there was no property interest in plaintiffs’ application to appear pro hac vice because under Ohio law, the trial court has considerable discretion to approve or deny such an application
How later courts described this case
- there was no property interest in plaintiffs’ application to appear pro hac vice because under Ohio law, the trial court has considerable discretion to approve or deny such an application
- holding no due process violation when plaintiff had a hearing in state court concerning his petition for mandamus
Written by the judges who cited it.
The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT COURT OF APPEALS
U.S.
________________________ ELEVENTH CIRCUIT
April 19, 2005
No. 04-10823 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 02-02905CV-ODE-1
A.A.A. ALWAYS OPEN BAIL BONDS, INC.,
d.b.a. Always Open Bail Bonds,
CRAIG L. LADNER,
Plaintiffs-Appellees,
Cross-Appellants,
versus
DEKALB COUNTY, GEORGIA,
a political subdivision of the State of Georgia,
THOMAS E. BROWN, individually, and in
his capacity as Sheriff of DeKalb County, Georgia,
Defendants-Appellants,
Cross-Appellees.
________________________
Appeals from the United States District Court
for the Northern District of Georgia
_________________________
(April 19, 2005)
Before BLACK, WILSON and STAPLETON*, Circuit Judges.
PER CURIAM:
Because we write only for the parties who are familiar with the facts, we do
not restate them below. On January 20, 2004, the United States District Court for
the Northern District of Georgia issued an order dismissing without prejudice all
of A.A.A.’s constitutional claims as not ripe,1 except for its claim of a procedural
due process violation. The Court held that A.A.A. had a constitutionally protected
property interest in its application for a certificate of authority sufficient to allege a
procedural due process claim, and denied Sheriff Brown qualified immunity with
regard to that claim. As a result, the Court granted in part A.A.A.’s motion for
injunctive relief and ordered Sheriff Brown to render a decision on A.A.A.’s
application within 45 days.
DeKalb County and Sheriff Brown appeal the denial of their motion for
summary judgment based on qualified immunity as well as the grant of
preliminary injunctive relief. A.A.A. cross appeals from the dismissal of its other
claims. For the reasons set forth below, we reverse and remand.
*
Honorable Walter K. Stapleton, United States Circuit Judge for the Third Circuit, sitting
by designation.
1
The Court also dismissed with prejudice a claim for intentional infliction of economic
harm; this claim is not before us on appeal.
2
I. The Procedural Due Process Claim
We turn first to Appellants’ procedural due process claim.
To establish a violation of procedural due process, a party must show that it
has been deprived of a constitutionally protected property interest; through state
action; and the procedure for doing so was constitutionally inadequate. Foxy
Lady, Inc. v. City of Atlanta, Georgia, 347 F.3d 1232, 1236 (11th Cir. 2003).
Appellants contend that the District Court improperly found a constitutionally
protected property right in A.A.A.’s application for a certificate of authority to
operate a bail bonding company. We agree.
We first note that in order to establish a constitutionally protected property
interest, a person must have more than a “unilateral expectation of it;” instead, one
must have a “legitimate claim of entitlement to it.” Board of Regents v. Roth, 408
U.S. 564, 577 (1972). The U.S. Supreme Court has recognized that property
interests inure to already-acquired benefits. In Bell v. Burson, 402 U.S. 535, 539
(1971), the Court held that “once licenses are issued ... their continued possession
may become essential in the pursuit of a livelihood. Suspension of issued licenses
thus involves state action that adjudicates important interests of the licensees.”
However, when addressing a plaintiff who is merely an applicant for a
license or benefit, as here, the critical inquiry becomes whether the state statute
3
grants discretion to the decisionmaker who approves or denies the license.2 With
regard to determining who is an "acceptable surety" to write bonds in their
respective counties, Georgia sheriffs have a statutory mandate to exercise broad
discretion. The extensive discretion of sheriffs is plainly evident in Georgia
statutes:
(a) “Code section shall not be construed to require a
sheriff to accept a professional bonding company or
bondsperson as a surety.” O.C.G.A. § 17-6-15(b)(2);
(b) Sheriffs can create additional rules and regulations to
determine “under what conditions sureties may be accepted.”
O.C.G.A. § 17-6-15(b)(1);
(c) “If the sheriff determines that a professional bonding
company is an acceptable surety, the rules and regulations
shall require, but shall not be limited to, the following [list of
rules].” O.C.G.A. § 17-6-15(b)(1)(H); and
(d) A professional bondman “must” be approved by the
“sheriff in the county where the bonding business is
conducted.” O.C.G.A. § 17-6-50(b), (b)(4).
2
See, e.g., Baldwin v. Daniels, 250 F.3d 943 (5th Cir. 2001) (“Discretionary statutes do
not give rise to constitutionally protectable interests.”); Shaner v. United States, 976 F.2d 990,
994-95 (6th Cir. 1992) (no property interest in application for emergency loan from the Farmers
Home Administration (FmHa) because the FmHa had “broad discretion in determining whether
to approve an application”); New York State Nat’l Org. For Women v. Pataki, 261 F.3d 156, 164
(2d Cir. 2001) (“Where, as here, a purported property interest is contingent on the exercise of
executive discretion, no legitimate claim of entitlement exists.”); Neuwirth v. Louisiana State Bd.
of Dentistry, 845 F.2d 553 (5th Cir. 1988) (plaintiff did not have a property interest in receiving a
reciprocal license to practice dentistry in another state because the Dentistry Board has broad
discretion in granting such licenses); see also Leis v. Flynt, 99 S. Ct. 698 (1979) (there was no
property interest in plaintiffs’ application to appear pro hac vice because under Ohio law, the trial
court has considerable discretion to approve or deny such an application).
4
Under these statutes, the sheriff has discretion to decide whether a candidate is
acceptable, and the statute "shall not" require a sheriff to accept any specific
applicant. Therefore, even if an applicant met the minimum requirements for a
certificate of authority prescribed by statute, it cannot claim any entitlement to that
certificate because the statute expressly provides for the sheriff to exercise
discretion to decide, generally, how many, and specifically, to which, applicants
the sheriff will issue certificates. Because of this grant of discretion to the sheriff,
the Georgia Supreme Court has held that an applicant for authority to be a
professional bondsman does not have a constitutionally protected right. Harrison
v. Wiggington, 497 S.E.2d 568, 569 (Ga. 1998).
In sum, A.A.A.'s mere unilateral expectation that its application might be
accepted in the Sheriff’s discretion does not qualify as a constitutionally protected
property interest. Because A.A.A. cannot claim a protected property interest in an
unissued, discretionary certificate of authority, it therefore fails the first prong of
the Foxy Lady test and is unable to allege a procedural due process violation.3
The District Court’s reliance on Pryor Organization, Inc. v. Stewart, 554
S.E.2d 132 (Ga. 2001), is misplaced. Pryor is distinguishable because, in that
3
Because we so hold, there is no need to reach the question of Sheriff Brown’s qualified
immunity.
5
case, the company had an existing, already-acquired certificate of authority. The
lawsuit arose when a new sheriff informed the company that he would not permit
it to continue to write bonds in the county. Thus, to the extent that Pryor stands
for the proposition that the right to operate a bail bonding company is an interest
protected by the Georgia constitution, it applies only to the extent that such a right
already exists. Pryor does not speak to the mere expectation of the discretionary
conferring of that right. See Pryor, 554 S.E.2d at 487-88 (noting that the case was
about “the sheriff’s refusal to allow [the Pryor Organization] to continue to write
bonds” after having “engaged in the bail bonding business” via a license for a
number of years) (emphasis added).
We reach the same result with respect to the third prong of our procedural
due process analysis—i.e., whether there was a constitutionally inadequate
process. Foxy Lady, Inc. v. City of Atlanta, Ga., 347 F.3d 1232, 1236 (11th Cir.
2003).
Under the rule established in McKinney v. Pate, 20 F.3d 1550 (11th Cir.
1994) (en banc), “only when the state refuses to provide a process sufficient to
remedy the procedural deprivation does a constitutional violation actionable under
section 1983 arise.” Id. at 1557. We have explained:
[T]he McKinney rule looks to the existence of an opportunity—to
6
whether the state courts, if asked, generally would provide an
adequate remedy for the procedural deprivation the federal court
plaintiff claims to have suffered. If state courts would, then there is
no federal due process violation regardless of whether the plaintiff
has taken advantage of the state remedy or attempted to do so.
Horton v. Bd. of County Comm’rs of Flagler County, 202 F.3d 1297, 1300 (11th
Cir. 2000). Thus, if Georgia law provides an adequate means to remedy the
alleged procedural deprivation, A.A.A.’s § 1983 procedural due process claim
fails.
Regardless of whether or not A.A.A. has a constitutionally protected
property interest in its application for a certificate of authority, it had an adequate
state procedure, the writ of mandamus, to remedy any alleged procedural
deprivations. In applying Georgia law, we have previously held that the writ of
mandamus can be an adequate state remedy to ensure a party was not deprived of
its due process rights. Cotton v. Jackson, 216 F.3d 1328, 1333 (11th Cir. 2000);
see also Pryor, 554 S.E.2d at 136 (holding no due process violation when plaintiff
had a hearing in state court concerning his petition for mandamus).
“Under Georgia law, when no other specific legal remedy is available and a
party has a clear legal right to have a certain act performed, a party may seek
7
mandamus.”4 Cotton, 216 F.3d at 1332 (citing Ga. Code Ann. § 9-6-20).
Mandamus will not normally issue to compel the performance of a discretionary
act; however, mandamus is available when a public official has grossly abused his
or her discretion. Pryor, 554 S.E.2d at 134 (citation omitted). Georgia courts
have explained that the “legally flawed exercise of discretion is the same as refusal
to exercise any discretion, which is a manifest abuse of discretion.” Id. (quoting
Wilson v. State Farm Mut. Auto. Ins. Co., 520 S.E.2d 917, 920 (Ga. Ct. App.
1999)).
In this case, mandamus would have been available to A.A.A. because at the
time of the District court’s decision, Sheriff Thomas Brown had refused to
exercise any discretion in either approving or denying A.A.A.’s application for a
certificate of authority. As a result, A.A.A. could have filed a petition for
mandamus in state court, seeking to compel Sheriff Brown to exercise his
discretion and make a decision with regards to A.A.A.’s application. Moreover,
4
In recognizing mandamus to be an adequate remedy, we do not have to “express an
opinion on the availability of other remedies under Georgia law.” Cotton, 216 F.3d at 1332 n.3.
We have explained:
[E]ven if other state remedies are available to Plaintiff . . ., our ultimate
conclusion would not change. The availability of those remedies, if they are
adequate to protect Plaintiff’s right[s] . . ., would preclude a procedural due
process claim. And, if they are inadequate to protect Plaintiff’s right[s] . . ., then
mandamus would still be available to Plaintiff, and he would be precluded from
bringing a procedural due process claim.
Id.
8
the availability of mandamus as an adequate state remedy should have been
evident to A.A.A. because Pryor—the case upon which A.A.A. relies in asserting
it has a property interest—is a mandamus case. Pryor, 554 S.E.2d at 133–36.
Because the writ of mandamus represents an adequate and available state
remedy through which A.A.A.’s alleged procedural deprivations could have been
corrected, A.A.A. has failed to allege a procedural due process violation.
We reverse and remand to the District Court with instructions to enter
summary judgment in favor of Appellants on A.A.A.’s procedural due process
claim.
II. Ripeness
The District Court dismissed A.A.A.’s other claims as not ripe for judicial
decision, based upon the fact that Appellants had not yet issued a decision with
regard to A.A.A.’s application. As part of its January 20, 2004 order, the Court
directed Sheriff Brown to issue a decision on A.A.A.’s application within 45 days.
The Sheriff did so. At that time, A.A.A.’s counterclaims necessarily became ripe.
We therefore vacate the District Court’s order dismissing those claims and remand
so that they can be addressed by the District Court in the first instance.
III. Conclusion
We reverse the order entered by the District Court on January 20, 2004, and
9
remand for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
10