Martin Scahill & HRH Servs. LLC v. Dist. of Columbia

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 20, 2018 Decided December 7, 2018

No. 17-7151

MARTIN SCAHILL AND HRH SERVICES LLC,

APPELLANTS

v.

DISTRICT OF COLUMBIA, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:16-cv-02076)

Brendan J. Klaproth argued the cause and filed the briefs

for appellants.

Richard S. Love, Senior Assistant Attorney General,

Office of the Attorney General for the District of Columbia,

argued the cause for appellees. With him on the brief were

Karl A. Racine, Attorney General, and Loren L. AliKhan,

Solicitor General. Caroline S. Van Zile, Deputy Solicitor

General, entered an appearance.

Before: GARLAND, Chief Judge, and ROGERS and

GRIFFITH, Circuit Judges.

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Opinion for the Court filed by Circuit Judge ROGERS.

ROGERS, Circuit Judge: This appeal arises from

conditions placed by the D.C. Alcoholic Beverage Control

Board on the liquor license of the Alibi restaurant. The court

must decide whether the curable defect exception to issue

preclusion allows a plaintiff to establish standing under Article

III of the Constitution based on events that arose after the initial

complaint was filed, and whether the license conditions violate

appellants’ First and Fifth Amendment rights. The district

court had ruled the original complaint controlled its jurisdiction

as to most of HRH Services, LLC’s constitutional claims. On

the merits, it ruled that HRH’s retaliation allegations and

Scahill’s nearly identical constitutional allegations failed to

state a claim.

Guided by Supreme Court instruction and precedent from

our sister circuits, we hold that HRH properly invoked the

curable defect doctrine and that the district court was wrong to

reject HRH’s proposed second amended complaint that would

have cured the standing defect. We deny on the merits HRH’s

claims that were dismissed for lack of standing, and

consequently HRH’s unconstitutional conditions claim fails as

well. HRH’s compelled speech claim is foreclosed by Full

Value Advisors, LLC v. SEC, 633 F.3d 1101, 1109 (D.C. Cir.

2011), which held that required notification of the government

does not constitute compelled speech. HRH’s commercial

association claim is foreclosed by Roberts v. U.S. Jaycees, 468

U.S. 609, 620 (1984), and City of Dallas v. Stanglin, 490 U.S.

19, 25 (1989).

We affirm the dismissal of HRH’s First Amendment

retaliation claim because even assuming the facts alleged in the

complaint are true, the record shows that retaliation was “not a

plausible conclusion,” Ashcroft v. Iqbal, 556 U.S. 662, 682

3

(2009). We also affirm the dismissal of Scahill’s claims. His

commercial association claim fails for the same reasons as

HRH’s; his freedom of movement claim fails under the court’s

precedent; and his procedural due process claim fails to

identify a cognizable liberty or property interest.

I.

In January 2015, HRH Services, LLC, d/b/a The Alibi

(“HRH”) applied to the D.C. Alcoholic Beverage Control

Board for a license to serve alcoholic beverages at the Alibi

restaurant. Rachel Traverso and her father Richard Traverso

were identified as co-owners of HRH, but the Board was

concerned about the possible involvement of Martin Scahill,

who had been part owner of the previous restaurant at that

location, which was fined by the Board for allowing underage

drinking. Scahill had originally applied with two others for a

liquor license at the same location before withdrawing the

application when the Board raised issues regarding his

qualifications. He also had been working at the Alibi

restaurant. The Board “required HRH to demonstrate that it

was not engaging in subterfuge to allow Mr. Scahill to obtain a

license without the legally required review of his qualifications

for licensure.” ABC Board Order at 3 (May 18, 2016) (“2016

Board Order”). At a hearing on HRH’s application, HRH

informed the Board it had served a barring notice on Scahill

that he could not be on the premises and stated it would accept

other license conditions as the Board deemed necessary. See

id. ¶ 90.

On May 18, 2016, the Board granted HRH a liquor license

with conditions. The conditions required HRH to “maintain a

barring notice against Martin Scahill to prohibit him from

entering or accessing the licensed premises for a period of five

years” and to notify the Metropolitan Police Department

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(“MPD”) of any violations. The conditions also prohibited

HRH from “directly or indirectly transfer[ing] or attempt[ing]

to transfer ownership” of the business to Scahill, providing him

“access or control over any financial accounts maintained by

the business,” and “employ[ing] [him] as a manager, employee,

independent contractor, or volunteer” at the restaurant. 2016

Board Order at 36-37. The Board denied HRH’s motion for

reconsideration.

Scahill and HRH thereafter unsuccessfully attempted to

have the license conditions set aside on statutory grounds. The

D.C. Court of Appeals dismissed HRH’s petition for review

under the D.C. Administrative Procedure Act (“DCAPA”) for

lack of standing because of its lack of aggrievement. HRH

Servs., LLC v. D.C. Alcoholic Beverage Control Bd., No. 16-

AA-758, Order at 1 (D.C. Oct. 13, 2016). The court rejected

on the merits Scahill’s claims under the DCAPA that the

imposition of the license conditions exceeded the Board’s

authority and was unsupported by the evidence and arbitrary

and capricious, holding the Board acted within its discretion.

Scahill v. D.C. Alcoholic Beverage Control Bd., No. 16-AA-

775, Mem. Op. and J. at 5-7 (D.C. Feb. 8, 2018).

Scahill and HRH also seek to have the license conditions

set aside on constitutional grounds. After filing a complaint in

the U.S. district court on October 18, 2016, Scahill filed an

amended complaint on December 28, 2016, adding HRH as a

plaintiff and arguing that the license conditions violated their

First and Fifth Amendment rights. The district court granted

the government’s motion to dismiss the amended complaint for

lack of standing and failure to state a claim. Scahill v. District

of Columbia, 271 F. Supp. 3d 216 (D.D.C. 2017); see FED. R.

CIV. P. 12(b)(6). Except as to HRH’s First Amendment

retaliation claim based on appellants’ legal challenges to the

license conditions, the district court ruled that issue preclusion

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prevented HRH from re-litigating its standing in view of the

D.C. Court of Appeals’ determination that it was not aggrieved

by the Board’s license order. On the merits, the district court

ruled that Scahill and HRH had failed to allege sufficient facts

to support the remainder of their claims.

HRH moved on October 16, 2017, for reconsideration and

for leave to file a second amended complaint. Paragraph 60 of

the proposed complaint alleged that in retaliation for exercise

of HRH’s First Amendment rights, the Board, by order of July

19, 2017, “took adverse action against HRH Services by

issuing a $4,000.00 fine, the maximum allowable penalty, to

HRH [S]ervices for the alleged violation[s] of the Liquor

License conditions.” The Board found that HRH had allowed

Scahill to be on the premises of the Alibi restaurant on two

occasions and each time failed to notify the MPD about his

presence. Although agreeing that HRH had shown an injury-

in-fact as a result of the $4,000 fine, the district court ruled that

the fine did not trigger the curable defect exception to issue

preclusion because the fine was imposed nine months after the

original complaint was filed and thus was too late to confer

standing. Scahill v. District of Columbia, 286 F. Supp. 3d 12,

18 (D.D.C. 2017). The district court also denied the motion for

leave to file as futile, stating the proposed second amended

complaint would not change its view of the inadequacy of

HRH’s retaliation claim. Id. at 20-24.

II.

On appeal, Scahill and HRH contend that the district court

erred in ruling that HRH lacked standing under Article III of

the Constitution on the basis of issue preclusion because the

court should have applied the curable defect exception in view

of the Board’s imposition of the fines and granted its motion

for leave to file the amended complaint. On the merits, they

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contend that the district court erred in ruling that their well-

pleaded claims failed to show violations of their rights under

the First and Fifth Amendments of the Constitution. Our

review of the dismissal of the complaint for failure to state a

claim is de novo. Sparrow v. United Air Lines, Inc., 216 F.3d

1111, 1113 (D.C. Cir. 2000). So too is our review of the denial

of leave to amend the complaint based “on grounds of futility

where the proposed pleading would not survive a motion to

dismiss,” In re Interbank Funding Corp. Sec. Litig., 629 F.3d

213, 215-18 (D.C. Cir. 2010) (internal quotation marks and

citation omitted).

Issue preclusion occurs when (1) the same issue was

“contested by the parties and submitted for judicial

determination in [a] prior case,” (2) the issue was “actually and

necessarily determined by a court of competent jurisdiction in

that prior case,” and (3) preclusion does not result in “basic

unfairness to the party bound by the first determination.”

Yamaha Corp. of Am. v. United States, 961 F.2d 245, 254 (D.C.

Cir. 1992). The district court correctly found all conditions

were met with respect to HRH’s standing to bring a challenge

to the Board’s license order, in view of the decision of the D.C.

Court of Appeals dismissing HRH’s petition for review upon

concluding it was not aggrieved by the Board’s conditions.

First, the issue of HRH’s standing was “contested” and

“submitted for judicial determination,” id. The D.C. Court of

Appeals issued an order to show cause why HRH’s petition

should not be dismissed for lack of standing because HRH did

not appear to be aggrieved by the Board’s conditions, and HRH

filed a response. Appellants maintain that standing under the

DCAPA is different from Article III standing because in

addition to showing injury-in-fact, the interest sought to be

protected must be arguably within the zone of interests

protected by the DCAPA, and no clear legislative intent must

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withhold judicial review. HRH acknowledges that both require

an injury-in-fact, which is the aspect relevant here, for

aggrievement under the DCAPA requires the same concrete

and particularized injury as Article III standing. D.C. Code

§ 2–510(a); see Mallof v. D.C. Bd. of Elections & Ethics, 1

A.3d 383, 394 (D.C. 2010); York Apartments Tenants Ass’n v.

D.C. Zoning Comm’n, 856 A.2d 1079, 1085 (D.C. 2004); Dist.

Intown Props., Ltd. v. D.C. Dep’t of Consumer & Regulatory

Affairs, 680 A.2d 1373, 1377 (D.C. 1996). HRH objects that

the D.C. Court of Appeals order dismissing its petition did not

set forth the grounds for its holding but HRH ignores the order

to show cause. Second, the issue was “actually and necessarily

determined by a court of competent jurisdiction,” Yamaha, 961

F.2d at 254, because the D.C. Court of Appeals dismissed

HRH’s petition for lack of standing in view of its non-

aggrievement, and that court has jurisdiction over petitions

regarding D.C. agency orders, see D.C. Code § 2–510(a).

Third, applying issue preclusion involves no basic unfairness

to HRH because the order to show cause put HRH on notice

and HRH had the same incentives to litigate this standing issue

before the D.C. Court of Appeals where it was challenging the

same license conditions.

The curable defect exception to issue preclusion allows

relitigation of jurisdictional dismissals when a material

occurrence subsequent to the original dismissal remedies the

original deficiency. Nat’l Ass’n of Home Builders v. EPA, 786

F.3d 34, 41 (D.C. Cir. 2015); see Dozier v. Ford Motor Co.,

702 F.2d 1189, 1192 (D.C. Cir. 1983). Neither the Supreme

Court nor this court has decided whether the lack of Article III

standing at the outset of litigation is determinative of the

court’s jurisdiction because events occurring subsequent to the

filing of the original complaint cannot cure that deficiency.

The district court relied on Davis v. Fed. Election Comm’n, 554

U.S. 724, 734 (2008), for the proposition that “[t]he standing

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inquiry is ‘focused on whether the party invoking jurisdiction

had the requisite stake in the outcome when the suit was filed.’”

Scahill, 286 F. Supp. 3d at 19 (quoting Davis, 554 U.S. at 734).

There, Jack Davis, a candidate for a seat in the U.S. House of

Representatives, challenged the asymmetrical campaign

contribution limits under Section 319(a) of the Bipartisan

Campaign Reform Act of 2002, 2 U.S.C. § 441a–1(a), as

violative of his First Amendment rights, because the provision

allowed his opponent to be subject to higher campaign

contribution limits in view of Davis’s expenditure of his

personal funds. Davis, 554 U.S. at 729-31. Rejecting the

Federal Election Commission’s view that Davis could not show

the requisite injury because his opponent had yet to qualify for

the higher limits at the outset of the litigation and ultimately

chose not to take advantage of them, see id. at 734, the Supreme

Court held that Davis faced the requisite Article III injury when

he declared his intent to spend his personal funds and there was

no suggestion that his opponent would forgo the Section 319(a)

advantage. Id. Davis, then, held that Article III injury is

satisfied at the outset of the litigation even if the anticipated

injury fails to come to fruition, but does not address whether

subsequent events can provide standing that was lacking at the

outset.

More instructive is the Supreme Court’s precedent where

jurisdiction was determined by looking beyond the original

complaint. In Mathews v. Diaz, 426 U.S. 67, 75 (1976), a

Medicare applicant did not file his Part B application until after

he was joined as a plaintiff in an amended complaint. Although

42 U.S.C. § 405(g) made filing an application a “nonwaivable

condition of jurisdiction,” the Supreme Court held that

condition was met. The Court stated it had “little difficulty” in

holding that the district court had jurisdiction over the

plaintiff’s constitutional claim. Id. Citing Federal Rule of

Civil Procedure 15(d), the Court stated that “[a] supplemental

9

complaint in the District Court would have eliminated this

jurisdictional issue.” Id. Likewise, in Rockwell International

Corp. v. United States, 549 U.S. 457, 460 (2007), the Court

made clear that the original complaint was not dispositive of

jurisdiction. There, the Court stated that “when a plaintiff files

a complaint in federal court and then voluntarily amends the

complaint, courts look to the amended complaint to determine

jurisdiction.” Id. at 473-74 (citations omitted). In determining

jurisdiction, the Court looked to the final pretrial order, which

“superseded all prior pleadings and ‘controll[ed] the

subsequent course of the action,’ Fed. Rule Civ. Proc. 16(c).”

Id. at 474. The Court observed that it did not matter that the

pleadings were not formally amended. Id. (citing FED. R. CIV.

P. 15(b) and 16; other citations omitted).

A number of the circuit courts of appeal have addressed

whether events subsequent to the filing of the original

complaint can cure a jurisdictional defect. Some courts have

held that a plaintiff may cure a standing defect through a

supplemental pleading alleging facts that arose after the

original complaint was filed. See Northstar Fin. Advisors Inc.

v. Schwab Investments, 779 F.3d 1036, 1044 (9th Cir. 2015);

United States ex rel. Gadbois v. PharMerica Corp., 809 F.3d

1, 6 (1st Cir. 2015); Daniels v. Arcade, L.P., 477 F. App’x 125,

131 (4th Cir. 2012); Prasco, LLC v. Medicis Pharm. Corp., 537

F.3d 1329, 1337 (Fed. Cir. 2008); Travelers Ins. Co. v. 633

Third Assocs., 973 F.2d 82, 87-88 (2d Cir. 1992). Other courts

have affirmed the dismissal of the original complaint for lack

of jurisdiction even if subsequent events cured the standing

deficiency, so that the plaintiff would have to file a new lawsuit

to pursue the claims. See S. Utah Wilderness All. v. Palma, 707

F.3d 1143, 1153 (10th Cir. 2013); Pollack v. U.S. Dep’t of

Justice, 577 F.3d 736, 743 (7th Cir. 2009); Park v. Forest Serv.

of U.S., 205 F.3d 1034, 1037-38 (8th Cir. 2000).

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The circuit courts of appeal adopting the former approach

have relied on the supplemental pleadings provision of Federal

Rule of Civil Procedure 15(d), which provides such pleading

may “set[] out any transaction, occurrence, or event that

happened after the date of the pleading to be supplemented,”

FED. R. CIV. P. 15(d).1 The Advisory Committee has explained

that Rule 15(d) was amended in order to place broad discretion

in the district court in order to avoid “needlessly remitt[ing]

[plaintiffs] to the difficulties of commencing a new action even

though events occurring after the commencement of the

original action have made clear the right to relief.” Id.,

advisory committee notes to 1963 amendment. Tracking this

approach, the Ninth Circuit in Northstar Financial Advisors

Inc., 779 F.3d at 1042, affirmed the district court’s decision to

allow Northstar to file an amended complaint as a supplemental

pleading pursuant to Rule 15(d), id. at 1043-44, where it had

filed a shareholder class action lawsuit against an investment

trust before obtaining an assignment of claims allowing suit on

the shareholders’ behalf, id. at 1043. Permitting subsequent

pleadings to correct jurisdictional defects “circumvents the

needless formality and expense of instituting a new action

when events occurring after the original filing indicated a right

to relief.” Id. at 1044 (internal quotation marks and citation

omitted). Although Rule 15(d) refers to deficiencies “in stating

a claim or defense,” FED. R. CIV. P. 15(d), the court concluded

1

Federal Rule of Civil Procedure 15(d) provides:

On motion and reasonable notice, the court may, on just

terms, permit a party to serve a supplemental pleading

setting out any transaction, occurrence, or event that

happened after the date of the pleading to be supplemented.

The court may permit supplementation even though the

original pleading is defective in stating a claim or defense.

The court may order that the opposing party plead to the

supplemental pleading within a specified time.

11

there was no reason why a jurisdictional defect should be

different, relying in part on the Supreme Court’s discussion of

amended pleadings in Matthews v. Diaz and Rockwell

International Corp. v. United States. See Northstar, 779 F.3d

at 1044.

The government acknowledges the open jurisdictional

question in this court and the Supreme Court and the circuit

split. Citing the Tenth Circuit’s 2013 decision as “significant

authority contrary to plaintiffs’ position,” Appellee’s Br. at 22,

the government offers no analysis of which approach this court

should adopt. Instead the government maintains that even

assuming that there is merit to the Northstar approach,

appellants cannot prevail because their proposed second

amended complaint had not been accepted for filing when the

district court considered HRH’s standing in view of the

Board’s imposition of the $4,000 fine. This approach harkens

back to the type of technical obstacle that the Supreme Court

rejected in Rockwell International Corp., 549 U.S. at 474, and

that the amendment to Rule 15(d) was designed to avoid.

Appellants simultaneously filed their motions for

reconsideration and for leave to file a second amended

complaint, and the district court considered the motions

together. See Scahill, 286 F. Supp. 3d at 15. The government

offers no reason why Rule 15(d)’s reference to “claim or

defense” would weigh in favor of a different interpretation. See

Northstar, 779 F.3d at 1044. To the extent the government

suggests this court’s review of the denial of appellants’ motion

for leave to file the second amended complaint is for abuse of

discretion only, maintaining there can be no such abuse when

the law is unsettled, it overlooks In re Interbank Funding Corp.

Securities Litigation, 629 F.3d at 215-18, which holds review

is de novo when the denial is based on futility.

12

Therefore, we hold that a plaintiff may cure a standing

defect under Article III through an amended pleading alleging

facts that arose after filing the original complaint. The

alternative approach forces a plaintiff to go through the

unnecessary hassle and expense of filing a new lawsuit when

events subsequent to filing the original complaint have fixed

the jurisdictional problem. The “reasonable notice” and “just

terms” limitations in Rule 15(d) guard against undue expansion

of a provision designed to eliminate “needless[] remitt[ing]” of

a plaintiff. FED. R. CIV. P. 15 advisory committee notes to 1963

amendment. Because the district court found that HRH

suffered an injury-in-fact as a result of the imposition of the

$4,000 fine nine months after HRH filed its original complaint

in federal court, HRH properly invoked the curable defect

exception to issue preclusion. The district court, consequently,

was wrong to reject HRH’s proposed second amended

complaint that included allegations about the Board’s

enforcement action that would have cured the standing defect.

We turn, therefore, to the merits.

III.

HRH contends that the license conditions violate its First

Amendment rights against compelled speech and its right of

commercial association. Absent a finding that HRH has such

constitutional rights, appellants’ counsel conceded, Oral Arg.

Tape 9:50-10:19 (Sept. 20, 2018), that HRH cannot prevail on

its claim that the license conditions are unconstitutional

conditions.

HRH’s compelled speech claim is based on the license

conditions requiring HRH to report any violation of the barring

notice to the MPD and the Board. This claim is foreclosed by

Full Value Advisors, 633 F.3d at 1108-09. There, the court

held that requiring notification of the government does not

13

constitute compelled speech because First Amendment

concerns are not implicated where the government requires

disclosures for its operations, such as requiring individuals to

provide information about their income in tax returns. Id.

Similarly, here, the District of Columbia government has an

interest in restricting the ability to sell alcohol to applicants

who are “of good character and generally fit for the

responsibilities of licensure,” D.C. Code § 25–301(a)(1), and

an interest in promoting public safety, see Marusa v. District

of Columbia, 484 F.2d 828, 834 (D.C. Cir. 1973). HRH thus

fails to state a claim that the license conditions compel its

speech in violation of its First Amendment rights.

HRH’s commercial association claim is foreclosed by U.S.

Jaycees, 468 U.S. at 620, and Stanglin, 490 U.S. at 25. The

Supreme Court has recognized the right to intimate association

and expressive association, U.S. Jaycees, 468 U.S. at 617-18,

but no general right of social association, Stanglin, 490 U.S. at

25. As a result, prohibiting HRH from employing or hosting

Scahill on the Alibi restaurant premises does not violate a

cognizable associational right. Because no constitutional

rights of HRH were violated, HRH’s unconstitutional

conditions claim also fails.

HRH’s retaliation claim is unavailing. In the proposed

second amended complaint, HRH alleges that the Board’s

enforcement action resulting in the fines was in retaliation for

HRH’s and Scahill’s efforts to overturn the license conditions

by filing a motion for reconsideration by the Board, petitioning

the D.C. Court of Appeals, and filing a complaint in federal

court. Even assuming the truth of the allegations in the

complaint, the district court did not err in concluding retaliation

was “not a plausible conclusion.” Iqbal, 556 U.S. at 682.

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To establish a First Amendment retaliation claim, HRH

must show (1) “that [it] engaged in protected conduct,” (2)

“that the government took some retaliatory action sufficient to

deter a person of ordinary firmness in plaintiff’s position from

speaking again,” and (3) “that there exists a causal link between

the exercise of a constitutional right and the adverse action

taken against him.” Doe v. District of Columbia, 796 F.3d 96,

106 (D.C. Cir. 2015) (internal quotation marks and citation

omitted). To establish the causal link, the constitutional speech

must be the but-for cause of the retaliatory action. Id. at 107.

HRH did not plausibly allege the requisite causation.

Although it maintains that investigators appeared at the Alibi

restaurant in retaliation for appellants’ legal challenges, the

Board relied on testimony that D.C. investigators visited the

Alibi restaurant on two occasions in response to complaints

that Scahill was seen at the restaurant. See ABC Board Order

¶¶ 12, 19 (July 19, 2017) (“2017 Board Order”). The proposed

second amended complaint alleges that the Board unreasonably

fined HRH even though one of the two investigators, Ms.

Cullings, “testified under oath that she never identified Mr.

Scahill as being present at the Alibi on June 10, 2016.”

Proposed Second Am. Compl. ¶ 63. The Board could properly

rely on testimony from the other investigator, Mr. Brashears,

who was familiar with Scahill and identified him talking to

Rachel Traverso and working at the restaurant; Ms. Cullings

testified that she had no reason to doubt this. Appellants also

object to the district court’s adoption of the Board’s factual

findings, but HRH attached the 2017 Board Order to its motion

for leave to amend the complaint and the district court need not

“accept as true the complaint’s factual allegations insofar as

they contradict exhibits to the complaint or matters subject to

judicial notice,” Kaempe v. Myers, 367 F.3d 958, 963 (D.C.

Cir. 2004).

15

Scahill’s commercial association claim fails for the same

reasons as HRH’s fails. His Fifth Amendment claims fail as

well. Appellants contend Scahill adequately pleaded a

substantive due process claim based on his right to travel. But,

as the district court ruled, neither the Supreme Court nor this

court has recognized a general right to intrastate travel. See

Hutchins v. District of Columbia, 188 F.3d 531, 537-38 (D.C.

Cir. 1999). In these circumstances, Scahill has no substantive

right to be in a particular place at a particular time, namely to

be at the Alibi restaurant. Scahill’s procedural due process

claim that the license conditions prevent him from being able

to enter and eat at the Alibi restaurant and from pursuing his

chosen profession without due process likewise fails because

he did not identify a cognizable liberty or property interest.

Appellants point to no authority that a cognizable liberty

interest is implicated by the ban from one commercial

establishment. Nor is Scahill thereby deprived of his “right to

follow a chosen trade or profession without governmental

interference,” O’Donnell v. Barry, 148 F.3d 1126, 1141 (D.C.

Cir. 1998) (internal quotation marks and citation omitted),

merely because he cannot work at one particular establishment

in the District of Columbia. To the extent that Scahill asserts a

property right on the basis of his status as a guarantor on the

Alibi lease, such a property interest must “stem from an

independent source such as state law,” Bd. of Regents of State

Colleges v. Roth, 408 U.S. 564, 577 (1972), and Scahill has not

identified any state law or term of the lease agreement that

gives him a property interest as result of his status as a

guarantor.

Accordingly, we affirm the September 25, 2017 dismissal

of Scahill’s claims and HRH’s First Amendment retaliation

claim; we reverse the December 11, 2017 denial of HRH’s

motions for reconsideration and for leave to file the second

16

amended complaint; and we affirm the dismissal of HRH’s

remaining claims.