Gikas v. Washington School District

Opinions of the United

2003 Decisions States Court of Appeals

for the Third Circuit

5-16-2003

Gikas v. Washington Sch Dist

Precedential or Non-Precedential: Precedential

Docket 02-1934

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PRECEDENTIAL

Filed May 16, 2003

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 02-1934

JAMES GIKAS,

Appellant

v.

WASHINGTON SCHOOL DISTRICT,

WASHINGTON BOARD OF SCHOOL DIRECTORS,

DR. MARYANN B. WEINSTEIN, DONALD G. EMERY,

DR. JAMES S. BALENT, ALAN B. COTTRILL,

JANE S. FERGUS, DAVID R. JOHNSTON,

JONATHAN W. MILES, PHYLLIS L. WALLER, and

ED WESTCOTT, individually

On Appeal From the United States District Court

For the Western District of Pennsylvania

(D.C. Civ. No. 00-cv-00890)

Judge: Honorable Robert J. Cindrich

Argued: February 25, 2003

Before: BECKER, Chief Judge,* Scirica, Circuit Judge,**

and Shadur,*** District Judge

* Judge Becker completed his term as Chief Judge on May 4, 2003.

** Judge Scirica succeeded to the position of Chief Judge on May 4,

2003.

*** Honorable Milton I. Shadur, United States District Judge for the

Northern District of Illinois, sitting by designation.

2

(Filed: May 16, 2003)

DANIEL W. ERNSBERGER

(ARGUED)

Behrend & Ernsberger

306 Fourth Avenue

Suite 300

Pittsburgh, PA 15222

Counsel for Appellant

DOUGLAS R. NOLIN (ARGUED)

Peacock Keller Ecker & Crothers,

LLP

70 East Beau Street

Washington, PA 15301

Counsel for Appellees

OPINION OF THE COURT

BECKER, Circuit Judge:

This appeal concerns the property rights created by the

Pennsylvania Veterans’ Preference Act (“VPA”), 51 Pa. C.S.A.

§ 7104. Section 7104(a) of the VPA provides that a veteran

possessing the “requisite qualifications” shall be given a

preference in the assignment of public jobs. After working

as a substitute teacher in the Washington School District,

plaintiff James Gikas, who had received an honorable

discharge from both the Army and the Navy, sought full-

time employment in the District as a social studies teacher.

On two occasions, non-veterans were hired into the

District’s social studies department instead of Gikas, who

would have qualified for a preference over the non-veteran

applicants if it were shown that he possessed the “requisite

qualifications.” Gikas asserts that the District violated his

substantive due process rights by denying him the

preference and by not hiring him when a position became

available in the social studies department in 1999.

Gikas also claims that his procedural due process rights

were violated because the District failed to define the

3

“requisite qualifications” for the positions and to publish

those requirements so that applicant veterans would know

what was required in advance of applying for the positions.

By not defining in advance the “requisite qualifications,”

Gikas maintains, the District had free rein to ignore the

veterans’ preference. In his submission, the District could

define “requisite qualifications” post hoc as those of the

most qualified applicant so that a veteran would be

employed only if he was the most qualified, essentially

eviscerating any preference. Gikas argues that § 7104(a)

was meant to be a counterpart to § 7104(b) of the VPA,

which creates a preference in the assignment of public jobs

when a civil service exam is administered; if an applicant

veteran passes the civil service exam, he is entitled to the

position even if “his name does not stand highest on the

eligible or promotional list.” 51 Pa. C.S.A. § 7104(b). Thus,

Gikas argues that the District must provide in advance of

the hiring process an objective definition of “requisite

qualifications” to ensure that applicant veterans are

actually given the preference to which they are entitled

under the Act.

The District Court dismissed the procedural due process

claim because Gikas had “fail[ed] to state a claim upon

which relief can be granted,” and granted the defendants’

motion for summary judgment on the substantive due

process claim because “there [was] no genuine issue as to

any material fact and” the defendants were “entitled to a

judgment as a matter of law.” Fed. R.Civ. P. 12(b)(6); Fed

R.Civ. P. 56(c). We too conclude that Gikas has alleged

neither a substantive nor a procedural due process

violation. While the veterans’ preference contained in

§ 7104(a) is a property interest subject to procedural due

process protection, “not all property interests worthy of

procedural due process protection are protected by the

concept of substantive due process.” Reich v. Beharry, 883

F.2d 239, 244 (3d Cir. 1989). Rather, a property interest

must be “fundamental” under the United States

Constitution to be subject to substantive due process

protection. In our view, the preference contained in

§ 7104(a) is not sufficiently “fundamental” to qualify as a

property interest deserving substantive due process

protection.

4

Moreover, we conclude that procedural due process does

not require the District to publish the definition of

“requisite qualifications” for a position in advance of the

hiring process. The property interest at issue here is not in

the teaching position itself, but in the preference. As such,

the District is not required to help applicant veterans

become qualified for the job; rather it is required to give

those applicants a preference only if they are independently

qualified. Requiring the publication in advance of the

“requisite qualifications” for a position is simply too

attenuated from the specific protected property interest in

the preference to be required by procedural due process. In

sum, Gikas has not established a federal constitutional

violation, hence we are constrained to affirm the judgment

of the District Court.

I.

In 1997, James Gikas, a veteran of both the Army and

the Navy who is certified to teach school in Pennsylvania,

applied for a teaching position in the Washington School

District and was hired as a part-time substitute teacher. In

June 1998, a full-time teaching position became available

in the social studies department and the District hired Cyril

Walther, a non-veteran substitute teacher who had served

an entire year in the position to be filled, teaching the same

material required for the position. When Gikas asked why

he was passed over for the position, he was told that he did

not have enough experience as a full-time substitute

teacher. Gikas objected because he had not been informed

that working full time (as opposed to part time) as a

substitute teacher would affect his ability to be hired as a

full-time teacher. The school board represented that it

would inform Gikas of future openings in his area of

certification and would delineate the minimum

qualifications for such openings.

In the summer of 1999, another full-time teaching

position became available in the District’s social studies

department. William Watson, the District’s high school

principal, and Ronald Junko, the District’s assistant high

school principal, chose eight candidates, including Gikas,

to interview for the position based on the following criteria:

5

(1) the appearance of the application; (2) extracurricular

activities; (3) grade point average; and (4) proximity of his

or her residence. During the interview, Watson and Junko

evaluated the applicants based on four general criteria;

those criteria were further divided into subsets. The criteria

were:

(1) Instruction

(A) Teaching Techniques/ Learning

(B) Planning

(C) Managing Students

(D) Motivating Students

(2) Professional Development and Fit with Needs

(A) Preparation

(B) Experience

(C) Professional Growth/ Responsibility

(D) Philosophy/ Goals

(E) Coaching/ Sponsoring

(3) Relationships

(A) Staff

(B) Parents/ Community

(4) Other

(A) Standard District Measure.

The applicants were given a score in each area based on

their answers to a standardized series of questions.

Based on this score, Gikas ranked sixth out of the eight

candidates, and he was not offered the teaching position.

Watson testified that Gikas provided only generic responses

to questions related to teaching techniques, planning,

managing and motivating students, and that he did not

demonstrate an understanding of the District’s

demographics or philosophies. A non-veteran, Mark

Albertina, who scored the highest in the interview

evaluation, was hired.

6

Gikas brought suit, pursuant to 42 U.S.C. § 1983, in the

District Court for the Western District of Pennsylvania

against the Washington School District, the Washington

Board of School Directors and nine members of the

Washington School Board individually, seeking

appointment to a teaching position with the District, with

back pay and benefits, based on alleged substantive and

procedural due process violations.1 Pursuant to the

Magistrates Act, 28 U.S.C. § 636(b)(1), and the Local Rules

for Magistrates, this case was heard before Magistrate

Judge Francis X. Caiazza. The Magistrate Judge issued a

Report and Recommendation proposing the dismissal of the

procedural due process claim, pursuant to Fed. R.Civ. P.

12(b)(6), which the District Court adopted. The Magistrate

Judge later filed a Report and Recommendation suggesting

that the District Court grant the defendants’ motion for

summary judgment on the substantive due process claim.

The District Court issued an order adopting the

recommendations of the Magistrate Judge. Gikas timely

appealed.

The District Court had jurisdiction pursuant to 28 U.S.C.

§ 1331 and we have appellate jurisdiction pursuant to 28

U.S.C. § 1291. We exercise plenary review over both the

order dismissing the procedural due process claim and the

order granting the defendants’ motion for summary

judgment. See United States v. Occidental Chemical Corp.,

200 F.3d 143, 147 (3d Cir. 1999) (“We exercise plenary

review of a grant of a motion to dismiss, accepting all

allegations in the Complaint as true and drawing all

reasonable inferences in the light most favorable to the

plaintiff.”); Pacitti v. Macy’s, 193 F.3d 766, 772 (3d Cir.

1999) (“We exercise plenary review over a grant of summary

judgment and apply the same legal standard used by the

District Court.”).

1. Gikas brought suit against the following individuals: Dr. Maryann B.

Weinstein, Donald G. Emery, Dr. James S. Balent, Alan B. Cottril, Jane

S. Fergus, David R. Johnson, Jonathan W. Miles, Phillis L. Walker, and

Ed Wescott.

7

II.

Gikas argues that the District deprived him of a property

interest protected by substantive due process when it hired

Albertina, a non-veteran, to fill the full-time teaching

position in the social studies department. In particular,

Gikas maintains that because he was one of eight

individuals selected to be interviewed for the position, he

met the “requisite qualifications” for the job, and as a

result, he was entitled to a preference under § 7104(a) of

the Pennsylvania Veterans’ Preference Act.2 Section 7104 of

the VPA provides:

(a) Non-civil service. Whenever any soldier possesses

the requisite qualifications and is eligible to

appointment to or promotion in a public position,

where no such civil service examination is required, the

appointing power in making an appointment or

promotion to a public position shall give preference to

such soldier.

(b) Name on civil service list. Whenever any soldier

possesses the requisite qualifications, and his name

appears on any eligible or promotional list, certified or

furnished as the result of any such civil service

examination, the appointing or promoting power in

2. Gikas also maintains that he was denied the preference simply

because he did not supply the District with a Form DD214 documenting

his veteran status. He bases this on a 1999 letter from the District’s

solicitor which states that “in reviewing [Gikas’] file, I note that the

School District has not been provided, by Mr. Gikas, with a DD214 form

. . . . Public school districts in Pennsylvania are not required to view an

individual as a “soldier” for purposes of the Veterans’ Preference Act

unless and until that individual provides the School District with a

DD214. . . . Consequently, we ask that you provide to us copies of the

DD214s issued to Mr. Gikas.” This is not sufficient to show that Gikas

was denied the preference because he did not provide this form. It

simply demonstrates that before litigating the issue, the District wanted

to make sure that Gikas was actually a veteran, as defined by the VPA.

Rather, it appears that Gikas was not hired because the District

concluded, from his responses during the interview process, that he did

not possess the “requisite qualifications” for the position, and that as

such, he was not entitled to the preference even if he had supplied the

District with the Form DD214.

8

making an appointment or promotion to a public

position shall give preference to such soldier,

notwithstanding, that his name does not stand highest

on the eligible or promotional list. 51 Pa. C.S.A. § 7104

(emphasis added).3

Pursuant to our caselaw, “ ‘a plaintiff must establish as

a threshold matter that he has a protected property interest

to which the Fourteenth Amendment’s due process

protection applies.’ ” Nicholas, M.D. v. Pa. State Univ., 227

F.3d 133, 139-40 (3d Cir. 2000) (quoting Woodwind

Estates, Ltd. v. Gretkowski, 205 F.3d 118, 123 (3d Cir.

2000)). Gikas maintains that the veterans’ preference in

§ 7104(a) is a property right which entitles him to

substantive due process protection. This contention is

based primarily on our decision in Carter v. City of

Philadelphia, 989 F.2d 117, 122 (3d Cir. 1993), in which we

stated that “§ 7104(b) of the Veterans’ Preference Act

confers a constitutionally protected property right upon [the

plaintiff].” Gikas argues that § 7104(a) of the VPA creates

essentially the same property interest as § 7104(b),

establishing the same preference where there is no civil

service exam, and that we must therefore conclude that

§ 7104(a) creates a property interest protected by

substantive due process.

Gikas misunderstands the import of Carter. Although

Carter holds that § 7104(b) creates a property interest

which cannot be deprived without due process of law, the

Carter opinion refers specifically to procedural due process

protection and not substantive due process protection.

Although this is not explicitly stated in the opinion, it is

self-evident because the Carter panel cited to Boards of

Regents v. Roth, 408 U.S. 564 (1972), for the proposition

that a state-created property interest deserves

constitutional protection if the plaintiff has a legitimate

claim of entitlement, and not simply an expectation of the

benefit. 989 F.2d at 120. Roth and this line of analysis refer

specifically to the creation of a property interest subject to

3. The Pennsylvania Supreme Court has found the VPA unconstitutional

as to promotions. See Hoffman v. Township of Whitehall, 677 A.2d 1200,

1203 (Pa. 1996).

9

procedural due process protection, see discussion infra.

The Carter panel went on to conclude that the veterans’

preference in § 7104(b) created such an entitlement. Id. at

122.

In Nicholas, M.D. v. Pennsylvania State University, supra,

we explained that a property interest protected by

procedural due process is not necessarily protected by

substantive due process:

On past occasion, we have lamented that “the case law

of this circuit and the Supreme Court provides very

little guidance as to what constitutes this ‘certain

quality’ of property interest worthy of protection under

the substantive due process clause.” Nevertheless, we

believe that a careful review of the case law does reveal

one guiding principle: whether a certain property

interest embodies this “particular quality” is not

determined by reference to state law, but rather

depends on whether that interest is “fundamental”

under the United States Constitution. . . . [T]his Circuit

has adopted an approach to substantive due process

that focuses on the nature of the property interest at

stake. By way of illustration, we have so far limited

non-legislative substantive due process review to cases

involving real property ownership . . . we have been

reluctant to extend substantive due process protection

to other, less fundamental property interests. 227 F.3d

at 140-141 (emphasis added) (internal citations

omitted).

The Nicholas panel also cited favorably Justice Powell’s

concurrence in Regents of University of Michigan v. Ewing,

474 U.S. 214 (1985), in which the majority assumed the

existence of a substantive due process property interest in

the university’s decision to dismiss the plaintiff from a

program of study, although it eventually concluded that the

there was no violation since the decision to dismiss the

plaintiff was not arbitrary or capricious. Justice Powell

noted:

Although I join in the Court’s opinion holding that

respondent presents no violation of the substantive due

process right that he asserts, I think it unnecessary to

10

assume the existence of such a right on the facts of

this case. . . . Even if one assumes the existence of a

property right . . . not every such right is entitled to the

protection of substantive due process. While property

interests are protected by procedural due process even

though the interest is derived from state law rather

than the Constitution, substantive due process rights

are created only by the Constitution. . . . The interest

asserted by respondent [in continued university

enrollment] is essentially a state-law contract right. It

bears little resemblance to the fundamental interests

that previously have been viewed as implicitly protected

by the Constitution. Ewing, 474 U.S. at 228-230

(Powell, J. concurring) (internal citations omitted).

Using this analysis, the Nicholas panel held that a

university professor’s tenured public employment was not a

fundamental property interest entitled to substantive due

process protection. See Nicholas, 227 F.3d at 143 (“[The

plaintiff’s] tenured public employment is a wholly state-

created contract right . . . . [W]e view public employment as

more closely analogous to those state-created property

interests that this Court has previously deemed unworthy

of substantive due process than to the venerable common-

law rights of real property ownership. . . . [T]he federal

judiciary should not become a general court of review for

state employment decisions.”) (internal citations omitted).

The property interest at issue in this case, which Gikas

alleges entitles him to substantive due process protection,

is not even a state-created employment interest. Rather, the

property interest here is in an employment preference, not

in the employment itself. At all events, the property interest

in the preference appears to be no more fundamental under

the federal Constitution than the employment interest in

Nicholas. The interest in the preference is solely based upon

state law. Thus, having no reason to believe that Gikas’

interest in the veterans’ preference is a fundamental right

created by the federal Constitution, we conclude that

§ 7104(a) of the VPA does not create a property interest

protected by substantive due process. Failing to meet this

threshold requirement, we do not need to determine

whether Gikas was deprived of his right to the preference

when he was not hired for the teaching position.

11

III.

Gikas argues that he was deprived of procedural due

process when the District failed to notify him of the

meaning of “requisite qualifications” so that he could make

himself a better applicant for the teaching positions that

became available in 1998 and 1999. Gikas also maintains

that applicant veterans have no way of knowing whether

they are entitled to the veterans’ preference if the District is

not required to publish the “requisite qualifications” for the

position in advance of hiring. The practical result of not

publishing the “requisite qualifications” in advance of

hiring, the argument continues, is to eliminate the veterans’

preference under § 7104(a): if the District does not have to

set forth the meaning of “requisite qualifications,” it can

simply hire the most qualified applicant and later assert

that the applicant veterans were not qualified to perform

the job.

Gikas relies on Justice Zappala’s concurrence in

Brickhouse v. Spring-Ford Area School District, stating that

for the veterans’ preference under § 7104(a) “to be

meaningful . . . it is necessary that [the] criteria be clearly

spelled out in advance of the selection process, and not

merely be subjective conclusions, formed ad hoc during or

after the selection process, based on the relative credentials

of the actual applicants.” 656 A.2d 483, 488 (Pa. 1995)

(Zappala, J., concurring). Under § 7104(b) of the VPA, any

veteran who passes the civil service exam is entitled to the

hiring preference even if “his name does not stand highest

on the eligible . . . list.” 51 Pa. C.S.A. § 7104(b). Gikas

asserts that if the § 7104(a) preference is not construed

similarly to ensure that the veteran does not have to be the

most qualified applicant to be entitled to the job (rather the

veteran must only be qualified to perform the job), the

preference is rendered illusory.

In order to determine whether the District deprived Gikas

of a property interest without following the procedures

required by due process, we engage in a familiar “two-

stage” analysis. We first determine whether Gikas has

alleged a property interest protected by procedural due

process. “[W]e then must decide what procedures constitute

‘due process of law.’ ” Robb v. City of Phila., 733 F.2d 286,

12

292 (3d Cir. 1984) (citing Roth, 408 U.S. at 569-72, and

Morrissey v. Brewer, 408 U.S. 471, 481 (1972)). In Carter,

we concluded that § 7104(b) of the VPA created an

entitlement that was protected by procedural due process

because “[t]he plain meaning of the statute, in unequivocal

terms, grants a preference to veterans in promotion. . . .

Because the clear language of § 7104(b) is controlling, we

need not review its legislative history or caselaw on this

issue.” 989 F.2d at 122.

The District seeks to differentiate § 7104(a) from our

holding concerning § 7104(b) in Carter, arguing that

because the definition of “requisite qualifications” is

subjective under § 7104(a), the preference therein is no

more than an expectation of a benefit, and not a legitimate

entitlement like the preference in § 7104(b).4 We are

unpersuaded by this reasoning, since like § 7104(b),

§ 7104(a) unequivocally states that if a soldier meets the

“requisite qualifications,” the public entity “shall give

preference to such soldier.” 51 Pa. C.S. § 7104(a). Although

it is more difficult to determine whether an applicant

veteran qualifies for the preference under § 7104(a), that

veteran, if qualified, is no less entitled to the preference in

§ 7104(a) than he would be to the preference in § 7104(b).

Thus, because we conclude that § 7104(a) creates a

legitimate entitlement to the preference, we hold that

§ 7104(a) creates a property interest for the purposes of

procedural due process.

But even though § 7104(a) creates a property interest for

procedural due process purposes, we must now determine

what process is due. Due process requires that a

deprivation of a property interest “be preceded by notice

and opportunity for hearing appropriate to the nature of the

case.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532,

4. As noted above, the state can create a property interest that will be

protected by procedural due process, so long as the plaintiff has a

legitimate claim of entitlement to the benefit, and not a mere

expectation. See Robb, 733 F.2d at 292 (“Property interests are not

generally created by the Constitution. ‘Rather, they are created and their

dimensions are defined by existing rules or understandings that stem

from an independent source such as state law.’ ”) (quoting Roth, 408 U.S.

at 577).

13

542 (1985) (quoting Mullane v. Cent. Hanover Bank & Trust

Co., 339 U.S 306, 313 (1950)); see also Witkowski v. Welch,

173 F.3d 192, 205 (3d Cir. 1999) (holding that the

procedures required by due process are defined by federal

law). In the employment context, notice and an opportunity

to be heard generally refer to having “some kind of a

hearing” before being discharged.5 Loudermill, 470 U.S. at

542; see also Alvin v. Suzuki, 227 F.3d 107, 121 (3d Cir.

2000). In the case at bar, Gikas argues that due process

requires that he be given notice of the “requisite

qualifications” before he can be deprived of the preference,

but he has not cited to any case holding that due process

requires that applicants be notified of hiring criteria. We

will nonetheless consider whether Gikas has been deprived

of a protected property interest without due process of law

by not being informed of the “requisite qualifications” for

the teaching positions in 1998 and 1999.

While we are sympathetic to Gikas’ situation, we

conclude that procedural due process does not require the

District to publish the “requisite qualifications” in advance

of hiring.6 Our primary concern is that the procedure that

5. Gikas is not arguing here that he was denied a hearing in connection

with the District’s decision to not hire him. Pennsylvania school districts

and their governing boards are “local agencies,” governed by and subject

to Pennsylvania local agency law and procedure. Monaghan v. Bd. of Sch.

Dirs., 618 A.2d 1239, 1241(Pa. Commw. Ct. 1992); 2 Pa. C.S.A. §§ 101,

105, 551-555, 751-754 (1995). Hiring decisions of a school board are

final decisions falling within the local agency law’s procedural

requirements and judicial review. Those decisions are appealable to the

Pennsylvania Courts of Common Pleas. 2 Pa. C.S.A. § 752 (1995). The

record indicates that Gikas did not appeal the District’s hiring decision

and he has not alleged that those procedures are inadequate. See Alvin

v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000) (“In order to state a claim

for failure to provide due process, a plaintiff must have taken advantage

of the processes that are available to him or her, unless those processes

are unavailable or patently inadequate.”).

6. We do note, however, that the criteria used by the District to

determine whether Gikas possessed the “requisite qualifications,” i.e.

teaching techniques, planning, motivating students, etc., appear to be

basic indicators of whether an applicant would be a good teacher; if so,

Gikas should have anticipated that the District would use these, or

similar, criteria.

14

Gikas desires (publication of the definition of “requisite

qualifications” in advance of hiring) does not track the

property interest of which he alleges he was deprived: the

hiring preference. We emphasize that Gikas does not have

a property interest in the teaching position itself, but in the

veterans’ preference, which comes into play only if he has

the “requisite qualifications” for the job. See Carter, 989

F.2d at 122 (“We caution here that [the plaintiff’s] interest

is not in the promotion per se but in being given a

preference when his promotion is considered.”) (emphasis

in original).

In sum, the property interest in the preference does not

require that an applicant veteran be informed of the

meaning of “requisite qualifications.” Gikas has a property

interest only after he has demonstrated that he has met the

“requisite qualifications”; the VPA does not create a

property interest in helping the veteran achieve those

requirements. In other words, the District is not required by

due process to give applicant veterans notice of the

“requisite requirements” in advance of hiring because the

veteran does not have a property interest at that time. The

purpose of § 7104(a) is not to place veterans in a better

position than other applicants simply because they are

veterans; to be entitled to the preference, the applicant

veteran must be independently qualified. See Brickhouse,

656 A.2d at 486 (“[V]eterans are not to be preferred in the

assignment of public jobs merely on the strength of being

veterans. They must be, in some sense, “qualified.”). The

procedure that Gikas advocates, requiring the District to

delineate the “requisite qualifications” of a position before

the hiring process begins, is simply too far removed from

the constitutionally protected property interest in the

preference, which is only a protected property interest once

the applicant veteran has met the “requisite qualifications.”7

7. Moreover, we note that allowing the District to draft the requirements

for a teaching position on a case-by-case basis also serves a legitimate

function, even though the result of that function may be to reduce the

impact of the veterans’ preference. The “requisite qualifications” to teach

at the level of skill demanded by the employer will vary greatly depending

on the subject area, class size, and grade level. As such, it would appear

to be quite burdensome to require a school district to set forth in

advance the “requisite qualifications” for each different teaching position

that becomes available.

15

The judgment of the District Court will be affirmed.8

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

8. The District also argued that five of the individuals named as

defendants by Gikas were not liable because they were not members of

the school board at the time the alleged violations took place. There is

no need to address this issue since we are affirming the District Court

on other grounds.