# Petition for Writ of Certiorari — Wrench Transportation Systems, Inc. v. Kennedy

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2010
- **Citation:** 559 U.S. 1007

## Text

Sore Og us

No-08_ng-o 50 uw 14 2010

In The VFFICE Gr THE CLERK
Supreme Court of the Anited States

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WRENCH TRANSPORTATION SYSTEMS, INC.
and JAMES MALONE, JR.,

Petitioners,
v.

JOHN F. KENNEDY and LEAH ANN MACMAHON,

Respondents.

*
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On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Third Circuit

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PETITION FOR A WRIT OF CERTIORARI

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ALAN WASSERMAN JEFFREY J. BROOKNER

Counsel of Record LAW OFFICES OF
WILENTZ, GOLDMAN & JEFFREY J. BROOKNER, LLC

SPITZER, P.A. 60 Nicole Terrace
90 Woodbridge Ctr. Dr. Bridgewater, NJ 08807
Woodbridge, NJ 07095 (908) 938-2553
(732) 855-6171

CONSTANTINE BARDIS
LAW OFFICES OF CONSTANTINE BARDIS, LLC
1800 Main Street

Lake Como, NJ 07719
(732) 280-2500

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964
OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Does Substantive Due Process prohibit a State
from wrongfully seizing personal property, or does the
prohibition apply only to real property, as the Third
Circuit held?

2. Does 42 U.S.C. § 1983 provide a remedy when a
State actor, having determined that previously seized
personal property is no longer subject to forfeiture,
nonetheless refuses to return the property unless and
until the owner agrees to confer a personal benefit on
the State actor?

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LIST OF PARTIES

In addition to the parties listed on the cover, the
following were Defendants in the proceedings below,
but whose interests are not implicated by this
Petition:

Frank Bradley
Maryanne Lewicki

CORPORATE DISCLOSURE STATEMENT

Plaintiff Wrench Transportation Systems, Inc.
has no parent company, and no publicly held company
owns 10% or more of the corporation’s stock.

ill

TABLE OF CONTENTS
Page
QUESTIONS PRESENTED .......00...... cece eeeeee eee i
Lee GH BEI ora sttareeistcdcnngdiesnneaused ii
CORPORATE DISCLOSURE STATEMENT ........ il
TAs COE CAFR C REE lieiccccesccctesicsesucceseserescsssesiess ili
TAARRE ae OOF AUT EaR REE ENED cocescesececccessvescssoecevessssee Vv
CITATIONS FOR OPINIONS BELOW..................
STATEMENT OF JURISDICTION .......................
CONSTITUTIONAL AND STATUTORY PROVI-
RD Ee SE racecorsciescoevatcctanccdnincuivatinneneneuees 1
STATEMENT OF THE CASE.......0............ccceeeceecees 3
PIII T, teittciiatntisabecesenapisibincanigiigsnencesdevsimn tigen 4

I. Certiorari should issue because the Panel’s
opinion contravenes Supreme Court authority
by failing to distinguish between the
incorporation and simpliciter strains of
Substantive Due Process ........................0-+++ 5

II. Certiorari should issue because, even
under the simpliciter strain of Substantive
Due Process, the Wrench Vehicles qualify
as a fundamental interest in property......... 8

IiIl. Certiorari should issue because this case
involves a monumental question of Consti-
tutional law — can a State actor be held
accountable for wrongfully seizing per-
OUI IIIT oiissncinisscivccccsccaseactuiadscnacaetss 10

iV

TABLE OF CONTENTS -— Continued

Page
IV. Granting a writ of certiorari would con-

sume relatively little of this Court’s
resources because summary disposition

WOUIG DO SNPTOPTIAE ........cccecccvcevecessseseceveess 11
II cicthicuiai ca cadasnutiedudeicesnadscucerstonsabaacideio 12
APPENDIX
July 28, 2009 Opinion of the Court of Appeals

Be ee ee I hccietcennsnensecorencsecBinaceucenscnes App. l
July 28, 2009 Order of the Court of Appeals for
ee I aise shi ieckinecnticcbreretencsneesninnens App. 10
November 29, 2007 District Court Opinion
granting summary judgment.......................-. App. 12
November 28, 2007 District Court Order
granting summary judgment.....................0.+ App. 39

TABLE OF AUTHORITIES

Page
CASES
Albright v. Oliver, 510 U.S. 266 (1994)............0.... eee eee 5
Altman v. City of High Point, 330 F.3d 194 (4th

a lel 6
Alvarez v. Smith, 129 S. Ct. 1401 (2009)................... 10
Davis v. Bayless, 70 F.3d 367 (5th Cir. 1995) .............. 7
DeBlasio v. Zoning Board, 53 F.3d 592 (3d Cir.

NING cca tacit “4s olan. Ueeeenleas ius es delle au sivas anaiesoendanannaces 11
Ker v. California, 374 U.S. 23 (1963)................ceeeee eee 5
Leebaert v. Harrington, 332 F.3d 134 (2d Cir.

cities aia ara sca ee easel amas tus eas beemeanéabenaoel 8
Montana v. Egelhoff, 518 U.S. 37 (1996) ..................... 8
Parratt v. Taylor, 451 U.S. 527 (1981)...............0......... 6
Reitz v. County of Bucks, 125 F.3d 139 (3d Cir.

yg RREESERIZIRRE RIES ES re ReN ES ORE A NE AN CES MONS a 7
Schrob v. Catterson, 948 F.2d 1402 (3d Cir.

REINER ATC Roe SA ROR ACN PIER HEA One TN A sea 7
Soldal v. Cook County, 506 U.S. 56 (1992).................. 7
U.S. v. Jacobson, 466 U.S. 109 (1984) ...........0..02.. 22... 7
Zinermon v. Burch, 494 U.S. 113 (1990).................. 5,6
STATUTES
I Ds oa care sctinasinanhbudedanenmuatpanaouinelall 1

BO I iin pes cree dcarcecssniccaninoaseunsaiesnasanncermmmmuaneen 4

wrt od

> # y ” La ow ll ‘ a ~~ ~~ bd PP. 4 —
tl — S a ad e , 7 o ?* oe , a

vi

TABLE OF AUTHORITIES — Continued

Page
ZB U.S.C. $ LSB ...cccccccces FAS ORDO a RR SO ee CTE 4
ee asuadaouseeuounanans 4
EE, Oe BIE cccsvecicuscndeacacces OEE SUNS SENT ARE ee
CONSTITUTIONAL PROVISIONS
Seis Acs MUNIN, BY cccnsoccarsecaceccccsccnvscesiscness 1, 5, 6, 7
Br , c, MAMIE, FEW © Dvescccscccnceccccescvcccvesecses 2, 5,6
OTHER AUTHORITIES
Black’s Law Dictionary 592 (9th ed. 2009).................. 6

REED RE SOE OTR SS 9g

1

CITATIONS FOR OPINIONS BELOW

The District Court’s Opinion granting summary
judgment (App. 12—38) was not published.

The Third Circuit’s Opinion affirming the grant
of summary judgment (App. 1—9) was not published.

The Third Circuit’s Order denying rehearing
(App. 41-42) was not published.

+

STATEMENT OF JURISDICTION

The Court of Appeals entered its decision on July
28, 2009, and denied rehearing on October 16, 2009.
This Court’s jurisdiction is conferred by 28 U.S.C.
§ 1254(1).

oe oe

CONSTITUTIONAL AND
STATUTORY PROVISIONS AT ISSUE

U.S. Const., Amend. IV

The right of the people to be secure in their per-
sons, houses, papers, and effects, against unreason-
able searches and seizures, shall not be violated, and
no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons
or things to be seized.

2

U.S. Const., Amend. XTV, §$ 1

All persons born or naturalized in the United
States and subject to the jurisdiction thereof, are
citizens of the United States and of the State wherein
they reside. No State shall make or enforce any law
which shall abridge the privileges or immunities of
citizens of the United States; nor shall any State
deprive any person of life, liberty, or property, without
due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.

42 U.S.C. § 1983 (“Section 1983”)

Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
or Territory or the District of Columbia, subjects, or
causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof
to the deprivation of any rights, privileges, or im-
munities secured by the Constitution and laws, shall
be liable to the party injured in an action at law, suit
in equity, or other proper proceeding for redress,
except that in any action brought against a judicial
officer for an act or omission taken in such officer’s
judicial capacity, injunctive relief shall not be granted
unless a declaratory decree was violated or declara-
tory relief was unavailable. For the purposes of this
section, any Act of Congress applicable exclusively to
the District of Columbia shall be considered to be a
statute of the District of Columbia.

,
vw

3

STATEMENT OF THE CASE'

Wrench Transportation Systems, Inc. and its sole
shareholder, James Malone (together, “Wrench”)
operated a waste-hauling business. Wrench owned
and used six vehicles (the “Wrench Vehicles”) that
were critical to the company’s operations.

As part of an investigation into allegedly illegal
waste hauling, the State of New Jersey initiated an in
rem forfeiture action against, and seized, the Wrench
Vehicles in August 1993. Defendant John Kennedy
was the Deputy Attorney General in charge of the
underlying criminal prosecution; Defendant Leah
Ann MacMahon was the Deputy Attorney General
who brought the forfeiture action.

The State’s investigation exonerated Wrench,
which if anything had been an innocent pawn in
others’ wrongdoing. Thus, as early as January 15,
1994, Defendants advised Wrench that the Wrench
Vehicles were not properly subject to forfeiture. But
as a precondition to returning the Wrench Vehicles to
Wrench, Defendants insisted that Wrench provide
testimony against someone higher up in the investi-
gation. Wrench was unable to do so because it had no
knowledge of wrongdoing. Thus, the State returned
the Wrench Vehicles to their respective lien holders.

* Because the District Court granted summary judgment,
this Statement of the Case is made in the light most favorable to
the Petitioners.

The lien holders liquidated all but one of the vehicles,
yielding no surplus.

As of May 1995, the last of the Wrench Vehicles
was still being held subject to the forfeiture action.
MacMahon refused to release that vehicle to Wrench
unless and until Wrench signed a release in Defen-
dants’ favor. Wrench refused to sign such a release.
Ultimately, the State dismissed the forfeiture action
in May 1999 — almost 6 years after it was com-

menced. No criminal charges were ever filed against
Wrench.

Wrench sued Defendants and others in the
United States District Court for the District of New
Jersey, asserting claims under Section 1983. The
District Court had jurisdiction pursuant to 28 U.S.C.
§§ 1331 & 1343. The District Court granted summary
judgment dismissing all claims on November 28,
2007. Wrench appealed to the Third Circuit, with
jurisdiction premised on 28 U.S.C. § 1291. The Third
Circuit affirmed on July 28, 2009, and denied re-
hearing on October 16, 2009. This Petition for a Writ
of Certiorari follows.

ARGUMENT

Section 1983 provides a remedy when a State
actor deprives a citizen of any “right ... secured by
the Constitution.” The Panel dismissed Wrench’s
claims on the ground that the right at issue — an own-
ership interest in personal property used for business

purposes — was not secured by the United States
Constitution. Instead, the Panel held that protection
from unreasonable seizure by the States extends only
to real property. (App. 7). Because this conclusion is
contrary to Supreme Court authority, and because
this case involves important questions of Constitu-
tional law, a writ of certiorari should issue.

'. Certiorari should issue because the Panel’s
opinion contravenes Supreme Court authority
by failing to distinguish between the in-
corporation and simpliciter strains of
Substantive Due Process.

The Due Process Clause of the Fourteenth
Amendment bars States from “depriviing] any person
of life, liberty, or property, without due process of
law.” On its face, this lim _tation might appear to be
exclusively procedural. But this Court has recognized
that the Due Process Clause has two substantive
strains as well. See Zinermon v. Burch, 494 U.S. 113,
125 (1990). The first strain of Substantive Due
Process “incorporates” provisions of the Bill of Rights
that otherwise apply only to the Federal government,
making those provisions applicable to the States as
well. Id.; see also Albright v. Oliver, 510 U.S. 266,
272-73 (1994) (summarizing the historical develop-
ment of incorporation); Ker v. California, 374 U.S. 23,
30 (1963) (holding that the Fourth Amendment’s
prohibition against unreasonable search and seizure
applies to the States pursuant to the Fourteenth
Amendment). The second strain of Substantive Due

6

Process, sometimes known as the “simpliciter” strain,
prohibits State action that is so arbitrary or wrongful
as to be substantively improper, “regardless of the
fairness of procedures used to implement them.”
Zinermon, supra, 494 U.S. at 125; Parratt v. Taylor,
451 U.S. 527, 536 (1981).

The Panel analyzed whether the State’s conduct
in this case deprived Wrench of its rights under the
simpliciter strain of Substantive Due Process. (App.
6-9). But the Panel did not address whether the
State’s conduct violated the Fourth Amendment’s pro-
hibition against unreasonable searches and seizures,
as applied to the States pursuant to the “incorpora-
tion” strain of Substantive Due Process. This case
was plead and argued below as a wrongful-seizure
case under the Fourth and Fourteenth Amendments.
Thus, the Panel erred by analyzing the claims solely
under the simpliciter framework.

The Panel’s opinion, analyzed under an incor-
poration framework, contravenes Supreme Court
authority as well as the plain language of the Fourth
Amendment. That Amendment prohibits unreason-
able seizure of “effects.” At the time the Fourth
Amendment was adopted, the term “effects” was
specifically understood to include business property.
See Altman v. City of High Point, 330 F.3d 194, 201
(4th Cir. 2003) (noting that a 1730 dictionary defined
“effects” as “the goods of a merchant, tradesman,
& c”); see also Black’s Law Dictionary 592 (9th ed.
2009) (defining “effects” to mean “movable property;
goods”). Thus, there can be no doubt that the term

7

“effects” includes a fleet of vehicles used for a
business.

This conclusion is consistent with the manifest
intent of our founding fathers in drafting the Fourth
Amendment, and with an originalist understanding
of the Amendment’s scope. It is safe to say that a
blacksmith in the late 18th Century would have
expected his anvil to be considered an “effect” entitled
to protection from unreasonable seizure. Yet the
Panel’s opinion would dictate a contrary result.

This Court routinely applies the Fourth Amend-
ment to prohibit unreasonable seizures of personal
property. E.g., Soldal v. Cook County, 506 U.S. 56,
61—71 (1992) (seizure of mobile home and its con-
tents); U.S. v. Jacobson, 466 U.S. 109, 124—25 (1984)
(seizure of powder for chemical testing). At least one
Circuit Court has held that Section 1983 provides a
remedy for an unreasonable seizure of personal prop-
erty by a State actor. See Davis v. Bayless, 70 F.3d
367, 375 (5th Cir. 1995); see also Reitz v. County of
Bucks, 125 F.3d 139 (3d Cir. 1997) (assuming, without
discussion, that the Fourth Amendment applies to a
case involving seizure of personal property); Schrob v.
Catterson, 948 F.2d 1402 (3d Cir. 1991) (same).

Here, the Panel overlooked the “incorporation”
strain of Substantive Due Process jurisprudence in
holding that Wrench’s interest in the Wrench Vehicles
was not Constitutionally protected. Because this
analysis fundamentally conflicts with Supreme Court

8

and Circuit Court authority, a writ of certiorari
should issue.

II. Certiorari should issue because, even
under the simpliciter strain of Substantive
Due Process, the Wrench Vehicles qualify
as a fundamental interest in property.

Moreover, were this case guided by principles of
Substantive Due Process. simpliciter, personal
property would nonetheless be subject to protection
as a “fundamental right.” “Our primary guide in
determining whether the principle in question is
fundamental is, of course, historical practice.”
Montana v. Egelhoff, 518 U.S. 37, 43 (1996). “Rights
are fundamental when they are implicit in the
concept of ordered liberty, or deeply rooted in this
Nation’s history and tradition.” Leebaert v. Harring-
ton, 332 F.3d 134, 140 (2d Cir. 2003). Ownership of
personal property is a fundamental Constitutional
right, “implicit in the concept of ordered liberty” and
“deeply rooted in this Nation’s history and tradition.”
This Court should issue a writ of certiorari to review
the Panel’s conclusion to the contrary.

The Panel’s opinion cites a string of cases
establishing that rights created solely by state law —
such as employment tenure rights, or the right to a
public contract — are not fundamental, and thus are
not protected by the simpliciter strain of Substantive
Due Process. (App. 7-8). The conclusions in the cited
cases are sound because the property interests in

9

question were not rooted in a property interest of a
type that would have existed in 1787, much less ones
that would have been considered “deeply rooted in the
Nation’s history.” The mere fact that such rights may
have come to be recognized as “property” under mod-
ern law does not give them a Constitutional dimen-
sion.

But the Panel sought to squeeze a round peg into
a square hole by characterizing Wrench’s interest as a
“right to ‘engage in business’” that is “more similar to
the type of intangible employment rights that the
Court has rejected as not protected by substantive
due process.” (App. 7). The Panel did mention that
Wrench also “asserted a right to the ownership of the
trucks” (App. 7), but this significant point was lost in
the remainder of the analysis.

Ownership of tangible personal property is an
interest that dates back thousands of years. See, e.g.,
Exodus 20:15 (“Thou shalt not steal.”). It is hard to
imagine a right that is more “deeply rooted” in our
history, or more “implicit in the concept of ordered
liberty.” Accordingly, the Panel erred by concluding
that Wrench’s interest in the Wrench Vehicles was not
a “fundamental” right protected by the Constitution.

10

Ill. Certiorari should issue because this case
involves a monumental question of Con-
stitutional law —- can a State actor be held
accountable for wrongfully seizing per-
sonal property?

Whether ownership of personal property is a
Constitutionally protected right, and thus whether it
is protected by reasonable limitations upon seizure,
are questions of great importance to citizens of this
Nation, and to the parties in this case.

Wrench owned the Wrench Vehicles, and de-
pended on those vehicles to operate their business.
Defendants seized the Wrench Vehicles in connection
with a criminal investigation, but later determined
that the vehicles were not properly subject to seizure.
Rather than return the vehicles, Defendants abused
their position of authority by refusing to release the
vehicles unless Wrench offered untrue testimony
against other targets, and unless Wrench agreed to
sign a release exonerating Defendants from personal
liability.

Such abuses, and the proper reach of seizures
more generally, is a critical issue. Under the Panel’s
decision, the State would be entitled to seize personal
property whenever it wanted to, for whatever reason,
without any risk of offending the Constitution.

By issuing a writ of certiorari last term in
Alvarez v. Smith, 129 S. Ct. 1401 (2009), this Court
recognized that curbing abuses of this nature is an
important issue meriting consideration. Unfortunately,

11

there is a “paucity of guidance” from this Court
regarding the scope of Substantive Due Process sim-
pliciter in this and similar contexts. See, e.g.,
DeBlasio v. Zoning Board, 53 F.3d 592, 598 (3d Cir.
1995). Accordingly, a writ of certiorari is warranted.

IV. Granting a writ of certiorari would consume
relatively little of this Court’s resources
because summary disposition would be
appropriate.

The Third Circuit panel addressed the case under
the wrong analytical framework. Petitioners respect-
fully request that this Court grant certiorari, vacate
the judgment below, and remand to the Third Circuit
for reconsideration of the case under the correct
analytical framework.

*

12

CONCLUSION

For the foregoing reasons, the Petition for a Writ
of Certiorari should be granted.

Respectfully submitted,

ALAN WASSERMAN JEFFREY J. BROOKNER

Counsel of Record LAW OFFICES OF
WILENTZ, GOLDMAN & JEFFREY J. BROOKNER, LLC

SPITZER, P.A. 60 Nicole Terrace
90 Woodbridge Ctr. Dr. Bridgewater, NJ 08807
Woodbridge, NJ 07095 (908) 938-2553
(732) 855-6171

CONSTANTINE BARDIS
LAW OFFICES OF CONSTANTINE BARDIS, LLC
1800 Main Street

Lake Como, NJ 07719
(732) 280-2500

App. 1

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 07-4817

WRENCH TRANSPORTATION SYSTEMS, INC.;
JAMES MALONE, JR..,

Appellants
v.

FRANK BRADLEY; JOHN F. KENNEDY;
MARIANNE [sic] LEWICKI;
LEAH ANN MCMAHON [sic]

On Appeal from the United States District Court
for the District of New Jersey
(No. 95-cv-06203)
District Judge: Honorable Jose L. Linares

Submitted Pursuant to Third Circuit LAR 34.1(a)
November 20, 2008

Before: BARRY and CHAGARES, Circuit Judges and
RESTANI, Judge’

(Filed: July 28, 2009)

' The Honorable Jane A. Restani, Chief Judge, United
States Court of International Trade, sitting by designation.

App. 2

OPINION OF THE COURT
CHAGARES, Circuit Judge.

Plaintiffs Wrench Transportation Systems, Inc.
and its sole stockholder, James Malone, Jr. (“Malone”)
appeal the District Court’s grant of summary judg-
ment in favor of defendants John Kennedy and Leah
Ann McMahon (“Kennedy” and “McMahon’”). Because
we find that Malone is not entitled to substantive due
process protection for his purported interest in either
his right to “engage in business” or his personal
property ownership of his trucks, we will affirm the
District Court’s grant of summary judgment in favor
of Kennedy and McMahon.

[.

Because we write only for the parties, we will
only address the facts that are relevant to our
analysis. This case arises out of the civil forfeiture of
certain Malone trucks seized in connection with a
New Jersey state criminal investigation about the
illegal transport of waste oil. Malone claims that
the defendants violated his substantive due process
rights when they allegedly refused to return the
Malone vehicles unless Malone signed a release and
provided testimony for them in connection with the
criminal investigation.

To pursue this claim, Malone sued Frank Bradley
(a New Jersey state investigator) (“Bradley”),
Marianne Lewicki (a New Jersey state investigator)

App. 3

(“Lewicki”), Kennedy, and McMahon under 42 U.S.C.
§ 1983. In 2003, the District Court granted summary
judgment to defendant Marianne Lewicki on the
grounds of absolute immunity. See Appendix (App.)
14-15. Malone did not appeal that decision. In Wrench
Transp. Serv., Inc. v. Bradley, 136 F. App’x 521 (3d
Cir. 2005) (“Wrench I”), we found that Bradley was
entitled to qualified immunity because Malone was
unable to show a causal connection between Bradley’s
actions and the return of the Malone trucks. See
Wrench I, 136 F. App’x at 522. At that time, we
declined to decide whether Malone had a protectible
substantive due process interest. /d.

In Wrench Transp. Sys., Inc. v. Bradley, 212 F.
App’x 92, 98-100 (3d Cir. 2006) (“Wrench II”), we
found that Kennedy and McMahon were not entitled
to absolute immunity for their alleged actions in
connection with their post-seizure conduct regarding
Malone’s property, because they were acting in an
investigatory, rather than a prosecutorial, capacity.
We also held that there was no evidence that
Kennedy or McMahon tried to coerce false testimony
from Malone in exchange for the trucks. Jd. at 100.

The case then returned to the District Court,
where Kennedy and McMahon argued both that
Malone had failed to show that his substantive due
process rights were violated, and that, even if
Malone’s rights had been violated, Kennedy and
McMahon were still entitled to qualified immunity.
The District Court granted summary judgment in
favor of Kennedy and McMahon. It found that, with

App. 4

regard to Kennedy, Malone had failed to establish a
causal connection between Kennedy’s actions and his
alleged injuries, as he was required to do, and that
Kennedy was entitled to summary judgment. See
Wrench Transp. v. Bradley, No. 95-cv-06203, 2007 WL
4233011 at *4, *9 (D.N.J. Nov. 29, 2007) (“Wrench
IIT’). In addition, the District Court noted that even if
Malone had established a causal connection between
Kennedy’s actions and his alleged injuries, his failure
to establish that he had a property interest that is
protected by substantive due process would result in
the failure of his claim. Although the District Court
held that McMahon’s actions met the causal connec-
tion standard, it nevertheless found that McMahon
was entitled to summary judgment because Malone
failed to establish a substantive due process violation,
a showing which is required for a 42 U.S.C. § 1983
claim. Id. at *8.

IT.

The District Court had jurisdiction under 28
U.S.C. § 1331 and 1343. We have jurisdiction pur-
suant to 28 U.S.C. § 1291. This Court reviews the
grant of summary judgment de novo. Gonzalez uv.
AMR, 549 F.3d 219, 223 (3d Cir. 2008). “Summary
judgment is appropriate only where there is no
genuine issue of material fact and the moving party is
entitled to judgment as a matter of law.” /d. (citation
omitted). See Fed. R. Civ. P. 56(c). When analyzing a
summary judgment claim, “we must view the facts in
the light most favorable to the non-moving party, and

App. 5

draw all reasonable inferences therefrom in that
party’s favor.” New Jersey Transit Corp. v. Harsco
Corp., 497 F.3d 323, 326 (3d Cir. 2007) (citation
omitted).

ITI.

Section 1983 provides that “[elvery person who,
under color of any statute, ordinance, regulation,
custom, or usage, of any State ... subjects, or causes
to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable
to the party injured in an action at law, suit in equity,
or other proper proceeding for redress....” It is a
remedial statute; it does not create rights. Kneipp v.
Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996). To succeed
on a § 1983 claim, “a plaintiff must show that the
defendants, acting under color of law, violated the
plaintiff’s federal constitutional or statutory rights,
and thereby caused the complained of injury.” Elmore
v. Cleary, 399 F.3d 279, 281 (3d Cir. 2005) (citation
omitted). Thus, we first look to see whether Malone
was deprived of a constitutional right. The District
Court found that he was not. We agree.

Malone contends that Kennedy and McMahon
violated his rights under the substantive due process
clause of the Fourteenth Amendment when they
failed to return the Malone trucks. He argues that
“ownership of trucks, which are used to support [a]

App. 6

business, is a property interest protected by the
Constitution. ...” Appellant Br. at 27-28. He also
contends that he has a fundamental right to “conduct
business.” Jd. at 30.

The Fourteenth Amendment provides that no
state shall “deprive any person of life, liberty, or
property, without due process of law. .. .” U.S. Const.
amend. XIV. Substantive due process is a “component
of the [Fourteenth Amendment] that protects
individual liberty against ‘certain government actions
regardless of the fairness of the procedures used to
implement them.’” Collins v. City of Harker Heights,
503 U.S. 115, 125 (1992) (quoting Daniels v. Williams,
474 U.S. 327, 331 (1986)). The Supreme Court
explained in Collins that “|als a general matter, the
Court has always been reluctant to expand the
concept of substantive due process because guideposts
for responsible decisionmaking in this ... area are
scarce and open-ended.” /d. (citation omitted). See
also Nicholas v. Pa. State. Univ., 227 F.3d 133, 140
(3d Cir. 2000) (citation omitted) (“The history of
substantive due process ‘counsels caution and re-
straint.’”).

Whether the property right asserted is entitled to
substantive due process protection depends on
whether it is considered “fundamental.” Nicholas, 227
F.3d at 140. Fundamental rights are rights that are
“deeply rooted in the Nation’s history and tradi-
tions. ... [and] interests implicit in the concept of
ordered liberty like personal choice in matters of
marriage and family.” Jd. at 143 (citations and

App. 7

quotation marks omitted). While this Court has found
that there can be a fundamental interest in real
property, interests like “a low bidder’s entitlement to
state contract” as well as an entitlement to public
tenured employment are not fundamental. /d. at 142.
Indeed, Malone concedes that this Court has held
that employment is not a protected property interest
under a substantive due process analysis.

Here, we agree with the District Court’s finding
that Malone’s asserted interests — the right to
“engage in business” and his right to the ownership of
the trucks — are more similar to the type of intangible
employment rights that this Court has rejected as not
protected by substantive due process than the real
property interests which can be protected by substan-
tive due process. Cf. Leib v. Hillsborough County Pub.
Transp. Comm'n, 558 F.3d 1301, 1306 n.4 (11th Cir.
2009) (noting that while the plaintiff “abandoned” his
claim that he was deprived of the “right to earn a
living” nevertheless it “would have failed in any event
given ... that employment rights do ‘not enjoy
substantive due process protection....’”); Hill uv.
Borough of Kutztown, 455 F.3d 225, 234 n.12 (3d Cir.
2006) (“To the extent [plaintiff’s] substantive due
process claim was based not only on loss of his job,
but also on reputational injury that decreased his
‘ability to earn a living,’ it also fails.”); Medeiros v.
Vincent, 431 F.3d 25, 32 (1st Cir. 2005) (“The right to
‘make a living’ is not a ‘fundamental right’... for
substantive due process purposes.”). In addition,
while we have stated that “ownership is a property

App. 8

interest worthy of substantive due process protec-
tion,” DeBlasio v. Zoning Bd. of Adjustment, 53 F.3d
592, 600 (3d Cir. 1995), abrogated on other grounds
by United Artists Theatre Cir, Inc. v. Twp. of
Warrington, 316 F.3d 392, 400 (3d Cir. 2003), in
Nicholas, we noted: “we have so far limited non-
legislative substantive due process review to cases
involving real property ownership.” 227 F.3d at 141
(emphasis added). Accordingly, we conclude that
Malone has failed to establish that his personal
property interest in his trucks is “fundamental” for
purposes of our Fourteenth Amendment substantive
due process analysis.

We therefore find that Malone has failed to
establish that he has a property right which is
protected by the Constitution.” Because Malone has
failed to establish any substantive due process right
here, regardless of the any [sic] causal connection
between Kennedy and the return of the trucks, the
arguments that Malone makes in his brief regarding
potential genuine issues of material fact with regard
to whether Kennedy caused a deprivation of his

* Because we find that Malone's claim does not establish
the deprivation of a Constitutional right, we need not determine
whether Kennedy and McMahon are entitled to qualified
immunity. See Pearson v. Callahan, 129 S.Ct. 808, 815-18
(2009) (upholding the two prongs of qualified immunity analysis

that a plaintiff must show a “violation of a constitutional
right” and that the right was “clearly established” — but finding
that they do not necessarily have to be examined in a particular
order).

App. 9

rights are rejected. Accordingly, the District Court did
not err in granting summary judgment in favor of
Kennedy and McMahon.

We briefly note that Malone also argues that the
District Court erred when it found that Malone was
barred from challenging a protective order that had
been issued by the Magistrate Judge in this case
because Malone had not filed timely objections. This
Court has previously considered and rejected Malone’s
argument on this issue. Wrench II, 212 F. App’x at
100-01. We are not inclined to disturb our prior
decision, and will therefore affirm the District Court’s
ruling.

V.

For the foregoing reasons, we affirm the judg-
ment of the District Court.

App. 10

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 07-4817

WRENCH TRANSPORTATION SYSTEMS, INC.;
JAMES MALONE, JR..,

Appellants
v.

FRANK BRADLEY; JOHN F. KENNEDY;
MARIANNE LEWICKI; LEAH ANN MCMAHON

On Appeal from the United States District Court
for the District of New Jersey
(No. 95-cv-06203)
District Judge: Honorable Jose L. Linares

Submitted Under Third Circuit LAR 34.1(a)
November 20, 2008

Before: BARRY and CHAGARES, Circuit Judges and
RESTANI, Judge’

“The Honorable Jane A. Restani, Chief Judge, United
States Court of International Trade, sitting by designation.

App. 11

JUDGMENT

This cause came on to be heard on the record
from the United States District Court for the District
of New Jersey and was submitted pursuant to Third
Circuit LAR 34.1(a) on November 20, 2008.

On consideration whereof, it is now hereby
ADJUDGED and ORDERED by this Court that the
judgment of the United States District Court for the
District of New Jersey entered November 29, 2007 is
hereby affirmed. All of the above in accordance with
the opinion of this Court.

Costs taxed against appellants.
Attest:
/s/ Marcia M. Waldron, Clerk
DATED: July 28, 2009

App. 12

2007 WL 4233011 (D.N.J.)
NOT FOR PUBLICATION

United States District Court,
D. New Jersey.
WRENCH TRANSPORTATION, et al., Plaintiffs,
v.
Frank BRADLEY, et al., Defendants.
Civil Action No. 95-cv-06203 (JLL).

Nov. 29, 2007.

Constantine Bardis, Law Offices of Constantine
Bardis, LLC, Lake Como, NJ, Jay William McCann,
Paterson, NJ, for Plaintiffs.

Robert P. Shane, Brian G. Flanagan, Office of the NJ
Attorney General, Trenton, NJ, for Defendants.

OPINION
LINARES, District Judge.

This matter comes before the Court by way of
cross-motions for summary judgment filed by Plain-
tiffs, Wrench Transportation Systems, Inc. and James
Malone, Jr. [CM/ECF Docket Entry No. 101], and
Defendants, John Kennedy and Leah Ann McMahon
[CM/ECF Docket Entry No. 100]. The Court has
considered the submissions made in support of and in
opposition to the motions. No oral argument was
heard. Fed.R.Civ.P. 78. For the reasons set forth
below, Defendants’ motion for summary judgment is
GRANTED and Plaintiffs’ motion for summary
judgment is DENIED.

App. 13

BACKGROUND
1. Factual Background

A detailed factual background of this case was set
forth by the Court on the record on September 16,
2003 and October 27, 2003, and will not be repeated
here, except where necessary to provide context for
the pending motions for summary judgment.

Generally speaking, this action arose from
Defendants’ seizure of several vehicles which Plain-
tiffs utilized in their business activities. As a result of
this seizure, and a series of events that followed, on
December 8, 1995, Plaintiffs Wrench Transportation
Systems, Inc., and its sole shareholder, James
Malone, Jr. (collectively “Plaintiffs”), commenced the
instant cause of action against Defendants Frank
Bradley (New Jersey state investigator), John
Kennedy (Deputy Attorney General of New Jersey),
Marianne Lewiki (New Jersey state investigator),
and Leah Ann McMahon (Deputy Attorney General of
New Jersey) pursuant to 42 U.S.C. § 1983, alleging
that Plaintiffs were deprived of their property, in
violation of the substantive component of the Four-
teenth Amendment’s Due Process Clause.

2. Procedural Background

On September 16, 2003, this Court granted sum-
mary judgment to Defendants Kennedy and Lewicki
on grounds of absolute immunity. By way of oral
Opinion rendered on October 27, 2003, this Court
also (1) granted summary judgment to Defendant

App. 14

McMahon on absolute immunity grounds, and (2)
denied summary judgment as to Defendant Bradley,
finding that he was not entitled to qualified
immunity.

On June 27, 2005, the Third Circuit reversed this
Court’s October 27, 2003 Order as to Defendant
Bradley, finding that “[blecause Malone failed to
connect Bradley’s conduct to the continued retention
of the vehicles in which Malone assertedly possessed
a protected property interest, Bradley is entitled to
summary judgment.” Wrench Transp. Servs., Inc. v.
Bradley, 136 Fed. Appx. 521, 524 (3d Cir.2005)
(hereinafter “Wrench I”). Accordingly, by way of Order
dated October 5, 2005, this Court entered summary
judgment in favor of Defendant Bradley.

On December 21, 2006, the Third Circuit
affirmed this Court’s grant of summary judgment as
to Defendants Kennedy and McMahon “insofar as
Malone attempts to rest liability on their alleged
attempts to force James Malone to provide false
testimony.” Wrench Transp. Servs., Inc. v. Bradley,
212 Fed. Appx. 92, 100 (3d Cir.2006) (hereinafter
“Wrench II”). However, the Third Circuit reversed
this Court’s finding that Defendants Kennedy and
McMahon were entitled to absolute immunity to the
extent that such finding was “based upon their
conduct in delaying the return of Malone’s trucks
and conditioning that return on the execution of a
release.” Jd. at 101. Accordingly, by way of Order
dated January 16, 2007, this Court vacated its prior
entry of summary judgment as to Defendants

App. 15

Kennedy and McMahon, insofar as it was based upon
their assertion of absolute immunity with respect to
their conduct in delaying the return of property
belonging to Plaintiffs, and conditioning the return of
said property on the execution of a release.

This case was thus re-opened on January 16,
2007, and cross-motions for summary judgment were
filed by the parties on March 23, 2007. Oral argu-
ment was held before this Court on July 23, 2007.
Plaintiffs now argue that they are entitled to
summary judgment as to the liability of Defendants
Kennedy and McMahon for violating Plaintiffs’
substantive due process rights." Defendants Kennedy
and McMahon, on the other hand, claim that (1)
Plaintiffs have failed to establish a viable substantive
due process claim, and (2) in any event, they are
entitled to qualified immunity for their conduct.

Even in the absence of the Third Circuit’s
directive, this Court would, in any event, decline to

‘ Plaintiffs also attempt to re-open discovery by challenging
a protective order issued by Magistrate Judge Hedges on
December 22, 1997 as part of their cross-motion for summary
judgment. The Court need not address this argument as the
Third Circuit already found, in the context of Wrench II, that (a)
Plaintiffs failed to properly object to Magistrate Judge’s
December 22, 1997 ruling, and (b) any prejudice to Plaintiffs
that would result in the absence of the Court’s review of
Magistrate Judge Hedges’ decision “is not sufficient to establish
the ‘manifest injustice’ required to review an issue in the
absence of a properly filed objection to a Magistrate Judge’s
ruling.” Wrench IT, 212 Fed. Appx. at 101.

App. 16

entertain Plaintiffs’ attempt to re-open discovery. By
way of Order dated February 7, 2007, this Court
ordered that all discovery-related motions be filed
within fifteen days of entry of that Order. Plaintiffs
failed to file any such motion within fifteen days.
Instead, without leave of Court, Plaintiffs made a
belated attempt to re-open discovery by challenging
Magistrate Judge Hedges’ December 22, 1997 pro-
tective order in the context of their cross-motion for
summary judgment, which was filed on March 23,
2007 — well over fifteen days from entry of this
Court’s February 7, 2007 Order.

LEGAL STANDARD

A court shall grant summary judgment under
Rule 56(c) of the Federal Rules of Civil Procedure “if
the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to
a judgment as a matter of law.” Fed.R.Civ.P. 56(c).

On a summary judgment motion, the moving
party must show, first, that no genuine issue of
material fact exists. Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). The burden then shifts to the non-
moving party to present evidence that a genuine, fact
issue compels a trial. Jd. at 324. In so presenting, the
non-moving party must offer specific facts that
establish a genuine issue of material fact, not just
“some metaphysical doubt as to the material facts.”

App. 17

Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 586-87 (1986). Thus, the
nonmoving party may not rest upon the mere
allegations or denials in its pleadings. See Celotex,
477 U.S. at 324. Further, the non-moving party
cannot rely on unsupported assertions, bare allega-
tions, or speculation to defeat summary judgment.
See Ridgewood Bd. of Educ. v. N.E. ex rel. M.E., 172
F.3d 238, 252 (3d Cir.1999). The Court must, however,
consider all facts and their reasonable inferences in
the light most favorable to the non-moving party. See
Pennsylvania Coal Ass’n v. Babbitt, 63 F.3d 231, 236
(3d Cir.1995).

For purposes of efficiency, the Court will first
address Defendants’ motion for summary judgment.

DISCUSSION
1. Plaintiffs’ Section 1983 Claim

Plaintiffs claim that Defendants, while acting
under color of state law, deprived Plaintiffs of their
interest in the vehicles, in violation of Plaintiffs’
constitutional rights pursuant to 42 U.S.C. § 1983.’ In

* Section 1983 states in relevant part: “[elvery person who,
under color of any statute, ordinance, regulation, custom, or
usage, of any State ... subjects, or causes to be subjected, any
citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges,
or immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law, suit in equity, or
other proper proceeding for redress. . . .” 42 U.S.C. § 1983.

App. 18

particular, Plaintiffs claim that “[t]he evidence shows
that Kennedy and McMahon callously refused to
return plaintiffs’ seized vehicles that they knew were
necessary to his livelihood so that they could coerce
Malone into providing testimony against other
targets of Operation Boilermaker and in order to
procure personal releases from any liability for these
actions.” (Pl. MSJ at 19).

To establish section 1983 liability, a plaintiff
must show “that the official acting under color of
state law caused the deprivation of a federal right.”
Hafer v. Melo, 502 U.S. 21, 25 (1991) (quoting
Kentucky v. Graham, 473 U.S. 159, 166 (1985)).” This
is because section 1983 itself is not a source of sub-
stantive rights, but provides a vehicle for vindicating
the violation of rights created by the United States
Constitution or federal law. See Graham v. Connor,
490 U.S. 386, 393-94 (1989); Morse v. Lower Merion
School Dist., 132 F.3d 902, 907 (3d Cir.1997). Thus, in
particular, Plaintiffs allege that Defendants’ conduct
— in delaying the return of the seized vehicles, and
conditioning said return on their execution of a
release — deprived Plaintiffs of their property, in
violation of the substantive component of the
Fourteenth Amendment’s Due Process clause.

* Defendants do not dispute that they are state actors for
purposes of this § 1983 cause of action.

App. 19

2. Substantive Due Process Claim

As a preliminary matter, the Court reiterates
that the sole claim at issue is Plaintiffs’ substantive
due process claim.‘ Plaintiffs do not allege a violation
of the procedural component of the Due Process
Clause.° See generally Wrench I, 136 Fed. Appx. at
523.

“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,’ or by means of govern-
ment conduct so egregious that it ‘shocks the
conscience.’” Nicholas v. Pennsylvania State Univ.,
227 F.3d 133, 139 (3d Cir.2000) (citations omitted).°
However, to prevail on a non-legislative substantive
due process claim, Plaintiffs must first establish

* Moreover, the sole conduct at issue is Defendants’ delay in
returning the seized vehicles, and the conditioning of said return
on the execution of a release. See Wrench II, 212 Fed. Appx. at
100 (granting summary judgment in favor of Defendants
Kennedy and McMahon “insofar as Malone attempts to rest
liability on their alleged attempts to force James Malone to
provide false testimony.”).

° Moreover, Plaintiffs acknowledge that they could have
challenged the deprivation of their property through the
procedural due process safeguards that existed in the context of
the civil forfeiture proceeding. See Tr. (July 23, 2007) at 19:6-
20:17.

* See generally United Artists Theatre Circuit, Inc. v. Twp. of
Warrington, PA, 316 F.3d 392, 400 (3d Cir.2003) (clarifying that
“executive action violates substantive due process only when it
shocks the conscience.”).

App. 20

that they have a protected property interest to which
the Fourteenth Amendment’s due process protection
applies. See, e.g., Hill v. Borough of Kutztown, 455
F.3d 225, 235 n. 12 (3d Cir.2006); Desi’s Pizza, Inc. v.
City of Wilkes-Barre, 321 F.3d 411, 427 (8d Cir.2003);
Nicholas, 227 F.3d at 140. In addition, Plaintiffs must
establish a causal link between the constitutional
violation alleged and the harm that Plaintiffs claim
followed it. See, e.g., Miller v. City of Philadelphia,
174 F.3d 368, 374 n. 5 (3d Cir.1999).

A. Causal Connection

In order to show that certain state action caused
Plaintiffs’ injury, Plaintiffs must establish a “causal
link between an alleged unconstitutional act and the
harm that a plaintiff claims followed it.” Miller, 174
F.3d at 374 n. 5; see also Wrench I, 136 Fed. Appx.
521, 523 (3d Cir.2005). For example, in the context of
Wrench I, the Third Circuit explained:

To the extent Malone was deprived of his
property, that deprivation was caused by the
operation and application of New Jersey’s
civil forfeiture statute. Malone abandoned a
constitutional attack on the direct cause of
his injury by forgoing a procedural due
process challenge to the forfeiture statute.
Therefore, in order to assert a constitutional
violation, and satisfy the threshold inquiry
set forth by Saucier, Malone must establish
some connection between Bradley and the
civil forfeiture action by showing that
Bradley either interfered with the dismissal

App. 21

of the action or breached a duty to
recommend that the action be dismissed.

Id. Here, Defendants argue that “the record is
undisputed that neither of the line Deputy Attorneys
General, Kennedy and McMahon, had the authority
to dismiss either the criminal or civil proceedings
against the Plaintiffs.” (Def. S.J. Br. at 41). This
Court will now address Defendants’ argument as it
relates to each remaining Defendant.

Defendant Kennedy

Defendants claim that Defendant Kennedy, who,
at all relevant times was a DAG assigned to the
Environmental Crimes Bureau of the Division of
Criminal Justice, “had no responsibility whatsoever
for the civil action.” (Def. Statement of Material
Facts, {| 30). In particular, Defendants argue that
“DAG Kennedy had no involvement, whatsoever, in
the offer of the mutual release, or in the civil
forfeiture litigation.” (Def. S.J. Br. at 43). Therefore,
Defendants’ claim that Plaintiffs cannot establish
the requisite causal connection between Kennedy’s
actions and Plaintiffs’ injuries — namely the depri-
vation of his property. (/d. at 40-41).

In response, Plaintiffs point to a letter written by
Defendant Kennedy on December 27, 1993, stating
that “if I and other members of the Division of
Criminal Justice are satisfied by Mr. Malone’s
statement that he and Wrench Transportation, Inc.
(“Wrench”) are innocent of any criminal involvement,

App. 22

I will recommend to DAG McMahon that the for-
feiture complaint be dismissed.” (Pl.’s Response to
Def. Statement of Material Facts, | 30, App. Volume
IV, A-904). Plaintiffs claim that the December 27th
letter written by Kennedy demonstrates his “au-
thority with respect to returning the vehicles.” (Pl.’s
Response to Def. Statement of Material Facts, { 71).
However, the causation analysis does not turn on
whether Kennedy possessed the authority to dismiss
the civil forfeiture action. Instead, summary judg-
ment must be granted unless Plaintiffs raise a
genuine issue of material fact as to whether Kennedy
“actually exercised any authority reaching the
forfeiture action.” Wrench I, 136 Fed. Appx. at 523
n.1. The December 27th letter — indicating that
Kennedy would be willing to make a recommendation
to Defendant McMahon that the forfeiture complaint
be dismissed — does not demonstrate that Kennedy
actually “interfered with the dismissal of the action or
breached a duty to recommend that the action be
dismissed.” To the contrary, evidence contained in
the record indicates that even after Kennedy met
with Malone on December 30, 2003, he was “still very
much on the fence about whether [Malone] was
truthful.” (Def. Statement of Material Facts, ¥ 135;
Flanagan Aff?f., Ex. 9, Tr. (June 14, 2002) at 62:8-11).

" Wrench I, 136 Fed. Appx. at 523.

* The relevant excerpt from Kennedy's June 14, 2002
deposition transcript is as follows:

(Continued on following page)

App. 23

Plaintiffs essentially concede the absence of
specific evidence establishing a causal connection
between Defendant Kennedy and the outcome of the
forfeiture proceedings. For example, during oral argu-
ment held on July 23, 2007, this Court specifically
asked Plaintiffs’ counsel the following questions:

THE COURT: Where is your evidence that
Kennedy was involved in that part?

MR. BARDIS: Your Honor, I think it was
from his office, and McMahon was working
with Kennedy, and Kennedy also has the
correspondence establishing that he would
conduct a hearing, and he and Mr. Malone,
would have a meeting, an informal meeting.

THE COURT: That he would conduct the
meeting?
MR. BARDIS: He would have a meeting.

THE COURT: What is the evidence that
Kennedy was involved in conditioning the

Q. So it would be fair to say that after the meeting,
each of you would have had an opinion as to whether
or not Mr. Malone on behalf of Wrench Transportation
was truthful or untruthful?

A I don't know if everyone formed an opinion about
that.

Q. Do you know if you did?

A. I was very much on the fence about whether he
had been truthful. I certainly was not convinced. But I
would say that I was on the fence. Tr. (June 14, 2002)
at 62:2-11.

App. 24

release of the property on the signing of the
release?

MR. BARDIS: Your Honor, they are from
the same department.

See Tr. (July 23, 2007) at 45:13-15.

Thus, at best, Plaintiffs theorize that because
Defendants McMahon and Kennedy “are from the
same department,” Kennedy must, therefore, have
conspired with McMahon in delaying the return of
the vehicles. However, “[i]t is not sufficient at the
summary judgment stage for Malone, the non-moving
party, to rest on allegations of a conspiracy. Rather, in
order to raise a genuine issue of material fact he must
produce sufficient evidence to allow a reasonable jury
to find that a conspiracy existed.” Wrench I, 136 Fed.
Appx. at 523. Because Plaintiffs have come forward
with no evidence establishing a causal connection
between Kennedy’s actions and Plaintiffs’ alleged
injuries, Defendants’ motion for summary judgment
as to Defendant Kennedy is hereby granted.’

° Even assuming, arguendo, that Plaintiffs had demon-
strated a sufficient causal connection between Kennedy’s actions
and Plaintiffs’ injuries, for the reasons discussed herein,
Defendant Kennedy would nevertheless be entitled to qualified
immunity for such actions inasmuch as Plaintiffs have failed to
establish that their interest in the seized vehicles constitutes a
protected property interest to which the Fourteenth Amend-
ment’s substantive due process protection applies.

App. 25

Defendant McMahon

Defendants argue that “[o]nly a supervisor in the
Civil Remedies and Forfeiture Bureau would have
any final decision making authority regarding a
seizure and forfeiture.” (Def. Statement of Material
Facts, 471). Defendant McMahon was a DAG
assigned to the Civil Remedies Bureau of the Division
of Criminal Justice. (Jd., J 2). Because McMahon was
not a supervisor in the Civil Remedies and Forfeiture
Bureau, Defendants argue that McMahon had no
authority to dismiss the forfeiture proceedings. (Def.
S.J. Br. at 41). Therefore, according to Defendants,
Plaintiffs cannot establish the requisite causal con-
nection between McMahon’s actions and Piaintiffs’
injuries. (/d. at 40-41).

Plaintiffs, on the other hand, allege that
“McMahon stated at the conclusion of Malone’s
interview under oath ... that she would process the
papers to return Malone’s vehicles,” thus demon-
strating McMahon’s “authority with respect to
returning the vehicles.” (Pl.’s Response to Def.
Statement of Material Facts, 4 71). Because Defen-
dants concede that “[dluring the course of the civil
litigation, DAG McMahon offered to settle the State’s
forfeiture case against Wrench,” the Court finds that
a sufficient causal connection between McMahon’s
actions and Plaintiffs’ alleged injuries has been

"° See Def. S.J. Br. at 43; Def. Statement of Material Facts,
4 74.

App. 26

established. As a result, the Court will proceed with
its analysis of Defendants’ arguments as they relate
to Defendant McMahon.

B. Qualified Immunity"

Defendants claim that they are entitled to quali-
fied immunity from Plaintiffs’ section 1983 claim,
and are thus shielded from suit. See generally
Saucier v. Katz, 533 U.S. 194, 200-01 (2001); Wright
v. City of Philadelphia, 409 F.3d 595, 599 (3d
Cir.2005). “The Supreme Court has set forth a two-
step objective reasonableness test to determine
whether qualified immunity should be granted.”
Barton v. Curtis, 497 F.3d 331, 335 (3d Cir.2007).
The threshold inquiry, in determining whether a
party is entitled to qualified immunity is whether,
viewing the facts in the light most favorable to
Plaintiffs, the facts alleged show that Defendants’
conduct violated a constitutional right. See, e.g.,
Saucier, 533 U.S. at 201; Wright, 409 F.3d at 600.
Thus, Plaintiffs bear the initial burden of showing

" The Court disagrees with Plaintiffs’ conclusory assertion
that Defendants’ entitlement to qualified immunity “was rejected
by the Third Circuit.” (Pl. Opp’n Br. at 41). To the contrary, the
Third Circuit specifically stated that, “to the extent that Malone is
arguing that Kennedy and McMahon are not entitled to either
absolute or qualified immunity, Appellants’ argument is meritless,
and can be rejected without discussion.” Wrench IT, 212 Fed.
Appx. at 95 n. 3; see also Schrob v. Catterson, 948 F.2d 1402, 1419
(3d Cir.1991) (“Qualified immunity will provide sufficient protec-
tion to prosecutors managing seized property.”).

App. 27

that Defendants’ conduct violated a constitutional
right. See, e.g., Sherwood v. Mulvihill, 113 F.3d 396,
399 (3d Cir.1997). “If no constitutional right would
have been violated were the allegations established,
there is no necessity for further inquiries concerning
qualified immunity.” See Saucier, 533 U.S. at 201.

However, if a favorable view of the Plaintiffs’
submissions reveals the violation of constitutional
right, this Court must determine whether such a
right was clearly established. See id.; Wright, 409
F.3d at 600. To be clearly established, “the contours of
the right must be sufficiently clear that a reasonable
official would understand that what he is doing
violates that right.” See Saucier, 533 U.S. at 202;
Barton, 497 F.3d at 335. Plaintiffs, again, bear the
burden of demonstrating that the constitutional or
statutory rights at issue were clearly established. See,
e.g., Sherwood, 113 F.3d at 399. If the Court finds
that Defendants violated such clearly established
constitutional or statutory rights, they are not
entitled to qualified immunity for their actions. See,
e.g., Wright, 409 F.3d at 599-600.

App. 28

(i) Violation of a Constitutional Right”

It is clear that, as a threshold matter, in adju-
dicating Plaintiffs’ section 1983 claim, the Court must
consider whether a constitutional violation occurred.
See Saucier, 533 U.S. at 201. Similarly, in assessing
Defendants’ qualified immunity defense, the Court
must first determine whether Defendants’ conduct

” Plaintiffs’ contention that this Court has already ruled,
with respect to Defendant Bradley, that Plaintiffs had a clearly
established constitutional right to their property, is well taken.
See Tr. (Oct. 27, 2003) at 16:23-25. Nevertheless, given that (a)
the issue has now been the subject of far more extensive
briefing, and (b) this Court’s October 27, 2003 decision with
respect to Defendant Bradley was reversed by the Third Circuit,
albeit on different grounds, see Wrench I, 136 Fed. Appx. at 522,
the Court will revisit the issue of qualified immunity, in its
entirety. See, e.g., Higgins v. California Prune & Apricot Grower,
Inc., 3 F.2d 896, 898 (2d Cir.1924) (explaining that “it is now
well settled that the ‘law of the case’ does not rigidly bind a court
to its former decisions”) (citing Messenger v. Anderson, 225 U.S.
436 (1912)). Furthermore, because summary judgment was
granted as to Defendant Bradley by the Third Circuit, this
approach will not affect the disposition of Plaintiffs’ case as
against said defendant.

To the extent that Plaintiffs claim that they have
successfully demonstrated the existence of a constitu-
tional violation based findings made by Judge Lifland
at the motion to dismiss stage, any such argument is
meritless. See, e.g., S.C. v. Deptford Tp. Bd. of Educ.,
No. 01-5127, 2006 WL 1784591, at *14 (D.N.J.)
(explaining that “the law of the case doctrine does not
prevent a court from granting summary judgment
where a court previously denied a motion to dismiss
using the more liberal standards governing Rule 12
motions”).

App. 29

violated a constitutional right. See id. Thus, regard-
less of whether the Court first considers Plaintiffs’
1983 claim, or Defendants’ qualified immunity
defense, the inquiry begins with an assessment of
whether a constitutional violation has occurred.

Plaintiffs argue that “[t]he evidence shows that
Kennedy and McMahon callously refused to return
plaintiffs’ seized vehicles that they knew were neces-
sary to his livelihood so that they could coerce Malone
into providing testimony against other targets.” (PI.
S.J. Br. at 19). According to Plaintiffs, such conduct
deprived Plaintiffs of their property, in violation of
the substantive component of the Due Process
Clause. The Due Process Clause of the Fourteenth
Amendment provides that no state shall “deprive any
person of life, liberty, or property, without due process
of law.” Nicholas, 227 F.3d at 138. Thus, while the
Fourteenth Amendment protects certain property
interests, “not all property interests worthy of
procedural due process protection are protected by
the concept of substantive due process.” Jd. at 140
(quoting Reich v. Beharry, 883 F.2d 239, 243 (3d
Cir.1989)). “Rather, to state a substantive due process
claim, ‘a plaintiff must have been deprived of a
particular quality of property interest.’” 7d. (quoting
DeBlasio v. Zoning Bd. of Adjustment, 53 F.3d 592,
598 (3d Cir.1995)). The determination of whether a
particular property interest constitutes this “par-
ticular quality” depends on whether the interest is
“fundamental” under the Constitution. See, e.g., id.
Thus, in order to prevail on a_ non-legislative

App. 30

substantive due process claim, Plaintiffs must
establish that they have a protected property interest
to which the Fourteenth Amendment’s due process
protection appiies. See, e.g., Hill, 455 F.3d at 235 n.
12; Desi’s Pizza, Inc., 321 F.3d at 427; Nicholas, 227
F.3d at 140.”

Plaintiffs characterize the alleged constitutional
violation as:

The intentional and substantive wrong that
defendants committed when they inten-
tionally refused to remit the Wrench vehicles
notwithstanding the defendants’ collective
belief in Malone’s innocense [sic] and the
conditioning of the return of the vehicles on
Malone’s provision of false testimony and a
personal release for all defendants. This
motive was improper and lead to the dis-
possession of plaintiffs’ property, therefore,
plaintiffs have a claim for a deprivation
of substantive due process constitutional
rights.

(Pl. Opp’n Br. at 37). Based on Plaintiffs rather

ambiguous characterization, the Court construes the

" In Wrench I, the Third Circuit specifically declined to
express an opinion as to whether “an owner’s interest in vehicles
properly seized and held subject to a forfeiture action is
protected by the Due Process Clause of the Fourteenth
Amendment.” Wrench I, 136 Fed. Appx at 522.

Plaintiffs’ Amended Complaint similarly alleges that:

Defendants’ intentional use of the continued forfeiture
of Wrench’s vehicles to coerce Malone into cooperating
(Continued on following page)

App. 31
alleged property interest at issue as Plaintiffs’
interest in the seized vehicles.

Defendants argue that no constitutional violation
has occurred because Plaintiffs’ substantive due proc-
ess claim is grounded in the notion that Defendants’
actions deprived them of their interest in the seized
vehicles, in violation of their substantive due process
rights; however, the Third Circuit has limited its
substantive due process protection of property
interests to real property. (Def. S.J. Br. at 40).

Defendants correctly note that the Third Circuit
has “so far limited non-legislative substantive due
process review to cases involving real property
ownership,” and has admittedly been reluctant to
extend substantive due process protection. Nicholas,
227 F.3d at 141 (citing to Collins v. City of Harker
Heights, 503 U.S. 115 (1992)).” Plaintiffs provide no

with their criminal investigation of third parties
deprived Wrench Transportation Systems, Inc. and
Malone of property without due process of law, in
violation of the Fourteenth Amendment to the
Constitution of the United States.

(Am.Compl., ¥ 38).

* In Collins, the United States Supreme Court explained
the following:

As a general matter, the Court has always been
reluctant to expand the concept of substantive due
process because guideposts for responsible decision-
making in this unchartered area are scarce and open-
ended. The doctrine of judicial self-restraint requires
us to exercise the utmost care whenever we are asked
to break new ground in this field. It is important,
(Continued on following page)

App. 32

legal basis to refute Defendants’ position.” To the
contrary, Plaintiffs’ opposition brief is replete with
broad and conclusory statements lacking specific
legal support. For example, Plaintiffs argue that

A reasonable person would be aware that
these actions are wrong, unlawful and
violative of the most fundamental and well
known constitutional rights enjoyed by
citizens of the United States of America... .

therefore, to focus on the allegations in the complaint
to determine how petitioner describes the constitu-
tional right at stake and what the city allegedly did to
deprive her husband of that right.

503 U.S. 115, 125 (1992) (internal citation omitted).

Plaintiffs’ reliance on Reitz v. County of Bucks, 125 F.3d
139 (3d Cir.1997), and Schrob v. Catterson, 948 F.2d 1402 (3d
Cir.1991) for the generalized proposition that “[a] state official
that seizes property and wrongfully retains it thereafter violates
the owner’s constitutional rights and may be liable under 42
U.S.C. § 1983” is misplaced for the following reasons. (Pl. Opp’n
Br. at 41). First, the Third Circuit did not address — much less
determine — whether the property interest at issue in Reitz is
protected by the substantive component of the Due Process
Clause. Secondly, the Court’s analysis in Schrob was limited to
the defendant’s entitlement to absolute immunity. See Schrob,
948 F .2d at 1407 n. 4 (“With respect to qualified immunity, the
record before us on this motion to dismiss is so limited that we
cannot decide whether the rights that Catterson and the Agents
allegedly violated were clearly established, or even established
in the first place.”). Plaintiffs’ reliance on Lavicky v. Burnett, 758
F.2d 468, 476 (10th Cir.1985), and Coleman v. Turpen, 697 F.2d
1341 (10th Cir.1982) neither of which appear to involve
substantive due process claims — is likewise unavailing.

App. 33

In short, refusing to return property that is needed
for someone’s livelihood when you know they are
innocent so that you can obtain a release is improper,
against well established law and conscience shocking.
(Pl. Opp’n Br. at 43). Similarly, during oral argument,
Plaintiffs’ counsel presented several broad theories
in support of the proposition that Plaintiffs’ interest
in the seized vehicles is fundamental under the
Constitution, and, therefore, that the deprivation of
such property interest constitutes a violation of the
substantive component of the Due Process Clause. In
particular, Plaintiffs’ counsel argued that: (1) the
seized vehicles “were part and parcel of the inter-
dependent relationship that Malone had in exercising
his right to contract,” and (2) “it is in Mr. Malone’s
life and liberty to freely engage in business. These
vehicles were closely or were the essence of his
business.””* The Court will address each argument, in
turn.

(a) Right to Contract

Plaintiffs’ counsel argued, during the July 23,
2007 oral argument, that the constitutional violation
at issue is “[t]he right to freely enter into a contract.”
Tr. (July 23, 2007) at 23:1-2. As a preliminary matter,
the Court notes that this argument was not raised in
Plaintiffs’ opposition brief; rather, it was raised for

" Tr. (July 23, 2007) at 22:14-16.
" Id. at 18:22-24.

App. 34

the first time during oral argument. Therefore, this
argument will not be considered, as it was not
properly before this Court. See, e.g., Garver v. Garver,
No. 96-2507, 1997 WL 47801, at *6 n. 1 (S.D.N_Y. Feb.
5, 1997). Even if the Court were inclined to entertain
such an argument, Plaintiffs provide no legal or
factual basis to substantiate such a theory.

(b) Right to “Engage in Business”

At oral argument, Plaintiffs’ counsel also charac-
terized the fundamental right at issue as Plaintiffs’
right to “engage in business.” Tr. (July 23, 2007) at
18:22-24. In particular, Plaintiffs’ counsel explained
that “these were the vehicles that were the sole
source of his livelihood and the livelihood of the
employees that he had under him.” Tr. (July 23, 2007)
at 23:15-17. Again, the Court notes that this
argument was not expressly raised in Plaintiffs’
opposition brief. Accordingly, it is not properly before
this Court and need not be considered. Even if the
Court were inclined to consider this argument, for the
reasons that follow, the Court finds that Plaintiffs
have failed to meet their burden in demonstrating
that one’s right to “engage in business” is funda-
mental under the Constitution.

As a preliminary matter, the Court construes
Plaintiffs’ argument in this regard as akin to the
argument that employment rights are fundamental.
Although the parties did not brief this issue — because
it was raised for the first time at oral argument — the

App. 35

Court notes that the plaintiff in Nicholas made a
similar argument in claiming that his tenured
professorship was a property interest worthy of
substantive due process protection. See Nicholas, 227
F.3d at 136. In particular, the plaintiff in that case
claimed that defendants violated the substantive
component of the Fourteenth Amendment’s Due
Process Clause by “firing him for an arbitrary,
irrational or improper reason.” Jd. at 138.

The Third Circuit began its analysis by
addressing the issue of whether the plaintiff’s prop-
erty interest in his tenured professorship was entitled
to substantive due process protection. In finding that
it was not,” the Third Circuit explained, in relevant
part, as follows:

Nicholas’s tenured public employment is a
wholly state-created contract right; it bears
little resemblance to other rights and
property interests that have been deemed
fundamental under the Constitution. We
agree with the analysis of the District Court
in Homar v. Gilbert that “it cannot be
reasonably maintained that public employ-
ment is a property interest that is deeply
rooted in the Nation’s history and tradi-
tions.” Nor does public employment approach

* In finding that the plaintiff’s property interest in his
tenured professorship was not entitled to substantive due
process protection, the Third Circuit joined the majority of the
courts of appeals that have addressed the issue. See Nicholas,
227 F.3d at 142.

App. 36

the interests “‘implicit in the concept of
ordered liberty like personal choice in
matters of marriage and family.’” Accord-
ingly, we view public employment as more
closely analogous to those _ state-created
property interests that this Court has pre-
vious deemed unworthy of substantive due
process than to the venerable common-law
rights of real property ownership implicated
in DeBlasio.

Nicholas, 227 F.3d at 143 (internal citations omitted);
see also Collins, 503 U.S. at 128 (explaining that
“state law, rather than the Federal Constitution,
generally governs the substance of the employment
relationship.”). In light of the foregoing, to the extent
that Plaintiffs analogize the deprivation of their right
to their vehicles as a deprivation of their right to
“engage in business” or to pursue their “livelihood,”
Plaintiffs have failed to meet their burden in
establishing that such interests — much like employ-
ment rights — are fundamental. See, e.g., Medeiros v.
Vincent, 431 F.3d 25, 32 (1st Cir.2005) (stating that
the “right to ‘make a living’ is not a ‘fundamental
right,’ for either equal protection or substantive due
process purposes.”).

Therefore, given (1) the Third Circuit’s limitation
of property interests worthy of (nonlegislative)
substantive due process protection to real property
ownership,” (2) the Third Circuit’s reluctance to

™® See Nicholas, 227 F.3d at 141.

App. 37

extend substantive due process protection “to other,
less fundamental property interests,” including
employment rights, (3) the United States Supreme
Court’s cautioning to lower courts to exercise “the
utmost care whenever we are asked to break new
ground in this field,” and (4) Plaintiffs’ failure to
provide the Court with any legal basis in support of
their assertion that an owner’s interest in his vehicles
is a fundamental right created by the Constitution,
the Court determines that Plaintiffs have failed to
establish that their interest in the seized vehicles
constitutes a protected property interest to which the
substantive component of the Due Process Clause
applies.” See generally Desi’s Pizza, 321 F.3d at 427
(expressing “serious doubts” over whether plaintiffs’
allegations — that defendants wrongfully deprived
plaintiffs of their ability to put their bar/restaurant to
“productive use” — state a substantive due process
claim). Therefore, because Plaintiffs have failed to
establish a violation of their substantive due process
rights, Defendant McMahon is entitled to qualified
immunity for her actions in delaying the return of the
seized vehicles, and conditioning the return of the

7" 2.

* See Collins, 503 U.S. at 124.

= The Court, therefore, need not determine (a) whether
Defendants’ actions rise to the level of conscience shocking, or (b)

whether Defendants’ actions were objectively reasonable in light
of the clearly established law.

App. 38

vehicles on the execution of a release.“ See, e.g.,
Saucier, 533 U.S. at 201. Accordingly, the Court
grants Defendants’ motion for summary judgment as
to Defendant McMahon.

CONCLUSION

For the reasons set forth above, the Court grants
Defendants’ Motion for Summary Judgment as to
Defendants Kennedy and McMahon. Plaintiffs’
Motion for Summary Judgment is, therefore, denied
as moot.

An appropriate Order accompanies this Opinion.

* It is unclear whether this Court’s finding should result in
a dismissal of Plaintiffs’ Amended Complaint based on Plaintiffs’
failure to establish a cause of action under section 1983 or based
on qualified immunity. See Wright v. City of Philadelphia, 409
F.3d 595, 600 (3d Cir.2005). The parties do not brief this issue.
The Third Circuit admittedly has been inconsistent on this
issue. See id. However, the Third Circuit emphasized that “[a]s a
practical matter, the outcome will be the same whether we
conclude that the officers are immune from suit or instead, that
the plaintiff has no cause of action.” Id.

App. 39

NOT FOR PUBLICATION CLOSED

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

WRENCH

TRANSPORTATION, et al., Civil Action No.:
Plaintiffs, - 95-cv-06203 (JLL)

FRANK BRADLEY, et al., ORDER
Defendants.

LINARES, District Judge.

This matter comes before the Court by way of
cross-motions for summary judgment filed by Plain-
tiffs Wrench Transportation Systems, Inc. and James
Malone, Jr. [CM/ECF Docket Entry No. 101], and
Defendants John Kennedy and Leah Ann McMahon
[CM/ECF Docket Entry No. 100]. For the reasons set
forth in this Court’s corresponding Opinion dated
November 5, 2007,

IT IS, on this 28th day of November, 2007,

ORDERED that Defendants’ motion for sum-
mary judgment [CM/ECF Docket Entry No. 100] is
GRANTED; and it is further

ORDERED that Plaintiffs’ motion for summary
judgment [CM/ECF Docket Entry No. 101] is DE-
NIED as moot; and it is further

App. 40

ORDERED that this case is hereby CLOSED.

/s/ Jose L. Linares
JOSE L. LINARES
UNITED STATES

DISTRICT JUDGE

App. 41

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

07-4817

WRENCH TRANSPORTATION SERVICES, INC.;
JAMES MALONE, JR.,

Appellants

V.

FRANK BRADLEY; JOHN F. KENNEDY;
MARYANNE LEWICKI; LEAH ANN MACMAHON

SUR PETITION FOR REHEARING

(Filed Oct. 16, 2009)

Present: SCIRICA, Chief Judge, SLOVITER,
McKEE, RENDELL, BARRY, AMBRO, FUENTES,
SMITH, FISHER, CHAGARES, JORDAN,
and HARDIMAN, Circuit Judges, and RESTANI,
Chief Judge Court of International Trade*

The petition for rehearing filed by appellant in
the above entitled case having been submitted to the
judges who participated in the decision of this court
and to all the other available circuit judges of the

* As to panel rehearing only.

App. 42

circuit in regular active service, and no judge who
concurred in the decision having asked for rehearing,
and a majority of the circuit judges of the circuit in
regular active service not having voted for rehearing
by the court en banc, the petition for rehearing is
denied.

By the Court,
MICHAEL A. CHAGARES
Circuit Judge

DATED: October 16, 2009

CH/ce: Constantine Bardis, Esq.
Brian G. Flanagan, Esq.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1494%3A1. Public record. Not legal advice.