UNITED ARTISTS THEATRE CIRCUIT, INC.
THE TOWNSHIP OF WARRINGTON, PA; GERALD B.ANDERSON; JOSEPH E. LAVIN; DOUGLAS E. SKINNER; WAYNE S. BULLOCK; KATHERINE M. WATSON
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(Dist. Court No. 98-cv-05556)
District Court Judge: Norma L. Shapiro
Argued on May 10, 2002
Before: ALITO, COWEN, and LOURIE,* Circuit Judges.
(Opinion Filed: January 14, 2003)
OPINION OF THE COURT
ALITO, Circuit Judge:
United Artists Theatre Circuit, Inc. ("United Artists"), an owner and operator of movie theaters, sought land development approval from Warrington Township Pennsylvania, ("Township"), to construct and operate a multiplex theater on land that United Artists owned. United Artists claims that Warrington Township and its Board of Supervisors (the "Board") complicated and delayed approval of United Artists' development plan, and thereby allowed a competitor to beat United Artists in a race to build a movie theater in the Township, which is too small to support two theaters. United Artists alleges that the Township and individual members of the Board engaged in this conduct because they wanted the Township to receive an improper "impact fee" from the competing developer. In this appeal, the defendant Supervisors contest the District Court's denial of their qualified-immunity-based motion for summary judgment. We vacate and remand.
As a threshold issue, we conclude that the law-of-the-case doctrine does not preclude us from considering whether, as a result of the Supreme Court's decision in County of Sacramento v. Lewis, 523 U.S. 833 (1998), United Artists was required to show that the Supervisors' conduct "shocked the conscience." On the merits, we hold that Lewis has superceded prior decisions of our Court holding that a plaintiff asserting that a municipal land-use decision violated substantive due process need only show that the municipal officials acted with an "improper motive." Thus, Bello v. Walker, 840 F.2d 1124 (3d Cir. 1988), and its progeny are no longer good law.
The dispute underlying this case arises out of a development race between United Artists' proposed multiplex and a competing multiplex theater development proposed by Regal Cinema and developer Bruce Goodman. The record shows that the two companies were competing to obtain approval of their plans by the Township because the market could support only one of the theaters. Goodman agreed to pay the Township an annual "impact fee"2 of $100,000, but United Artists refused the Township's repeated requests for such a payment. United Artists asserts that, because of Goodman's promise to pay this fee, the Township allowed his project to "sail through the land development process," while United Artists' proposal was repeatedly stalled.
The Board of Supervisors' review process consisted of two phases, preliminary approval and final approval. In January 1996, United Artists submitted a preliminary plan for its theater to the Township Planning Commission, an independent body of local officials that makes recommendations regarding land-use plans to the Board of Supervisors. Along with the preliminary plan, United Artists submitted a traffic impact study, which led the Township to require, as a precondition to the issuance of an occupancy permit, the installation of a separate left-turn lane into the theater. United Artists failed to acquire the property necessary to make this improvement and expressed its intention to request a waiver of the condition or to sue for relief. United Artists claims that its failure to construct the road improvement was a mere pretext for the Township's refusal to support its theater proposal and that this refusal was actually motivated by the Township's desire to obtain an impact fee from Goodman and Regency Cinema.
After granting preliminary approval of United Artists' proposal, the Township attempted to change the terms of that approval by requiring United Artists to obtain an easement for the road improvement and to complete the installation of signals before construction could begin, rather than before the time of occupancy, as was originally provided in the preliminary approval. United Artists then brought suit against the Township in the Court of Common Pleas of Bucks County, and that court found the change in conditions to be unlawful under the Pennsylvania Municipalities Planning Code. On appeal, the Commonwealth Court agreed. After succeeding in this state court litigation and eliminating the building permit condition, United Artists began this action against the Township and the Supervisors in federal court.
In the meantime, the Board granted preliminary approval of the Goodman proposal on February 4, 1997 -- one month after the initial application was submitted-and final approval was granted on May 21, 1997. By contrast, United Artists, did not receive preliminary approval until March 18, 1997, 14 months after submitting its initial application. The Board then tabled its vote on United Artists' application for final approval on three occasions, each time asking if United Artists would pay an impact fee. The Board granted final approval of the United Artists proposal on September 16, 1997. The Goodman/Regal Cinema multiplex was completed in 1999; United Artists never built a theater in Warrington.
United Artists' complaint in this case asserted procedural and substantive due process claims under 42 U.S.C. S 1983, as well as supplementary state law claims. As defendants, the complaint named the Township and the members of the Board of Supervisors-Gerald Anderson, Joseph Lavin, Douglas Skinner, Wayne Bullock, and Katherine Watson ("Supervisors")--in both their official and individual capacities. Asserting the defense of qualified immunity, the Supervisors moved for summary judgment, and in December 1999, the District Court denied the Supervisors' motion with respect to the substantive due process claim, while granting that motion with respect to the procedural due process claim.
On appeal, a prior panel of our Court, in an unpublished opinion, vacated the order of the District Court and remanded for further proceedings. The panel held that the District Court had erred in failing to analyze each Supervisor's qualified immunity claim individually, and the panel instructed the District Court to make such an analysis on remand. United Artists Theatre Circuit, Inc. v. Twp. Of Warrington, No. 00-1064 (3d Cir., filed Nov. 29, 2000) ("United Artists I"), in App. at 112a-118a. In the text of its opinion, the panel stated that the District Court had "properly analyzed the supervisors' request for qualified immunity on summary judgment, having found that United Artists at this stage sufficiently alleged a violation of a clearly established constitutional right." Id . at 4, in App. at 117a. However, in an accompanying footnote the panel stated that it "express[ed] no opinion" at that time as to whether, in the wake of the Supreme Court's decision in County of Sacramento v. Lewis, 523 U.S. 833 (1998), it was necessary for United Artists to show that the Supervisors' conduct "shocked the conscience." Id. at 4 n.2, in App. at 117a.
On remand, the District Court considered the Supervisors' claims individually and again denied their motion for summary judgment on qualified immunity grounds. Aug. 15, 2001, Order, in App. at 3a-26a. The District Court held that United Artists had provided evidence permitting a factfinder to conclude the Board intentionally delayed approval of plaintiff 's project because it wished to receive the impact fee offered by Goodman. If proved, the court believes the monetary motivation of the Board was improper and would constitute a violation of substantive due process." Id. at 14, in App. at 16a (emphasis added). The District Court also held that there was sufficient evidence to conclude that each individual supervisor had subjected United Artists' proposal to heightened scrutiny and had purposefully delayed approval because of the impact fee offered by the competitor. Id. at 19, in App. at 21a. Addressing the panel's reference to the shocks-the-conscience test, the District Court opined that the "shocks the conscience" and "improper motive" tests are essentially the same and that, in any event, a post-Lewis opinion issued by our Court [Woodwind Estates Ltd. v. Gretkowski, 205 F.3d 118 (3d Cir. 2000)] suggested that Lewis had not altered prior circuit precedent. Id. at 9 n.5, in App. at 11a. The Supervisors then took the present appeal.
As a preliminary matter, United Artists argues that this panel's authority in this case is severely limited by the law-of-the-case doctrine. Under this doctrine, "one panel of an appellate court generally will not reconsider questions that another panel has decided on a prior appeal in the same case." In re City of Philadelphia Litigation , 158 F.3d 711, 717 (3d Cir. 1998).4 United Artists argues that the panel that heard the prior appeal in this case implicitly rejected the proposition that United Artists' substantive due process claim requires proof of conduct that shocks the conscience. We disagree.
The prior panel made two statements that are relevant for present purposes. First, as noted, the prior panel stated:
"[W]e believe the District Court properly analyzed the supervisors' request for qualified immunity on summary judgment, having found that United Artists at this stage sufficiently alleged a violation of a clearly established constitutional right." United Artists I at 4, in App. at 1172a. United Artists claims that this statement "constitutes a conclusive determination that may not be disturbed under the law of the case doctrine." Br. of Appellee at 18.
If the prior panel had said nothing more than the statement quoted above, we might be inclined to agree with United Artists, but the prior panel made an additional important statement. In footnote 2 of its opinion, the Court observed that it had raised two issues sua sponte at oral argument and that one of these was "whether the'shocks the conscience' standard announced by the Supreme Court in County of Sacramento v. Lewis, 523 U.S. 833 (1998), is applicable to substantive due process claims like the one at issue here." United Artists I at 4 n.2, in App. at 1172a. The panel continued: "At this time, we express no opinion whether these matters are appropriate in determining the merits of the substantive due process claim." Id. at 4 n.2, in App. at 1172a (emphasis added).
We interpret this last statement to mean that the panel left open the question whether the "shocks the conscience" standard announced in Lewis is applicable to United Artists' substantive due process claim. In other words, while the panel, as stated in the main text of its opinion, had concluded that United Artists was entitled to survive summary judgment under our Court's "existing case law," United Artists I at 4, in App. at 117a, the panel did not decide whether that prior circuit case law had been superceded by Lewis. Presumably because the issue was raised by the panel on its own at argument and was not briefed by the parties, the panel left this issue for consideration in the first instance by the District Court and then, if necessary, by a subsequent panel.
While we believe, as noted, that this is the best interpretation of the prior panel's decision, our conclusion that the law-of-the-case doctrine does not foreclose our consideration of this issue is not dependent on this interpretation. At the very least, footnote 2 of the prior panel opinion creates considerable ambiguity as to whether the prior panel held that conduct that "shocks the conscience" is needed in the present context."Courts apply the law of the case doctrine when their prior decisions in an ongoing case either expressly resolved an issue or necessarily resolved it by implication." Aramony v. United Way of America, 254 F.3d 403, 410 (2d Cir. 2001) (emphasis added) (citing 18 Charles Alan Wright & Arthur R. Miller, Federal Practice and ProcedureS 4478, at 789 (1981)). Here, the prior panel did not "expressly" or by necessary implication decide the "shocks the conscience" issue. The law-of-the-case doctrine relieves a court of the obligation of considering an issue twice, but we must be careful to prevent the doctrine from being used to prevent a properly raised argument from being considered even once. Where there is substantial doubt as to whether a prior panel actually decided an issue, the later panel should not be foreclosed from considering the issue. Accordingly, we conclude that the law-of-the-case doctrine does not apply and that the prior panel opinion does not foreclose our review of the applicable standard governing United Artists' substantive due process claim.
Our dissenting colleague disagrees with this conclusion because he believes that the prior panel's first statement represents the panel's holding and that the second statement is "mere dicta." Dissent at 19. The dissent, however, does not explain why the second statement should be regarded as dictum, and we must respectfully disagree with his position.
To reiterate, the prior panel at oral argument sua sponte raised the issue "whether the 'shocks the conscience' standard announced by the Supreme Court in County of Sacramento v. Lewis, 523 U.S. 833 (1998), is applicable to substantive due process claims like the one at issue here."
The panel then wrote:
At this time, we express no opinion whether these matters [including the applicability of Lewis 's "shocks the conscience" standard] are appropriate in determining the merits of the substantive due process claim. United Artists I at 4 n.2, in App. at 117a (emphasis added).
This language strongly suggests that the prior panel was not speaking in the abstract about the application of Lewis to a similar substantive due process claim in some future case. (Such a statement would be "mere dicta.") Rather, the prior panel was addressing "the substantive due process claim" in this case, and what the panel said about that claim was that the panel was not expressing an opinion about the application of Lewis "[a]t this time"-which implied that our Court might express an opinion about that claim at some future time. Thus, because we believe that the prior panel left this issue open (and certainly did not clearly resolve the issue,) we regard the issue as open and we therefore turn to the merits of the Supervisors' argument.
As noted, the Supervisors moved for summary judgment on qualified immunity grounds. Qualified immunity generally protects government officials performing discretionary functions from civil damages. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity applies so long as the officials' "conduct [did] not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Id. In determining whether qualified immunity applies, we ask: (1) whether the plaintiff has alleged the deprivation of an actual constitutional right, and if so, (2) whether the right was clearly established at the time of the alleged violation. Saucier v. Katz, 533 U.S. 194, 200 (2001); Eddy v. Virgin Islands Water and Power Authority, 256 F.3d 204, 208 (3d Cir. 2001). A right is clearly established if "its outlines are sufficiently clear that a reasonable officer would understand that his actions violate the right." Sterling v. Borough of Minersville, 232 F.3d 190, 193 (3d Cir. 2000). Therefore, our task is " 'to determine first whether the plaintiff has alleged a deprivation of a constitutional right at all,' before reaching the question of whether the right was clearly established at the time." Johnson v. Newburgh Enlarged School District, 239 F.3d 246, 251 (2d Cir. 2001) (quoting Lewis, 523 U.S. at 841 n.5); see also Nicholas v. Pennsylvania State University, 227 F.3d 133, 139-40 (3d Cir. 2000) ("To prevail on a non-legislative substantive due process claim, 'a plaintiff must establish as a threshold matter that he has a protected property interest to which the Fourteenth Amendment's due process protection applies.' " (quoting Woodwind Estates, Ltd. v. Gretkowski, 205 F.3d 118, 123 (3d Cir. 2000)). To answer this question, we must determine the appropriate legal standard to apply to substantive due process claims.
In County of Sacramento v. Lewis, 523 U.S. 833 (1998), the Supreme Court explained the standard that applies when a plaintiff alleges that an action taken by an executive branch official violated substantive due process. The Court observed that "the core of the concept" of due process is "protection against arbitrary action" and that "only the most egregious official conduct can be said to be 'arbitrary in the constitutional sense.' " Id. at 845-46 (citation omitted). After noting its long history of speaking of "the cognizable level of executive abuse of power as that which shocks the conscience," id. at 846 (citing Rochin v. California, 342 U.S. 165 (1952)), the Court continued:
Most recently, in Collins v. Harker Heights,[503 U.S. 115, 128 (1992)], we said again that the substantive component of the Due Process Clause is violated by executive action only when it "can properly be characterized as arbitrary, or conscience shocking, in a constitutional sense." Lewis, 523 U.S. at 847 (emphasis added). See also Fagan v. City of Vineland, 22 F.3d 1296, 1303 (3d Cir. 1994) (en banc) ("[T]he substantive component of the Due Process Clause can only be violated by governmental employees when their conduct amounts to an abuse of official power that 'shocks the conscience.' "). At the same time, however, the Lewis Court acknowledged that "the measure of what is conscience-shocking is no calibrated yard stick," Lewis, 523 U.S. at 847, and that "[d]eliberate indifference that shocks in one environment may not be so patently egregious in another." Id. at 850.5
Our Court has echoed these comments. Since Lewis , our cases have repeatedly acknowledged that executive action violates substantive due process only when it shocks the conscience but that the meaning of this standard varies depending on the factual context. See, e.g., Leamer v. Fauver, 288 F.3d 532, 546 (3d Cir. 2002); Boyanowski v. Capital Area Intermediate Unit, 215 F.3d 396, 400 (3d Cir. 2000); Nicini v. Morra, 212 F.3d 798, 809 (3d Cir. 2000) (en banc); Miller v. City of Philadelphia, 174 F.3d 368, 375 (3d Cir. 1999).
Despite Lewis and the post-Lewis Third Circuit cases cited above, United Artists maintains that this case is not governed by the "shocks the conscience" standard, but by the less demanding "improper motive" test that originated with Bello v. Walker, 840 F.2d 1124 (3d Cir. 1988), and was subsequently applied by our court in a line of land-use cases. In these cases, we held that a municipal land use decision violates substantive due process if it was made for any reason "unrelated to the merits," Herr v. Pequea Township, 274 F.3d 109, 111 (3d Cir. 2001) (citing cases), or with any "improper motive." See, e.g., Woodwind Estates, Ltd. v. Gretkowski, 205 F.3d 118 (3d Cir. 2000); Blanche Road Corp. v. Bensalem Township, 57 F.3d 253 (3d Cir. 1995); DeBlasio v. Zoning Board of Adjustment , 53 F.3d 592 (3d Cir. 1995); Parkway Garage, Inc. v. City of Philadelphia, 5 F.3d 685 (3d Cir. 1993); Midnight Sessions, Ltd. v. City of Philadelphia, 945 F.2d 667 (3d Cir. 1991).
These cases, however, cannot be reconciled with Lewis's explanation of substantive due process analysis. Instead of demanding conscience-shocking conduct, the Bello line of cases endorses a much less demanding "improper motive" test for governmental behavior. Although the District Court opined that there are "few differences between the [shocks the conscience] standard and improper motive standard," we must respectfully disagree. Aug. 15, 2001 order at 9 n.5, in App. at 11a. The "shocks the conscience" standard encompasses "only the most egregious official conduct." Lewis, 523 U.S. at 846. In ordinary parlance, the term "improper" sweeps much more broadly, and neither Bello nor the cases that it spawned ever suggested that conduct could be "improper" only if it shocked the conscience. We thus agree with the Supervisors that the Bello line of cases is in direct conflict with Lewis.
We also reject the District Court's suggestion that the application of the Bello "improper motive" test in Woodwind Estates, Ltd. v. Gretkowski, 205 F.3d 118 (3d Cir. 2000), which came after Lewis, means that our Court has sub silentio held that Lewis did not alter prior circuit law. The opinion in Woodwind Estates makes no mention of Lewis, and Lewis was not even cited in the Woodwind Estates briefs. Under these circumstances, Woodwind Estates clearly does not preclude us from considering whether Bello and its progeny remain good law. As the Supreme Court commented in Texas v. Cobb, 532 U.S. 162, 169 (2001), when it was argued that one of its prior decisions had decided a question that the parties had not argued and the Court had not addressed: "Constitutional rights are not defined by inferences from opinions which did not address the question at issue."
The dissent, however, asserts: "Unlike the Majority, I am fully comfortable assuming that this Court in Woodwind . . . (as in any other case it decides) was completely aware of the content of all published Supreme Court case law that may bear on the case at hand, especially in such a fundamental area as Due Process." Dissent at 22. This image of the omniscient circuit judge-who has every potentially pertinent precedent in mind at all times and never fails to grasp their possible implications-is flattering but perhaps not entirely accurate. And in any event, the dissent's assumption about what the Woodwind Estates panel was "aware of " is beside the point. The pertinent question is not whether the members of the Woodwind Estates panel had read and recalled Lewis or even whether its possible implications for the Bello line of cases crossed their minds. Rather, the pertinent question is whether the Woodwind Estates panel, without providing so much as a hint in their opinion that they were doing so, decided that Lewis did not undermine the Bello line of cases and thereby foreclosed this panel or any other panel from considering that question. The answer to that question is too obvious to need stating. It is not an accepted practice of any appellate court to decide important questions without revealing that it has done so.
In sum, we see no reason why the present case should be exempted from the Lewis shocks-the-conscience test simply because the case concerns a land use dispute. Such a holding would be inconsistent with the plain statements in Lewis and our own post-Lewis cases that we have already noted. Since Lewis, our court has applied the "shocks the conscience" standard in a variety of contexts. See, e.g., Boyanowski v. Capital Area Intermediate Unit, 215 F.3d 396 (3d Cir. 2000) (applying the "shocks the conscience" test to a claim of civil conspiracy); Fuentes v. Wagner , 206 F.3d 335 (3d Cir. 2000) (finding the "shocks the conscience" standard appropriate in an excessive force claim in the context of a prison disturbance); Miller v. City of Philadelphia, 174 F.3d 368 (3d Cir. 1999) (applying the "shocks the conscience" standard in the child custody context). There is no reason why land use cases should be treated differently. We thus hold that, in light of Lewis, Bello and its progeny are no longer good law.
We note that our holding today brings our Court into line with several other Courts of Appeals that have ruled on substantive due process claims in land-use disputes. See, e.g., Chesterfield Development Corp. v. City of Chesterfield, 963 F.2d 1102, 1104-05 (8th Cir. 1992) (holding that allegations that the city arbitrarily applied a zoning ordinance were insufficient to state a substantive due process claim, and stating in dicta that the "decision would be the same even if the City had knowingly enforced the invalid zoning ordinance in bad faith . . . . A bad-faith violation of state law remains only a violation of state law."); PFZ Properties, Inc. v. Rodriguez, 928 F.2d 28, 32 (1st Cir. 1991) ("Even assuming that ARPE engaged in delaying tactics and refused to issue permits for the Vacia Talega project based on considerations outside the scope of its jurisdiction under Puerto Rico law, such practices, without more, do not rise to the level of violations of the federal constitution under a substantive due process label.").
Application of the "shocks the conscience" standard in this context also prevents us from being cast in the role of a "zoning board of appeals." Creative Environments, Inc. v. Estabrook, 680 F.2d 822, 833 (1st Cir. 1982) (quoting Village of Belle Terre v. Boraas, 416 U.S. 1, 13 (1974) (Marshall, J., dissenting)); see also Nestor Colon Medina & Sucesores, Inc. v. Custodio, 964 F.2d 32, 45-46 (1st Cir. 1992) (disagreeing with Bello and stating that "we have consistently held that the due process clause may not ordinarily be used to involve federal courts in the rights and wrongs of local planning disputes"). The First Circuit in Estabrook observed that every appeal by a disappointed developer from an adverse ruling of the local planning board involves some claim of abuse of legal authority, but "[i]t is not enough simply to give these state law claims constitutional labels such as 'due process' or'equal protection' in order to raise a substantial federal question under section 1983." Estabrook, 680 F.2d at 833. Land-use decisions are matters of local concern and such disputes should not be transformed into substantive due process claims based only on allegations that government officials acted with "improper" motives.
Having found that the District Court applied the wrong standard for evaluating United Artists' substantive due process claim, we do not reach the second qualified immunity inquiry as to whether the constitutional right was clearly established at the time of the violation. We vacate the District Court's denial of the Supervisors' summary judgment motion and remand the case for further proceedings to determine whether United Artists can survive the Supervisors' summary judgment motion in light of Lewis.