling his own water—for example, by unjustifiably refusing to finalize the "Corrections Completed Notice"—allege conduct that impinges on the use and enjoyment of his land. Accordingly, these allegations may support a substantive due process claim.

Finally, Frompovicz has alleged that Defendants refused to finalize the Corrections Completed Notice, among other thing, in an effort to "silence and destroy" him and to benefit MCR. See Compl. ¶ 193. He has therefore alleged "conscience-shocking" conduct on the part of Defendants, that is, "conduct intended to injure in some way unjustifiable by any government interest."

Procedural due process is a different entity.

from De Sapio Props. #Six, Inc. v. Alexandria Twp., 2017 U.S. Dist. LEXIS 65603 (D NJ 2017)

The Third Circuit discussed procedural due process in DeBlasio, 53 F.3d 592:

In order to establish a violation of his right to procedural due process,
DeBlasio, in addition to proving that a person acting under color of state law deprived him of a protected property interest,
must establish that the state procedure for challenging the deprivation does not satisfy the requirements of procedural due process. Midnight Sessions, Ltd. v. City of Philadelphia, 945 F.2d 667, 680 (3d Cir. 1991) (citation omitted).
As we observed in Bello,a state provides constitutionally adequate procedural due process
when it provides reasonable remedies to rectify a legal error by a local administrative body.
Bello, 840 F.2d at 1128 (citations omitted).
In other words, when a state "affords a full judicial mechanism with which to challenge the administrative decision"
in question, the state provides adequate procedural due process, id.,
whether or not the plaintiff avails him or herself of the provided appeal mechanism.
Midnight Sessions, 945 F.2d at 682.


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