NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 20-1837

__________ JOHN M. CUSTIN, Appellant

v. HAROLD J. WIRTHS, STATE OF NEW JERSEY COMMISSIONER OF LABOR; JOSEPH SIEBER, N.J. BOARD OF REVIEW; GERALD YARBRO UGH, N.J. BOARD OF REVIEW;

JERALD L. MADDOW, N. J. BOARD OF REVIEW; HILDA S. SOLIS, U.S. SECRETARY OF LABOR; JANE OATS, SECRETARY OF EMPLOYMENT & TRAINING; SETH D. HARRIS, ACTING U.S. SECRETARY OF LABOR

________________ __________________ On Appeal from the United States District Court for the District of New Jersey (D.C. Civil Action No. 2-12-cv-00910) District Judge: Honorable Kevin McNulty

___________________ _________________ Submitted Pursuant to Th ird Circuit LAR 34.1(a) February 12, 2021 Before: AMBRO, PORTER a nd SCIRICA, Circuit Judges (Opinion filed: March 4, 2021)2 ___________

OPINION *

___________ PER CURIAM Appellant John Custin, proceeding pro se , appeals from the District Court’s orders dismissing his complaint in part and granting summary judgment on the remaining claims in an action he brought pursuant to 42 U.S.C. § 1983. For the following reasons, we will affirm. In April 2010, Custin was discharged by Walmart Stores , Inc., after two years of employment. Over the next two years, he file d four separate claims for benefits under the New Jersey Unemployment Compensation Law, N.J.S.A. § 43:21-1, et seq., each of which was ultimately denied. In February 20 12, Custin filed this action. The operative third amended complaint sought relief agai nst the Commissioner of the State of New Jersey Department of Labor and Workforc e Development (NJDOL) and three members of the Department of Labor’s Board of Review (collectively the state defendants), and the former and acting U.S. Secretary of Labor and the U.S. Secretary of Employment and Training Administration (collectively the fede ral defendants). Custin alleged that, in their administration of the unemployment co mpensation program, the state defendants violated the Social Security Act (SSA), as well as his Fourteenth Amendment due process rights and Eighth Amendment right to be free of excessive fines. Custin also challenged the constitutionality of 20 C.F.R. § 615.8(c)(2) and N.J.S.A. § 43:21-5(b). Finally, he

* This disposition is not an op inion of the full Court and pu rsuant to I.O.P. 5.7 does not constitute binding precedent.3 sought to enjoin the federa l defendants from continuing to certify or provide federal funding for New Jersey’s unemplo yment compensation program. In January 2014, the District Court di smissed the claims against the federal defendants. See ECF No. 82 & 83 . It subsequently dismisse d, under Fed. R. Civ. P. 12(b)(6), all of the claims against the stat e defendants except the due process claims. 1
See ECF No. 130 & 131. In an order entere d March 26, 2020, the Di strict Court granted the state defendants’ motion for summary judg ment on the due process claims, and this appeal ensued. See ECF No. 253 & 254. We have jurisdiction over this appeal pur suant to 28 U.S.C. § 1291. We exercise plenary review over the District Court’s dismissa l of the claims for failure to state a claim for relief, see Gelman v. State Farm Mut. Auto. Ins. Co., 583 F. 3d 187, 190 (3d Cir. 2009), and over its grant of summary judgment , see Groman v. Twp. of Manalapan, 47 F.3d 628, 633 (3d Cir. 1995). Summary judgment is proper where, viewing the evidence in the light most favorable to the nonmoving party and drawin g all inferences in favor of that party, there is no genuine issue of mate rial fact and the movi ng party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Kaucher v. County of Bucks, 455 F.3d 418, 422-23 (3d Cir. 2006). We first affirm the dismissal of the cl aims against the federal defendants. Pursuant to the Social Security Act of 1935, 42 U.S.C. § 501 et seq., unemployment

1 In the same order, the District Court dism issed all claims against the NJDOL; however, because the agency was not named as a defe ndant in the third amen ded complaint, we do not address Custin’s argument on appeal that the claims against NJDOL were dismissed in error.4 compensation is provided through a coopera tive federal-state program. See California Dep’t. of Human Resources Development v. Java, 402 U. S. 121, 125 (1971). Although the United States partially fund s the programs, the states are responsible for establishing eligibility requirements and ma king individual eligibility dete rminations. See 26 U.S.C. § 3304(a); 42 U.S.C. § 503. The Secretary of Labor annually certifies state programs after confirming that they conform to fede ral requirements. Java, 402 U.S. at 125. Custin claimed that the federal defendants violated his constitutio nal rights by continuing to certify New Jersey’s unemployment compen sation program as compliant with federal law “when it was not.” In particular, Custin cl aimed that the state fa iled to comply with the federal requirements that its program provide “full payment of unemployment compensation when due,” and the “[o]pportunity for a fair hearing, before an impartial tribunal,” when benefits are deni ed. 42 U.S.C. § 503(a)(1), (3). The District Court properly concluded that Custin lacked standing to pursue this claim because there was no causal connection between the certification of New Jersey’s unemployment compensation benefits program a nd the injury alleged in the complaint, which, contrary to Custin’s contention on a ppeal, was the alleged improper denial of his benefits claims and an ensuin g financial fallout. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (noting the well-recogn ized elements of Article III standing, including a “causal connection be tween the injury and the con duct complained of”). In his complaint, Custin did not allege any f acts suggesting that th e state’s unemployment compensation program was non-compliant with federal law; instead, he alleged only defects in the process by which the state denied his claims for benefits. Neither the5 Secretary of Labor nor the Secretary of Em ployment and Training Administration is a proper defendant under the facts as alleged. Id. (noting that the alleged injury must be “fairly . . . trace[able]” to th e defendant’s actions) (citation omitted); cf. Java, 402 U.S. at 135 (enjoining enforcement of California unem ployment law as inconsistent with federal “when due” requirement where defendants were California Department of Human Resources Development and ot her state defendants). Turning to the claims agains t the state defendants, Custin argues that the District Court used the wrong standard in evaluating his due process claims. We disagree. A claimant has a property interest in unemp loyment compensation benefits which is protected by the Fourteenth Amendment’s Due Process Cl ause. See Wilkinson v. Abrams, 627 F.2d 650, 664 (3d Cir. 1980). The District Court cited and properly applied Supreme Court decisions outlining “the essen tial requirements of due process,” including the right to “notice and oppo rtunity to respond,” “the opportunity to be heard at a meaningful time and in a meaningful manne r,” and the right to “an impartial and disinterested tribunal.” See ECF No. 253 at 13 (citing and quotin g Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 (1985), Mathews v. El dridge, 424 U.S. 319, 332 (1976), and Marshal v. Jericho, 446 U.S. 23 8, 242 (1980)). The District Court also looked to analogou s administrative cases to guide it in applying these principles to the unemployment compensation context. 2 See, e.g., DeBlasio v. Zoning Bd. of Adjustment

2 Contrary to Custin’s argument on appeal, th is case is not analogous to Shaw v. Valdez, 819 F.2d 965, 968 (10th Cir. 1987). Shaw challenged the state’s procedures as violative of the “fair hearing” requirement of th e SSA, 42 U.S.C. § 503( a)(3). Id. at 966. Although Custin purported to do the same, as discussed supra , the factual allegations in6 for Twp. of West Amwell, 53 F.3d 592 (3d Cir. 1995). Custin appears to argue that the District Court should have separately analyz ed whether he was denied a “fair hearing” under 42 U.S.C. § 503(a)(3); but a sepa rate analysis was not necessary as the requirements of due process and § 503(a)(3) are co-extensive. See Cosby v. Ward, 843 F.2d 967, 982 (7th Cir. 1988) (“Whether the statutory ‘fair hearing’ requirement has been met is tested by the same standards as c onstitutional procedural due process.”) (citation omitted); Ross v. Horn, 598 F.2d 1312, 1318 n.4 (3d Cir. 1979) (assuming the same). 3 In his brief, Custin focuses on his due proc ess claims stemming from the denial of his first claim for unemployment benefits made in April 2010. Initially, the Deputy Director of the Division of Unemployment and Disability Insura nce determined that Custin was eligible for bene fits. Walmart appealed and, during a telephonic hearing before the Appeals Tribunal on June 28, 2010, argued that Custin was in eligible for benefits because he was dismissed for misc onduct. See N.J.S.A. § 43:21-5(b) (2007) (disqualifying individuals for unemployment co mpensation benefits “for the week in which the individual has been suspended or discharged for miscondu ct connected with the work, and for the five we eks which immediately follow that week”). A personnel manager from Walmart testified that Custin was discharged from employment because he

his complaint support only a claim that he was denied a fair hearing.

3 To the extent that Custin challenges the Di strict Court’s discovery rulings as erroneous and adversely affecting his due process clai ms, we find no abuse of discretion. See Anderson v. Wachovia Mortg. Corp., 621 F. 3d 261, 281 (3d Cir. 2010) (“We review a district court’s discovery orders for abuse of discretion, and will not disturb such an order absent a showing of actual and substantial prejudice.”).7 violated the company’s callout policy by faili ng to notify Walmart of his absences for five consecutive days that he was scheduled to work in April 2010. Under the policy, employees were required to call a 1-800 number prior to their shift to advise that they would be absent; employees then received a ve rification number as proof of their call and were directed to their local Walmart store to speak to a manager. Cus tin testified that he was aware of the callout policy and that, on each of the days in question, he tried to call the hotline but he was disconnected because “there [wa]s somethi ng wrong with it,” and he tried to call the local store but no one picked up. The manager testified that there were no problems reported with the phone system and other employees properly called out on those days. During her tes timony, the manager referred to two documents which were provided to the hearin g examiner in advance of the hear ing, an “exit interview” indicating that Custin was “rehirable,” and an “attendance report” indi cating the dates of Custin’s absences from work. The hearing examiner dete rmined that Custin was discharged for misconduct based on his failure to properly notify Walmar t of his absences and that, as a result, he was ineligible for benefits under § 43:21-5(b) for the period from Ap ril 18, 2010 to May 29, 2010. See N.J.S.A. § 43:21-5(b) (defini ng “[m] isconduct” to in clude “conduct which is improper, intentional, connected with th e individual's work, within the individual's control, not a good faith error of judgment or discretion,” including the “deliberate refusal, without good cause, to comply with the employer's lawful and reasonable rules made known to the employee”). Custin appealed, first to the NJDOL Board of Review,8 which affirmed the Tribunal, an d then to the Appellate Division of the Superior Court of New Jersey, which affirmed the Board’s decision. In his complaint, Custin claimed that hi s due process rights were violated because he did not receive notice of hi s right to appeal the Appellate Tribunal’s decision, he was not provided copies of the “exit interview” and “attendance report” referenced in the hearing, and the Board of Review upheld the decision without copies of those documents. Custin also alleged that the hearing examiner was required to find malicious intent to sustain a misconduct charge. 4 We agree with the District Court that Custin received all of the process that he was due in these initial proceedings. Custin was given notice, bot h of the hearing before the Appellate Tribunal, and of Walmart’s claims, a nd he was afforded an opportunity to rebut those claims. See FTC v. National Lead Co., 35 2 U.S. 419, 427 (1957) (noting that “the requirements of a fair hearing include notice of the claims of the opposing party and an opportunity to meet them”). As the Superior Court indicated in affirming the denial of benefits, “Custin was well aware of Walmart’ s position that he had been separated from work for misconduct.” ECF No. 233-13 at 13. The Court noted that when Custin first

4 In its opinion, the District Court outlined numerous other procedur al defects stemming from these proceedings which Cus tin raised for the first time in his Statement of Material Facts. See ECF No. at 14-16. These claims were not properly before the District Court. See Shanahan v. City of Chicago, 82 F.3d 776, 781 (7th Cir. 1996) (“A plaintiff may not amend his complaint through arguments in his brief in opposition to a motion for summary judgment.”); Trishan Air, Inc. v. Fe deral Ins. Co., 635 F. 3d 422, 435 (9th Cir. 2011) (noting that “summary judgment is no t a procedural second chance to flesh out inadequate pleadings”) (citation omitted). In any event, for the reasons provided by the District Court, these alleged procedural defe cts do not amount to due process violations.9 applied for unemployment benefits, the notice scheduling an appointment with a claims examiner indicated “in bold letters” that “the reason for his appointment was that he may have been separated for misconduct in connecti on with his work.” Id. at 13-14. It further noted that, when Walmart appeal ed, Custin received a copy of the notice of the Appeal Tribunal hearing, “which explicitly stated th at the issues involv ed were ‘voluntary leaving’ and ‘discharge for misconduct.’” Id. at 14. Finally, at the start of that hearing, the examiner indicated that “[t] he issues to be resolved we re the issue of discharge for misconduct and the issue of voluntary leaving.” Id. Custin gave no indication that he was unprepared to meet those charges. At the Appeal Tribunal hearing, Custin was also provided an opportunity to present evidence and testify on his own be half, and to cross-examine Walmart’s personnel manager. See ECF No . 233-11. Neither the failure to provide Custin with copies of the exit interview or attendance reco rd, nor the failure to make those documents part of the record on appeal, rendered th e proceedings fundamentally unfair. Custin readily admitted in his testim ony that he was absent on th e days in question. And Walmart’s personnel manager te stified that, according to th e exit interview, Walmart was willing to rehire Custin; that testimony was part of the record on ap peal. The mere fact that Walmart was willing to rehire Custin di d not negate the hearin g examiner’s finding that Custin was discharged fo r misconduct. Furthermore, the hearing examiner was not required to find malicious intent to disqualify Custin for misconduct. Cf. N.J.S.A. § 43:21-5(b) (2015) (providing malicious behavior as an example of “severe10 misconduct”). 5 As the Superior Court observed, th e determination that Custin failed to properly notify Walmart of his absences constituted misconduct at the time under N.J.A.C. § 12:17-10.3. See ECF No. 233-13. Finally, Custin exercised his right to appeal to the Board of Review and, from ther e, to the Superior Court, which addressed his due process claims. Because Custin was afforded all of the procedural safeguards required for a fair hearing and received meani ngful review through the appellate process, summary judgment was warranted on these due process claims. The District Court also properly denied Custin’s due process claims arising from the denial of his second, third, and fo urth claims for unemployment compensation benefits because he failed to avail himself of all the processes ava ilable to him. See Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000 ) (“In order to state a claim for failure to provide due process, a plaintiff must have taken advantage of the processes that are

5 Custin sought to challenge N.J.S.A. § 43: 21-5(b), arguing that it “enables an employer to disqualify a claimant for benefits for be ing a malicious employee while in the same breath stating in testimony that he is rehirable.” ECF No. 38 at 6. But as the District Court concluded, Custin failed to allege ho w the statute violates 42 U.S.C. § 503(a)(1), the provision of the SSA requiring stat e unemployment compensation programs to provide for payment of benefits “when due.” We likewise agree that there is no merit to Custin’s challenge to the validity of N. J.S.A § 21-24(19), which deems claimants ineligible for extended unemployment benefits if they fa iled to accept any offer of, or to apply for, suitable work, or if they failed to actively seek suitable work. Custin argued that the statute “disqualifies claimants twic e on the same charge on the original claim even before that original di squalification has been heard on appeal.” We see no basis for finding this statute violative of the SSA or the due process clause, neither of which requires the payment of benef its while an appeal from the denial of benefits is pending. Cf. Java, 402 U.S. at 133 (finding secti on of state unemployment insurance code providing for suspension of allowed benefits pending the employer’s appeal violative of the SSA’s “when due” clause). For the same reas ons, Custin’s challenge to 20 C.F.R. § 615.8(c)(2), which was based on similar arguments, fails.11 available to him or her, unless those processes are unavailable or patently inadequate.”). In particular, for each of these benefits claims he failed to appeal the final decisions of the Appeals Tribunal to the Bo ard of Review. See N.J.S.A. § 43:21-6 (setting forth the appeal procedures in unemployment co mpensation proceedings). Custin did not explicitly allege that the state processes we re unavailable or inadequate. The District Court, construing the pro se pleadings lib erally, identified a dozen allegations of procedural defects in the appellate process. See ECF No. 253 at 10-11. But as the District Court explained, most of the alleged defects could have been raised on appeal to the Board of Review, and none of them woul d amount to interference with the appellate process or render it a sham. See Alvin, 227 F.3d at 118 (“When access to procedure is absolutely blocked or there is evidence that the procedures are a sham, the plaintiff need not pursue them to state a due process claims.”). Finally, we agree with the District Cour t that Custin alleged no basis for relief under the Eighth Amendment. See Browning-F erris Indus. v. Kelco Disposal, 492 U.S. 257, 262 (1989) (holding that the Eighth Amendment applies “pri marily, and perhaps exclusively, to criminal prosecutions and punishments” and does not apply to punitive damages in a civil suit). For the foregoing reasons, we will affi rm the District Court’s judgment.