The opinion
United States Court of Appeals
For the First Circuit
No. 09-2566
SAN GERÓNIMO CARIBE PROJECT, INC.,
Plaintiff, Appellant,
v.
HON. ANÍBAL ACEVEDO-VILÁ, in his individual and personal
capacity; HON. ROBERTO SÁNCHEZ-RAMOS, in his individual
and personal capacity; LUIS A. VÉLEZ-ROCHE, P.E., in his
individual and personal capacity; JOHN DOE; JANE DOE,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]
Before
Torruella and Lipez, Circuit Judges,
and Smith,* District Judge.
Richard H. Fallon, Jr., with whom John M. García, García &
Fernández, Orlando Fernández, and Orlando Fernández Law Offices,
were on brief for appellant.
Susana I. Peñagarícano-Brown, Assistant Solicitor General,
Department of Justice, with whom Irene S. Soroeta-Kodesh, Solicitor
General, Leticia Casalduc-Rabell, Deputy Solicitor General, and
Zaira Z. Girón-Anadón, Deputy Solicitor General, were on brief for
appellees.
June 17, 2011
*
Of the District of Rhode Island, sitting by designation.
TORRUELLA, Circuit Judge; LIPEZ, Circuit Judge; and
SMITH, District Judge. This appeal stems from a dispute involving
the Paseo Caribe Project in San Juan, Puerto Rico. The controversy
regarding the project concerned whether some of the lands on which
the project was being built were part of the public domain and had
therefore been improperly sold to a private party. Many opposed
the construction of the project because it obstructed access to the
San Gerónimo del Boquerón Fort.
The controversy prompted a legislative investigation and
an opinion from the Puerto Rico Secretary of Justice finding that
the lands were part of the public domain.1 Op. Sec. Jus. No. 07-
230-B of Dec. 11, 2007. As will be presently recounted, this was
not the first opinion to be issued by a Secretary of Justice of the
Commonwealth with respect to this matter. Relying on the Secretary
of Justice's opinion, the Regulations and Permits Administration of
Puerto Rico ("ARPE," for its Spanish acronym) issued a resolution
and order holding all permits for the Paseo Caribe Project in
abeyance and ceasing construction for an initial period of sixty
days. The ARPE issued this resolution and order without providing
1
Under Puerto Rico law, the opinions that the Puerto Rico
Secretary of Justice issues are advisory in nature at the internal
level of the executive agencies. See San Gerónimo Caribe Project,
Inc. v. Regulations & Permits Admin., 2008 TSPR 130, 2008 PR Sup.
LEXIS 135, at *35 (P.R. July 31, 2008) (certified translation
provided by the parties). Although the Secretary of Justice's
opinions do not bind the Puerto Rico courts, "they do have a great
convincing value." Id. at *34.
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the project's developer, San Gerónimo Caribe Project, Inc. ("San
Gerónimo"), with a meaningful hearing. After successful appeals in
the Puerto Rico courts, San Gerónimo filed a complaint in the
United States District Court for the District of Puerto Rico under
42 U.S.C. § 1983 due to the defendants' alleged violation of, inter
alia, its procedural due process rights. San Gerónimo also
included a Puerto Rico law tort claim under Article 1802 of the
Puerto Rico Civil Code. The district court dismissed the complaint
pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).
We affirm the dismissal of San Gerónimo's complaint.
I. Facts and Procedural History
Because the district court dismissed the case pursuant to
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), we view the
well-pleaded facts in the light most favorable to San Gerónimo and
draw all reasonable inferences in its favor. IOM Corp. v. Brown
Forman Corp., 627 F.3d 440, 443 (1st Cir. 2010); Fothergill v.
United States, 566 F.3d 248, 251 (1st Cir. 2009).
A. The Paseo Caribe Project and the Decisions of the
Puerto Rico Courts
On January 12, 2000, the Puerto Rico Planning Board2
approved a proposal from San Gerónimo to develop the Paseo Caribe
2
Among its principal functions, "[t]he Puerto Rico Planning Board
issues rules for granting controlled access permits, P.R. Laws Ann.
tit. 23, §§ 64, 64e, and [the ARPE] administers the Board's
permitting regulations . . . ." Watchtower Bible & Tract Soc'y of
N.Y., Inc. v. Sagardía De Jesús, 634 F.3d 3, 7 n.4 (1st Cir. 2011),
reh'g denied, 638 F.3d 81 (1st Cir. 2011).
-3-
Project. The Paseo Caribe Project is a mixed residential,
commercial and tourism project located in San Juan, Puerto Rico.
On July 21, 2000, San Gerónimo purchased two parcels of land from
Hilton International of Puerto Rico, Inc. ("Hilton International").
Shortly before, Hilton International had purchased the two parcels
from the Hotel Development Corporation, a subsidiary of the Tourism
Company of Puerto Rico.
In 2002, at the request of the Secretary of the
Department of Natural Resources of Puerto Rico, the Department of
Justice of Puerto Rico issued an opinion (the "2002 Department of
Justice Opinion"), Op. Sec. Jus., No. 02-55-B of Oct. 28, 2002,
concluding that the parcels sold in connection with the Paseo
Caribe Project were not part of the public domain and could be sold
without legislative action, despite the fact that the parcels were
gained from the sea.
The ARPE issued all necessary permits for the development
of the Paseo Caribe Project. San Gerónimo began construction in
August 2002 and by 2007, it had invested over two hundred million
dollars. As previously alluded to, in 2007, when part of the
project was nearing completion, the Paseo Caribe Project became the
target of negative publicity. This negative publicity was due to
a small but persistent group of concerned citizens who claimed that
the Paseo Caribe Project obstructed access to the San Gerónimo del
Boquerón Fort. The group picketed the site and attempted to
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paralyze construction. This vocal group of protestors established
a significant political constituency and received attention from
the press.
The Puerto Rico legislature commenced an investigation
and, in connection therewith, sought the advice of the Secretary of
Justice, Roberto J. Sánchez Ramos, regarding public access to the
San Gerónimo del Boquerón Fort. On December 11, 2007, Sánchez
Ramos issued an opinion (the "2007 Department of Justice Opinion"),
Op. Sec. Jus. No. 07-230-B of Dec. 11, 2007, in which he reversed
the 2002 Department of Justice Opinion and concluded that San
Gerónimo lacked valid title to some of the land on which the Paseo
Caribe Project was being built. The 2007 Department of Justice
Opinion stated that the land at issue was gained from the sea and
therefore belonged to the public domain.3 As such, the land could
not have been sold to a private party without legislative action.
The 2007 Department of Justice Opinion recommended that state
agencies reevaluate all permits granted in connection with the
Paseo Caribe Project.
The next day, December 12, 2007, the Governor of Puerto
Rico, Aníbal Acevedo Vilá, met with his cabinet. After this
meeting, without granting San Gerónimo an opportunity for a
3
The 2007 Department of Justice Opinion acknowledged that the
Secretary of Justice had no authority to determine the legality of
San Gerónimo's title to the property and that this was an issue for
the Puerto Rico courts to decide. Op. Sec. Jus. No. 07-230-B of
Dec. 11, 2007, at *180.
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hearing, Acevedo Vilá publicly ordered the pertinent administrative
agencies to suspend all permits for the Paseo Caribe Project and to
freeze all construction for an initial period of sixty days.
On December 14, 2007, the administrator of the ARPE,
Luis A. Vélez Roche, invoked Puerto Rico's emergency adjudicatory
procedure,4 P.R. Laws Ann. tit. 3, § 2167, and issued an order to
show cause why the Paseo Caribe Project permits should not be held
in abeyance and the construction suspended for sixty days in
accordance with the 2007 Department of Justice Opinion. The ARPE
scheduled a hearing for December 20, 2007.
Prior to the administrative hearing, San Gerónimo sought
to quiet title in the lands at issue. Therefore, on December 19,
2007, San Gerónimo filed a complaint for declaratory judgment in
the Puerto Rico Court of First Instance, requesting that the court
enter judgment declaring that the parcels of land at issue are not
part of the public domain and that title lawfully rests with San
Gerónimo.
4
Under Puerto Rico law, the ARPE is generally required to follow
the ordinary adjudicative process before revoking a permit; this
process requires a hearing that satisfies the requirements listed
in the Uniform Administrative Procedure Act. P.R. Laws Ann. tit.
3, §§ 2151(a), 2152, 2157-2159, 2161, 2163-2164. Puerto Rico law
does, however, provide the ARPE with the option of an immediate
action procedure that allows it to temporarily sidestep the
ordinary adjudicative procedures. P.R. Laws Ann. tit. 3, § 2167.
Even when an agency appropriately uses the immediate action
procedure, the statute provides that it "shall promptly proceed to
complete any procedure that has been required unless there is
imminent danger." P.R. Laws Ann. tit. 3, § 2167(e).
-6-
San Gerónimo appeared at the December 20, 2007 hearing.
The ARPE panel consisted of two hearing examiners, one of whom
stated that "the nature of the hearing [was] not adversarial" and
that the purpose of the hearing was for the ARPE to "gather
information . . . so that [the ARPE] may make a determination
regarding the Stay Order of the construction[]" on the Paseo Caribe
Project. San Gerónimo presented a motion to dismiss and provided
evidence of its valid title along with a copy of its complaint for
declaratory judgment filed with the Puerto Rico Court of First
Instance. San Gerónimo argued that the Department of Justice and
the ARPE lacked jurisdiction to adjudicate the title over the
property. The ARPE denied the motion to dismiss. The presiding
officers stated that the issue of the validity of San Gerónimo's
title would not be considered during the hearing. The presiding
officer specifically stated that the ARPE's intent was to stop all
construction until the issue of San Gerónimo's title was resolved.
During the hearing, San Gerónimo also claimed that its
due process rights were being violated and that notice for the
hearing had been insufficient. The ARPE did not introduce any
evidence against San Gerónimo and did not charge it with any
violations. The 2007 Department of Justice Opinion was not
introduced into the record of the hearing.
On December 27, 2007, defendant Vélez Roche,
administrator of the ARPE, issued a resolution and order holding
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the permits in abeyance and ceasing construction for a period of
sixty days, with a proviso that the ARPE could extend that period
if such extension was "in the public interest." The ARPE's
resolution did not address San Gerónimo's proprietary interest or
that of the owners of the completed apartments.
San Gerónimo appealed the ARPE's order to the Puerto Rico
Court of Appeals. On February 6, 2008, the Puerto Rico Court of
Appeals concluded that the ARPE had violated San Gerónimo's due
process rights as protected under the Puerto Rico Constitution.
San Gerónimo Caribe Project, Inc. v. ARPE, case # KLRA2008-00010,
2008 PR App. LEXIS 777 (P.R. Cir. Feb. 6, 2008) (certified
translation provided by the parties). The court recognized San
Gerónimo's proprietary interest in the permits and its claim of
proprietary interest in the land. Id. at *52.5 Therefore, the
court ordered the ARPE to hold an evidentiary hearing. Id. at *61.
The court did not, however, lift the stay on the construction. See
id. The ARPE failed to hold the evidentiary hearing that the
Puerto Rico Court of Appeals had ordered.
On February 8, 2008, the Court of First Instance entered
a judgment upholding the validity of San Gerónimo's title to the
land upon which it was building the Paseo Caribe Project. San
5
Where no official translation of a Puerto Rico court decision is
available, all pinpoint citations used herein refer to the
certified translation the appellant submitted. See App. to Br. of
Appellant, at 329-89, 394-509, San Gerónimo Caribe Project, Inc. v.
Acevedo Vilá, No. 09-2566 (1st Cir. argued Oct. 4, 2010).
-8-
Gerónimo Caribe Project, Inc. v. E.L.A. de P.R., No. K2AC2007-2577
(Ct. of First Instance, Super. Part of San Juan, filed Feb. 8,
2008). The judgment held that the 2007 Department of Justice
Opinion lacked legal foundation and that the suspension of San
Gerónimo's permits due to doubts about the validity of its title to
the land was indefensible.
On February 15, 2008, San Gerónimo filed a petition for
certiorari in the Puerto Rico Supreme Court requesting review of
the Court of Appeals' decision that had ordered the ARPE to hold an
evidentiary hearing but failed to lift the stay on the
construction. On February 25, 2008, the ARPE extended the initial
suspension of San Gerónimo's building permits for an additional
sixty days without holding the evidentiary hearing that the Puerto
Rico Court of Appeals had ordered.
On February 28, 2008, the Puerto Rico Supreme Court
issued a writ of certiorari and granted San Gerónimo's motion for
a stay of the ARPE's suspension orders pending the issuance of its
decision. Construction resumed. The Puerto Rico Supreme Court
issued its opinion regarding this matter on July 31, 2008. San
Gerónimo Caribe Project, Inc. v. Regulations & Permits Admin., 2008
TSPR 130, 2008 PR Sup. LEXIS 135 (P.R. July 31, 2008) (certified
translation provided by the parties).6 The Puerto Rico Supreme
6
This decision was not unanimous as it was issued by a vote of
three to two. Puerto Rico Supreme Court Justices Fiol Matta and
Anabelle Rodríguez Rodríguez filed dissenting opinions.
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Court held that the ARPE violated San Gerónimo's due process rights
under the Puerto Rico Constitution by deviating from the ordinary
procedure and failing to hold a meaningful hearing before depriving
San Gerónimo of its permits. Id. at *41. The court recognized
that, although Puerto Rico law provides for an emergency
adjudicatory procedure, id. at *25, the ARPE's justification for
circumventing the ordinary process was "very far from the
extraordinary circumstances that would allow the use of the
immediate action procedure contemplated in [Puerto Rico's Uniform
Administrative Procedure Act--the] L.P.A.U.," id. at *30 (emphasis
added).7 The Court also concluded that the ARPE erred in
suspending San Gerónimo's permits based on the 2007 Department of
Justice Opinion as the opinion lacked legal effect and neither the
Secretary of Justice nor the ARPE had authority to decide the issue
of title to the property. Id. at *41-42. The Court vacated the
ARPE's order suspending the permits and ordered it to suspend all
7
The Puerto Rico Supreme Court added that the questions that the
2007 Department of Justice Opinion raised regarding the ownership
of the lands at issue "[did] not present a situation where the
summary action of the State is required to avoid imminent damage."
San Gerónimo Caribe Project, Inc., 2008 TSPR 130 at *30. "[W]e
cannot support the thesis by the State to the effect[] that the
incidents and protests occurred in the mentioned project were
sufficient to justify the summary intervention by ARPE. . . .
Without a doubt, the degree of unrest that the same may have
generated, would not equal the instances where the compliance with
imminent danger to public health, safety and welfare have been
acknowledged, or that of an extraordinary situation that would
require the immediate action by the State." Id. at *31.
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proceedings to set aside San Gerónimo's permits based on the 2007
Department of Justice Opinion. Id. at *42-43.
In a separate decision also dated July 31, 2008, the
Supreme Court of Puerto Rico affirmed the judgment of the Court of
First Instance declaring that San Gerónimo had valid title to the
land underlying the Paseo Caribe Project. San Gerónimo Caribe
Project, Inc. v. Estado Libre Asociado de P.R., 2008 TSPR 129, 2008
PR Sup. LEXIS 142 (certified translation of the majority opinion
provided by the parties).8
B. Procedural Posture
On October 24, 2008, San Gerónimo filed a complaint in
the United States District Court for the District of Puerto Rico
under 42 U.S.C. § 1983 due to defendants' alleged violation of its
due process rights, its substantive due process rights and its
equal protection rights, as guaranteed under the Fifth and
Fourteenth Amendments to the United States Constitution. San
Gerónimo also included a Puerto Rico law tort claim under Article
1802 of the Puerto Rico Civil Code. The complaint requested
damages of thirty-eight million dollars due to the seventy-day
delay in construction that the defendants allegedly caused.
8
This decision was by a vote of four to one. Puerto Rico Supreme
Court Justice Fiol Matta dissented in part and concurred in part.
Justice Fiol Matta's dissent was strong and concluded that some of
the lands at issue were in fact part of the public domain.
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On December 23, 2008, the defendants filed a motion to
dismiss the complaint under Federal Rule of Civil Procedure
12(b)(6) for failure to state a claim and under Federal Rule of
Civil Procedure 12(b)(1) for lack of subject matter jurisdiction
with respect to the pendent jurisdiction claims. San Gerónimo
filed its response on February 5, 2009.
The motion to dismiss was referred to a magistrate judge,
who issued a report and recommendation on August 3, 2009. The
magistrate judge advised in favor of the dismissal of the complaint
in its entirety, reasoning, inter alia, that San Gerónimo's
procedural due process claims were barred by the Parratt-Hudson
doctrine. See Hudson v. Palmer, 468 U.S. 517 (1984); Parratt v.
Taylor, 451 U.S. 527 (1981). On August 10, 2009, San Gerónimo
filed its opposition to the magistrate judge's report and
recommendation. On September 30, 2009, the district court issued
an opinion and order adopting in toto the magistrate judge's report
and recommendation, adding that San Gerónimo's claims are also
subject to dismissal under the doctrine of qualified immunity. The
district court entered judgment in favor of defendants, dismissing
all federal claims with prejudice and dismissing the pendent state
law claims without prejudice.
On October 28, 2009, San Gerónimo filed a timely notice
of appeal. We have jurisdiction pursuant to 28 U.S.C. § 1291.
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II. Discussion
A. Standard of Review
The district court dismissed San Gerónimo's complaint
pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).
The district court educed its ruling from different parts of
Federal Rule of Civil Procedure 12(b); under either subsection, our
review of the court's ruling is de novo. Coggeshall v. Mass. Bd.
of Registration of Psychologists, 604 F.3d 658, 662 (1st Cir.
2010); McCloskey v. Mueller, 446 F.3d 262, 266 (1st Cir. 2006). We
accept as true the plaintiff's well-pleaded facts and draw all
reasonable inferences in its favor. McCloskey, 466 F.3d at 266.
We may affirm a court's dismissal pursuant to Rules 12(b)(1) and
12(b)(6) on "any basis made apparent from the record." Cook v.
Gates, 528 F.3d 42, 48 (1st Cir. 2008); Aguilar v. U.S. Immigration
& Customs Enforcement Div. of the Dep't of Homeland Sec., 510 F.3d
1, 8 (1st Cir. 2007). We review the district court's determination
that the defendants were entitled to qualified immunity de novo.
Meléndez-García v. Sánchez, 629 F.3d 25, 35 (1st Cir. 2010).
B. Procedural Due Process
A plaintiff seeking to establish a procedural due process
claim under 42 U.S.C. § 1983 must allege that the defendants
deprived it of a property interest while acting under color of
state law and without providing constitutionally adequate process.
Maymí v. P.R. Ports Auth., 515 F.3d 20, 29 (1st Cir. 2008). As a
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preliminary matter, the plaintiff must claim the deprivation of a
property interest recognized under state law. SFW Arecibo, Ltd. v.
Rodríguez, 415 F.3d 135, 139 (1st Cir. 2005). San Gerónimo has
done that here. See San Gerónimo Caribe Project, Inc., 2008 TSPR
130, at *19-20 (holding that San Gerónimo's suspended building
permits constituted a property interest under Puerto Rico law).
But a further showing is required. As the Supreme Court has
explained, "[i]n procedural due process claims, the deprivation by
state action of a constitutionally protected interest in 'life,
liberty, or property' is not in itself unconstitutional; what is
unconstitutional is the deprivation of such an interest without due
process of law." Zinermon v. Burch, 494 U.S. 113, 125 (1990).
What constitutes "due process of law" depends upon the
facts of each case. See id. at 127 ("Due process . . . is a
flexible concept that varies with the particular situation.").
Typically, due process requires that an opportunity for a hearing
be provided prior to the deprivation. See Cleveland Bd. of Educ.
v. Loudermill, 470 U.S. 532, 542 (1985). In this appeal, the
defendants do not dispute that the hearing the ARPE provided prior
to suspension of San Gerónimo's building permits was inadequate to
satisfy the requirements of due process.9 Although predeprivation
9
The Puerto Rico Supreme Court held that the predeprivation
hearing provided by the defendants deviated from the process
ordinarily required under the Puerto Rico Constitution to "satisfy
the minimum demands of due process, as for instance, the
opportunity of being heard, the right to cross-examine and the
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process may be the norm, however, "the necessity of quick action by
the State or the impracticality of providing any meaningful
predeprivation process" may render a postdeprivation remedy
constitutionally adequate in some circumstances. Parratt, 451 U.S.
at 539. The defendants claim that this is such a case, citing the
so-called Parratt-Hudson doctrine. After close examination of the
merits of their contention, we disagree.
1. The Parratt-Hudson Doctrine
The core principle of the Parratt-Hudson doctrine is
simple to state, though its application in the individual case can
be elusive. Parratt-Hudson provides that, where "a deprivation of
a property interest is occasioned by random and unauthorized
conduct by state officials, . . . the due process inquiry is
limited to the issue of the adequacy of postdeprivation remedies
provided by the state." Chmielinski v. Massachusetts, 513 F.3d
309, 315 (1st Cir. 2008) (quoting O'Neill v. Baker, 210 F.3d 41, 50
(1st Cir. 2000)) (internal quotation mark omitted). The doctrine
takes its name from a pair of Supreme Court decisions involving due
process claims by inmates against prison officials for the loss of
personal property -- in one case, property negligently misplaced in
the internal mail system, and in the other, property intentionally
right to examine the evidence filed by the other party." San
Gerónimo Caribe Project, Inc., 2008 TSPR, 130 at *20, *41. Because
defendants do not contest the issue, we accept the proposition that
the predeprivation procedures did not by themselves satisfy due
process.
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destroyed by officials during a "shakedown" search. See Hudson,
468 U.S. 517; Parratt, 451 U.S. 527. In each case, the Court held
that the availability of state tort-law remedies after the loss was
sufficient to satisfy the Due Process Clause. Hudson, 468 U.S. at
531-33; Parratt, 451 U.S. at 539-41. The rationale was one of
impracticability: where a loss occurs "as a result of a random and
unauthorized act by a state employee," the State "cannot predict
precisely when the loss will occur" and thus it "is difficult to
conceive of how the State could provide a meaningful hearing before
the deprivation takes place." Parratt, 451 U.S. at 541.
We have cautioned that, "[b]efore invoking the Parratt-
Hudson doctrine, . . . courts must give a hard look at allegations
that conduct is 'random and unauthorized.'" Chmielinski, 513 F.3d
at 315. Where a state official's action takes the form of classic
tort-like behavior, as was the case in both Parratt and Hudson,
applying the concepts of "random and unauthorized" conduct poses
little difficulty. That conceptual clarity begins to dissipate,
however, in situations where more formal, traditional government
action is at issue -- for example, in the suspension of building
permits. The Supreme Court has twice attempted to clarify the
application and limits of Parratt-Hudson in these sorts of
circumstances.
First, in Logan v. Zimmerman Brush Co., 455 U.S. 422, 436
(1982), the Court held that the doctrine has no application where
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a loss is the result of an "established state procedure," even if
due in part to negligent official conduct. At issue in Logan was
an Illinois law that predicated a claimant's right to pursue an
employment discrimination claim on a state commission's action on
the claim (specifically, convening a factfinding conference) within
a prescribed time period. Id. at 424-25. In Logan, the law had
barred the plaintiff from pursuing a disability claim due to the
state commission's inadvertent failure to act on his claim in the
allotted time. Id. at 426-27. The defendant argued that the
claimed loss was of the "same type of essentially negligent
deprivation" at issue in Parratt, and thus state tort remedies
should be deemed to satisfy due process. Id. at 435. The Court
disagreed, explaining that "Parratt was not designed to reach" the
situation where "it is the state system itself that destroys a
complainant's property interest, by operation of law, whenever the
Commission fails to convene a timely conference -- whether the
Commission's action is taken through negligence, maliciousness, or
otherwise." Id. at 436; see also Hudson, 468 U.S. at 532
("[P]ostdeprivation remedies do not satisfy due process where a
deprivation of property is caused by conduct pursuant to
established state procedure, rather than random and unauthorized
action.").
Second, in Zinermon, 494 U.S. at 135, relied on by the
plaintiff here, the Court addressed the situation where a
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deprivation of a liberty or property interest occurs under the
auspices of a state law that gives government officials "broad
power and little guidance . . . ." The case involved a due process
claim by a former psychiatric patient who was admitted for long-
term inpatient mental health treatment under a "voluntary" protocol
when he clearly was not competent to voluntarily consent to
admission. Id. at 123-24. Because the rationale underlying
Zinermon is both somewhat abstruse and of central importance to
this appeal, the decision bears more thorough discussion.
2. Zinermon v. Burch
Zinermon was set against a background of state law
affording hospital staff the discretion to choose from two separate
protocols for long-term admission for mental health treatment. The
first was an involuntary protocol, which granted a patient "a right
to notice, a judicial hearing, appointed counsel, access to medical
records and personnel, and an independent examination." Id. at
123. The second was a voluntary protocol, applicable only where an
adult patient showing evidence of mental illness gave "express and
informed consent" to admission. Id. The defendant hospital
officials admitted the plaintiff under the latter, voluntary
protocol despite the fact that he was heavily medicated and showing
signs of disorientation, psychosis, hallucinations, and paranoia
around the time he signed the hospital's consent form.
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Following his release, the plaintiff filed suit for a
violation of procedural due process. Of particular note, the
plaintiff expressly "disavowed any challenge to the statutes
themselves and restricted his claim to the contention that
petitioners' failure to provide constitutionally adequate
safeguards in his case violated his due process rights." Id. at
117. Indeed, the Court found that the plaintiff "apparently
concede[d] that, if Florida's statutes were strictly complied with,
no deprivation of liberty without due process would occur." Id. at
117 n.3. Sharing the plaintiff's view that the officials' actions
contravened the procedures required by state law, the district
court concluded that the conduct at issue was "unauthorized" and
dismissed the suit under Parratt-Hudson. On appeal, the plurality
of an en banc panel of the 11th Circuit reversed, finding the
Parratt-Hudson doctrine inapplicable because the state could have
provided additional predeprivation remedies.
The Supreme Court agreed, distinguishing Parratt and
Hudson on three bases. First, it noted that the deprivation of
liberty in Zinermon was not "unpredictable," and that "[a]ny
erroneous deprivation will occur, if at all, at a specific,
predictable point in the admission process -- when the patient is
given admission forms to sign." Zinermon, 494 U.S. at 136.
Second, the Court found that, unlike in Parratt and Hudson,
implementing a predeprivation process was not impossible, as the
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state could have provided additional administrative procedures that
would have "limited and guided [the defendants'] powers to admit
patients" by ensuring that hospital officials correctly chose
between the voluntary and involuntary admission protocols. Id. at
137. Third, the Court found that the defendants could not rightly
characterize their conduct as "unauthorized" in the sense that word
was used in Parratt and Hudson, because "[t]he State delegated to
them the power and authority to effect the very deprivation
complained of . . . ." Id. at 138. In thus construing the term
"unauthorized," the Zinermon majority expressly rejected the view
that the Parratt-Hudson doctrine applies "in every case where a
deprivation is caused by an unauthorized . . . departure from
established practices." Id. at 138 n.20 (internal quotation marks
omitted).10
More fundamentally, the Court emphasized that the state
"chose to delegate to [hospital officials] a broad power to admit
patients to [mental hospitals], i.e., to effect what, in the
absence of informed consent, is a substantial deprivation of
liberty." Id. at 135. The Court explained that it might be
10
We note that this understanding of "unauthorized" appears to be
in direct tension with several of our precedents, which can be read
to suggest that a departure from established state procedures by
itself renders an official action "unauthorized" under Parratt and
Hudson. See, e.g., SFW Arecibo, Ltd., 415 F.3d at 139; PFZ Props.,
Inc. v. Rodríguez, 928 F.2d 28, 31 (1st Cir. 1991). This point
becomes critical in our qualified immunity analysis. See infra
Part II.C.
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constitutional to provide such broad discretion with little
guidance on its exercise, but "when those officials fail to provide
constitutionally required procedural safeguards to a person whom
they deprive of liberty, the state officials cannot then escape
liability by invoking Parratt and Hudson." Id.
3. Application to San Gerónimo's Due Process Claim
Turning to the facts of this case, we conclude that the
rationale of Zinermon is squarely applicable, and thus the
postdeprivation remedies available to San Gerónimo could not be
sufficient to satisfy the Due Process Clause.
Though presenting the deprivation of a property rather
than liberty interest, the problem at the heart of this case is the
same as in Zinermon: state officials, imbued with the broad
discretion to effect deprivation of property interests, erroneously
chose to deprive the plaintiff of its property under a protocol
lacking the procedural protections required by due process.
Commonwealth law provided the ARPE with two options for the
suspension of San Gerónimo's construction permits: (1) an ordinary
adjudicative process involving a formal hearing and other
procedural safeguards, see P.R. Laws Ann. tit. 3, §§ 2151(a), 2152,
2157-59, 2161, 2163-64, or (2) an "Emergency Adjudicatory
Procedure", see id. § 2167. The latter was available "in any
situation in which there is imminent danger to the public health,
safety and welfare or which requires immediate action by the
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agency." P.R. Laws Ann. tit. 3, § 2167(a). The ARPE chose this
"emergency" procedure, explaining:
Pursuant to [§ 2167], the agencies may hold
emergency adjudicatory procedures of an
expeditious nature when there is an imminent
danger to the public health, safety and
welfare or which require immediate action by
the agency. Some questions have arisen as to
the ownership of the land where the Proyecto
Paseo Caribe development is located after the
Opinion issued by the Secretary of Justice.
There have also been several incidents that
could affect the safety of the employees
working in this project, and of the citizens
who have been holding demonstrations near said
land. The conclusion in the aforementioned
Opinion that some of the land occupied by the
Proyecto Paseo Caribe development is public
land, has evidenced the existence of a great
public interest in the reevaluation of the
endorsements of said project to safeguard the
rights of both the proponents and the
developers and the resources of the People of
Puerto Rico.
In re San Gerónimo Development, Inc., Order to Show Cause, at *2
(ARPE Dec. 14, 2007) (certified translation provided by the
parties).
As in Zinermon, there is no question that the defendants
erred in their choice of the Emergency Adjudicatory Procedure. The
Puerto Rico Supreme Court determined that the justification relied
upon in the ARPE's order was "very far from the extraordinary
circumstances that would allow the use of the immediate action
procedure . . . ." San Gerónimo Caribe Project, Inc., 2008 TSPR
130, at *30. If Puerto Rico's statutes had been "strictly complied
with," the ARPE would have followed normal adjudicatory procedures
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and "no deprivation of [property] without due process would [have]
occur[red]." Zinermon, 494 U.S. at 117 n.3.
Though the defendants may have departed from state law
protocols in suspending San Gerónimo's permits via the emergency
procedure, we conclude that their action is distinguishable, on the
three bases Zinermon cites, from the sort of genuinely "random and
unauthorized" conduct subject to Parratt and Hudson. First, as in
Zinermon, the point at which a deprivation of property would be
effected is perfectly predictable -- it was at the point where an
agency is choosing between regular and emergency procedures. See
Zinermon, 494 U.S. at 136. Thus, it cannot be said that the
deprivation of property without sufficient process was truly
"random."
Second, unlike Parratt and Hudson, this was not a
situation where "the very nature of the deprivation made
predeprivation process 'impossible.'" Id. at 137 (quoting Parratt,
451 U.S. at 541). To the contrary, it is plain that, as in
Zinermon, additional processes could have been implemented to
"limit[] and guide[]" the defendants' power to effect deprivations
of property under the emergency adjudicatory procedure. Id. The
emergency procedures statute fails to offer any meaningful guidance
on what types of circumstances will justify emergency action,
stating only that such circumstances include "any situation in
which there is imminent danger to the public health, safety and
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welfare or which requires immediate action by the agency." P.R.
Laws Ann. tit. 3, § 2167(a). There is thus significant room for
guidance or additional procedures for identifying when emergency
adjudicatory procedures can permissibly be employed.
Third, with regard to whether the defendants' actions
were "authorized," it is undisputed that the ARPE purported to act
under the authority of § 2167(a), which does indeed permit
deprivation of property interests without a hearing in exigent
circumstances. Defendants suggest that their actions were
"unauthorized" because they did not follow the procedures
ordinarily required by Puerto Rico law. However, Zinermon teaches
that this sort of "unauthorized . . . departure from established
practices" is not "'unauthorized' in the sense the term is used in
Parratt and Hudson." Zinermon, 494 U.S. at 138 & n.20. Rather, as
in Zinermon, "[t]he deprivation here is 'unauthorized' only in the
sense that it was not an act sanctioned by state law, but, instead,
was a deprivation of constitutional rights by an official's abuse
of his position." Id. at 138 (citation omitted) (internal
quotation marks and alterations omitted). And, in this case, as in
Zinermon, "[t]he State delegated to [the defendants] the power and
authority to effect the very deprivation complained of . . . ."
Id.
In short, this case does not match the mold cast by
Parratt and Hudson. This was not a matter of random and
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unauthorized action, but instead of predictable overreaching by
government officials given broad discretion to choose the manner by
which property interests might be deprived. As such,
postdeprivation remedies were not sufficient to meet the
requirements of due process here. San Gerónimo has made out a
valid procedural due process claim.
C. Qualified Immunity
Qualified immunity shields government officials from
personal liability for damages arising from actions taken while
performing discretionary functions. Barton v. Clancy, 632 F.3d 9,
21 (1st Cir. 2011). It provides "an immunity from suit and not a
mere defense to liability." Maldonado v. Fontánes, 568 F.3d 263,
268 (1st Cir. 2009). "Officials are entitled to qualified immunity
unless (1) 'the facts that a plaintiff has alleged or shown make
out a violation of a constitutional right' and (2) 'the right at
issue was "clearly established" at the time of their alleged
misconduct.'" Walden v. City of Providence, 596 F.3d 38, 52 (1st
Cir. 2010) (brackets omitted) (quoting Pearson v. Callahan, 129 S.
Ct. 808, 816 (2009)).
In this case, we have already held that plaintiffs have
made out a due process claim, see supra Part II.B., and we assume
here that they would prevail in proving a constitutional violation.
Still, the second prong of qualified immunity--whether the right at
issue was clearly established--remains to be addressed. "The
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relevant, dispositive inquiry in determining whether a right is
clearly established is whether it would be clear to a reasonable
officer that his conduct was unlawful in the situation he
confronted." Saucier v. Katz, 533 U.S. 194, 202 (2001), overruled
in part on other grounds by Pearson, 129 S. Ct. at 818; accord
Meléndez-García, 629 F.3d at 36. In other words, "[a] right is
considered clearly established if viewed objectively at the time
the defendant acted, he was on clear notice that what he was doing
was unconstitutional." Decotiis v. Whittemore, 635 F.3d 22, 37
(1st Cir. 2011) (citations omitted) (quotation marks omitted). To
demonstrate such clear notice, "the plaintiff must point to
controlling authority or a body of persuasive authority, existing
at the time of the incident, that can be said to have provided the
defendant with 'fair warning'" that his conduct was unlawful. Id.
(citing Wilson v. Layne, 526 U.S. 603, 617 (1999)). Obviously,
notice is measured by reference to the state of the law at the time
defendants acted, not with the benefit of hindsight. See, e.g.,
Wilson, 526 U.S. at 616-18; Decotiis, 635 F.3d at 37-38 (both
analyzing the state of the law at the time of defendants' actions).
In this case, we are not persuaded that the state of the
law at the time of the incidents put defendants on clear notice
that their actions violated due process. Specifically, we explain
above that not every deviation from state law qualifies as "random
and unauthorized" conduct within the meaning of Parratt and Hudson,
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such that defendants are not required to provide predeprivation
process. See supra at p. 20. Zinermon makes this conclusion
unmistakably clear. See 494 U.S. at 138 n.20 ("Parratt and Hudson
. . . do not stand for the proposition that in every case where a
deprivation is caused by an unauthorized departure from established
practices, state officials can escape § 1983 liability simply
because the State provides tort remedies." (ellipsis omitted)
(citations omitted) (internal quotation marks omitted)). Yet, as
we have noted (and in fairness to the defendants), a number of our
previous decisions might have been reasonably read to require this
erroneous interpretation of Parratt and Hudson. See PFZ Props.,
Inc. v. Rodríguez, 928 F.2d 28, 31 (1st Cir. 1991) ("When a
deprivation of property results from conduct of state officials
violative of state law, the Supreme Court has held that failure to
provide pre-deprivation process does not violate the Due Process
Clause." (citing Parratt, 451 U.S. at 543)); accord SFW Arecibo,
415 F.3d at 139-40 (quoting PFZ Props., 928 F.2d at 31). These
statements easily could have led the defendants to believe that
they were not required to provide a meaningful predeprivation
hearing and that, under Parratt and Hudson, providing
postdeprivation remedies was all the process that was due. In view
of this, it cannot fairly be said that the defendants were on clear
notice that their failure to provide predeprivation process
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violated the plaintiff's constitutional rights, and defendants thus
are entitled to qualified immunity.
III. Conclusion
For the foregoing reasons, although the district court's
holding that the plaintiff has failed to state a procedural due
process claim was erroneous, the defendants are entitled to
qualified immunity. Therefore, the judgment of the district court
is affirmed.
AFFIRMED.
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