Timothy Anstine v. Jerome Adams

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 23-1406

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TIMOTHY MARK ANSTINE,

Appellant

v.

JEROME MICHAEL ADAMS, in his personal capacity;

RODNEY R. AKERS, in his personal capacity;

THERON R. PEREZ, in his personal capacity;

GREGORY G. SCHWAB, in his personal capacity;

JULIA A. SHERIDAN, in her personal capacity;

MATTHEW J. UPDEGROVE, in his personal capacity;

JANE DOE, in her personal capacity

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On Appeal from the United States District Court

For the Middle District of Pennsylvania

(District Court No. 1-20-cv-02160)

District Judge: Honorable Matthew W. Brann

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Submitted Pursuant to Third Circuit L.A.R. 34.1(a) on May 3, 2024

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Before: KRAUSE, CHUNG, and AMBRO, Circuit Judges

(Filed: May 6, 2024)

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OPINION*

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CHUNG, Circuit Judge.

Plaintiff Timothy Anstine was fired from his position as an attorney employed by

the Pennsylvania Department of Community and Economic Development (“DCED”).

Anstine sued several of his former supervisors (“Defendants”) under 42 U.S.C. § 1983.

He claimed that when Defendants suspended and fired him, they deprived him of

property interests without notice and a hearing in violation of the Due Process Clause of

the Fourteenth Amendment.1 Defendants moved for summary judgment, and the District

Court granted their motion. Anstine appealed.2 We will affirm because Anstine cannot

show that Defendants deprived him of a constitutionally protected property interest.

The Due Process Clause of the Fourteenth Amendment provides that a state can

deprive a person of “property” only when such person is afforded due process of the law.

U.S. Const. amend. XIV, § 1. The Due Process Clause does not create property interests,

*

This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does

not constitute binding precedent.

1

Anstine’s other federal claim and state-law claims have been fully addressed by

the District Court. On appeal, Anstine does not challenge the District Court’s rulings on

these claims.

2

The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1343. We have

jurisdiction under 28 U.S.C. § 1291. We conduct plenary review of the District Court’s

summary judgment ruling. See Barna v. Bd. of Sch. Dirs. of Panther Valley Sch. Dist.,

877 F.3d 136, 141 (3d Cir. 2017).

2

though. See Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972). Rather,

it protects property interests “that a person has already acquired.” Id. at 576.

Accordingly, a plaintiff claiming that he was deprived of property without due process

must show that he had a constitutionally protected property interest in the first place. See

McKinney v. Univ. of Pittsburgh, 915 F.3d 956, 962 (3d Cir. 2019).

Whether a plaintiff has a constitutionally protected property interest is a question

of both state and federal law. See Town of Castle Rock v. Gonzales, 545 U.S. 748, 756–

57 (2005). State law determines whether the plaintiff has a substantive property interest

in a benefit conferred by the state. See id. at 757; Bishop v. Wood, 426 U.S. 341, 344

(1976); Elmore v. Cleary, 399 F.3d 279, 282 (3d Cir. 2005). If so, then “federal

constitutional law determines whether that interest rises to the level of a ‘legitimate claim

of entitlement’ protected by the Due Process Clause.” Town of Castle Rock, 545 U.S. at

757 (emphasis omitted) (quoting Memphis Light, Gas, & Water Div. v. Craft, 436 U.S. 1,

9 (1978)).

Because Anstine was a Pennsylvania employee, its law determines whether he had

any substantive property interests in his public employment. As the Supreme Court of

Pennsylvania has explained, “one does not have a per se right in governmental

employment.” Pipkin v. Pa. State Police, 693 A.2d 190, 191 (Pa. 1997) (citing Com.,

Off. of Admin. v. Orage, 515 A.2d 852, 853 (Pa. 1986)). Instead, public employees are

employed “at-will,” meaning that they “may be terminated at any time, for any reason or

for no reason.” Id. (quoting Stumpp v. Stroudsburg Mun. Auth., 658 A.2d 333, 335 (Pa.

3

1995)). Only the Pennsylvania legislature can displace that default rule. See Scott v.

Phila. Parking Auth., 166 A.2d 278, 281 (Pa. 1960). Thus, Pennsylvania public

employees only have property interests in their employment if granted either by statute or

by contract with a government entity that the legislature has authorized to grant property

interests. See Pipkin, 693 A.2d at 192; see also Stumpp, 658 A.2d at 394–95.

Anstine identifies no statutory or contractual provision that overcomes that

default. To the contrary, his appointment letter reaffirms that his employment was “at

will” and that his employer could “terminate [his] employment at any time for any reason

or no reason.” App. II-41. Accordingly, Anstine had no state-created property interest in

his employment, much less the kind of legitimate claim of entitlement protected by the

federal Constitution.

Nonetheless, Anstine asserts he has two property interests: (1) an interest in his

continued “pay and benefits while employed,” and (2) an interest in his “continued

employment.” Opening Br. 1, 13. He makes two basic arguments in furtherance of this

claim. The first is that he acquired both asserted property interests from the Governor of

Pennsylvania’s “Personnel Rules,” which he argues were “part of his employment

contract.”3 Id. at 20. The Personnel Rules set out human resources guidelines for

3

Anstine does not give a detailed explanation of why the Personnel Rules should be

considered part of his employment contract. Because the provisions in the Personnel

Rules that Anstine identifies do not suggest any property interest, though, we need not

decide whether the Personnel Rules were in fact part of Anstine’s contract.

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Pennsylvania employees that Anstine asserts created a “property interest that his

employment would be governed by those rules.” Id. at 15.

Even assuming Anstine has a state-created contractual right in these processes, an

agency’s failure to follow its procedures is generally a matter of state law. Anstine,

however, brings a federal constitutional claim. The Constitution does not require a

specific state process to be followed. See Vitek v. Jones, 445 U.S. 480, 491 (1980) (the

“minimum requirements of procedural due process” are “a matter of federal law,” and are

not changed “by the fact that the State may have specified its own procedures” (citation

omitted)); Shuman ex rel. Shertzer v. Penn Manor Sch. Dist., 422 F.3d 141, 150 n.4 (3d

Cir. 2005). Instead, it requires that a minimum threshold of procedural safeguards be

provided to protect property interests recognized as “legitimate claim[s] of entitlement.”

Town of Castle Rock, 545 U.S. at 757 (citation omitted). In other words, as a matter of

federal law, Anstine needs to first demonstrate that he has a constitutionally cognizable

property interest. See id. Only then will the question of adequate procedural safeguards

be implicated by the Due Process Clause.

Anstine puts the cart before the horse, arguing that, by stating discipline should be

progressive in nature and by providing for notice to an employee and an opportunity to be

heard, the Personnel Rules created his property interest in continuing to receive pay and

benefits before being terminated and created his property interest in his employment. In

effect, he argues the Personnel Rules indirectly created his asserted property interests

through these procedural provisions, rather than directly through express rights-creating

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language.4 It follows, Anstine argues, that this state-created property interest is a

constitutionally protected legitimate claim of entitlement.

That is clearly contrary to both Pennsylvania and federal precedent. An

employer’s promise of procedural protections cannot itself create property interests. See

Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541 (1985) (“The categories of

substance and procedure are distinct. Were the rule otherwise, the Clause would be

reduced to a mere tautology. ‘Property’ cannot be defined by the procedures provided for

its deprivation any more than can life or liberty.”); Pipkin, 693 A.2d at 193 (“The

creation of a property interest turns on the substantive protection afforded to the

employee pursuant to a state statute or contract and cannot be created by any procedural

protection.”). Because Anstine only identifies procedural protections in the Personnel

Rules, he does not show that the Personnel Rules create any property interests in his pay,

benefits, or employment.

Second, Anstine argues that “[t]he Pennsylvania rules of professional conduct

should be a public policy exception to the at will employment rules.” Opening Br. 15.

That is, Anstine argues that because he was a public attorney who had an attorney-client

4

Indeed, Anstine explicitly disclaims that the Personnel Rules created a “right to

tenure or permanent employment” and identifies no language that expressly creates

property interests in continued pay, benefits, and employment. Opening Br. 20; cf.

Schmidt v. Creedon, 639 F.3d 587, 596 (3d Cir. 2011) (provision that “suspension must

be for cause”); Sonnleitner v. York, 304 F.3d 704, 711 (7th Cir. 2002) (language that

employees “may be … suspended without pay … only for just cause”). See generally

McKinney, 915 F.3d at 960–62 (surveying principles about guarantees that give public

employees a property interest in a continued salary).

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relationship with state agencies, Defendants should have consulted those agencies—his

clients—before firing him. Pennsylvania has never recognized the exception Anstine

proposes. Nor does any legitimate public policy counsel for such an exception. Anstine

relies on the comment to the Pennsylvania Rules of Professional Conduct that “[a] client

has a right to discharge a lawyer.” Pa. Rules of Pro. Conduct 1.16 cmt. 4. That does not

suggest that an organization that employs lawyers cannot fire them without their clients’

involvement. We decline Anstine’s invitation to turn rules that protect clients into novel

protections for lawyers.5

Because Anstine cannot show that Defendants deprived him of any

constitutionally protected property interest, we will affirm.

5

Given the novelty of Anstine’s theory, Anstine cannot point to any case law

suggesting that his procedural due process right in these circumstances was “clearly

established.” Pearson v. Callahan, 555 U.S. 223, 232 (2009). As a result, the Appellees

would be protected by qualified immunity in any event.

7