23-413

Cullen v. Mello

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY 

ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF 

APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER 

IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN 

ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY 

ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 

1 At a stated term of the United States Court of Appeals for the Second Circuit, 

2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 

New York, on the 1st 3 day of May, two thousand twenty-four. 

4 

5 PRESENT: 

6 GUIDO CALABRESI, 

7 MICHAEL H. PARK,

8 SARAH A. L. MERRIAM, 

9 Circuit Judges. 

10 _____________________________________ 

11 

12 Justin Cullen, 

13 

14 Plaintiff-Appellant, 

15 

16 v. 23-413 

17 

18 Keith Mello, 

19 

20 Defendant-Appellee.

21 _____________________________________ 

22 

23 FOR PLAINTIFF-APPELLANT: GREGORY A. JONES, (Patrick 

24 Tomasiewicz, on the brief), Fazzano & 

25 Tomasiewicz, LLC, Hartford, CT. 

 26 

27 FOR DEFENDANT-APPELLEE: ASHLEY MESKILL, Assistant Attorney 

28 General, for William Tong, Attorney 

29 General of Connecticut, Hartford, CT. 

30 Appeal from a judgment of the United States District Court for the District of Connecticut 

31 (Bolden, J.).
2

1 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 

2 DECREED that the judgment of the district court is AFFIRMED. 

3 The Police Officer Standards and Training Council (“POSTC”) is a Connecticut state 

4 agency that licenses and regulates police officers. In late 2020, it refused to issue Officer Justin 

5 Cullen a professional license, or “certification,” to which he claims he was entitled. POSTC 

6 contends that it was empowered to withhold Cullen’s certification under Conn. Gen. Stat. § 7-

7 291c, which bars police departments from hiring officers who have previously resigned while 

8 under investigation for “malfeasance.” Cullen had previously worked for the Manchester Police 

9 Department, but resigned while under investigation for sexual assault. 

10 Cullen first challenged POSTC’s decision by filing an administrative appeal in state court, 

11 but the state court dismissed Cullen’s claim for lack of subject matter jurisdiction. See Cullen v. 

12 Police Officer Stds. & Training Council, 2021 WL 2458369 (Conn. Super. Ct. May 21, 2021). So 

13 Cullen filed suit in federal court—this time against POSTC Chairman Keith Mello—alleging 

14 violations of his substantive and procedural due process rights. The district court granted 

15 summary judgment for Mello. Cullen now appeals. We assume the parties’ familiarity with the 

16 facts, procedural posture, and issues on appeal. 

17 We review a grant of summary judgment de novo. See Victory v. Pataki, 814 F.3d 47, 58 

18 (2d Cir. 2016). We may affirm on any basis that finds “sufficient support in the record, including 

19 grounds not relied on by the district court.” Dean v. Univ. at Buffalo Sch. of Med. & Biomedical 

20 Scis., 804 F.3d 178, 189 (2d Cir. 2015) (quoting Lotes Co. v. Hon Hai Precision Indus. Co., 753 

21 F.3d 395, 413 (2d Cir. 2014)). 
3

1 A. Property Interest

2 The Due Process Clause protects against deprivations of life, liberty, or property without 

3 due process of law. See U.S. Const. amend. XIV, § 1. Those seeking to invoke its protection 

4 must “establish that one of these interests is at stake.” Graziano v. Pataki, 689 F.3d 110, 114 (2d 

5 Cir. 2012) (quoting Wilkinson v. Austin, 545 U.S. 209, 221 (2005)); Zahra v. Town of Southold, 

6 48 F.3d 674, 680 (2d Cir. 1995). 

7 Protected property interests “are not created by the Constitution,” but “are created and their 

8 dimensions are defined by existing rules or understandings that stem from an independent source 

9 such as state law.” Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972). Applying this framework, 

10 we have held an interest in an occupational license may be protected, so long as a plaintiff can 

11 demonstrate a “legitimate claim of entitlement” grounded in established law. See Spinelli v. City 

12 of New York, 579 F.3d 160, 169 (2d Cir. 2009) (quoting Roth, 408 U.S. at 577). “[A] property 

13 interest in a license,” then, “largely turns on whether the issuing authority lacks discretion to deny 

14 [it], i.e., whether the authority is required to issue it upon ascertainment that certain objectively 

15 ascertainable criteria have been met.” Ace Partners, LLC v. Town of E. Hartford, 883 F.3d 190, 

16 195 (2d Cir. 2018) (cleaned up). Conversely, interests in “possible future license[s],” or in 

17 existing licenses revokable in the state’s discretion, cannot support a due process claim. Spinelli, 

18 579 F.3d at 169.

19 Cullen argues that he has a protectable property interest in his POSTC certification card 

20 because the agency lacks discretion to withhold his certification after he fulfilled the regulatory 

21 requirements under Conn. Agencies Regs. § 7-294e-14(a). We agree. POSTC is empowered to 

22 create requirements for certification and to enforce those requirements. See Conn. Gen. Stat. § 7-
4

1 294d(b)-(c). And it has done so, mandating certain entry-level requirements and post-hire 

2 training programs. See, e.g., Conn. Agencies Regs. §§ 7-294e-14(a); 7-294e-16; 7-294e-2(a). 

3 But neither POSTC’s organic statute nor its regulations appear to require compliance with Conn. 

4 Gen. Stat. § 7-291c—the alleged basis for the denial at issue here. Mello identifies no source of 

5 discretion that might allow POSTC to deny Cullen his certification card. On the record before us, 

6 we thus conclude that the Due Process Clause protects Cullen’s interest in his POSTC certification.

7 B. Substantive Due Process 

8 “Substantive due process protects against government action that is arbitrary, conscience9 shocking, or oppressive in a constitutional sense, but not against government action that is 

10 incorrect or ill-advised.” Kaluczky v. City of White Plains, 57 F.3d 202, 211 (2d Cir. 1995)

11 (cleaned up). Nor does “substantive due process . . . entitle federal courts to examine every 

12 alleged violation of state law, especially ones that, while perhaps vexatious, are more routine than 

13 egregious.” Kuck v. Danaher, 600 F.3d 159, 167 (2d Cir. 2010). Rather, “[s]ubstantive due 

14 process standards are violated only by conduct that is so outrageously arbitrary as to constitute a 

15 gross abuse of governmental authority.” Natale v. Town of Ridgefield, 170 F.3d 258, 263 (2d Cir. 

16 1999). 

17 Cullen cannot meet this stringent standard. He claims that POSTC failed to follow proper 

18 procedure when it denied him his certification card. But such claims are properly the subject of 

19 state administrative law, not federal constitutional law. See Harris v. Mills, 572 F.3d 66, 76 (2d 

20 Cir. 2009) (a due process claim “based solely on violations of state regulations . . . is not actionable 

21 in federal court”); see also Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 888 (2d Cir. 1987) (“Section 

22 1983 is not a means for litigating in a federal forum whether a state or local administrative decision 
5

1 was arbitrary and capricious.”). POSTC’s conduct, viewing the facts in the light most favorable 

2 to Cullen, is not so oppressive, conscience shocking, or outrageous as to violate the Due Process 

3 Clause. See, e.g., Kaluczky v. City of White Plains, 57 F.3d 202, 211 (2d Cir. 1995). 

4 C. Procedural Due Process

5 When faced with a procedural due process claim, we “ask what process the State provided, 

6 and whether it was constitutionally adequate.” Zinermon v. Burch, 494 U.S. 113, 126 (1990). 

7 Constitutional adequacy, however, is not determined by state-law procedural requirements. See, 

8 e.g., Tooly v. Schwaller, 919 F.3d 165, 172 (2d Cir. 2019) (“In determining how much process is 

9 adequate, we look to federal constitutional standards rather than state statutes to define the 

10 requirements of procedural due process.” (cleaned up)); McDarby v. Dinkins, 907 F.2d 1334, 

11 1337-38 (2d Cir. 1990) (“When the minimal due process requirements of notice and hearing have 

12 been met, a claim that an agency’s policies or regulations have not been adhered to does not sustain 

13 an action for redress of procedural due process violations.” (quoting Goodrich v. Newport News 

14 Sch. Bd., 743 F.2d 225 (4th Cir. 1984))). Instead, “[i]n determining how much process is due, a 

15 court must weigh (1) the private interest affected, (2) the risk of erroneous deprivation through the 

16 procedures used and the value of other safeguards, and (3) the government’s interest.” Spinelli, 

17 579 F.3d at 170 (citing Mathews v. Eldridge, 424 U.S. 319, 335 (1976)). 

18 Under the well-established federal standard, there is ordinarily little question that due 

19 process requires notice and an opportunity to be heard. See Kapps v. Wing, 404 F.3d 105, 120 

20 (2d Cir. 2005). And when official action is at issue, the government generally must hold a hearing 

21 before it deprives an individual of their property. See, e.g., Rivera-Powell v. N.Y.C. Bd. of 

22 Elections, 470 F.3d 458, 465 (2d Cir. 2006). Those requirements were met here. On October 8, 
6

1 2020, POSTC sent Cullen notice of its “preliminary” determination “that there exists a reasonable 

2 basis to withhold certification” because he “ha[d] not met eligibility requirements as required by 

3 Conn. Gen. Stat. 7-291c.” App’x at 27. This notice informed Cullen that POSTC would hold a 

4 hearing on the issue, during which he would be provided an opportunity to be heard and to submit 

5 evidentiary submissions “relevant to” his entitlement to the certification card. Id. Cullen 

6 participated in that hearing on October 29, 2020, which lasted more than four hours. Cullen and 

7 his counsel had ample opportunity to be heard at the hearing, and indeed, Cullen does not argue 

8 otherwise. POSTC then declined to release Cullen’s certification card. 

9 Through this notice and hearing, POSTC provided Cullen constitutionally adequate 

10 predeprivation process. See McKesson Corp. v. Div. of Alcoholic Beverages & Tobacco, Dept. of 

11 Bus. Regul. of Fla., 496 U.S. 18, 38 n.21 (1990). We thus affirm the District Court’s grant of 

12 summary judgment to Mello. 

13 * * * 

14 We have considered the parties’ remaining arguments and find them to be without merit. 

15 For the foregoing reasons, the judgment of the district court is AFFIRMED. 

16 

17 FOR THE COURT: 

18 Catherine O’Hagan Wolfe, Clerk of Court