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. At a stated term of the United States Court of Appeals for the Second Circuit, 1 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 2 New York, on the 1 st da y of May, two thousand twenty - four . 3 4 PRESENT: 5 GUIDO CALABRESI , 6 MICHAEL H. PARK, 7 SARAH A. L. MERRIAM , 8 Circuit Judges . 9

_____________________________________ 10 11 Justin Cullen , 12 13 Plaintiff -Appellant, 14 15 v. 23-413 16 17 Keith Mello , 18 19 Defendant -Appell ee . 20

_____________________________________ 21 22 FOR PLAINTIFF
- APPELLANT : G REGORY A. J ONES , ( Patrick 23 Tomasiewicz , on the brief ) , Fazzano & 24 Tomasiewicz, LLC, Hartford, CT. 25 26 FO R DEFENDANT
- APPELL EE : A SHLEY M ESKILL , Assistant Attorney 27 General, for William Tong, Attorney 28 General of Connecticut, Hartford, CT

. 29 Appeal from a judgment of the United States District Court for the District of Connecticut 30 (Bolden, J

. ). 312 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 1 DECREED that the judgment of the district court is AFFIRMED

. 2 The Police Officer Standards and Training Council ( “ POSTC ” ) is a Connecticut state 3 agency that licenses and regulates police officers. In late 2020, it refused to issue O fficer Justin 4 Cullen a professional license, or “certification,” to which he claims he was entitled

. POSTC 5 contends that it was empowered to withhold Cullen’s certification under Conn. Gen. Stat. § 7- 6 291c, which bars police departments from hiring officers who have previously resigned while 7 under investigation for “malfeasance.” Cullen had previously worked for the Manchester Police 8 Department, but resigned while under investigation for sexual assault

. 9 Cullen first challenged POSTC’s decision by filing an administrative appeal in state court , 10 b ut the state court dismissed Cullen’s claim for lack of subject matter jurisdiction. See Cullen v. 11 Police Officer Stds. & Training Council , 2021 WL 2458369 (Conn. Super. Ct. May 21, 2021)

. So 12 Cullen filed suit in federal court

— this time against POSTC C hairman Keith Mello —alleging 13 violations of his substantive and procedural due process rights. The district court granted 14 summary judgment for Mello

. Cullen now appeals. We assume the parties’ familiarity with the 15 facts, procedural posture, and issues on appeal. 16 We review a grant of summary judgment de novo. See Victory v. Pataki , 814 F.3d 47, 58 17 (2d Cir. 2016)

. W e may affirm on any basis that finds “sufficient support in the record, including 18 grounds not relied on by the district court .” Dean v. Univ. at Buffalo Sch. of Med. & Biomedical 19 Scis. , 804 F.3d 178, 189 (2d Cir. 2015) (quoting Lotes Co

. v. Hon Hai Precision Indus. Co. , 753 20 F.3d 395, 413 (2d Cir. 2014) ). 213 A. Property Interest 1 The Due Process Clause protects against deprivations of life, liberty, or property without 2 due process of law

. See U.S. Const. amend. XIV, § 1. Those seeking to invoke its protection 3 must “establish that one of these interests is at stake.” Graziano v. Pataki , 689 F.3d 110, 114 (2d 4 Cir. 2012) (quoting Wilkinson v. Austin , 545 U.S. 209, 221 (2005)) ; Zahra v. Town of Southold , 5 48 F.3d 674, 680 (2d Cir. 1995)

. 6 Protected p roperty interests “are not created by the Constitution,” but “are created and their 7 dimensions are defined by existing rules or understandings that stem from an independent source 8 such as state law.” Bd. of Regents v. Roth , 408 U.S. 564, 577 (1972) . Applying this framework, 9 we have held an interest in an occupational license may be protected , so long as a plaintiff can 10 demonstrate a “legitimate claim of entitlement” grounded in established law. See Spinelli v. City 11 of New York , 579 F.3d 160, 169 (2d Cir. 2009) ( quoting Roth , 408 U.S. at 577). “[ A] property 12 interest in a license ,” then, “largely turns on whether the issuing authority lacks discretion to deny 13 [it] , i.e. , whether the authority is required to issue it upon ascertainment that certain objectively 14 ascertainable criteria have been met.” Ace Partners, LLC v. Town of E. Hartford , 883 F.3d 190 , 15 195 (2d Cir. 2018) (cleaned up). Conversely, interests in “possible future license[s],” or in 16 existing licenses revok able in the state’s discretion , cannot support a due process claim. Spinelli , 17 579 F.3d at 169. 18 Cullen argues that he has a protectable property interest in his POSTC certification card 19 because the agency lacks discretion to withhold his certification after he fulfilled the regulatory 20 requirements under Conn. Agencies Regs. § 7-294e-14(a)

. We agree. P OSTC is empowered to 21 create requirements for certification and to enforce those requirements. See Conn. Gen. Stat. § 7- 224 294d(b)- (c) . And i t has done so, mandating certain entry

- level requirements and post

- hire 1 training programs. See , e.g. , Conn. Agencies Regs. § § 7 -294e- 14(a); 7 -294e- 16; 7 -294e- 2(a). 2 But neither POSTC’s organic statute nor its regulations appear to require compliance with Conn. 3 Gen. Stat. § 7 -291c— the alleged basis for the denial at issue here

. Mello identifies no source of 4 discretion that might allow POSTC to deny Cullen his certification card. On the record before us, 5

we thus conclude that the Due Process Clause protects Cullen’s interest in his POSTC certification. 6 B. Substantive Due Process 7 “Substantive due process protects against government action that is arbitrary, conscience

8 shocking, or oppressive in a constitutional sense, but not against government action that is 9 incorrect or ill

- advised.” Kaluczky v. City of White Plains , 57 F.3d 202, 211 (2d Cir. 1995) 10 ( cleaned up ). Nor does “substantive due process

. . . entitle federal courts to examine every 11 alleged violation of state law, especially ones that, while perhaps vexatious, are more routine than 12 egregious.” Kuck v. Danaher , 600 F.3d 159, 167 (2d Cir. 2010). Rather, “[s]ubstantive due 13
process standards are violated only by conduct that is so outrageously arbitrary as to constitute a 14 gross abuse of governmental authority.” Natale v. Town of Ridgefield , 170 F.3d 258, 263 (2d Cir. 15 1999). 16 Cullen cannot meet this stringent standard. He claims that POSTC failed to follow proper 17 procedure when it denied him his certification card. But such claims are properly the subject of 18 state administrative la w, not federal c onstitutional law. See Harris v. Mills , 572 F.3d 66, 76 (2d 19 Cir. 2009) (a due process claim “based solely on violations of state regulations

. . . is not actionable 20 in federal court ”); see also Alfaro Motors, Inc. v. Ward , 814 F.2d 883, 888 (2d Cir. 1987) (“Section 21 1983 is not a means for litigating in a federal forum whether a state or local administrative decision 225 was arbitrary and capricious.”). POSTC’s conduct, viewing the facts in the light most favorable 1 to Cullen, is not so oppressive, conscience shocking, or outrageous as to violate the Due Process 2 Clause. See, e.g. , Kaluczky v. City of White Plains , 57 F.3d 202, 211 (2d Cir. 1995). 3 C. Procedural Due Process 4 When faced with a procedural due process claim, we “ask what process the State provided, 5 and whether it was constitutionally adequate.” Zinermon v. Burch , 494 U.S. 113, 126 (1990)

. 6 Constitutional adequacy, however , is not determined by state

- law procedural requirements. See, 7
e.g. , Tooly v. Schwaller , 919 F.3d 165, 172 (2d Cir. 2019) (“ In determining how much process is 8 adequate, we look to f ederal constitutional standards rather than state statutes to define the 9 requirements of procedural due process.” ( cleaned up )) ; McDarby v. Dinkins , 907 F.2d 1334, 10 1337-38 (2d Cir. 1990) (“ When the minimal due process requirements of notice and hearing have 11 been met, a claim that an agency ’ s policies or regulations have not been adhered to does not sustain 12 an action for redress of procedural due process violations .” ( quoting Goodrich v. Newport News 13 Sch. Bd. , 743 F.2d 225 (4th Cir. 1984) )). Instead, “ [i] n determining how much process is due, a 14 court must weigh (1) the private interest affected, (2) the risk of erroneous deprivation through the 15 procedures used and the value of other safeguards, and (3) the government ’ s interest.” Spinelli , 16 579 F.3d at 170 (citing Mathews v. Eldridge , 424 U.S. 319, 335 (1976) ). 17 Under th e well

- established federal standard , there is ordinarily little question that due 18 process requires notice and an opportunity to be heard. See Kapps v. Wing , 404 F.3d 105, 120 19 (2d Cir. 2005)

. And when official action is at issue, the government generally must hold a hearing 20 before it deprives an individual of their property. See, e.g. , Rivera

- Powell v. N.Y.C. Bd. of 21 Elections , 470 F.3d 458, 465 (2d Cir. 2006)

. Th ose requirement s were met here. On October 8, 226 2020, POSTC sent Cullen notice of its “preliminary” determination “that there exists a reasonable 1 basis to withhold certification” because he “ha[d] not met eligibility requirements as required by 2 Conn. Gen. Stat. 7 -291c.” App’x at 27. This notice informed Cullen that POSTC would hold a 3 hearing on the issue, during which he would be provided an opportunity to be heard and to submit 4 evidentiary submissions “relevant to” his entitlement to the certification card. Id. Cullen 5 participated in that hearing on October 29, 2020, which lasted more than four hours. Cullen and 6 his counsel had ample opportunity to be heard at the hearing, and indeed, Cullen does not argue 7 otherwise. POSTC then declined to release Cullen’s certification card. 8 Through this notice and hearing, POSTC provided Cullen constitutionally adequate 9 predeprivation process

. See McKesson Corp. v. Div

. of Alcoholic Beverages & Tobacco, Dept. of 10 Bus . Regul. of Fla. , 496 U.S. 18, 38 n.21 (1990). W e thus affirm the District Court’s grant of 11 summary judgment to Mello. 12 * * * 13 We have considered the parties’ remaining arguments and find them to be without merit. 14 For the foregoing reasons, the judgment of the district court is AFFIRMED

. 15 16 FOR THE COURT: 17 Catherine O ’ Hagan Wolfe, Clerk of Court 18