2003 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-14-2003

United Artists v. Warrington

Precedential or Non-Precedential: Precedential

Docket 01-3533

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"United Artists v. Warrington" (2003). 2003 Decisions. Paper 822.

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PRECEDENTIAL 

 Filed January 14, 2003 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 01-3533 

UNITED ARTISTS THEATRE CIRCUIT, INC. 

v. 

THE TOWNSHIP OF WARRINGTON, PA; GERALD B. 

ANDERSON; JOSEPH E. LAVIN; DOUGLAS E. SKINNER; 

WAYNE S. BULLOCK; KATHERINE M. WATSON 

Gerald B. Anderson; Joseph E. Lavin; Douglas E. Skinner; 

Wayne S. Bullock; Katherine M. Watson, 

 Appellants 

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) 

_________________________________________________________________ 

* The Honorable Alan D. Lourie, Circuit Judge for the United States 

Court of Appeals for the Federal Circuit, sitting by designation. 

 

 ARTHUR W. LEFCO (Argued) 

 Marshall, Dennehey, Warner, 

 Coleman & Goggin 

 1845 Walnut Street 

 16th Floor 

 Philadelphia, PA 19103 

 Counsel for Appellants 

 JOHN F. SCHULTZ (Argued) 

 JAMES EISEMAN, JR. 

 Drinker, Biddle & Reath 

 18th & Cherry Streets 

 One Logan Square 

 Philadelphia, PA 19103 

 Counsel for Appellee 

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-thecase doctrine does not preclude us from considering 

whether, as a result of the Supreme Court’s decision in 

 2 

 

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. 

I. 

A. 

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 

_________________________________________________________________ 

2. Under Pennsylvania law, there are circumstances in which a 

municipality may require the payment of an "impact fee" for "offsite 

public transportation capital improvements." 53 Pa. Cons. Stat. Ann. 

S 10503-A. The Supervisors do not contend that their actions were taken 

pursuant to this authority. 

 3 

 

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. 

 4 

 

B. 
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 

 5 

 

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.3 

II. 

As a preliminary matter, United Artists argues that this 

panel’s authority in this case is severely limited by the lawof-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 

_________________________________________________________________ 

3. We exercise plenary review over a district court’s denial of a motion for 

summary judgment on the basis of qualified immunity. Eddy v. Virgin 

Islands Water and Power Authority, 256 F.3d 204, 208 (3d Cir. 2001). 

Moreover, as with any appeal from the denial of summary judgment, we 

consider all facts in the light most favorable to the non-moving party. 

See, e.g., Hoard v. Sizemore, 198 F.3d 205, 218 (6th Cir. 1999). 

4. The doctrine does not apply to dicta and does allow for reconsideration 

of previously decided issues "in extraordinary circumstances such as 

where: (1) new evidence is available; (2) a supervening new law has been 

announced; or (3) the earlier decision was clearly erroneous and would 

create manifest injustice." In re City of Philadelphia Litigation, 158 F.3d 

at 718. 

 6 

 

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. 

 7 

 

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: 

 8 

 

 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. 

III. 

A. 

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 

 9 

 

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. 

B. 

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 

 10 

 

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. 

_________________________________________________________________ 

5. The dissent seems to suggest that several recent court of appeals 

opinions, including one from our court, have taken the position that 

"Lewis did not lay down a blanket ‘shocks the conscience’ rule that 

controls absolutely any and all substantive due process constitutional 

tests." Dissent at 22 (citing Fuentes v. Wagner, 206 F.3d 335, 340 (3d 

Cir.), cert. denied, 531 U.S. 821 (2000); Khan v. Gallitano, 180 F.3d 829, 

836 (7th Cir. 1999); Moreland v. Las Vegas Metro Police Dept., 159 F.3d 

365, 372 (9th Cir. 1998). However, these opinions are best understood 

as saying only that the nature of the conduct that is sufficiently 

egregious to shock the conscience varies depending on the context. 

 11 

 

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."6 

_________________________________________________________________ 

6. The dissent contends that several other post-Lewis decisions of our 

Court also show that the Bello improper motive cases survived Lewis. 

However, these decisions, like Woodwind Estates , did not discuss Lewis. 

In addition, these decisions, unlike Woodwind Estates, did not even 

apply the Bello line of cases. 

 12 

 

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 

_________________________________________________________________ 

The dissent first cites the following statement in Nicholas v. 

Pennsylvania State University, 227 F.3d 133, 139 (3d Cir. 2000): 

 [W]e have held that a property interest that falls within the ambit of 

 substantive due process may not be taken away by the state for 

 reasons that are "arbitrary, irrational, or tainted by improper 

 motive," Woodwind Estates, Ltd. v. Gretkowski , 205 F.3d 118, 123 

 (3d Cir. 2000) (quoting Bello v. Walker, 840 F.2d 1124, 1129 (3d Cir. 

 1988)) . . . . 

Not only is this statement dictum (it was not necessary to the decision 

on the substantive due process claim in that case, which we rejected on 

the ground that the plaintiff did not have the requisite property interest,) 

but the statement does not endorse the Bello"improper motive" test. 

Rather, it simply states the indisputable fact that"we ha[d] held" that an 

improper motive sufficed. 

The dissent next points to the following statement in Khodara 

Environmental, Inc. v. Beckman, 237 F.3d 186, 197 (3d Cir. 2001): 

 Eagle’s briefs do not argue that the Airport Authority denied its 

 application for a reason that is "tainted by improper motives." 

 Nicholas v. Pennsylvania State University, 227 F.3d 133, 139 (3d 

 Cir. 2000) . . . . 
This statement, like the statement in Nicholas , did not endorse the 

"improper motive" test but simply pointed out that a party’s briefs did 

not advance an "improper motive" argument. 

Finally, the dissent cites Herr v. Pequea Township, 274 F.3d 109, 111 

(3d Cir. 2001), in which the Court noted the Bello line of cases but held 

that they did not apply under the particular circumstances. Thus, the 

statements in Herr were plainly dicta. 

 13 

 

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. 8 

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 

_________________________________________________________________ 

8. The dissent complains that the "shocks the conscience" test is 

"nebulous and highly subjective." Dissent at 23. But whatever else may 

be said of this test, it is surely no less "nebulous" or "subjective" than 

the "improper motives" test. 

 14 

 
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. 

IV. 

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 

 15 

 

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. 

 16 

 

COWEN, Circuit Judge, dissenting: 

I. 
The issue presented to the previous panel was whether 

the plaintiff had alleged a violation of a clearly established 

constitutional right that was sufficiently clear to a 

reasonable government official, specifically a township 

supervisor. In deciding that issue, this Court expressly 

affirmed the District Court’s use of the "improper motive" 

standard when it held that "we believe the [D]istrict [C]ourt 

properly analyzed the supervisors’ request for qualified 

immunity on summary judgment" and found the only error 

in that analysis to be the District Court’s failure to examine 

each supervisor’s request on an individual basis. At the 

very least, it was inherent in this Court’s holding that it 

was proper for the District Court to apply the "improper 

motive" standard to its substantive due process analysis in 

a municipal land use case. Because the previous panel 

already decided this issue, we are bound by this Court’s 

prior affimance of the District Court’s application of the 

"improper motive" standard under law of the case doctrine, 

not to mention Internal Operating Procedure of the United 

States Court of Appeals for the Third Circuit 9.1. Therefore, 

I respectfully dissent with the majority’s holding that law of 

the case doctrine does not control this appeal. 

Under the law of the case doctrine, a panel of an 

appellate court generally will not reconsider a question that 

another panel has decided on a prior appeal in the same 

case. The doctrine is designed to protect traditional ideals 

such as finality, judicial economy and jurisprudential 

integrity. Christianson v. Colt Indus. Operating Corp., 486 

U.S. 800, 816 (1988); Arizona v. California, 460 U.S. 605, 

618-19 (1983). The law of the case doctrine acts to preclude 

review of only those legal issues that the court in a prior 

appeal decided, either expressly or by implication; it does 

not apply to dicta. Coca-Cola Bottling Co. of Shreveport, Inc. 

v. Coca-Cola Co., 988 F.2d 414, 429 (3d Cir. 1993). 

The law of the case doctrine does not restrict a court’s 

power, but rather governs its exercise of discretion. Public 

Interest Research Group of New Jersey, Inc. v. Magnesium 

 17 

 

Elektron, Inc., 123 F.3d 111, 116 (3d Cir. 1997). 

Accordingly, we have recognized that the doctrine does not 

preclude our reconsideration of previously decided issues in 

extraordinary circumstances such as where: (1) new 

evidence is available; (2) a supervening new law has been 

announced; or (3) the earlier decision was clearly erroneous 

and would create manifest injustice. Id. at 116-17. 

The previous panel expressly approved the District 

Court’s use of the "improper motive" standard in its 

holding: 

 Under existing case law, we 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. 
 Nonetheless, we believe the District Court should have 

 considered each supervisor’s request for qualified 

 immunity individually rather than as a group. On 

 remand, we direct the District Court to address each 

 supervisor’s request for immunity on an individual 

 basis or explain why the supervisors should be 

 considered collectively. 

November 29, 2000 Order, at 4-5 (emphasis added) 

(citations omitted). 

The law of the case doctrine unquestionably governs this 

appeal. The previous panel’s statement that "United Artists 

at this stage sufficiently alleged a violation of a clearly 

established constitutional right" constitutes a holding. In 

the prior appeal, this Court expressly affirmed the District 

Court’s qualified immunity analysis of the supervisors as a 

whole, and found the only error to be the District Court’s 

failure to apply that same analysis to the supervisors 

individually. The panel did not direct the District Court to 

alter or reconsider its qualified immunity analysis, but only 

to address each of the supervisors individually under that 

same analysis.1 

_________________________________________________________________ 

1. The District Court likewise interpreted the previous panel’s opinion as 

"[holding] that ‘the [D]istrict [C]ourt properly analyzed each supervisors’ 

request for qualified immunity on summary judgment.’ " Record at 7A 

(August 15, 2001 District Court Order) (emphasis added). 

 18 

 

Moreover, there are no exceptional circumstances here 

that make it appropriate to reconsider the prior panel’s 

decision. See Public Interest Research Group of New Jersey, 

Inc., 123 F.3d at 116. Under both the law of the case 

doctrine and our own internal operating procedures, the 

majority is wrong to revisit an issue that has already been 

decided. See 3d Cir. I.O.P. 9.1.2 

The majority takes issue with the previous panel’s 

statement made in a footnote: 

 At oral argument this Court, sua sponte, raised two 

 issues: . . . (2) 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. At this time, we express no opinion 

 whether these matters are appropriate in determining 

 the merits of the substantive due process claim. 

November 29, 2000 Order, at 4 n.2. The majority argues 

that this footnote raises "substantial doubt as to whether a 

prior panel actually decided . . . the applicable standard 

governing United Artists’ substantive due process claim." 

Majority at 8. Given the holding of the prior panel 

contained in the body of the opinion, this footnote is mere 

dicta. The holding of the case and instructions to the 
District Court were to apply the same "improper motive" 

standard to the supervisors individually. Even if one were 

not to accept the express holding of the prior panel in light 

of this footnote, it is quite clear that the "improper motive" 

issue was decided by "necessary implication" and therefore 

also subject to the law of the case doctrine. 

In AL Tech Specialty Steel Corp. v. Allegheny Int’l Credit 

Corp., we held that the law of the case doctrine applies to 

_________________________________________________________________ 

2. 9.1 Policy of Avoiding Intra-circuit Conflict of Precedent. 

 It is the tradition of this court that the holding of a panel in a 

 precedential opinion is binding on subsequent panels. Thus, 

 no subsequent panel overrules the holding in a precedential 

 opinion of a previous panel. Court en banc consideration is 

 required to do so. 

3d Cir. I.O.P. 9.1 (July 2002). 

 19 

 

decisions rendered even by a judgment order because the 

doctrine also applies to issues that are decided by 

necessary implication. 104 F.3d 601, 605 (3d Cir. 1997). In 

that case, Allegheny International argued that 11 U.S.C. 

S 502(e)(1)(B)3 of the Bankruptcy Code barred AL Tech’s 

claim. The Bankruptcy Court agreed. On appeal to the 

District Court, the District Court held that S 502(e)(1)(B) 

barred only contingent claims under these conditions. It 

allowed AL Tech’s claim to the extent that it was a direct 

claim against Allegheny International under the 

Comprehensive Environmental Response, Compensation, 

and Liability Act, 42 U.S.C. SS 9601 et seq. AL Tech 

Specialty Steep Corp., 104 F.3d at 605. This Court affirmed 

the District Court by judgment order. When appealed a 

second time to this Court, Allegheny International urged 

the second panel to examine the question whether AL 

Tech’s claim was barred under S 502(e)(1)(B). In an opinion 

written by Judge Alito, we held that "In this case, the panel 

that heard the prior appeal necessarily decided that AL 

Tech’s claim was not barred by S 502(e)(1)(B). The law of the 

case doctrine applies to this decision even though it was 

rendered by judgment order because that doctrine‘applies 

both to issues expressly decided by a court in prior rulings 

and to issues decided by necessary implication .’ " Id. (citing 

Bolden v. SEPTA, 21 F.3d 29, 31 (3d Cir. 1994)) (emphasis 

added). 

This appeal presently before us presents an even stronger 

reason for the application of the doctrine of law of the case 

and I.O.P. 9.1, given the prior panel issued a written 

opinion holding that the "improper motive" was the correct 

rule of law to apply. The prior panel was required to 

determine whether the actions of the supervisors, as alleged 

_________________________________________________________________ 

3. The section provides: 
 (e)(1) . . . [T]he court shall disallow any claim for reimbursement or 

 contribution of an entity that is liable with the debtor on or has 

 secured, the claim of a creditor, to the extent that-- 

 (B) such claim for reimbursement or contribution is contingent 

 as of the time of allowance or disallowance of such claim for 

 reimbursement or contribution. 

 11 U.S.C. SS 502(e)(1), (e)(1)(B). 

 20 

 

by plaintiff, violated a clearly established constitutional 

right that was sufficiently clear to a reasonable government 

official. Inherent in this inquiry is the determination of 

whether the supervisors’ actions rose to a level of a 

substantive due process violation; if the alleged actions 

were insufficient to amount to a violation, the supervisors’ 

actions could not violate a clearly established constitutional 

right. Resolution of the question of the correct standard to 

apply in the context of a municipal land use case based 

upon the summary judgment record was integral to the 

Court’s analysis in affirming the District Court’s denial of 

summary judgment on the question of qualified immunity. 

Despite footnote 2 of the prior panel’s opinion, we are 

bound under law of the case doctrine and I.O.P. 9.1 by this 

Court’s prior approval of the District Court’s application of 

the "improper motive" standard. 

II. 

In addition to my belief that law of the case doctrine 

controls in this matter, I further disagree with the 

proposition that only "shocks the conscience" language may 

be used to analyze municipal land-use context substantive 

Due Process cases. 

First, the Majority’s reliance on Lewis is misguided. 

Lewis was a high speed police chase case where the 

resulting injury was death. That scenario is extremely far 

afield from the factual setting we have here. The Lewis 

Court was not presented with a choice between "improper 

motive" or "shocks the conscience" in the unique arena of 

Fourteenth Amendment-protected property rights as they 

relate to local land use decisions. Rather, the Supreme 

Court reviewed the case for a carefully delineated reason 

and described the issue for review narrowly. More 

specifically, the Court "granted certiorari . . . to resolve a 

conflict among the Circuits over the standard of culpability 

on the part of a law enforcement officer for violating 

substantive due process in a pursuit case." Lewis, 523 U.S. 

at 839; see also id. at 836 ("The issue in this case is 

whether a police officer violates the Fourteenth 

Amendment’s guarantee of substantive due process by 

causing death through deliberate or reckless indifference to 

 21 

 
life in a high-speed automobile chase aimed at 

apprehending a suspected offender."). Although finding that 

the "shocks the conscience" standard is "not inappropriate 

to an excessive force claim in the context of a prison 

disturbance," we acknowledged in Fuentes v. Wagner, 206 

F.3d 335 (3d Cir. 2000), cert. denied, 531 U.S. 821 (2000), 

that "our recent decisions suggest that the [‘shocks the 

conscience’] standard may only apply to police pursuit 

cases," id. at 348 (citations omitted). 

Second, the Majority opinion gives far too little weight to 

the fact that this Circuit has a well-established 

jurisprudence employing the improper motive test in the 

substantive Due Process land-use context. The cases are 

legion. See Bello v. Walker, 840 F.2d 1124 (3d Cir. 1988) 

(seminal case); DeBlasio v. Zoning Board of Adjustment, 53 

F.3d 592 (3d Cir. 1995); Blanche Road Corp. v. Bensalem 

Township, 57 F.3d 253 (3d Cir. 1995); Sameric Corp. Del., 

Inc. v. City of Philadelphia, 142 F.3d 582 (3d Cir. 1998); 

Woodwind Estates, Ltd. v. Gretkowski, 205 F.3d 118 (3d 

Cir. 2000); Herr v. Pequea Township, 274 F.3d 109 (3d Cir. 

2001); see also Parkway Garage, Inc. v. City of Philadelphia, 

5 F.3d 685 (3d Cir. 1993). Moreover, and perhaps most 

importantly, this Court has continued to apply and cite to 

the "improper motive" test even after the decision in Lewis 

was handed down. See Doby v. DeCrescenzo, 171 F.3d 858 

(3d Cir. 1999); Woodwind, 205 F.3d 118; Nicholas v. 

Pennsylvania State University, 227 F.3d 133 (3d Cir. 2000); 

Khodara Envtl., Inc. v. Beckman, 237 F.3d 186 (3d Cir. 

2001); Omnipoint Communications Enters., L.P. v. Zoning 

Hearing Bd., 248 F.3d 101 (3d Cir. 2001); Herr, 274 F.3d 

109. 

Unlike the Majority, I am fully comfortable assuming that 

this Court in Woodwind and Nicholas (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. Had the Woodwind or Nicholas Courts felt that 

Lewis precluded the use of the improper motive standard of 

constitutionally tortious conduct, they surely would have 

expressed that point. They did not do so. The Majority relies 

on the fact that the Woodwind Court never mentioned 

 22 

 

Lewis. True enough. But the Majority overlooks the fact 

that other Third Circuit cases do mention Lewis. In fact, 

when Judge Alito’s opinion in Nicholas is read, it answers 

the question addressed by him today, with the opposite 

result. The Nicholas Court, citing approvingly to Bello and 

Woodwind, affirmatively states that "improper motive" is an 

appropriate substantive Due Process test. It references 

Lewis in saying that "shocks the conscience" is also an 

appropriate test. As United Artists points out, the standard 

is clearly stated in the disjunctive: 

 [W]e have held that a property interest that falls within 

 the ambit of substantive due process may not be taken 
 away by the state for reasons that are "arbitrary, 

 irrational, or tainted by improper motive," Woodwind 

 Estates, Ltd. v. Gretkowski, 205 F.3d 118, 123 (3d Cir. 

 2000) (quoting Bello v. Walker, 840 F.2d 1124, 1129 

 (3d Cir. 1988)), or by means of government conduct so 

 egregious that it "shocks the conscience," Boyanowski 

 [v. Capital Area Intermediate Unit, 215 F.3d 396 (3d 

 Cir. 2000)] (quoting County of Sacramento v. Lewis, 

 523 U.S. 833, 846, 140 L. Ed. 2d 1043, 118 S. Ct. 

 1708 (1998)). 

Nicholas, 227 F.3d at 139 (emphasis added). 

Judge Alito’s explanation of post-Lewis Third Circuit 

jurisprudence in Nicholas was not an isolated summary of 

the extant law. One year later, in Khodara, he cited 

authoritatively to his opinion in Nicholas for the proposition 

that a substantive Due Process claim is made out with 

"improper motive." The Khodara Court was certainly aware 

of the existence of Lewis because, like the Nicholas Court, 

it actually cites Lewis in the same paragraph where it 

recognizes "improper motive" as a valid Due Process 

standard. See Khodara, 237 F.3d at 197. 

Whether or not our post-Lewis statements are dicta need 

not detain us. These are affirmations by our Court stating 

or alluding to the law being that it is a violation of 

substantive due process for public officials to act 

intentionally with an improper motive. 

Third, tossing every substantive Due Process egg into the 

nebulous and highly subjective "shocks the conscious" 

 23 

 

basket is unwise.4 It leaves the door ajar for intentional and 

flagrant abuses of authority by those who hold the sacred 

trust of local public office to go unchecked. "Shocks the 

conscience" is a useful standard in high speed police 

misconduct cases which tend to stir our emotions and yield 

immediate reaction. But it is less appropriate, and does not 

translate well, to the more mundane world of local land use 

decisions, where lifeless property interests (as opposed to 

bodily invasions) are involved.5 In this regard, it appears 

rather difficult to analogize the intentional and illegal denial 

of a building permit to the forced pumping of the human 

stomach, the infamous fact pattern that begat "shocks the 

conscience" as a term of constitutional significance. See 

Rochin v. California, 342 U.S. 165, 172-73 (1952). It is the 

jurisprudential equivalent of a square peg in a round hole. 

Yet, under the Majority opinion, it is with this awkward 

analogy that our district courts will now struggle. The 

confusion and potential for disparate results across the 

districts will haunt us for years to come. It is our manifest 

responsibility as an appellate tribunal to prevent that 

quagmire by providing a clear standard for the bench and 

bar. Our "improper motive" line of land use cases serves 

that purpose and, even after Lewis, this Court has not 

impugned its vitality. I see no legitimate reason to abandon 
it now. 

I agree with the Majority that land use decisions are 

generally issues of "local concern." But those very same 

decisions necessarily assume constitutional dimension 

when the calculated, intentional and deliberate abuse of 

government power is at hand. See Lewis, 523 U.S. at 846 

("the Due Process Clause was intended to prevent 

_________________________________________________________________ 

4. Not long ago, this Court, sitting en banc , described the shocks the 

conscience test as "amorphous" and "imprecise." Fagan v. City of 

Vineland, 22 F.3d 1296, 1308 (3d Cir. 1994) (en banc). The improper 

motive test, however, has been applied numerous times in this Circuit, 

appears to work well, and the Supreme Court has never indicated that 

such a standard is inappropriate in the land use context. 

5. I have never seen a movie or television show devoted to the workaday 

world of zoning and planning. Visual entertainment based on high speed 

police pursuit, and the riveting events of criminal law and procedure, 

however, is commonplace. 

 24 

 

government officials from abusing [their] power . . . .") 

(citations omitted); Id. at 848-49 (intentional conduct by 

government official falls at the polar end of Tort law’s 

"culpability spectrum" in substantive Due Process cases); 

Daniels v. Williams, 474 U.S. 327, 331 (1986) ("Historically, 

[the] guarantee of due process has been applied to 

deliberate decisions of government officials to deprive a 

person of life, liberty or property") (emphasis in original) 

(citations omitted); Wolff v. McDonnell, 418 U.S. 539, 558 

(1974) ("The touchstone of due process is protection of the 

individual against arbitrary action of government") 

(citations omitted). The concern that the federal Judiciary 

will become a local zoning board takes a permanent back 

seat to the federal Judiciary’s obligation to protect the core 

constitutional freedoms of the American public from 

deliberate and intentional governmental deprivation. 

In sum, I would hold fast to the scheme that is already 

firmly entrenched in this Circuit: In land use constitutional 

tort cases, the government’s conduct may be judged under 

an "improper motive" framework. The evisceration of this 

standard by the Majority today is a most unfortunate step 

backwards in the evolution of S 1983 as the legislative 

guardian of bedrock constitutional rights. I am deeply 

concerned that there will be consequences. 

III. 

Even if "shocks the conscience" is the language we must 

employ to the exclusion of any other (which it is not), the 

alleged behavior in this case resolutely shocks the 

conscience. Public officials, sworn to uphold the law, 

deliberately extracted money, knowing that it was improper 

for them to do so. In contemporary America, under 

compelling norms of basic human decency, it would be 
shocking that such officials improperly and illegally 

obtained money in matters that come before them. There is 

little if any distinction between the taking of money for the 

purposes alleged in this case, and money taken to line the 

officials’ individual pockets. For all of the foregoing reasons, 

I must dissent. 

 25 

 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 26