United Artists Theatre Circuit, Inc. v. Township of Warrington

Opinions of the United

2003 Decisions States Court of Appeals

for the Third Circuit

1-14-2003

United Artists v. Warrington

Precedential or Non-Precedential: Precedential

Docket 01-3533

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PRECEDENTIAL

Filed January 14, 2003

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 01-3533

UNITED ARTISTS THEATRE CIRCUIT, INC.

v.

THE TOWNSHIP OF WARRINGTON, PA; GERALD B.

ANDERSON; JOSEPH E. LAVIN; DOUGLAS E. SKINNER;

WAYNE S. BULLOCK; KATHERINE M. WATSON

Gerald B. Anderson; Joseph E. Lavin; Douglas E. Skinner;

Wayne S. Bullock; Katherine M. Watson,

Appellants

ON APPEAL FROM THE

UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF PENNSYLVANIA

(Dist. Court No. 98-cv-05556)

District Court Judge: Norma L. Shapiro

Argued on May 10, 2002

Before: ALITO, COWEN, and LOURIE,* Circuit Judges.

(Opinion Filed: January 14, 2003)

_________________________________________________________________

* The Honorable Alan D. Lourie, Circuit Judge for the United States

Court of Appeals for the Federal Circuit, sitting by designation.

ARTHUR W. LEFCO (Argued)

Marshall, Dennehey, Warner,

Coleman & Goggin

1845 Walnut Street

16th Floor

Philadelphia, PA 19103

Counsel for Appellants

JOHN F. SCHULTZ (Argued)

JAMES EISEMAN, JR.

Drinker, Biddle & Reath

18th & Cherry Streets

One Logan Square

Philadelphia, PA 19103

Counsel for Appellee

OPINION OF THE COURT

ALITO, Circuit Judge:

United Artists Theatre Circuit, Inc. ("United Artists"), an

owner and operator of movie theaters, sought land

development approval from Warrington Township

Pennsylvania, ("Township"), to construct and operate a

multiplex theater on land that United Artists owned. United

Artists claims that Warrington Township and its Board of

Supervisors (the "Board") complicated and delayed approval

of United Artists’ development plan, and thereby allowed a

competitor to beat United Artists in a race to build a movie

theater in the Township, which is too small to support two

theaters. United Artists alleges that the Township and

individual members of the Board engaged in this conduct

because they wanted the Township to receive an improper

"impact fee" from the competing developer. In this appeal,

the defendant Supervisors contest the District Court’s

denial of their qualified-immunity-based motion for

summary judgment. We vacate and remand.

As a threshold issue, we conclude that the law-of-the-

case doctrine does not preclude us from considering

whether, as a result of the Supreme Court’s decision in

2

County of Sacramento v. Lewis, 523 U.S. 833 (1998), United

Artists was required to show that the Supervisors’ conduct

"shocked the conscience." On the merits, we hold that

Lewis has superceded prior decisions of our Court holding

that a plaintiff asserting that a municipal land-use decision

violated substantive due process need only show that the

municipal officials acted with an "improper motive." Thus,

Bello v. Walker, 840 F.2d 1124 (3d Cir. 1988), and its

progeny are no longer good law.

I.

A.

The dispute underlying this case arises out of a

development race between United Artists’ proposed

multiplex and a competing multiplex theater development

proposed by Regal Cinema and developer Bruce Goodman.

The record shows that the two companies were competing

to obtain approval of their plans by the Township because

the market could support only one of the theaters.

Goodman agreed to pay the Township an annual "impact fee"2

of $100,000, but United Artists refused the Township’s

repeated requests for such a payment. United Artists

asserts that, because of Goodman’s promise to pay this fee,

the Township allowed his project to "sail through the land

development process," while United Artists’ proposal was

repeatedly stalled.

The Board of Supervisors’ review process consisted of two

phases, preliminary approval and final approval. In

January 1996, United Artists submitted a preliminary plan

for its theater to the Township Planning Commission, an

independent body of local officials that makes

recommendations regarding land-use plans to the Board of

Supervisors. Along with the preliminary plan, United Artists

_________________________________________________________________

2. Under Pennsylvania law, there are circumstances in which a

municipality may require the payment of an "impact fee" for "offsite

public transportation capital improvements." 53 Pa. Cons. Stat. Ann.

S 10503-A. The Supervisors do not contend that their actions were taken

pursuant to this authority.

3

submitted a traffic impact study, which led the Township to

require, as a precondition to the issuance of an occupancy

permit, the installation of a separate left-turn lane into the

theater. United Artists failed to acquire the property

necessary to make this improvement and expressed its

intention to request a waiver of the condition or to sue for

relief. United Artists claims that its failure to construct the

road improvement was a mere pretext for the Township’s

refusal to support its theater proposal and that this refusal

was actually motivated by the Township’s desire to obtain

an impact fee from Goodman and Regency Cinema.

After granting preliminary approval of United Artists’

proposal, the Township attempted to change the terms of

that approval by requiring United Artists to obtain an

easement for the road improvement and to complete the

installation of signals before construction could begin,

rather than before the time of occupancy, as was originally

provided in the preliminary approval. United Artists then

brought suit against the Township in the Court of Common

Pleas of Bucks County, and that court found the change in

conditions to be unlawful under the Pennsylvania

Municipalities Planning Code. On appeal, the

Commonwealth Court agreed. After succeeding in this state

court litigation and eliminating the building permit

condition, United Artists began this action against the

Township and the Supervisors in federal court.

In the meantime, the Board granted preliminary approval

of the Goodman proposal on February 4, 1997 -- one

month after the initial application was submitted-- and

final approval was granted on May 21, 1997. By contrast,

United Artists, did not receive preliminary approval until

March 18, 1997, 14 months after submitting its initial

application. The Board then tabled its vote on United

Artists’ application for final approval on three occasions,

each time asking if United Artists would pay an impact fee.

The Board granted final approval of the United Artists

proposal on September 16, 1997. The Goodman/Regal

Cinema multiplex was completed in 1999; United Artists

never built a theater in Warrington.

4

B.

United Artists’ complaint in this case asserted procedural

and substantive due process claims under 42 U.S.C.

S 1983, as well as supplementary state law claims. As

defendants, the complaint named the Township and the

members of the Board of Supervisors--Gerald Anderson,

Joseph Lavin, Douglas Skinner, Wayne Bullock, and

Katherine Watson ("Supervisors")--in both their official and

individual capacities. Asserting the defense of qualified

immunity, the Supervisors moved for summary judgment,

and in December 1999, the District Court denied the

Supervisors’ motion with respect to the substantive due

process claim, while granting that motion with respect to

the procedural due process claim.

On appeal, a prior panel of our Court, in an unpublished

opinion, vacated the order of the District Court and

remanded for further proceedings. The panel held that the

District Court had erred in failing to analyze each

Supervisor’s qualified immunity claim individually, and the

panel instructed the District Court to make such an

analysis on remand. United Artists Theatre Circuit, Inc. v.

Twp. Of Warrington, No. 00-1064 (3d Cir., filed Nov. 29,

2000) ("United Artists I"), in App. at 112a-118a. In the text

of its opinion, the panel stated that the District Court had

"properly analyzed the supervisors’ request for qualified

immunity on summary judgment, having found that United

Artists at this stage sufficiently alleged a violation of a

clearly established constitutional right." Id . at 4, in App. at

117a. However, in an accompanying footnote the panel

stated that it "express[ed] no opinion" at that time as to

whether, in the wake of the Supreme Court’s decision in

County of Sacramento v. Lewis, 523 U.S. 833 (1998), it was

necessary for United Artists to show that the Supervisors’

conduct "shocked the conscience." Id. at 4 n.2, in App. at

117a.

On remand, the District Court considered the

Supervisors’ claims individually and again denied their

motion for summary judgment on qualified immunity

grounds. Aug. 15, 2001, Order, in App. at 3a-26a. The

District Court held that United Artists had provided

evidence permitting a factfinder to conclude the Board

5

intentionally delayed approval of plaintiff ’s project because

it wished to receive the impact fee offered by Goodman. If

proved, the court believes the monetary motivation of the

Board was improper and would constitute a violation of

substantive due process." Id. at 14, in App. at 16a

(emphasis added). The District Court also held that there

was sufficient evidence to conclude that each individual

supervisor had subjected United Artists’ proposal to

heightened scrutiny and had purposefully delayed approval

because of the impact fee offered by the competitor. Id. at

19, in App. at 21a. Addressing the panel’s reference to the

shocks-the-conscience test, the District Court opined that

the "shocks the conscience" and "improper motive" tests are

essentially the same and that, in any event, a post-Lewis

opinion issued by our Court [Woodwind Estates Ltd. v.

Gretkowski, 205 F.3d 118 (3d Cir. 2000)] suggested that

Lewis had not altered prior circuit precedent. Id. at 9 n.5,

in App. at 11a. The Supervisors then took the present appeal.3

II.

As a preliminary matter, United Artists argues that this

panel’s authority in this case is severely limited by the law-

of-the-case doctrine. Under this doctrine, "one panel of an

appellate court generally will not reconsider questions that

another panel has decided on a prior appeal in the same

case." In re City of Philadelphia Litigation , 158 F.3d 711,

717 (3d Cir. 1998).4 United Artists argues that the panel

that heard the prior appeal in this case implicitly rejected

the proposition that United Artists’ substantive due process

_________________________________________________________________

3. We exercise plenary review over a district court’s denial of a motion for

summary judgment on the basis of qualified immunity. Eddy v. Virgin

Islands Water and Power Authority, 256 F.3d 204, 208 (3d Cir. 2001).

Moreover, as with any appeal from the denial of summary judgment, we

consider all facts in the light most favorable to the non-moving party.

See, e.g., Hoard v. Sizemore, 198 F.3d 205, 218 (6th Cir. 1999).

4. The doctrine does not apply to dicta and does allow for reconsideration

of previously decided issues "in extraordinary circumstances such as

where: (1) new evidence is available; (2) a supervening new law has been

announced; or (3) the earlier decision was clearly erroneous and would

create manifest injustice." In re City of Philadelphia Litigation, 158 F.3d

at 718.

6

claim requires proof of conduct that shocks the conscience.

We disagree.

The prior panel made two statements that are relevant for

present purposes. First, as noted, the prior panel stated:

"[W]e believe the District Court properly analyzed the

supervisors’ request for qualified immunity on summary

judgment, having found that United Artists at this stage

sufficiently alleged a violation of a clearly established

constitutional right." United Artists I at 4, in App. at 1172a.

United Artists claims that this statement "constitutes a

conclusive determination that may not be disturbed under

the law of the case doctrine." Br. of Appellee at 18.

If the prior panel had said nothing more than the

statement quoted above, we might be inclined to agree with

United Artists, but the prior panel made an additional

important statement. In footnote 2 of its opinion, the Court

observed that it had raised two issues sua sponte at oral

argument and that one of these was "whether the‘shocks

the conscience’ standard announced by the Supreme Court

in County of Sacramento v. Lewis, 523 U.S. 833 (1998), is

applicable to substantive due process claims like the one at

issue here." United Artists I at 4 n.2, in App. at 1172a. The

panel continued: "At this time, we express no opinion

whether these matters are appropriate in determining the

merits of the substantive due process claim." Id. at 4 n.2, in

App. at 1172a (emphasis added).

We interpret this last statement to mean that the panel

left open the question whether the "shocks the conscience"

standard announced in Lewis is applicable to United

Artists’ substantive due process claim. In other words,

while the panel, as stated in the main text of its opinion,

had concluded that United Artists was entitled to survive

summary judgment under our Court’s "existing case law,"

United Artists I at 4, in App. at 117a, the panel did not

decide whether that prior circuit case law had been

superceded by Lewis. Presumably because the issue was

raised by the panel on its own at argument and was not

briefed by the parties, the panel left this issue for

consideration in the first instance by the District Court and

then, if necessary, by a subsequent panel.

7

While we believe, as noted, that this is the best

interpretation of the prior panel’s decision, our conclusion

that the law-of-the-case doctrine does not foreclose our

consideration of this issue is not dependent on this

interpretation. At the very least, footnote 2 of the prior

panel opinion creates considerable ambiguity as to whether

the prior panel held that conduct that "shocks the

conscience" is needed in the present context."Courts apply

the law of the case doctrine when their prior decisions in an

ongoing case either expressly resolved an issue or

necessarily resolved it by implication." Aramony v. United

Way of America, 254 F.3d 403, 410 (2d Cir. 2001)

(emphasis added) (citing 18 Charles Alan Wright & Arthur

R. Miller, Federal Practice and ProcedureS 4478, at 789

(1981)). Here, the prior panel did not "expressly" or by

necessary implication decide the "shocks the conscience"

issue. The law-of-the-case doctrine relieves a court of the

obligation of considering an issue twice, but we must be

careful to prevent the doctrine from being used to prevent

a properly raised argument from being considered even

once. Where there is substantial doubt as to whether a

prior panel actually decided an issue, the later panel

should not be foreclosed from considering the issue.

Accordingly, we conclude that the law-of-the-case doctrine

does not apply and that the prior panel opinion does not

foreclose our review of the applicable standard governing

United Artists’ substantive due process claim.

Our dissenting colleague disagrees with this conclusion

because he believes that the prior panel’s first statement

represents the panel’s holding and that the second

statement is "mere dicta." Dissent at 19. The dissent,

however, does not explain why the second statement should

be regarded as dictum, and we must respectfully disagree

with his position.

To reiterate, the prior panel at oral argument sua sponte

raised the issue "whether the ‘shocks the conscience’

standard announced by the Supreme Court in County of

Sacramento v. Lewis, 523 U.S. 833 (1998), is applicable to

substantive due process claims like the one at issue here."

The panel then wrote:

8

At this time, we express no opinion whether these

matters [including the applicability of Lewis ’s "shocks

the conscience" standard] are appropriate in

determining the merits of the substantive due process

claim.

United Artists I at 4 n.2, in App. at 117a (emphasis added).

This language strongly suggests that the prior panel was

not speaking in the abstract about the application of Lewis

to a similar substantive due process claim in some future

case. (Such a statement would be "mere dicta.") Rather, the

prior panel was addressing "the substantive due process

claim" in this case, and what the panel said about that

claim was that the panel was not expressing an opinion

about the application of Lewis "[a]t this time" -- which

implied that our Court might express an opinion about that

claim at some future time. Thus, because we believe that

the prior panel left this issue open (and certainly did not

clearly resolve the issue,) we regard the issue as open and

we therefore turn to the merits of the Supervisors’

argument.

III.

A.

As noted, the Supervisors moved for summary judgment

on qualified immunity grounds. Qualified immunity

generally protects government officials performing

discretionary functions from civil damages. Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity

applies so long as the officials’ "conduct [did] not violate

clearly established statutory or constitutional rights of

which a reasonable person would have known." Id. In

determining whether qualified immunity applies, we ask: (1)

whether the plaintiff has alleged the deprivation of an

actual constitutional right, and if so, (2) whether the right

was clearly established at the time of the alleged violation.

Saucier v. Katz, 533 U.S. 194, 200 (2001); Eddy v. Virgin

Islands Water and Power Authority, 256 F.3d 204, 208 (3d

Cir. 2001). A right is clearly established if "its outlines are

sufficiently clear that a reasonable officer would understand

9

that his actions violate the right." Sterling v. Borough of

Minersville, 232 F.3d 190, 193 (3d Cir. 2000). Therefore,

our task is " ‘to determine first whether the plaintiff has

alleged a deprivation of a constitutional right at all,’ before

reaching the question of whether the right was clearly

established at the time." Johnson v. Newburgh Enlarged

School District, 239 F.3d 246, 251 (2d Cir. 2001) (quoting

Lewis, 523 U.S. at 841 n.5); see also Nicholas v.

Pennsylvania State University, 227 F.3d 133, 139-40 (3d

Cir. 2000) ("To prevail on a non-legislative substantive due

process claim, ‘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.’ " (quoting Woodwind Estates, Ltd. v. Gretkowski,

205 F.3d 118, 123 (3d Cir. 2000)). To answer this question,

we must determine the appropriate legal standard to apply

to substantive due process claims.

B.

In County of Sacramento v. Lewis, 523 U.S. 833 (1998),

the Supreme Court explained the standard that applies

when a plaintiff alleges that an action taken by an

executive branch official violated substantive due process.

The Court observed that "the core of the concept" of due

process is "protection against arbitrary action" and that

"only the most egregious official conduct can be said to be

‘arbitrary in the constitutional sense.’ " Id. at 845-46

(citation omitted). After noting its long history of speaking

of "the cognizable level of executive abuse of power as that

which shocks the conscience," id. at 846 (citing Rochin v.

California, 342 U.S. 165 (1952)), the Court continued:

Most recently, in Collins v. Harker Heights,[503 U.S.

115, 128 (1992)], we said again that the substantive

component of the Due Process Clause is violated by

executive action only when it "can properly be

characterized as arbitrary, or conscience shocking, in a

constitutional sense."

Lewis, 523 U.S. at 847 (emphasis added). See also Fagan

v. City of Vineland, 22 F.3d 1296, 1303 (3d Cir. 1994) (en

banc) ("[T]he substantive component of the Due Process

10

Clause can only be violated by governmental employees

when their conduct amounts to an abuse of official power

that ‘shocks the conscience.’ "). At the same time, however,

the Lewis Court acknowledged that "the measure of what is

conscience-shocking is no calibrated yard stick," Lewis,

523 U.S. at 847, and that "[d]eliberate indifference that

shocks in one environment may not be so patently

egregious in another." Id. at 850.5

Our Court has echoed these comments. Since Lewis , our

cases have repeatedly acknowledged that executive action

violates substantive due process only when it shocks the

conscience but that the meaning of this standard varies

depending on the factual context. See, e.g., Leamer v.

Fauver, 288 F.3d 532, 546 (3d Cir. 2002); Boyanowski v.

Capital Area Intermediate Unit, 215 F.3d 396, 400 (3d Cir.

2000); Nicini v. Morra, 212 F.3d 798, 809 (3d Cir. 2000) (en

banc); Miller v. City of Philadelphia, 174 F.3d 368, 375 (3d

Cir. 1999).

Despite Lewis and the post-Lewis Third Circuit cases

cited above, United Artists maintains that this case is not

governed by the "shocks the conscience" standard, but by

the less demanding "improper motive" test that originated

with Bello v. Walker, 840 F.2d 1124 (3d Cir. 1988), and was

subsequently applied by our court in a line of land-use

cases. In these cases, we held that a municipal land use

decision violates substantive due process if it was made for

any reason "unrelated to the merits," Herr v. Pequea

Township, 274 F.3d 109, 111 (3d Cir. 2001) (citing cases),

or with any "improper motive." See, e.g., Woodwind Estates,

Ltd. v. Gretkowski, 205 F.3d 118 (3d Cir. 2000); Blanche

Road Corp. v. Bensalem Township, 57 F.3d 253 (3d Cir.

_________________________________________________________________

5. The dissent seems to suggest that several recent court of appeals

opinions, including one from our court, have taken the position that

"Lewis did not lay down a blanket ‘shocks the conscience’ rule that

controls absolutely any and all substantive due process constitutional

tests." Dissent at 22 (citing Fuentes v. Wagner, 206 F.3d 335, 340 (3d

Cir.), cert. denied, 531 U.S. 821 (2000); Khan v. Gallitano, 180 F.3d 829,

836 (7th Cir. 1999); Moreland v. Las Vegas Metro Police Dept., 159 F.3d

365, 372 (9th Cir. 1998). However, these opinions are best understood

as saying only that the nature of the conduct that is sufficiently

egregious to shock the conscience varies depending on the context.

11

1995); DeBlasio v. Zoning Board of Adjustment , 53 F.3d 592

(3d Cir. 1995); Parkway Garage, Inc. v. City of Philadelphia,

5 F.3d 685 (3d Cir. 1993); Midnight Sessions, Ltd. v. City of

Philadelphia, 945 F.2d 667 (3d Cir. 1991).

These cases, however, cannot be reconciled with Lewis’s

explanation of substantive due process analysis. Instead of

demanding conscience-shocking conduct, the Bello line of

cases endorses a much less demanding "improper motive"

test for governmental behavior. Although the District Court

opined that there are "few differences between the [shocks

the conscience] standard and improper motive standard,"

we must respectfully disagree. Aug. 15, 2001 order at 9

n.5, in App. at 11a. The "shocks the conscience" standard

encompasses "only the most egregious official conduct."

Lewis, 523 U.S. at 846. In ordinary parlance, the term

"improper" sweeps much more broadly, and neither Bello

nor the cases that it spawned ever suggested that conduct

could be "improper" only if it shocked the conscience. We

thus agree with the Supervisors that the Bello line of cases

is in direct conflict with Lewis.

We also reject the District Court’s suggestion that the

application of the Bello "improper motive" test in Woodwind

Estates, Ltd. v. Gretkowski, 205 F.3d 118 (3d Cir. 2000),

which came after Lewis, means that our Court has sub

silentio held that Lewis did not alter prior circuit law. The

opinion in Woodwind Estates makes no mention of Lewis,

and Lewis was not even cited in the Woodwind Estates

briefs. Under these circumstances, Woodwind Estates

clearly does not preclude us from considering whether Bello

and its progeny remain good law. As the Supreme Court

commented in Texas v. Cobb, 532 U.S. 162, 169 (2001),

when it was argued that one of its prior decisions had

decided a question that the parties had not argued and the

Court had not addressed: "Constitutional rights are not

defined by inferences from opinions which did not address

the question at issue."6

_________________________________________________________________

6. The dissent contends that several other post-Lewis decisions of our

Court also show that the Bello improper motive cases survived Lewis.

However, these decisions, like Woodwind Estates , did not discuss Lewis.

In addition, these decisions, unlike Woodwind Estates, did not even

apply the Bello line of cases.

12

The dissent, however, asserts: "Unlike the Majority, I am

fully comfortable assuming that this Court in Woodwind

. . . (as in any other case it decides) was completely aware

of the content of all published Supreme Court case law that

may bear on the case at hand, especially in such a

fundamental area as Due Process." Dissent at 22. This

image of the omniscient circuit judge -- who has every

potentially pertinent precedent in mind at all times and

never fails to grasp their possible implications-- is

flattering but perhaps not entirely accurate. And in any

event, the dissent’s assumption about what the Woodwind

Estates panel was "aware of " is beside the point. The

_________________________________________________________________

The dissent first cites the following statement in Nicholas v.

Pennsylvania State University, 227 F.3d 133, 139 (3d Cir. 2000):

[W]e have held that a property interest that falls within the ambit of

substantive due process may not be taken away by the state for

reasons that are "arbitrary, irrational, or tainted by improper

motive," Woodwind Estates, Ltd. v. Gretkowski , 205 F.3d 118, 123

(3d Cir. 2000) (quoting Bello v. Walker, 840 F.2d 1124, 1129 (3d Cir.

1988)) . . . .

Not only is this statement dictum (it was not necessary to the decision

on the substantive due process claim in that case, which we rejected on

the ground that the plaintiff did not have the requisite property interest,)

but the statement does not endorse the Bello"improper motive" test.

Rather, it simply states the indisputable fact that"we ha[d] held" that an

improper motive sufficed.

The dissent next points to the following statement in Khodara

Environmental, Inc. v. Beckman, 237 F.3d 186, 197 (3d Cir. 2001):

Eagle’s briefs do not argue that the Airport Authority denied its

application for a reason that is "tainted by improper motives."

Nicholas v. Pennsylvania State University, 227 F.3d 133, 139 (3d

Cir. 2000) . . . .

This statement, like the statement in Nicholas , did not endorse the

"improper motive" test but simply pointed out that a party’s briefs did

not advance an "improper motive" argument.

Finally, the dissent cites Herr v. Pequea Township, 274 F.3d 109, 111

(3d Cir. 2001), in which the Court noted the Bello line of cases but held

that they did not apply under the particular circumstances. Thus, the

statements in Herr were plainly dicta.

13

pertinent question is not whether the members of the

Woodwind Estates panel had read and recalled Lewis or

even whether its possible implications for the Bello line of

cases crossed their minds. Rather, the pertinent question is

whether the Woodwind Estates panel, without providing so

much as a hint in their opinion that they were doing so,

decided that Lewis did not undermine the Bello line of

cases and thereby foreclosed this panel or any other panel

from considering that question. The answer to that

question is too obvious to need stating. It is not an

accepted practice of any appellate court to decide important

questions without revealing that it has done so.

In sum, we see no reason why the present case should be

exempted from the Lewis shocks-the-conscience test simply

because the case concerns a land use dispute. Such a

holding would be inconsistent with the plain statements in

Lewis and our own post-Lewis cases that we have already

noted. Since Lewis, our court has applied the "shocks the

conscience" standard in a variety of contexts. See, e.g.,

Boyanowski v. Capital Area Intermediate Unit, 215 F.3d 396

(3d Cir. 2000) (applying the "shocks the conscience" test to

a claim of civil conspiracy); Fuentes v. Wagner , 206 F.3d

335 (3d Cir. 2000) (finding the "shocks the conscience"

standard appropriate in an excessive force claim in the

context of a prison disturbance); Miller v. City of

Philadelphia, 174 F.3d 368 (3d Cir. 1999) (applying the

"shocks the conscience" standard in the child custody

context). There is no reason why land use cases should be

treated differently. We thus hold that, in light of Lewis,

Bello and its progeny are no longer good law. 8

We note that our holding today brings our Court into line

with several other Courts of Appeals that have ruled on

substantive due process claims in land-use disputes. See,

e.g., Chesterfield Development Corp. v. City of Chesterfield,

963 F.2d 1102, 1104-05 (8th Cir. 1992) (holding that

allegations that the city arbitrarily applied a zoning

_________________________________________________________________

8. The dissent complains that the "shocks the conscience" test is

"nebulous and highly subjective." Dissent at 23. But whatever else may

be said of this test, it is surely no less "nebulous" or "subjective" than

the "improper motives" test.

14

ordinance were insufficient to state a substantive due

process claim, and stating in dicta that the "decision would

be the same even if the City had knowingly enforced the

invalid zoning ordinance in bad faith . . . . A bad-faith

violation of state law remains only a violation of state law.");

PFZ Properties, Inc. v. Rodriguez, 928 F.2d 28, 32 (1st Cir.

1991) ("Even assuming that ARPE engaged in delaying

tactics and refused to issue permits for the Vacia Talega

project based on considerations outside the scope of its

jurisdiction under Puerto Rico law, such practices, without

more, do not rise to the level of violations of the federal

constitution under a substantive due process label.").

Application of the "shocks the conscience" standard in

this context also prevents us from being cast in the role of

a "zoning board of appeals." Creative Environments, Inc. v.

Estabrook, 680 F.2d 822, 833 (1st Cir. 1982) (quoting

Village of Belle Terre v. Boraas, 416 U.S. 1, 13 (1974)

(Marshall, J., dissenting)); see also Nestor Colon Medina &

Sucesores, Inc. v. Custodio, 964 F.2d 32, 45-46 (1st Cir.

1992) (disagreeing with Bello and stating that "we have

consistently held that the due process clause may not

ordinarily be used to involve federal courts in the rights and

wrongs of local planning disputes"). The First Circuit in

Estabrook observed that every appeal by a disappointed

developer from an adverse ruling of the local planning

board involves some claim of abuse of legal authority, but

"[i]t is not enough simply to give these state law claims

constitutional labels such as ‘due process’ or‘equal

protection’ in order to raise a substantial federal question

under section 1983." Estabrook, 680 F.2d at 833. Land-use

decisions are matters of local concern and such disputes

should not be transformed into substantive due process

claims based only on allegations that government officials

acted with "improper" motives.

IV.

Having found that the District Court applied the wrong

standard for evaluating United Artists’ substantive due

process claim, we do not reach the second qualified

immunity inquiry as to whether the constitutional right was

clearly established at the time of the violation. We vacate

15

the District Court’s denial of the Supervisors’ summary

judgment motion and remand the case for further

proceedings to determine whether United Artists can

survive the Supervisors’ summary judgment motion in light

of Lewis.

16

COWEN, Circuit Judge, dissenting:

I.

The issue presented to the previous panel was whether

the plaintiff had alleged a violation of a clearly established

constitutional right that was sufficiently clear to a

reasonable government official, specifically a township

supervisor. In deciding that issue, this Court expressly

affirmed the District Court’s use of the "improper motive"

standard when it held that "we believe the [D]istrict [C]ourt

properly analyzed the supervisors’ request for qualified

immunity on summary judgment" and found the only error

in that analysis to be the District Court’s failure to examine

each supervisor’s request on an individual basis. At the

very least, it was inherent in this Court’s holding that it

was proper for the District Court to apply the "improper

motive" standard to its substantive due process analysis in

a municipal land use case. Because the previous panel

already decided this issue, we are bound by this Court’s

prior affimance of the District Court’s application of the

"improper motive" standard under law of the case doctrine,

not to mention Internal Operating Procedure of the United

States Court of Appeals for the Third Circuit 9.1. Therefore,

I respectfully dissent with the majority’s holding that law of

the case doctrine does not control this appeal.

Under the law of the case doctrine, a panel of an

appellate court generally will not reconsider a question that

another panel has decided on a prior appeal in the same

case. The doctrine is designed to protect traditional ideals

such as finality, judicial economy and jurisprudential

integrity. Christianson v. Colt Indus. Operating Corp., 486

U.S. 800, 816 (1988); Arizona v. California, 460 U.S. 605,

618-19 (1983). The law of the case doctrine acts to preclude

review of only those legal issues that the court in a prior

appeal decided, either expressly or by implication; it does

not apply to dicta. Coca-Cola Bottling Co. of Shreveport, Inc.

v. Coca-Cola Co., 988 F.2d 414, 429 (3d Cir. 1993).

The law of the case doctrine does not restrict a court’s

power, but rather governs its exercise of discretion. Public

Interest Research Group of New Jersey, Inc. v. Magnesium

17

Elektron, Inc., 123 F.3d 111, 116 (3d Cir. 1997).

Accordingly, we have recognized that the doctrine does not

preclude our reconsideration of previously decided issues in

extraordinary circumstances such as where: (1) new

evidence is available; (2) a supervening new law has been

announced; or (3) the earlier decision was clearly erroneous

and would create manifest injustice. Id. at 116-17.

The previous panel expressly approved the District

Court’s use of the "improper motive" standard in its

holding:

Under existing case law, we believe the District Court

properly analyzed the supervisors’ request for qualified

immunity on summary judgment, having found that

United Artists at this stage sufficiently alleged a

violation of a clearly established constitutional right.

Nonetheless, we believe the District Court should have

considered each supervisor’s request for qualified

immunity individually rather than as a group. On

remand, we direct the District Court to address each

supervisor’s request for immunity on an individual

basis or explain why the supervisors should be

considered collectively.

November 29, 2000 Order, at 4-5 (emphasis added)

(citations omitted).

The law of the case doctrine unquestionably governs this

appeal. The previous panel’s statement that "United Artists

at this stage sufficiently alleged a violation of a clearly

established constitutional right" constitutes a holding. In

the prior appeal, this Court expressly affirmed the District

Court’s qualified immunity analysis of the supervisors as a

whole, and found the only error to be the District Court’s

failure to apply that same analysis to the supervisors

individually. The panel did not direct the District Court to

alter or reconsider its qualified immunity analysis, but only

to address each of the supervisors individually under that

same analysis.1

_________________________________________________________________

1. The District Court likewise interpreted the previous panel’s opinion as

"[holding] that ‘the [D]istrict [C]ourt properly analyzed each supervisors’

request for qualified immunity on summary judgment.’ " Record at 7A

(August 15, 2001 District Court Order) (emphasis added).

18

Moreover, there are no exceptional circumstances here

that make it appropriate to reconsider the prior panel’s

decision. See Public Interest Research Group of New Jersey,

Inc., 123 F.3d at 116. Under both the law of the case

doctrine and our own internal operating procedures, the

majority is wrong to revisit an issue that has already been

decided. See 3d Cir. I.O.P. 9.1.2

The majority takes issue with the previous panel’s

statement made in a footnote:

At oral argument this Court, sua sponte, raised two

issues: . . . (2) whether the "shocks the conscience"

standard announced by the Supreme Court in County

of Sacramento v. Lewis, 523 U.S. 833 (1998), is

applicable to substantive due process claims like the

one at issue here. At this time, we express no opinion

whether these matters are appropriate in determining

the merits of the substantive due process claim.

November 29, 2000 Order, at 4 n.2. The majority argues

that this footnote raises "substantial doubt as to whether a

prior panel actually decided . . . the applicable standard

governing United Artists’ substantive due process claim."

Majority at 8. Given the holding of the prior panel

contained in the body of the opinion, this footnote is mere

dicta. The holding of the case and instructions to the

District Court were to apply the same "improper motive"

standard to the supervisors individually. Even if one were

not to accept the express holding of the prior panel in light

of this footnote, it is quite clear that the "improper motive"

issue was decided by "necessary implication" and therefore

also subject to the law of the case doctrine.

In AL Tech Specialty Steel Corp. v. Allegheny Int’l Credit

Corp., we held that the law of the case doctrine applies to

_________________________________________________________________

2. 9.1 Policy of Avoiding Intra-circuit Conflict of Precedent.

It is the tradition of this court that the holding of a panel in a

precedential opinion is binding on subsequent panels. Thus,

no subsequent panel overrules the holding in a precedential

opinion of a previous panel. Court en banc consideration is

required to do so.

3d Cir. I.O.P. 9.1 (July 2002).

19

decisions rendered even by a judgment order because the

doctrine also applies to issues that are decided by

necessary implication. 104 F.3d 601, 605 (3d Cir. 1997). In

that case, Allegheny International argued that 11 U.S.C.

S 502(e)(1)(B)3 of the Bankruptcy Code barred AL Tech’s

claim. The Bankruptcy Court agreed. On appeal to the

District Court, the District Court held that S 502(e)(1)(B)

barred only contingent claims under these conditions. It

allowed AL Tech’s claim to the extent that it was a direct

claim against Allegheny International under the

Comprehensive Environmental Response, Compensation,

and Liability Act, 42 U.S.C. SS 9601 et seq. AL Tech

Specialty Steep Corp., 104 F.3d at 605. This Court affirmed

the District Court by judgment order. When appealed a

second time to this Court, Allegheny International urged

the second panel to examine the question whether AL

Tech’s claim was barred under S 502(e)(1)(B). In an opinion

written by Judge Alito, we held that "In this case, the panel

that heard the prior appeal necessarily decided that AL

Tech’s claim was not barred by S 502(e)(1)(B). The law of the

case doctrine applies to this decision even though it was

rendered by judgment order because that doctrine‘applies

both to issues expressly decided by a court in prior rulings

and to issues decided by necessary implication .’ " Id. (citing

Bolden v. SEPTA, 21 F.3d 29, 31 (3d Cir. 1994)) (emphasis

added).

This appeal presently before us presents an even stronger

reason for the application of the doctrine of law of the case

and I.O.P. 9.1, given the prior panel issued a written

opinion holding that the "improper motive" was the correct

rule of law to apply. The prior panel was required to

determine whether the actions of the supervisors, as alleged

_________________________________________________________________

3. The section provides:

(e)(1) . . . [T]he court shall disallow any claim for reimbursement or

contribution of an entity that is liable with the debtor on or has

secured, the claim of a creditor, to the extent that--

(B) such claim for reimbursement or contribution is contingent

as of the time of allowance or disallowance of such claim for

reimbursement or contribution.

11 U.S.C. SS 502(e)(1), (e)(1)(B).

20

by plaintiff, violated a clearly established constitutional

right that was sufficiently clear to a reasonable government

official. Inherent in this inquiry is the determination of

whether the supervisors’ actions rose to a level of a

substantive due process violation; if the alleged actions

were insufficient to amount to a violation, the supervisors’

actions could not violate a clearly established constitutional

right. Resolution of the question of the correct standard to

apply in the context of a municipal land use case based

upon the summary judgment record was integral to the

Court’s analysis in affirming the District Court’s denial of

summary judgment on the question of qualified immunity.

Despite footnote 2 of the prior panel’s opinion, we are

bound under law of the case doctrine and I.O.P. 9.1 by this

Court’s prior approval of the District Court’s application of

the "improper motive" standard.

II.

In addition to my belief that law of the case doctrine

controls in this matter, I further disagree with the

proposition that only "shocks the conscience" language may

be used to analyze municipal land-use context substantive

Due Process cases.

First, the Majority’s reliance on Lewis is misguided.

Lewis was a high speed police chase case where the

resulting injury was death. That scenario is extremely far

afield from the factual setting we have here. The Lewis

Court was not presented with a choice between "improper

motive" or "shocks the conscience" in the unique arena of

Fourteenth Amendment-protected property rights as they

relate to local land use decisions. Rather, the Supreme

Court reviewed the case for a carefully delineated reason

and described the issue for review narrowly. More

specifically, the Court "granted certiorari . . . to resolve a

conflict among the Circuits over the standard of culpability

on the part of a law enforcement officer for violating

substantive due process in a pursuit case." Lewis, 523 U.S.

at 839; see also id. at 836 ("The issue in this case is

whether a police officer violates the Fourteenth

Amendment’s guarantee of substantive due process by

causing death through deliberate or reckless indifference to

21

life in a high-speed automobile chase aimed at

apprehending a suspected offender."). Although finding that

the "shocks the conscience" standard is "not inappropriate

to an excessive force claim in the context of a prison

disturbance," we acknowledged in Fuentes v. Wagner, 206

F.3d 335 (3d Cir. 2000), cert. denied, 531 U.S. 821 (2000),

that "our recent decisions suggest that the [‘shocks the

conscience’] standard may only apply to police pursuit

cases," id. at 348 (citations omitted).

Second, the Majority opinion gives far too little weight to

the fact that this Circuit has a well-established

jurisprudence employing the improper motive test in the

substantive Due Process land-use context. The cases are

legion. See Bello v. Walker, 840 F.2d 1124 (3d Cir. 1988)

(seminal case); DeBlasio v. Zoning Board of Adjustment, 53

F.3d 592 (3d Cir. 1995); Blanche Road Corp. v. Bensalem

Township, 57 F.3d 253 (3d Cir. 1995); Sameric Corp. Del.,

Inc. v. City of Philadelphia, 142 F.3d 582 (3d Cir. 1998);

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

Cir. 2000); Herr v. Pequea Township, 274 F.3d 109 (3d Cir.

2001); see also Parkway Garage, Inc. v. City of Philadelphia,

5 F.3d 685 (3d Cir. 1993). Moreover, and perhaps most

importantly, this Court has continued to apply and cite to

the "improper motive" test even after the decision in Lewis

was handed down. See Doby v. DeCrescenzo, 171 F.3d 858

(3d Cir. 1999); Woodwind, 205 F.3d 118; Nicholas v.

Pennsylvania State University, 227 F.3d 133 (3d Cir. 2000);

Khodara Envtl., Inc. v. Beckman, 237 F.3d 186 (3d Cir.

2001); Omnipoint Communications Enters., L.P. v. Zoning

Hearing Bd., 248 F.3d 101 (3d Cir. 2001); Herr, 274 F.3d

109.

Unlike the Majority, I am fully comfortable assuming that

this Court in Woodwind and Nicholas (as in any other case

it decides) was completely aware of the content of all

published Supreme Court case law that may bear on the

case at hand, especially in such a fundamental area as Due

Process. Had the Woodwind or Nicholas Courts felt that

Lewis precluded the use of the improper motive standard of

constitutionally tortious conduct, they surely would have

expressed that point. They did not do so. The Majority relies

on the fact that the Woodwind Court never mentioned

22

Lewis. True enough. But the Majority overlooks the fact

that other Third Circuit cases do mention Lewis. In fact,

when Judge Alito’s opinion in Nicholas is read, it answers

the question addressed by him today, with the opposite

result. The Nicholas Court, citing approvingly to Bello and

Woodwind, affirmatively states that "improper motive" is an

appropriate substantive Due Process test. It references

Lewis in saying that "shocks the conscience" is also an

appropriate test. As United Artists points out, the standard

is clearly stated in the disjunctive:

[W]e have held that a property interest that falls within

the ambit of substantive due process may not be taken

away by the state for reasons that are "arbitrary,

irrational, or tainted by improper motive," Woodwind

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

2000) (quoting Bello v. Walker, 840 F.2d 1124, 1129

(3d Cir. 1988)), or by means of government conduct so

egregious that it "shocks the conscience," Boyanowski

[v. Capital Area Intermediate Unit, 215 F.3d 396 (3d

Cir. 2000)] (quoting County of Sacramento v. Lewis,

523 U.S. 833, 846, 140 L. Ed. 2d 1043, 118 S. Ct.

1708 (1998)).

Nicholas, 227 F.3d at 139 (emphasis added).

Judge Alito’s explanation of post-Lewis Third Circuit

jurisprudence in Nicholas was not an isolated summary of

the extant law. One year later, in Khodara, he cited

authoritatively to his opinion in Nicholas for the proposition

that a substantive Due Process claim is made out with

"improper motive." The Khodara Court was certainly aware

of the existence of Lewis because, like the Nicholas Court,

it actually cites Lewis in the same paragraph where it

recognizes "improper motive" as a valid Due Process

standard. See Khodara, 237 F.3d at 197.

Whether or not our post-Lewis statements are dicta need

not detain us. These are affirmations by our Court stating

or alluding to the law being that it is a violation of

substantive due process for public officials to act

intentionally with an improper motive.

Third, tossing every substantive Due Process egg into the

nebulous and highly subjective "shocks the conscious"

23

basket is unwise.4 It leaves the door ajar for intentional and

flagrant abuses of authority by those who hold the sacred

trust of local public office to go unchecked. "Shocks the

conscience" is a useful standard in high speed police

misconduct cases which tend to stir our emotions and yield

immediate reaction. But it is less appropriate, and does not

translate well, to the more mundane world of local land use

decisions, where lifeless property interests (as opposed to

bodily invasions) are involved.5 In this regard, it appears

rather difficult to analogize the intentional and illegal denial

of a building permit to the forced pumping of the human

stomach, the infamous fact pattern that begat "shocks the

conscience" as a term of constitutional significance. See

Rochin v. California, 342 U.S. 165, 172-73 (1952). It is the

jurisprudential equivalent of a square peg in a round hole.

Yet, under the Majority opinion, it is with this awkward

analogy that our district courts will now struggle. The

confusion and potential for disparate results across the

districts will haunt us for years to come. It is our manifest

responsibility as an appellate tribunal to prevent that

quagmire by providing a clear standard for the bench and

bar. Our "improper motive" line of land use cases serves

that purpose and, even after Lewis, this Court has not

impugned its vitality. I see no legitimate reason to abandon

it now.

I agree with the Majority that land use decisions are

generally issues of "local concern." But those very same

decisions necessarily assume constitutional dimension

when the calculated, intentional and deliberate abuse of

government power is at hand. See Lewis, 523 U.S. at 846

("the Due Process Clause was intended to prevent

_________________________________________________________________

4. Not long ago, this Court, sitting en banc , described the shocks the

conscience test as "amorphous" and "imprecise." Fagan v. City of

Vineland, 22 F.3d 1296, 1308 (3d Cir. 1994) (en banc). The improper

motive test, however, has been applied numerous times in this Circuit,

appears to work well, and the Supreme Court has never indicated that

such a standard is inappropriate in the land use context.

5. I have never seen a movie or television show devoted to the workaday

world of zoning and planning. Visual entertainment based on high speed

police pursuit, and the riveting events of criminal law and procedure,

however, is commonplace.

24

government officials from abusing [their] power . . . .")

(citations omitted); Id. at 848-49 (intentional conduct by

government official falls at the polar end of Tort law’s

"culpability spectrum" in substantive Due Process cases);

Daniels v. Williams, 474 U.S. 327, 331 (1986) ("Historically,

[the] guarantee of due process has been applied to

deliberate decisions of government officials to deprive a

person of life, liberty or property") (emphasis in original)

(citations omitted); Wolff v. McDonnell, 418 U.S. 539, 558

(1974) ("The touchstone of due process is protection of the

individual against arbitrary action of government")

(citations omitted). The concern that the federal Judiciary

will become a local zoning board takes a permanent back

seat to the federal Judiciary’s obligation to protect the core

constitutional freedoms of the American public from

deliberate and intentional governmental deprivation.

In sum, I would hold fast to the scheme that is already

firmly entrenched in this Circuit: In land use constitutional

tort cases, the government’s conduct may be judged under

an "improper motive" framework. The evisceration of this

standard by the Majority today is a most unfortunate step

backwards in the evolution of S 1983 as the legislative

guardian of bedrock constitutional rights. I am deeply

concerned that there will be consequences.

III.

Even if "shocks the conscience" is the language we must

employ to the exclusion of any other (which it is not), the

alleged behavior in this case resolutely shocks the

conscience. Public officials, sworn to uphold the law,

deliberately extracted money, knowing that it was improper

for them to do so. In contemporary America, under

compelling norms of basic human decency, it would be

shocking that such officials improperly and illegally

obtained money in matters that come before them. There is

little if any distinction between the taking of money for the

purposes alleged in this case, and money taken to line the

officials’ individual pockets. For all of the foregoing reasons,

I must dissent.

25

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

26