2010 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

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w . v i l l a no v a . e du/thir dc ir c uit_2010/309NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No. 0 9

- 3296

_____________ STATE TROOPERS NON

- COMMISSIONED OFFICERS

ASSOCIATION OF NEW JERSEY, on behalf of its members, and all other persons similarly situated but un

- named; STATE TROOPERS SUPERIOR OFFICERS ASSOCIATION OF NEW JERSEY,

Appellants

v. STATE OF NEW JERSEY, Office of the Attorney General; ANNE MILGRAM, Attorney General of the State of New Jersey; STATE OF NEW JERSE Y, Division of State Police

_____________ Appeal from the United States District Court for the District of New Jersey (D.C. Civil No. 3

- 08

- cv - 05326 ) District Judge: Honorable Freda L. Wolfson

_____________ Argued Octob er 26, 2010 Before: McKEE, Chief Judge , SLOVITER and RENDELL, Circuit Judges

.

( Opinion Filed November 2, 2010 )

_____________ Michael A. Bukosky, Esq. [ARGUED] Loccke, Correia, Schlager, Limsky & Bukosky 24 Salem S treet Hackensack, NJ 07601 Counsel for Appellants2

Robert H. Stoloff, Esq. [ARGUED] Office of Attorney General of New Jersey Department of Law & Public Safety CN112 Richard J. Hughes Justice Complex Trenton, NJ 08625

_____________ OPINION OF THE COURT

_____________ RENDELL, Circuit Judge

. Plaintiffs, twenty

- one New Jersey State Troopers, 1 appea l the District Court for the District of New Jersey‟s grant of New Jersey Attorney General Anne Milgram ‟s Motion
to Dismiss pursuant to Rule 12(b)(6). 2 Fed. R. Civ. P. 12(b)(6). We will affirm. The District Court had jurisdiction over this action under 28 U.S.C. § 1331. We have appellate jurisdiction pursuant to 28 U.S.C. § 1291.
I. Background Because we write solely for the benefit of the parties, we recite only the facts relevant to our analysis. Plaintiffs, who are primarily employed by the New Jersey Division of State Police (“ NJDSP ”) as State Troopers, are licensed attorneys ; many of them earned law degrees during their employm ent as S tate Troopers , aided by a state

- sponsored loan

1 For simplicity‟s sake, “plaintiffs” will be used to refer to the twenty

- one interested State Troopers. The named plaintiffs in this case are the collective bargaining ag ents who filed suit on the Troopers‟ behalf.

2 Plaintiffs‟ complaint named the State of New Jersey, the Office of the Attorney General, the New Jersey Division of State Police , and New Jersey Attorney General Anne Milgram as defendants. The only remai ning defendant on appeal is the Attorney General.3

repayment policy

. Plaintiffs averred that, p ursuant to this policy, the NJDSP arranged for New Jersey to pay for part of the Troopers‟ law school tuition. After receiving their law degrees, plaintiff s engaged in secondary employment as lawyers. Outside of their jobs as Troopers, they earned extra money performing legal tasks such as drafting wills and assisting in real estate closings. Before 2007, the New Jersey Code of Ethics (“the Code”) and t he NJDSP Standa rd Operating Procedure Manual permitted NJDSP employees, including State Troopers, to engage in the private practice of law with the Attorney General‟s approval

. In 2007, the State Ethics Commission for the Department of Law and Public Safe ty (“DLPS”) enacted a revised Code of Ethics. Section VI(E) of the revised Code essentially prohibits all DLPS employees from engaging in the private practice of law in New Jersey or in any other jurisdiction in which they are admitted. 3 In their complain t, plaintiffs challenged the Code‟s prohibition o f Troopers‟ outside legal employment on several grounds, claiming violations of the Equal Protection component of the Fourteenth Amendment , the procedural due process component of the Fourteenth Am endment ‟s Due Process Clause, and the Due Process and Equal Protection provisions of the New Jersey Constitution. Further, plaintiffs asserted claims of promissory estoppel, equitable estoppel , and impairment of their right to contract. The District Court conclude d, in a

3 The provision provides for two exceptions to this general prohibition. With the Attorney General‟s approval, legally licensed DLPS employees may practice law in circumstances where: (1) the representa tion is without compensation, for a member of the attorney‟s immediate family, and of a non

- adversarial nature; or (2) the representation was commenced before the new Code was implemented and is limited to winding up the preexisting professional obligation

.4

well

- reasoned opinion, that plainti f fs‟ complaint failed to state a claim on w hich relief could be granted. 4 On appeal, plaintiffs challenge only the District Court‟s dismissal of their Equal Protection and Procedural Due Process claims for inj unctive relief against Attorney General Anne Milgram. We exercise de novo review over the District Court‟s decision to dismiss the complaint for failure to state a claim. Dique v. N.J. State Police , 603 F.3d 181, 188 (3d Cir. 2010). To withstand a Rule 12(b)(6) motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to „state a claim to relief that is plausible on its face.‟” Ashcroft v. Iqbal , 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic v. Twombly , 550 U.S. 544, 570 (2007)).
II. Discussion

a. Equal Protection The Equal Protection Clause “is essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., Inc. , 473 U.S. 432, 440 (1985). In reviewing an Equ al Protection challenge, we begin by asking whether the alleged state action burdens a fundamental constitutional right or targets a suspect class. See Doe v. Pa. Bd. of Prob. & Parole , 513 F.3d 95, 107 (3d Cir. 2008). If

4 The District Court dismissed plaintiffs‟ state law claims and their constitutional claims against the state itself on sovereign immunity grounds

. Under the Eleventh Amendment, states and state agencies are immune from suit in federal court. See Lav ia v. Pa. Dep’t of Corr. , 224 F.3d 190, 195 (3d Cir. 2000). The Eleventh Amendment also prohibits a federal court from considering a claim that a state official violated state law in carrying out his or her official responsibilities. See Pennhurst State Sch. v. Halderman , 465 U.S. 89, 104 (1984). However, the Eleventh Amendment does not preclude plaintiffs from bringing suit for injunctive relief against a state official. See Ex Parte Young , 209 U.S. 123 (1908).5

it does not, the classification created by the challenged statute or regulation “does not violate equal protection so long as it bears a rational relatio nship to some legitimate end.”
Id. Plaintiffs do not allege that Section VI(E) of the Code burdens a fundamental right or targets a s uspect class, so rational basis review applies to their claim. Given this highl y deferential standard , 5 we agree with the District Court that plaintiffs‟ Equal Protection challenge must fail

. First, the District Court properly concluded that New Jersey‟ s interest s in guarding against potential conflicts of interest and preserving the public trust are legitimate governmental ends . Several courts have recognized the government‟s interest in preserving public trust as a legitimate objective underlying rest rictions on secondary employment. See, e.g. , Decker v. City of Hampton, Va. , 741 F. Supp. 1223, 1226 (E.D. Va. 1990); Fort Wayne Patrolmen’s Benevolent Ass’n v. City of Fort Wayne , 625 F. Supp. 722, 731 (N.D. Ind. 1986 ). Second, the District Court proper ly concluded that the state‟s decision to single out the legal profession is rationally related to its ethical concerns. The Code provision prohibiting Troopers from outside legal practice is far from perfectly crafted. It is simultaneously overinclusive

– in that it prohibits all part

- time legal work

– and underinclusive

– in that DLPS employees are still permitted to engage in non - legal outside employment where the risk of ethical conflict is high. Nonetheless, the District

5 See Romer v. Evans , 517 U.S. 620, 63 2 (1996) (not ing that under rational basis review, “a law will be sustained if it can be said to advance a legitimate government interest, even if the law seems unwise or works to the disadvantage of a particular group, or if the rational e for it seems ten uous .” ).6

Court did not err in conclud ing that the provision withstands rational basis review

. “„Even if the classification involved . . . is to some extent both underinclusive and overinclusive, and hence the line drawn by [the legislature] imperfect, it is nevertheless the rule that . . . p erfection is by no means required.” Doe , 513 F.3d at 117

- 18 (quoting Vance v. Bradley , 440 U.S. 93, 108 (1979) (internal citations omitted)). We are sympathetic to plaintiffs‟ objection to the breadth of Section VI(E)‟s prohibition

. However, plaintiffs have not demonstrated, as they must to overcome rational basis review, that no “„reasonably conceivable state of facts‟” could support a rational basis for
the revised Code‟s classification

. Donatelli v. Mitchell , 2 F.3d 508, 513 (quoting FCC v. Beach Co mmc’ns , 508 U.S. 307, 313 (1993)).

b. Due Process
To properly allege a claim for violation of procedur al due process, plai ntiffs were required to aver that (1) they were deprived of an individual interest encompassed by the Fourteenth Amendment‟s protection of life, liberty, or property; and (2) that t he procedures available did not provide due process of the law. Hill v. Borough of Kutztown , 455 F.3d 225, 233

- 34 (3d Cir. 2006). We need not reach the question of available procedures, because plaintiffs fai l to allege a property interest in their use of their law degrees in connection with secondary employment as lawyers. The Fourteenth Amendment‟s procedural due process component does not protect every benefit in which employees claim an interest . To es tablish a protectable property interest, a plain tiff must show “more than an a bstract need or desire for it. He must have more than unilateral expectation of it. He must, instead, have a legitimate claim of7

entitlement to it.” Bd. of Regents of State Co lls. v . Roth , 408 U.S. 564, 577 (1972). Entitlements may be created expressly by state laws or regulations or may arise from government policy or a “mutually explicit understanding between a government employer and employee.” Carter v. City of Philadelph ia , 989 F.2d 117, 120 (3d Cir. 1993). “Longevity alone” does not create a property interest. Hadley v. Cty. of DuPage , 715 F.2d 1238, 1244 (7th Cir. 1983). The District Court properly rejected plaintiffs‟ alleged property interest in secondary employme nt as lawyers. It focused on the absence of evidence that the state openly encouraged the Troopers to attend law school for the purpose of attaining secondary employment as lawyers. Further, it reasoned that the combination of the pre

2007 ethics Code, w hich merely permitted plaintiffs to engage in outside legal employment, and a general education subsidy from the state that plaintiffs used to go to law school was not enough to give rise to a legitimate entitlement to secondary legal employment. 6
Plain tiffs also claim that the District Court mischaracte rized their property interest, urging that the revised Code wholly deprived them of the ability to practice law, not just

6 This case is distinguishable from Stana v. Sch. Dist. of City of Pittsburgh , 775 F.2d 122 (3d Cir. 1985), where we found that a teaching applicant had a constitutional property interest in remaining on an eligibility list, where retention on t he list was a prerequisite for placement in a teaching position. We explained that a property interest was created by the combination of the School District‟s hiring policies and specific, explicit assurances from school officials that a person placed on the list would not be removed for four years. Here, by contrast, there is no allegation that the State Troopers received assurances that they would be permitted to engage in secondary legal employment indefinitely if they attained their law degrees.8

of the ability to engage in secondary legal employment

. However, the Code only
pr ohibited the plaintiffs from practicing law while they were employed as State Troopers ,

so this argument lacks merit. Plaintiffs retained their right to practice law; they just could not be Troopers while doing so. The District Court properly analyzed pl aintiffs‟ alleged property interest as an i nterest in secondary employment and came to the conclusion, which we will not disturb, that plaintiffs‟ property interest was not constitutionally cognizable for purposes of the Due Process Clause

. Accordingly, we will affirm the District Court‟s dismissal of the State Troopers‟ complaint.