Of the District of Northern Florida, sitting by designation. *

United States Court of Appeals

For the First Circuit

No. 06-2666

EUGENE MONGEAU,

Plaintiff, Appellant,

v.

CITY OF MARLBOROUGH, and STEPHEN REID,

Individually and as Commissioner of Inspectional Services

for the City of Marlborough and as a Member of the City

of Marlborough Site Plan Review Committee,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

Torruella and Lipez, Circuit Judges,

and Stafford, Jr., Senior District Judge. *

J. David Breemer, with whom Pacific Legal Foundation,

Catherine J. Savoie, Of Counsel, and Posternak, Blankenstein &

Lund, LLP were on brief, for appellant.

Judy A. Levenson, with whom Leonard H. Kesten, Deidre Brennan

Regan, and Brody, Hardoon, Perkins & Kesten, LLP were on brief, for

appellees.

June 22, 2007
 See, e.g., Pagán v. Calderón, 448 F.3d 16, 32 (1st Cir. 2006); 1

SFW Arecibo, Ltd. v. Rodríguez, 415 F.3d 135, 141 (1st Cir. 2005);

Néstor Colón Medina & Sucesores, Inc. v. Custodio, 964 F.2d 32, 45

(1st Cir. 1992) (quoting PFZ Properties, Inc. v. Rodríguez, 928

F.2d 28, 31-32 (1st Cir. 1991)).

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TORRUELLA, Circuit Judge. This case asks us to determine

whether a plaintiff in a land-use dispute must prove that a

defendant engaged in behavior that "shocks the conscience" in order

to prevail on a substantive due process claim related to that

dispute. Eugene Mongeau, a landowner, brought suit against the

City of Marlborough (the "City") and Stephen Reid, the Commissioner

of Inspectional Services for the City of Marlborough (collectively,

"Defendants"), after Reid denied him a building permit. Mongeau

alleged, inter alia, that Reid, in his official capacity, violated

Mongeau's Fourteenth Amendment substantive due process rights. The

district court granted judgment in favor of Reid, holding that

Mongeau failed to allege that Reid engaged in behavior that shocked

the conscience. We reaffirm our earlier holdings that a plaintiff 1

may prevail on a substantive due process claim only if the

defendant has engaged in behavior that "shocks the conscience," and

affirm the judgment in favor of Reid.

I. Background

In 1991, the City commenced eminent domain proceedings

against various parcels of land. Mongeau owned three of those

parcels as part of a larger tract of land. Mongeau agreed to sell

the parcels to the City in exchange for $450,000 and a promise by
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the City that Mongeau would be able to construct a "60 ft. by 80

ft. building" on the remaining tract "in full compliance with the

building code and ordinance[s] of the City of Marlborough."

In 2003, Mongeau submitted an application to the City of

Marlborough Building Department to construct a 35 ft. by 40 ft.

building on the tract covered by the prior settlement. Reid denied

the application, citing a lack of proper frontage and access as

reasons for the denial. Later in 2003, Mongeau submitted an

application to build a 60 ft. by 110 ft. building on the site.

Reid again rejected the application, giving as reasons the proposed

building's lack of frontage and location on a former railway

right-of-way, and Mongeau's failure to submit the plan to the Site

Plan Review Committee. Mongeau appealed the rejection of the

building permit to the Marlborough Zoning Board of Appeals ("ZBA").

Reid wrote a memo to the ZBA urging them to reject Mongeau's

appeal. On June 16, 2003, the ZBA granted Mongeau's appeal,

allowing him to build a 60 ft. by 80 ft. structure, waiving the

frontage, "sideyard planting," and "minimum centerline"

requirements, and granting a right-of-way. The ZBA's decision

required Mongeau to submit his plans for approval by the Site Plan

Review Committee and the Conservation Commission and stated that

the variances granted to Mongeau would expire in one year.

Mongeau and the Site Plan Review Committee, of which Reid

is a member, embarked on a long series of negotiations for the
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Committee's approval which required various revisions to Mongeau's

building plans. Because of the delays, Mongeau sought and received

extensions of his variances from the ZBA. In December 2004, Reid

allegedly informed Mongeau that he had insufficient time to

consider the revised site plan and suggested that Mongeau request

another extension of the ZBA variance. On December 14, 2004,

Mongeau applied for and received an extension until June 15, 2005.

Mongeau alleges that the following day, Reid threatened to appeal

the extension and told Mongeau that he would not issue a building

permit for the structure.

Nevertheless, on May 23, 2005, the Site Plan Review

Committee approved Mongeau's site plan. Likewise, the Conservation

Commission also approved Mongeau's site plan, subject to certain

conditions. A citizens committee filed an appeal of the conditions

entered by the Conservation Commission. Mongeau alleges "on

information and belief" that Reid "orchestrated" this appeal.

Mongeau's variance lapsed on June 15, 2005, and the ZBA refused to

grant another extension.

On September 6, 2005, the Massachusetts Department of

Environmental Protection rejected the citizens committee's appeal

and affirmed the order of the Conservation Commission. Mongeau

then applied for a building permit. On October 19, 2005, Reid

denied the permit application, stating that the ZBA variance had

expired and that the "property is deficient in many ways." Reid
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also stated that Mongeau could apply for another variance with the

ZBA. Mongeau alleges that Reid's recalcitrance in refusing to

issue the building permit was due to the fact that Mongeau had

never offered to make an unspecified "mitigation payment" to the

City of Marlborough.

On December 22, 2005, Mongeau filed suit in the Superior

Court of Middlesex, Massachusetts against Defendants, seeking a

declaratory judgment that he was entitled to construct his

building, injunctive relief ordering the City of Marlborough to

issue him a building permit, and damages arising from violations of

42 U.S.C. § 1983 and Massachusetts state law. Defendants removed

the case to the United States District Court for the District of

Massachusetts and moved for judgment on the pleadings pursuant to

Federal Rule of Civil Procedure 12(c). The district court granted

judgment in favor of Defendants on all of Mongeau's federal claims

and remanded the remaining state law claims to state court. In

particular, the district court said that to state a substantive due

process violation, a plaintiff needed to allege that defendants

acted in a manner that shocked the conscience. The court ruled

that most of Reid's alleged behavior was not so outrageous that it

shocked the conscience. The court stated the allegation that Reid

demanded "mitigation payments" before issuing the permit might

shock the conscience, but that it was not alleged to be a common

practice of the City, and as such, could not be imputed to Reid in
 The court also granted judgment in favor of Reid on a procedural 2

due process claim and found that Reid was entitled to qualified

immunity on claims against him in his personal capacity. Mongeau

does not appeal these decisions. The court then remanded the

state-law claims to the Massachusetts Superior Court.

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his official capacity. As such, the court decided that Mongeau's

allegations, taken as true, did not state a substantive due process

claim against Reid in his individual capacity. Mongeau now 2

appeals.

II. Discussion

A. Standard of Review

We review a district court's grant of judgment on the

pleadings de novo. Mass. Nurses Ass'n v. N. Adams Reg'l Hosp., 467

F.3d 27, 31 (1st Cir. 2006). We "accept all the well-pleaded facts

as true, draw all reasonable inferences in favor of the nonmovant

. . . , and grant the motion only if it appears that the nonmovant

could prove no set of facts that would entitle it to relief." Id.

B. The Requirements for a Substantive Due Process Claim

We have stated with "a regularity bordering on the

monotonous" that to be liable for a violation of substantive due

process rights, a defendant must have engaged in behavior that is

"conscience-shocking": "the substantive due process doctrine may

not, in the ordinary course, be invoked to challenge discretionary

permitting or licensing determinations of state or local

decisionmakers, whether those decisions are right or wrong."

Pagán, 448 F.3d at 33. We have repeatedly affirmed the use of this
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standard in the context of challenges to land use decisions. See,

e.g., PFZ Properties, Inc., 928 F.2d at 31 ("[R]ejections of

development projects and refusals to issue building permits do not

ordinarily implicate substantive due process. Even where state

officials have allegedly violated state law or administrative

procedures, such violations do not ordinarily rise to the level of

a constitutional deprivation." (internal citations omitted)); see

also SFW Arecibo, 415 F.3d at 141; Néstor Colón, 964 F.2d at 46.

Nevertheless, Mongeau argues that the shocks-theconscience test is inappropriate when analyzing a substantive due

process claim in the land use context, and that instead, we should

use an "arbitrary and capricious" standard. Mongeau contends that

the shocks-the-conscience standard is appropriate only when

addressing a claim where state officials have made split-second

judgments, i.e., when they have not had time to deliberate before

coming to a decision to engage in the behavior that is the basis of

the claim. Mongeau points to case law from other circuits which

suggests that the application of the shocks-the-conscience standard

to deliberate decisions by state officials is problematic. See,

e.g., Khan v. Gallitano, 180 F.3d 829, 836 (7th Cir. 1999) ("[T]he

Court [in County of Sacramento v. Lewis, 523 U.S. 833 (1998),] made

clear that its shocks-the-conscience analysis was not generally

applicable to all substantive-due-process claims."); Moreland v.

Las Vegas Metro. Police Dep't, 159 F.3d 365, 372 (9th Cir. 1998)
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("[T]he critical consideration [in determining whether to apply the

'shocks the conscience test'] [i]s whether the circumstances are

such that 'actual deliberation is practical.'" (quoting Lewis, 523

U.S. at 851)). However, a closer examination of Lewis -- the

principal case relied upon by Khan and Moreland – belies Mongeau's

assertion. In Lewis, the Supreme Court did not reject the

application of the shocks-the-conscience test to deliberate

decisions, but instead stated that its application would vary with

the circumstances. 523 U.S. at 851 ("[A]ttention to the markedly

different circumstances of normal pretrial custody and high-speed

law enforcement chases shows why the deliberate indifference that

shocks in the one case is less egregious in the other."). We have

never precluded a plaintiff from arguing that conduct that is the

product of a deliberate and premeditated decision might be

conscience-shocking whereas the same conduct might not be if it was

undertaken in the heat of the moment. Ultimately such an argument

would not affect our conclusion that only conscience-shocking

behavior will constitute a substantive due process violation.

Mongeau also contends that our use of the shocks-theconscience standard is justified only by a footnote in Creative

Environments, Inc. v. Estabrook, 680 F.2d 822 (1st Cir. 1982). In

that case, we stated that "[w]here a state has provided reasonable

remedies to rectify a legal error by a local administrative

body . . . current authority indicates that due process has been
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provided, and that section 1983 is not a means for litigating the

correctness of the state or local administrative decision in a

federal forum." Id. at 832 n.9. Mongeau contends that this means

that a substantive due process claim turns on the adequacy of state

remedies, i.e., if state remedies were adequate, a substantive due

process claim could only be brought when the defendant's conduct

shocked the conscience.

This is a flawed reading of Creative Environments.

First, it is more likely that footnote 9 was referring to the

plaintiff's procedural due process rights; throughout the opinion,

we referred to "due process" without distinguishing its procedural

and substantive components. See id. at 831-32. Second, Creative

Environments has not been subsequently cited by any First Circuit

case for the proposition that a substantive due process claim is

dependent on procedural remedies. Cf. Chongris v. Board of

Appeals, 811 F.2d 36, 40 (1st Cir. 1987) (citing Creative

Environments for the proposition that "[w]here state procedures --

though arguably imperfect -- provide a suitable form of

predeprivation hearing coupled with the availability of meaningful

judicial review, the fourteenth amendment guarantee of procedural

due process is not embarrassed" (emphasis added)). Finally, we

expressly rejected this proposition in Amsden v. Moran when we

stated: "As distinguished from its procedural cousin, then, a

substantive due process inquiry focuses on 'what' the government
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has done, as opposed to 'how and when' the government did it." 904

F.2d 748, 754 (1st Cir. 1990).

In any case, Mongeau's arguments suffer from a more fatal

defect: we recently decided that the shocks-the-conscience test

applied to a substantive due process claim in the land use context,

see SFW Arecibo, 415 F.3d at 141, and we are bound by the prior

panel decisions of this Court. It is true that we have recognized

at least two exceptions to the rule that we must follow the

precedent of this Circuit. First, we may depart from the holding

of a prior panel decision if "a preexisting panel opinion is

undermined by subsequently announced controlling authority, such as

a decision of the Supreme Court, a decision of the en banc court,

or a statutory overruling." Eulitt v. Me. Dep't of Educ., 386 F.3d

344, 349 (1st Cir. 2004). Second, we may deviate from a prior

holding of this Circuit in "those relatively rare instances in

which authority that postdates the original decision, although not

directly controlling, nevertheless offers a sound reason for

believing that the former panel, in light of fresh developments,

would change its collective mind." Williams v. Ashland Eng'g Co.,

45 F.3d 588, 592 (1st Cir. 1995), abrogated on other grounds by

Carpenters Local Union No. 26 v. United States Fid. & Guar. Co.,

215 F.3d 136, 145 (1st Cir. 2000). We do not find, nor does

Mongeau offer, any reason why either of these exceptions to the
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doctrine of stare decisis should apply, and as such, we are bound

by our decision in SFW Arecibo.

Mongeau rejoins that our precedent on this issue has been

inconsistent, resulting in standards ranging from "clearly

arbitrary and unreasonable," Roberts v. City of Woonsocket, 575

F.2d 339, 341 (1st Cir. 1978) (quoting Village Euclid v. Ambler

Realty Co., 272 U.S. 365, 395 (1926)), to "when some basic and

fundamental principle has been transgressed that 'the

constitutional line has been crossed,'" Amsden, 904 F.2d 748, 754

(1st Cir. 1990) (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d

Cir. 1973)), to a "truly horrendous situation[]," Néstor Colón, 964

F.2d at 45. While we have used various incantations to describe

the standard for prevailing on a substantive due process claim, we

have "decline[d] the invitation to sort out so wide a variety of

labels." Amsden, 904 F.2d at 754. "[A]lthough the yardstick

against which substantive due process violations are measured has

been characterized in various ways, we are satisfied that, before

a constitutional infringement occurs, state action must in and of

itself be egregiously unacceptable, outrageous, or

conscience-shocking." Id.

Thus, our precedent on this issue is both clear and

binding on this case: in order to state a substantive due process

claim of any ilk, a plaintiff must allege behavior on the part of

the defendant that is so outrageous that it shocks the conscience.
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C. Mongeau's Claim

Having reaffirmed the proper standard for a substantive

due process claim, we must now examine Mongeau's allegations to

determine whether Reid's behavior shocks the conscience. The

district court determined that nearly all of Mongeau's allegations

-- that Reid had denied his building permit and interfered in the

zoning process for improper reasons -- failed to shock the

conscience. We agree. We rejected a similar claim in Licari v.

Ferruzzi, where the plaintiffs alleged that "hostility and animus"

motivated the revocation of a building permit and the issuance of

certain enforcement orders. 22 F.3d 344, 349 (1st Cir. 1994). In

the past, we have indicated that one of the problems with

adjudicating claims of "bias" or "animus" in the zoning context is

that "[e]very appeal by a disappointed developer from an adverse

ruling by a local . . . planning board necessarily involves some

claim that the board exceeded, abused or 'distorted' its legal

authority in some manner, often for some allegedly perverse (from

the developer's point of view) reason." Creative Env'ts, 680 F.2d

at 833. For that reason, we have generally been hesitant "to

involve federal courts in the rights and wrongs of local planning

disputes" unless there is a "truly horrendous situation[]." Néstor

Colón, 964 F.2d at 45. Taking all of Mongeau's allegations as

true, we do not see such a conscience-shocking situation; we can
 In a particularly confusing exchange at oral argument, Mongeau's 3

counsel stated that while Reid did not demand a bribe of any sort,

the permit was not approved because Mongeau did not offer a

"mitigation payment," which counsel insinuated was improperly

demanded by the city. We still do not understand what Mongeau's

purported "mitigation payment" is, but we take counsel at his word

that it would not constitute a "bribe" within the meaning of Néstor

Colón. Accordingly, we see no need to address the argument

advanced by the district court that Reid's conduct did not form

part of a pattern or common practice of the City.

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discern nothing more than a run-of-the-mill dispute between a

developer and a town official.

The district court hinted that Mongeau might have stated

a substantive due process claim inasmuch as he alleged that his

permit was denied because he had failed to offer a "mitigation

payment" to the City of Marlborough. In Néstor Colón, we suggested

that it was possible that bribery or threats could constitute a

substantive due process violation. Id. at 47. However, at oral

argument, counsel for Mongeau made it clear that he was not

alleging that the City or Reid was seeking a "bribe." If Mongeau 3

believes that the City or Reid has wrongly charged or demanded too

much for his building permit, he may find recourse in other laws,

but not in the substantive component of the Due Process Clause of

the Fourteenth Amendment. Such conduct, without more, cannot be

said to transgress "some basic and fundamental principle . . .

[such] that 'the constitutional line has been crossed'" and our

conscience is shocked. Amsden, 904 F.2d at 754.
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III. Conclusion

For the foregoing reasons, we affirm the judgment of the

district court.

Affirmed.