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. e du/thir dc ir c uit_1996/104UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 95-7218

RICHARD J. HOMAR, Appellant

v.

JAMES E. GILBERT, Individually, and in his capacity as Pres. of E.S. Univ.; GERALD LEVANOWITZ, Individually, and in his capacity as dire ctor of Human Res. at E.S. Univ.; DAVID MARAZAS, Ind ividually, and in his capacity as Police Chief of E.S. Univ; CURTIS ENGLISH, Individually, and in his ca pacity

as V.P. of E.S. Univ.

Appeal from the United States District C ourt for the Middle District of Pennsylvani a (D.C. Civil No. 93-cv-0852)

Submitted Under Third Circuit LAR 34.1( a) Thursday, November 2, 1995

Before: NYGAARD, ALITO, and SAROKIN, Circui t Judges

(Filed July 18, 1995)

James V. Fareri Mervine, Brown, Newman,

Williams & Mis hkin,

712 Monroe Stree t

P.O. Box 511 Stroudsburg, PA 18360

Attorney for App ellant

Gwendolyn T. Mos ley

Office of Attorn ey General15th Floor, Stra wberry Square

Harrisburg, PA 17120

Attorneys for Ap pellees

OPINION OF THE COURT

SAROKIN, Circuit Judge.

Plaintiff Richard Homar was suspended without pay from his position as a police officer at East Stroudsburg Un iversity after his arrest on drug-related charges. The criminal c harges against Homar were eventually dismissed, but Homar was none theless subsequently demoted to the position of groundskeep er. Homar filed suit in federal district court seeking reinstatemen t, backpay and damages for violations of his due process rights. The district court entered summary judgment in favor of defendan ts. Plaintiff appeals. Although we conclude that these circumstances warranted and justified an immediate suspension of employment wit hout a hearing, the added suspension of pay necessitated a hearing. Furthermore, the subsequent restoration of that pay cannot serve to cure the due process violation. It may serve to reduce the dama ges to which the employee may be entitled, but the deprivation must be viewed at the time of its occurrence, not as belatedly corrected by later action; otherwise employers could violate the due process r ights of their employees and simply cure those violations through the means of retroactive pay. We also hold that once suspended, an employee is entitled to a hearing before any further action is taken to dem ote, terminate, or extend his suspension. At such a hearing, the e mployee is entitled to know the evidence against him and be af forded the opportunity for a meaningful response. We conclude that there is a genuine issue of material fact as to whether such a hearing was afforded here, and we thus reverse the order of summary judgment.

I. Plaintiff Richard Homar was employed as a poli ce officer at East Stroudsburg University ("ESU"). On August 26, 1992, Homar was arrested when a drug raid took place at the home of his friend, James Crompton, whom he was visiting. That same da y, the Pennsylvania State Police filed a criminal complain t against Homar charging him with possession of marijuana, possessi on with intent to deliver and criminal conspiracy. The state police called David Marazas, ESU's p olice chief and Homar's supervisor, to inform him of Homar's arrest and the charges against him. Marazas then informed Gerald Levanowi tz, ESU's Director of Human Resources, to whom ESU President James Gilberthad delegated authority to discipline and suspend E SU employees.

Levanowitz decided immediately to suspend Homar wit hout pay. No pre-suspension hearing was held. On August 27, Homar received a letter from Lev anowitz advising him that he was suspended without pay pending furth er investigation and disposition of the criminal charges. The lette r advised Homar that any administrative action taken by the Univers ity against him "[did] not have to coincide with the disposition of those charges through the legal process." Appendix ("App.") at 1 97. District Justice Charles P. Eyer dismissed all criminal charges against Homar on September 1, 1992. Levano witz still refused to lift Homar's suspension. On September 11, 1992, Levanowitz, along with two ESU police sergeants who were assigned to conduct an investiga tion on Homar, met with two state troopers and a Corporal to discu ss Homar's situation. App. at 143. One of the troopers was t he state trooper who signed the criminal complaint against Homar. A t this meeting, Levanowitz was provided with a copy of a page from the Pennsylvania State Police investigative file regarding Homar, ca lled the "Supplemental Report." This report includes statem ents attributed to Homar that he allegedly made to the Pennsylvania State Police when he was interviewed shortly after his arrest. According to the Supplemental Report, Homar admitted his knowledge o f drug dealing by Crompton and another man named Habhab, and Homar further admitted that he had received marijuana from Habhab for his own use while he was employed as an ESU police officer. Ho mar contests

that he ever made these statements. On September 15, 1992, Levanowitz called Homar and arranged for a meeting three days later. Levanowitz explain ed that this meeting would be an "administrative hearing," and t hat accordingly Homar had a right to have his union representative present but that he did not have a right to legal counsel. Homar attended this meeting on September 18, 1 992, along with his union representative. Besides Levanowitz, Mara zas was also present, as well as Levanowitz's secretary. At the start of the meeting, Homar's union representative requested tha t Homar's attorney be present. Levanowitz responded that if Homar so chose, they would have to postpone the meeting until a lat er time. Homar opted to proceed with the meeting unrepresented. A ccording to the notes taken by Levanowitz's secretary, Levanowitz m ade the following statement to Homar: The purpose of this meeting today is to give y ou an opportunity to provide any information on your own behalf that would assist us in making a determination concerning the action that would end your suspension and any information that would be of help to you in pr esenting

your case. App. at 205. Levanowitz maintained at a deposition held lat er that he had told Homar that "the State Police had given [him] s ome evidence very serious in nature," App. at 164, and that he o ffered Homar the opportunity to present his side of the story. Leva nowitz never informed Homar that he had received the Supplementa l Report from the state police containing his alleged confession.On September 23, 1992, Levanowitz wrote a lett er to Homar

advising him that he was being demoted from the pos ition of police officer to the position of groundskeeper. The text of the letter reads, in pertinent part, as follows: This is to inform you that you are to be demoted from your position as a Police Officer I in th e Campus Police Department to the position of Groundske eper. . . . The action is effective retroactive to Augus t 26, 1992, and you are to be given back pay to that date at the rate of pay for a Groundskeeper. You are to report to work at 7:00 A.M. on September 24, 1992 at the Facilit ies Management Office. Your new rate of pay as Gr oundskeeper will be $552.80 bi-weekly.

This action is being taken as a result of admissions made by yourself to the Pennsylvania State Pol ice on August 26, 1992 that you maintained associatio n with individuals whom you knew were dealing in larg e quantities of marijuana and you obtained marij uana from one of those individuals for your own use. Yo ur actions constitute a clear and flagrant violation of S ections 200 and 200.2 of the East Stroudsburg University P olice Department Manual. App. at 208 (footnote added). After this letter was issued, the president of the union representing Homar requested that Homar have an opp ortunity to meet with President Gilbert regarding the letter. The m eeting occurred on September 24, 1992 at 2:00 p.m. By this time, H omar had received and read a copy of the Supplemental Report . Gilbert provided Homar with an opportunity to respond to th e charges and to

Levanowitz's decision. Gilbert nonetheless sustain ed the suspension. After failing to obtain relief through his uni on grievance procedure, Homar filed a complaint in the district court for the Middle District of Pennsylvania against Gilbert, Le vanowitz and Marazas. His complaint alleges that the procedures by which he was suspended and then demoted lacked required due proc ess, that defendants' actions deprived him of liberty and pro perty, and that his substantive due process rights were also violat ed. The district court entered summary judgment in favor of the defendants on March 17, 1995. Homar then appealed to this cou rt.

II. The district court had jurisdiction over this action pursuant

to 28 U.S.C.  1331 and 1343 and 42 U.S.C.  1983. This court has jurisdiction over the appeal of the district court' s final decision

under 28 U.S.C.  1291.

Our review of the district court's order for s ummary judgment is plenary, and we thus apply the same standards th at were applicable in the district court. J.F. Feeser, Inc . v. Serv-APortion, Inc., 909 F.2d 1524, 1530 (3d Cir., 1990), cert. denied, 499 U.S. 921 (1991). Summary judgment is appropria tely granted when "there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law." Fed.R. Civ. P. 56(c). If, however, "the evidence is su ch that a

reasonable jury could return a verdict for the nonm oving party," Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), summary judgment shall not be granted. Homar, as the nonmo ving party, is

entitled to have all reasonable inferences drawn in his favor. SeeJ.F. Feeser, 909 F.2d at 1531.

III. Homar's first claim is that ESU failed to prov ide him a meaningful pre-deprivation hearing prior to his sus pension without pay and his subsequent demotion from police officer to groundskeeper. In Cleveland Bd. of Education v. Loudermill, 4 70 U.S. 532 (1985), the United States Supreme Court held that w hen a public employee has a property interest in his or her empl oyment he or she is entitled to a meaningful pre-termination hearing . Such a hearing need not be elaborate, but rather "an initi al check against mistaken decision -- essentially, a determination o f whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action." Id. at 545-46. Loudermill specifically requires that prior to term ination: [a] tenured public employee is entitled to ora l or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story.

Id. at 546. The Supreme Court has made it eminently clear that due process entitles a party to such a hearing "before he [or s he] is deprived of any significant property interest, except for ex traordinary situations where some valid governmental interest i s at stake that justifies postponing the hearing until after the ev ent." Boddie v. Connecticut, 401 U.S. 371, 379 (1971); see also Lou dermill, 470 U.S. at 542; Bell v. Burson, 402 U.S. 535, 542 (19 71). This fundamental right to a pre-deprivation hearing is n ot abridged by the availability of extensive post-deprivations rem edies. SeeMorton v. Beyer, 822 F.2d 364, 368 (3d Cir. 1987) (holding th at "the availability of extensive post-termination pro cedures does not eliminate the essential requirement of due process that a hearing be provided before discharge"); Gniotek v. City of Philadelphia, 808 F.2d 241, 243 (3d Cir. 1986) (noting that "[t]h e predeprivation hearing need not be elaborate, but it is necessary, even if extensive post-deprivation remedies are afforded.") , cert. denied, 481 U.S. 1050 (1987). While we recognize that Homar was not complete ly terminated from his employment with ESU, he was terminated fro m his position as a police officer and received a reduction in his pay. Accordingly, we find the requirements of Loudermill to be applicable in this instance. Indeed, there is no d ispute among the parties that Homar had a property interest in his e mployment as police officer. Rather, the dispute concerns the d egree of due process to which Homar was entitled prior to his su spension without pay and prior to his demotion from his position as police officer to groundskeeper.

A.We will first address Homar's contention that he was entitled

to notice and an opportunity to be heard prior to h is suspension without pay from his position as an ESU police offi cer. It is undisputed that Homar was not afforded a ny kind of hearing prior to his suspension without pay immedia tely following his arrest on drug charges. ESU nonetheless argues that Homar's due process rights were not violated because, while Homar's interest in remaining in his job is "an important o ne," ESU had a compelling interest in "taking prompt action to mai ntain public confidence in its police force." Appellee's Brief at 15. Indeed, the Supreme Court has explained that [a]n important government interest, accompanie d by a substantial assurance that the deprivation is not baseless or unwarranted, may in limited cases demanding prompt action justify postponing the opportuni ty to be heard until after the initial deprivation. FDIC v. Mallen, 486 U.S. 230, 240 (1988); see also Boddie, 401 U.S. at 379 (noting that there can be "extraordinary sit uations where some valid governmental interest is at stake that j ustifies postponing the hearing until after the event"). The district court agreed with ESU, finding th at it was permissible for the university to suspend Homar wit hout pay and without a hearing. The court first noted that "[b] oth the timing and the nature of requisite process depends upon an 'appropriate accommodation of the competing interests involved.' " Homar v. Gilbert, No. CV-93-0853, typescript at 11 (M.D. Pa. , March 17, 1995) (hereinafter "D. Ct. Op.") (citing Goss v. Lo pez, 419 U.S. 565, 579 (1975)). It then applied the analysis pre scribed by Logan v. Zimmerman Brush Co., assessing the competing int erests involved, including "the importance of the private interest, and the length and finality of the deprivation, . . . the likeliho od of governmental error, . . . and the magnitude of the governmental interests involved." Id., typescript at 11 (quotin g Logan v. Zimmerman Brush Co., 455 U.S. 422, 434 (1982)). Wh ile the district court recognized that Homar's "private interest was strong," it found that "the deprivation incident to a suspensio n was only temporary and of a relatively brief duration (appro ximately one month)." Id., typescript at 11. The district cour t concluded that Homar's interest in avoiding such a "temporary" and"brief" deprivation was not as compelling as "the governmen tal interest in preserving public confidence in law enforcement." I d., typescript at 12. The court found its conclusion bolstered by the fact that Homar was eventually awarded full pay and benefits for the period of suspension, noting that "'[s]uspension with pay does not raise due process concerns.'" Id., typescript at 13 (quot ing Hicks v. City of Watonga, Okl., 942 F.2d 737, 746 n.4 (10th Cir. 1991). We agree with the district court that there wa s a compelling governmental interest which supports ESU's decision to suspend Homar immediately and without a hearing pending fur ther investigation. The university has a substantial in terest in maintaining public confidence in the ESU police for ce, and Homar's arrest on drug charges certainly suffices to ensure that the university's concerns were not baseless or unwarran ted, as required by the Supreme Court. See Mallen, 486 U.S. at 240. Incircumstances where public safety is implicated, "[ n]ot even an

informal hearing . . . must precede a deprivation." Caine v. Hardy, 943 F.2d 1406, 1412 (5th Cir. 1991) (en banc ), cert. denied, 503 U.S. 936 (1992). Nonetheless, we find that Homar's due process rights were violated because he was suspended without pay. The Supreme Court's decision in Loudermill strongly suggests that suspe nsion without pay must be preceded by notice and an opportunity t o be heard in all instances. Initially, the Court noted that it had "frequently recognized the severity of depriving a person of th e means of livelihood." Loudermill, 470 U.S. at 543. Then th e Court explained that, while it recognized that there were some limited instances in which a strong governmental interest m ight warrant immediately removing a person from a position witho ut a hearing, "in those situations where the employer perceives a significant hazard in keeping the employee on the job, it can a void the problem by suspending with pay." Id. at 544-45 (emphasis a dded). Other circuits which have examined this langua ge in Loudermillhave disagreed with regard to its precise mandate. At l east one court of appeals has read Loudermill to require tha t an employee be provided an opportunity to be heard prior to suspen sion without pay. See Everett v. Napper, 833 F.2d 1507, 1512 (11 th Cir. 1987) (holding that, under Loudermill a suspended firefig hter was entitled to a hearing prior to suspension because h e was not paid during his suspension). The Federal Circuit, by co ntrast, noted that Loudermill's prescription of suspension with p ay in situations where significant hazards would result from continu ed employment was only dicta: "We agree that in the instant case , the government could have suspended with pay. Nevertheless, we ca nnot read Loudermill as holding the government must suspend . . . with pay." Engdahl v. Dept. of Navy, 900 F.2d 1572, 1578 (Fed. Cir. 1990). Other circuits, while not explicitly addressing Lou dermill, have on occasion allowed suspension without pay to stand ev en in the absence of a pre-deprivation hearing. See, e.g., J ones v. City of Gary, Ind., 57 F.3d 1435, 1436 (7th Cir. 1995); Amb us v. Granite Bd. of Educ., 975 F.2d 1555, 1558, 1562 (10th Cir. 1992), modified on rehearing by, 995 F.2d 992 (10th Cir. 1993) (en banc). This court has not precisely addressed this is sue in the past. However, our decision in Bradley v. Pittsburgh Bd. of Educ., 913 F.2d 1064 (3d Cir. 1990), may be read to imply that , under Loudermill, suspension without a pre-deprivation he aring is only constitutional if the suspension is one with pay. In Bradley, we were called upon to decide, among other issues, whe ther a teacher who had been effectively suspended without pay and without a hearing for one year prior to being officially term inated, had been deprived of his procedural due process rights. The employer in Bradley ultimately provided Bradley full sabbatical pay for the year in question. The district court had relied up on Loudermill to conclude that the employer was entitled to suspend Bradley without a pre-suspension hearing because he eventually had been provided payment for the period of suspension. Id. at 1077. In reviewing this decision, we first acknowledged that under Lou dermill, in circumstances where a governmental employer perceiv es substantial hazards in keeping an employee on the job, it may s uspend theemployee with pay until such time that a hearing ma y be held. Id.(citing

Loudermill, 470 U.S. at 544-45). We concluded, how ever, that "Loudermill [did] not govern [that] case becau se Bradley was suspended without pay." Id. We thus implicitly, but necessarily, rejected the idea that a government employer could cite to the substantial hazards of keeping an employee on the j ob and thereby suspend him without a pre-suspension hearing withou t pay. Had we determined that Bradley had been suspended with pay , we presumably would have found that the Loudermill exception -- e ssentially the Mallen exception -- applied. Thus, while Bradley d oes not explicitly declare that suspension without pay and without a presuspension hearing always violates due process, suc h a holding may be inferred from its reasoning. Today we clearly enunciate that a governmental employer may not suspend an employee without pay unless that sus pension is preceded by some kind of pre-suspension hearing, pr oviding the employee with notice and an opportunity to be heard . We think that such a holding is not only consistent with, and sug gested by, Loudermill, but it is also eminently sensible. It is imperative that employers be provided with adequate flexibilit y to allow them to protect the public and respond to emergency situ ations expediently. Suspension with pay addresses these i mportant concerns while simultaneously protecting the fundam ental rights of an employee to due process prior to being deprived of his or her property interest in employment and its accompanyin g salary. Furthermore, this conclusion seems consistent with the Supreme Court's holding in Zimmerman Brush that, in determi ning the timing and nature of an appropriate hearing, courts shouldassess the competing interests involved and arrive at an appro priate accommodation. Zimmerman Brush, 455 U.S. at 434. As noted above, the district court treated Hom ar's suspension as a suspension with pay: That Homar was originally suspended without pa y does not warrant a finding that he was deprived of prop erty without due process. At most, he was denied u se of his salary for a very brief period of time. To re cognize a cause of action for denial of due process unde r these circumstances would clearly elevate form over substance.

* * *

Since he clearly could be suspended with pay w ithout implicating due process concerns, and within o ne month after being suspended he was awarded full pay for the period of suspension, any injury resulting fro m the failure to provide an opportunity to be heard before the suspension was imposed is surely de minimis. D. Ct. Op., typescript at 13-14. We fundamentally disagree with the district co urt's conclusion. First, our decision in Bradley clearly indicates that the subsequent awarding of backpay does not remedy a due process

violation: The right to procedural due process cannot be so ephemeral that it evaporates because an indivi dualsuspended without pay happened to obtain paid leave

thereafter. . . . That may affect the damages ultimately awarded, but if there was a violation of due p rocess, [the employee] is entitled to have that right vindicated. Bradley, 913 F.2d at 1077. Second, Homar's suspension without pay cannot be viewed as deminimis. At the time that Homar was suspended, he was told t hat he was "to be suspended without pay, effective imme diately on 8/26/92, from [his] position as a police officer at East Stroudsburg University." App. at 197. For a perio d of approximately one month, Homar's very livelihood wa s threatened because he received no salary. As far as Homar kne w at the time of his suspension, he had no prospects whatsoever of r eceiving any wages for the indefinite duration of his suspension . It was not until he received his letter of demotion on Septemb er 24, 1992 -- nearly a month after he was suspended -- that he le arned he would be receiving backpay at the rate of a groundskeeper . While it is true that Homar eventually received backpay at the wage rate he earned as a police officer to cover the period of h is suspension, we note that according to Defendant's Statement of Material Fact accompanying their Motion for Summary Judgment, Lev anowitz did not authorize Homar's backpay at the rate of a police o fficer until February 16, 1993. Thus, for nearly six months, Ho mar was deprived of a salary that was rightfully his. Furthermore, there is evidence to suggest that ESU only agreed to pay thi s rate upon pressure from Homar's union representative. Accordingly, we find that Homar was entitledto notice and at least some kind of hearing prior to being suspen ded without pay. It is undisputed that Homar received no heari ng prior to his suspension, and we conclude that the district court erred in granting summary judgment in favor of defendants on this issue.

B. Homar further alleges that he was deprived of meaningful pretermination due process in the course of his demoti on to the position of groundskeeper. As outlined above, Loudermill requires that a public employee with a property interest in his or her employment b e granted a meaningful pre-termination hearing. Loudermill, 47 0 U.S. at 545- 46. We reiterate that it is of paramount importanc e that this hearing take place prior to the deprivation. As ex plained above, absent compelling government interests justifying p ostponement of a hearing, the hearing must take place before the d eprivation, seeBoddie, 401 U.S. at 379; Loudermill, 470 U.S. at 542; Bell , 402 U.S. at 542, because "the only meaningful opportuni ty to invoke the discretion of the decisionmaker is likely to be bef ore the termination takes effect." Id.; see also, Board of Regents v. Roth, 408 U.S. 564, 570 n.7 (1972). Indeed, this r ight to predeprivation due process is so fundamental that it r emains "even if extensive post-deprivation remedies are afforded." Gniotek, 808 F.2d at 243; see also Morton, 822 F.2d at 368. This pre-deprivation hearing need not be elabo rate. As explained by the Supreme Court, "'something less' t han a full evidentiary hearing is sufficient prior to adverse administrativeaction." Loudermill, 470 U.S. at 545 (citations om itted).

Nonetheless, the hearing must be sufficient to info rm the employee of the evidence against him or her and to respond t o the evidence. See Fraternal Order of Police Lodge No. 5 v. Tucker , 868 F.2d 74, 80 (3d Cir. 1989). "[A] sina [sic] qua non of a me aningful hearing is a sufficient explanation of the employer's evide nce to permit a meaningful response." Id. Under the circumstances presented here, where Homar was suspended from his position pending further investi gation into his activities, it is clear that there was no compellin g government issue at stake that would require ESU to immediatel y deprive Homar of his employment. Any concerns about preserving p ublic safety or the integrity of the police force were met by Homar 's suspension. The university thus was afforded the time it would need adequately to provide Homar a pre-deprivation hearing. The qu estion for us to answer, then, is whether the university provided hi m such a hearing.

The district court concluded that the "adminis trative hearing" which took place on September 18 did not meet the d ue process requirements of a pre-deprivation hearing because i t "did not allow [Homar] to make a meaningful response to the damagi ng information found in the supplemental report." D. Ct. Op., typ escript at 15.

We agree. During the September 18 meeting, Levanowitz on ly told Homar that the State Police had given him some "evidence very serious in nature." App. at 164. While it safely can be pres umed that Homar knew that ESU's concerns about his employment arose from his arrest on drug charges, Homar was not aware of the allegat ions made against him by the troopers that were presented in the Supplemental Report, namely that he allegedly confessed to knowi ng that Crompton and Habhab were drug dealers and to receiving marij uana from Habhab during his employment as a police officer. More to the point, Homar was completely unaware that Levanowitz had re ceived a copy of the Supplemental Report containing these allegation s. Under these circumstances it is very clear that Homar's right t o a meaningful pre-deprivation hearing was denied. See Tucker, 86 8 F.2d at 80 (holding that suspended police officers who were no t told anything specific about drug use allegations or the evidence regarding the allegations were deprived of their due process righ ts because they had no opportunity to explain or rebut evidence). In spite of its conclusion regarding the insuf ficiency of the September 18 "administrative hearing," the district court entered summary judgment in favor of defendants because it concluded that Homar's September 24, 1995 meeting with President G ilbert, prior to which Homar had received and read the Supplemental Report, was a meaningful pre-termination hearing. D. Ct. Op., ty pescript at 16. Given that Homar was afforded an opportunity to rev iew the Supplemental Report and offer meaningful responses to the allegations, we find that this meeting afforded Hom ar with sufficient procedural due process protections assum ing it took place prior to his demotion becoming effective. Wh ile true that an employee is not entitled to a pre-decision hearing, see Chung v. Park, 514 F.2d 382, 387 (3d Cir.), cert. denied, 42 3 U.S. 948(1975), only if this hearing took place before his demotion tookeffect can

we conclude that he was afforded meaningful due pro cess. The district court held as a matter of law th at Homar's dismissal from his position as a police officer too k effect only after this meeting with President Gilbert. D. Ct. Op., typescript at 16. The district court found that the meeting, which took place at 2 p.m. on September 24, 1992, "occurred before H omar would have started his evening shift as police officer should Gilbert have decided to reinstate him to that position," id., an d thus concluded

that "Gilbert's decision that Homar could not retur n to ESU as a police officer is properly viewed as the point in t ime when Homar was deprived of his position as an ESU police offic er." Id. We disagree with the district court that the p oint in time at

which Homar's demotion became effective is clear. There is substantial evidence in the record to support a con clusion that Homar's demotion took effect prior to this meeting. Homar's meeting with Gilbert took place on September 24 at 2:00 p.m. The letter which Levanowitz sent to Homar apprising him that he had been demoted to Groundskeeper was dated on Septembe r 23, 1992. In that letter, Levanowitz informed Homar that he was "to be demoted from [his] position as a Police Officer I in the Ca mpus Police Department to the position of Groundskeeper, a posi tion [he] formerly held." App. at 208 (emphasis added). The letter further required that Homar "report to work at 7:00 A.M. on September 24, 1992," to start his job as groundskeeper, and infor med Homar that this "action is effective retroactive to August 26, 1992." App. at 208 (emphasis added). Homar testified during a dep osition that he was already working as a groundskeeper at the time of his September 24th, 2:00 p.m. meeting with Gilbert. There is thu s evidence suggesting that Homar had already been demoted to g roundskeeper by the time this meeting took place. If this is true, then Homar was deprived of a meaningful pre-deprivation hearing. The district court based its contrary conclusi on on two grounds. First, the court determined that "[t]he s ignificance of the meeting was that Gilbert held ultimate decision -making authority regarding whether Homar would remain empl oyed by ESU as a police officer." D. Ct. Op., typescript at 15. However, this meeting with Gilbert never would have occurred had Homar's union representative not sought to arrange for the meetin g with Gilbert. App. at 225. This fact seems to suggest that Levan owitz's demotion

of Homar would have become effective without Gilber t's approval,

which would render Levanowitz's letter the final de motion.

Levanowitz's authoritative tone in the letter simil arly supports

this conclusion.

The district court also concluded that the mee ting with Gilbert had taken place prior to Homar's demotion b ecause it occurred before 4 p.m., the time at which Homar wou ld normally begin his shift as a police officer. Id. at 16. W e disagree that the timing of the demotion is so clear. We think t here is certainly an issue of material fact as to whether H omar's demotion became effective on August 26, as stated in the let ter; at 7:00 a.m. on September 24, the date he was told to repor t to work as a groundskeeper; or at 4:00 p.m. on September 24, the time at which Homar would normally report to work as a police off icer. Unlessdefendants expected Homar to act as both groundskee per and police

officer on September 24, the facts appear to suppor t the conclusion

that Homar's demotion was effective at the latest b y 7 a.m. on the morning of September 24th, seven hours prior to his meeting with

Gilbert. We thus conclude that there is a genuine issue of material fact regarding the date and time at which Homar's d emotion became effective, and that the district court's grant of s ummary judgment was therefore inappropriate. See Anderson v. Liber ty Lobby, Inc., 477 U.S. 242, 248 (1986) (holding summary judgment is inappropriate if there is evidence "such that a reasonable jury c ould return a verdict for the nonmoving party."). Accordingly, w e reverse the district court's entry of summary judgment regardin g Homar's meaningful pre-deprivation hearing.

IV.

Homar also contends that there is an issue of material fact as to whether his substantive due process rights were violated. Relying on this court's precedent in Parkway Garage , Inc. v. City of Philadelphia, 5 F.3d 685, 692 (3d Cir. 1993) in which we stated that "[a] violation of substantive due process righ ts is proven: . . . 'if the government's actions in a particular ca se were in fact motivated by bias, bad faith or improper motive. . . ,'" id.(quoting Midnight Sessions, Ltd. v. City of Philadelphia, 94 5 F.2d 683 (3d Cir. 1991), cert. denied, 503 U.S. 984 (199 2)), Homar points to several facts that he argues demonstrate that his suspension and demotion were motivated by bias, badfaith or improper motive. The district court granted summary judgment in favor of defendants on this claim on the ground that there w as no genuine issue of material fact as to whether Levanowitz, Gi lbert or any other ESU official was motivated by bias, bad faith or improper

motive. While we agree with the district court that th e evidence in this case does not support a conclusion that Levano witz or any other ESU official was motivated by an improper mot ive in suspending and then demoting Homar, for there is, i ndeed, "nothing improper about conducting an investigation of a lawenforcement officer who has been arrested, even if the charges are ultimately dismissed," D. Ct. Op., typescript at 23, we think that there is a question of material fact as to whether ESU offic ials acted in bad faith. Several events leading up to Homar's de motion suggest that Levanowitz did not engage in a good faith effo rt to accord Homar appropriate due process protection throughout his ordeal.

Levanowitz never informed Homar that he had receive d and read the Supplemental Report prior to their September 18 mee ting; Levanowitz ordered that a poll be taken among police officers regarding

whether Homar should be allowed to return to the fo rce, which is certainly a very strange proceeding outside the rea lm of traditional due process proceedings; and Levanowitz issued the September 23 letter of demotion prior to the meetin g with President Gilbert -- a meeting which occurred only after Homa r's union representative requested it take place. Such event s might lead a

reasonable fact-finder to conclude that Homar's dem otion was pre-determined and to view the entire demotion process as rigged to

produce this result. Our conclusion that there is a genuine issue o f material fact as to whether ESU officials were motivated by bad f aith, however, does not lead us to remand this matter simply for a factual finding. A more fundamental legal question must fi rst be addressed, namely whether Homar's property interest in his statecreated job is an interest worthy of protection und er substantive due process. DeBlasio v. Zoning Bd. of Adjustment, 53 F.3d 592, 598, 600 (3d Cir. 1993) (holding that before addres sing the sufficiency of the evidence of improper motive, a c ourt addressing a substantive due process claim should first consid er whether the plaintiff possesses a property interest worthy of s ubstantive due process protection). Although Homar has succeeded in making a procedural due process claim, under the law of this circuit "not all property interests worthy of procedural due pro cess protections are protected by the concept of substantive due pro cess." Reich v. Beharry, 883 F.2d 239, 244 (3d Cir. 1989). In orde r to state a substantive due process claim, "a plaintiff must ha ve been deprived of a certain quality of property interest." DeBlas io, 53 F.3d at

600. The parties did not address before the distric t court the question of whether a state-created property intere st in employment is the "certain quality" of property interest worth y of protection under the substantive due process clause, nor did t he district court consider it. While courts of appeals do have discretion to

consider and resolve certain issues for the first t ime on appeal, such as where the proper resolution is not in doubt or where "'injustice might otherwise result,'" Singleton v. Wulff, 428 U.S. 106, 121 (1976) (quoting Hormel v. Helvering, 312 U .S. 552, 557 (1941)); see also Nelson v. County of Allegheny, 60 F.3d 1010, 1013 n.3 (3d Cir. 1995), it is a general rule that feder al appellate courts do not consider an issue not passed upon bel ow. Singleton,

428 U.S. at 120. In the instant case, we think it appropriate t o remand this issue for consideration in the first instance by th e district court. Certainly this is not a situation where the proper resolution is clear. Rather, the case law of this circuit and the Supreme Court provides very little guidance as to w hat constitutes this "certain quality" of property interest worthy of protection under the substantive due process clause. We have held that "ownership is a property interest worthy of substan tive due process protection," id., but we have found that neither in terest in prompt receipt of payment for professional services provid ed to the state, Reich, 883 F.2d at 244-45, nor state law entitlemen t to water and sewer services, Ransom v. Marrazzo, 848 F.2d 398, 4 11-12 (3d Cir. 1988) are the "certain quality" of property interes t worthy of substantive due process protection. We also have s trongly suggested in dictum that a student's right to conti nued enrollment in a graduate program does not rise to such a level on the ground

that such an interest bears "'little resemblance to the fundamental interests that previously had been viewed as implic itly protected by the Constitution.'" Mauriello v. U. of Med. & D entistry of N.J., 781 F.2d 46, 40 (3d Cir. 1986) (quoting Regen ts of Universityof Michigan v. Ewing, 474 U.S. 214, 229-30 (Powell, J.,

concurring). None of the property interests forme rly considered are especially analogous to the property interest i n state-created employment. Given the complexity of this issue, we think it appropriate to allow the district court the first o pportunity to consider it. Should this issue return to us on app eal, we will benefit from the district court's analysis. Furthe rmore, we have already determined to remand this matter on the pro cedural due process ground as well, eliminating any concern abo ut the injustice of delaying the final conclusion of this case. Acc ordingly, we remand this question to the district court for cons ideration there.

V. Additionally, Homar contends that a genuine is sue of material fact exists as to whether Homar's due process right s were violated because defendants made public statements about his suspension that stigmatized Homar and damaged his reputation. Spec ifically, Homar alleges that ESU violated his protected liberty int erest in two ways. First, he alleges that ESU seriously damagedhis good name and reputation by publicly disclosing the charges a gainst him. Second, Homar alleges that ESU imposed a stigma or disability on him, foreclosing his freedom to take advantage of o ther employment opportunities. We will address these two claims in turn.

A. The Supreme Court has held that a person has a liberty interest in employment actions which require due pr ocess "where a person's good name, reputation, honor or integrity is at stake because of what the government is doing to him." R oth, 408 U.S. at 573. Homar claims that this liberty interest was i mplicated in the instant case because ESU's demotion of him "'damage [d] his standing and associations in the community.'" Appellant's B rief at 28 (citing Roth, 408 U.S. at 573). Homar may only pre vail on this claim if he can demonstrate that the government "cr eate[d] and disseminate[d] a false and defamatory impression ab out [him] in connection with his termination." Codd v. Velger, 429 U.S. 624, 628 (1977) (per curiam). See also Bishop v. Wood, 426 U.S. 341, 348-39 (1976).

Homar contends that ESU's disclosure of its in vestigation into his activities in a small article that appeared in the Pocono Record newspaper, coupled with his subsequent demot ion, implicated his liberty interest. We disagree. The article in the newspaper did not disclose any specifics regarding the nature of ESU's concern, nor did it disclose information about the disciplinary action ESU contemplated. Furthermore, the article appeared prior to his demotion, and there is no evidence to indica te that ESU publicly disclosed the outcome of its investigation or the fact that it demoted Homar to groundskeeper. We accordi ngly find that Homar has no liberty interest claim. See Tucker, 8 68 F.2d at 82 (holding that no liberty interest was implicated wh en press release about discharge of police officers was not misleadi ng).

B. Homar further alleges that ESU violated his liberty interest because it imposed "a stigma . . . that fo reclosed his freedom to take advantage of other employment oppor tunities." Roth, 408 U.S. at 573. Yet Homar has proffered no evidence tosuggest that the disciplinary actions taken by the university had

in any way foreclosed other employment opportunitie s. Indeed, Homar testified at his deposition that he had not s ought out a position with any other employer since his demotion . App. at 50. Furthermore, as noted above, Homar makes no allegat ions that any information in the newspaper article was untrue; th e university never even publicly disclosed that Homar was termin ated from his job as police officer. Under such circumstances, w e cannot find that Homar's liberty interest was implicated. Tuck er, 868 F.2d at

83. Accordingly, we affirm the district court's is suance of summary judgment as to this issue.

VI. For the foregoing reasons, we affirm in part, reverse in part and remand for further proceedings consistent with this opinion.

Homar v. Gilbert

No. 95-7218. ALITO, Circuit Judge, concurring in part and dissen ting in part.

I write separately for two reasons. First, I would hold, based on the undisputed facts of this case, that th e university's suspension of Homar without pay and without a heari ng did not violate the principles of procedural due process as interpreted by the Supreme Court. I thus dissent from section III .A of the majority's opinion. Second, although I do not disa gree with the majority's decision to remand the substantive due p rocess question to the district court, I wish to set forth my own v iews on that

issue.

I. A. Due process does not always require a pre- suspension hearing. See, e.g., FDIC v. Mallen, 486 U.S. 230, 240-41 (1988); Barry v. Barchi, 443 U.S. 55, 63-66 (1979). In Mal len, the Supreme Court observed that "[a]n important government inte rest, accompanied by a substantial assurance that the dep rivation is not baseless or unwarranted, may in limited cases deman ding prompt action justify postponing the opportunity to be hea rd until after the initial deprivation." Id. at 240 (citations om itted); see alsoLogan v. Zimmerman Brush Co., 455 U.S. 422 (1982) ("[T]he timing and nature of the required hearing `will depend on appropriate accommodation of the competing interests involved. These include the importance of the private interest and the leng th or finality of the deprivation, the likelihood of governmental error, and the magnitude of the governmental interests involved.") (citations and footnote omitted). In my view, this exception shou ld apply here. See, e.g., Ambus v. Granite Bd. of Educ., 975 F.2d 1555, 1562 (10th Cir. 1992), aff'd as modified on other ground, 995 F.2d 992 (10th Cir. 1993) (en banc). Under the particular circumstances of this cas e, a presuspension hearing was not, in my view, essential. Within a few hours of the August 26, 1992, drug raid that result ed in Homar's arrest, the university learned that Homar had been charged with possession of marijuana, possession with intent to delivermarijuana, and criminal conspiracy. Homar did not report to work

on August 26 for his 4:00 p.m. to 12:00 p.m. shift. The next day, Homar called his police chief to say that he had be en arrested and to ask whether he was suspended. Homar was informe d that he was suspended, and this was confirmed by letter deliver ed the same day. I do not think that the university violated Ho mar's right to procedural due process when it suspended him from h is position as a campus police officer after learning that he had been arrested and charged with drug violations. There was probab le cause to support the criminal charges and hence a substantia l assurance that the deprivation was not baseless or unwarranted. T he university was certainly entitled to take the position that Ho mar could not be permitted to work as a campus police officer with s uch charges outstanding, and there was thus, as the majority co ncedes, a compelling government interest present. And the un iversity needed to act promptly. The majority admits all of this b ut finds that the university had to suspend Homar with pay. I fi nd no requirement that in such circumstances a public emp loyer must pay its suspended employees. B. In reaching its conclusion to the contrary , the majority declares that "a governmental employer may not susp end an employee without pay unless that suspension is preceded by s ome kind of presuspension hearing." Majority Opinion, Typescript at 14. The majority essentially announces a blanket rule that a public employer that wishes to suspend an employee -- even an employee in a public-safety position who has been charged with multiple felonies -- must either provide a pre-suspension he aring or suspend the employee with pay. This holding is based on on e sentence of dictum from Cleveland Bd. of Educ. v. Loudermill, 4 70 U.S. 532, 544-45 (1985), the Eleventh Circuit's reliance on t hat dictum in Everett v. Napper, 833 F.2d 1507, 1512 (11th Cir. 1 987), and this court's opinion in Bradley v. Pittsburgh Bd. of Edu c., 913 F.2d 1064 (3d Cir. 1990). These bases do not, in my vie w, withstand scrutiny. With regard to Loudermill, I note that the Sup reme Court there expressly recognized that "[t]here are, of course, some situations in which a postdeprivation hearing will satisfy due process requirements." Loudermill, 470 U.S. at 542 n.7 (ci tations omitted). It is of course true, as the Court later notes, that an employer can avoid any due process problems associa ted with keeping a dangerous employee on the job by suspending the e mployee with pay, id. at 544-45, "for then there is not a depriv ation." Bailey v. Board of County Commissioners of Alachua County, 956 F.2d 1112, 1124 n.13 (11th Cir.), cert. denied, 506 U.S. 832 ( 1992). But as the Federal Circuit has explained, this "is merely descriptive, not normative. We agree that in the instant case, the government could have suspended with pay. Nevertheless, we cannot r ead Loudermillas holding that the government must suspend him with p ay." Engdahl v. Department of Navy, 900 F.2d 1572, 1578 (Fed. Ci r. 1990). I

agree. The Eleventh Circuit's decision in Everett, wh ich was issued before the Supreme Court's decision in Mallen, simp ly relies on the Loudermill dictum. Numerous courts of appeals have reached acontrary conclusion regarding the import of Louderm ill,

particularly after Mallen. See Jones v. City of Ga ry, 57 F.3d 1435, 1441-45 (7th Cir. 1995) (no pre-suspension he aring required where firefighter was suspended without pay; plaint iff's property interests were adequately protected by post-depriva tion hearing); id. at 1445-46 (Ripple, J., concurring) ("there are circumstances in which the need for swift action on the part of t hose who exercise governmental authority and responsibility for the safety and security of others can justify the elimination or truncation of even the bare-bones pretermination hearing requiredby Loudermill") (citations omitted); Chaney v. Suburban Bus Div. of the Regional Transp. Auth., 52 F.3d 623, 628 (7th Cir. 1995) (pl aintiff bus driver suspended without pay after bus hit and inju red pedestrian; no pre-suspension hearing necessary as employer's i nterests "clearly outweigh[ed]" those of plaintiff); Ambus v . Granite Bd. of Educ., 975 F.2d 1555, 1562 (10th Cir. 1992) (court discussed Loudermill but applied the Mallen exception where a teacher was suspended without pay and without a hearing after t he school learned that the teacher had been arrested on drug charges; court stated that "the substantiated knowledge that a tea cher had been arrested for drug sales raised a substantial govern ment interest justifying immediate suspension without pay"), aff' d as modified onother ground, 995 F.2d 992 (10th Cir. 1993) (en banc); St rong v. Board of Educ. of Uniondale Union Free School Dist. , 902 F.2d 208, 212 (2d Cir.) (citing Loudermill and Mallen, court concluded that, on balance, no pre-termination hearing required; co urt stressed that probable value of hearing was not very great b ecause parties were well aware of each other's assertions), cert. denied, 498 U.S. 897 (1990); see also Richardson v. U.S. Customs Ser vice, 47 F.3d 415, 418-19 (Fed. Cir. 1995) (discussing 5 U.S.C.  7513(b)(1)) ("[A]n indictment for a crime for which a sentence of imprisonment may be imposed will, as a general rule, provide rea sonable cause for an agency to believe that the employee has comm itted such a crime, and, when the nature of the crime alleged re lates to the employee's ability to perform his or her duties, an agency may summarily suspend the employee, without pay, pendin g the outcome of the criminal proceedings.") (citations omitted); Ba iley v. Board of County Commissioners of Alachua County, 956 F.2d 11 12, 1123-24 & n.13 (11th Cir.) (qualified immunity) (stressing fl exibility of standard regarding necessity of pre-deprivation hea ring where prison guard was suspended without pay upon his arr est), cert.denied, 506 U.S. 832 (1992); Gamble v. Webb, 806 F.2d 1258, 126 1 (5th Cir. 1986) (relying upon Loudermill's statemen t that "`there are, of course, some situations in which a post-dep rivation hearing will satisfy due process,'" and concluding, under L ogan balancing test, that "the present one is such a situation") ( quoting Loudermill, 470 U.S. at 542 n.7) (brackets omitted) . All of these decisions -- like the Supreme Court's procedural du e process cases in general and unlike the majority's blanket rule - - reflect a balancing of interests based on the particular circ umstances of

each case. I also believe that the majority has misinterp reted our opinion in Bradley. Citing Bradley, 913 F.2d at 10 77, the majority states that Bradley implies that suspension without pay and withouta pre-suspension hearing always violates due proces s. Majority

Opinion, Typescript at 13-14. However, on the next page of the Bradley opinion, the panel clearly stated:

We need not decide in this case whether Bradle y was entitled to a pre-suspension hearing, as he co ntends, or whether a post-suspension hearing sufficed. C ompareLoudermill, 470 U.S. at 544, 105 S.Ct. at 1494 (because government's interest in immediate termination of security guard who had lied when seeking emplo yment did not outweigh employee's interest in retaining employment, pre-termination hearing was required) with FDI C v. Mallen, 486 U.S. 230, 108 S.Ct.1780, 1787-88, 100 L.Ed.2d 265 (1988) (because government had substantial interest in suspending indicted bank official to protec t bank and depositors, a post-suspension hearing within a reasonable time was sufficient).

Bradley received no hearing, either befor e or after the suspension, and hence if he was suspended, as the record suggests, he was deprived of due proces s. 913 F.2d at 1078. In my view, far from implying an ything, the Bradley panel expressly reserved decision on the is sue presented in

this case. I would resolve that issue in this case by fol lowing the great weight of federal appellate authority cited above a nd holding that whether a pre-suspension hearing was required in th is particular case requires a balancing of the relevant factors. For the reasons already expressed above, I would hold that in the c ircumstances of this case, a pre-suspension hearing was not require d and that a post-suspension hearing within a reasonable time af ter the suspension was sufficient. It may be that the univ ersity failed to conduct a sufficiently prompt or adequate post-susp ension hearing after the criminal charges were dismissed on Septem ber 1, 1992, but that is a different question. Moreover, as in Stro ng, I am not sure how a pre-suspension hearing on August 26, 199 2, would have made any difference. The only fact important to th e university's

decision was whether Homar had been arrested and ch arged. Homar did not dispute this, and in fact confirmed it the next day; Homar was well aware of the reasons for his suspension. As in Strong, the hearing required by the majority would have bee n "an empty formality." See Strong, 902 F.2d at 212. C. I have one final problem with the section of the majority opinion dealing with the need for a pre-suspension hearing. The majority assumes that an important government inter est requiring prompt action is what permits an employer to suspen d an employee without a pre-suspension hearing but with pay. I t hink that this is inaccurate. It is my understanding that a publi c employer may generally suspend a public employee for cause, with pay, and without a hearing -- even absent an emergency situa tion -- because such a suspension does not ordinarily implicate any constitutionally protected property interest. See, e.g., Hicks v. City of Watonga, 942 F.2d 737, 746 n.4 (10th Cir. 1 991) ("[N]o property interest was infringed at Mr. Hicks' first round of hearings when he was suspended and then reprimanded . Mr. Hickssuffered no loss in pay because of the pre-hearing suspension.

Suspension with pay does not raise due process conc erns.") (citations omitted); Pitts v. Board of Educ. of U.S .D. 305, Salina, Kansas, 869 F.2d 555, 556 (10th Cir. 1989) (same); see alsoHardiman v. Jefferson County Bd. of Educ., 709 F.2d 635, 637-38 & n.2 (11th Cir. 1983) (not deciding but questioning whether suspension with pay could ever constitute deprivati on of property interest, and opining that "bad-faith" suspension w ith pay might infringe liberty interest); Koelsch v. Town of Ames bury, 851 F. Supp. 497, 500 (D. Mass. 1994) ("A public employee' s suspension with pay does not implicate a constitutionally prot ected property interest.") (citations omitted). Under the majorit y's reasoning, the important government interest requiring prompt action is rendered a nullity because it simply allows the emp loyer to do what it could do in a typical non-emergency, for-cause s uspension situation, i.e., suspend the employee with pay.

II. Although I do not disagree with the majority's determination

that a remand is in order on Homar's substantive du e process claim, I write separately to set forth my views on the via bility of that claim. I do not think that a plaintiff has a subst antive due process claim for a non-legislative deprivation of a state-created property right by a public employer. Moreover, if Homar has a substantive due process claim in this context, it s eems to me that he must show that the employer's actions were not r ationally related to a legitimate government interest; mere a llegations of

bad faith cannot suffice. A. Neither the Supreme Court nor this court h as previously held that a plaintiff has a substantive due process claim for a non-legislative deprivation of a state-created prop erty interest by a public employer. The Eleventh Circuit recently o verruled a decade of its own decisions recognizing such claims . McKinney v. Pate, 20 F.3d 1550 (11th Cir. 1994) (en banc), cert . denied, 115 S. Ct. 898 (1995); see also Rivkin v. Dover Twp. Rent Leveling Bd., 671 A.2d 567 (N.J. 1996). Essentially for the reas ons stated in McKinney, which I find persuasive, I believe that H omar's allegations state only procedural due process claim s. In McKinney, the Eleventh Circuit considered t he following issue: "whether, under the Fourteenth Amendment, a government employee possessing a state-created property intere st in his employment states a substantive due process claim, rather than a procedural due process claim, when he alleges that he was deprived of the employment interest by an arbitrary and capr icious nonlegislative government action." Id. at 1553. Sitt ing en banc, a unanimous Eleventh Circuit answered "no," and in an effort to bring its cases back into line with Supreme Court precede nt, overruled a decade of its prior decisions. The court held that "in nonlegislative cases, only procedural due process clai ms are available to pretextually terminated employees." Id. at 1560 ; see alsoRivkin, 671 A.2d at 577 (plaintiffs' purported substantive due process claim "is much closer to a procedural due p rocess claim" in that it "amounts to an allegation that the State fa iled to furnish an impartial tribunal, which `is a matter of proced ural, notsubstantive, due process'") (citations omitted).

Two aspects of the Eleventh Circuit's opinion in McKinney bear emphasis here. First, the court concluded that all egations of arbitrary and capricious action by governmental emp loyers affecting an individual's property interest in public employm ent "will not make out a substantive due process claim under the jurisprudence of the Supreme Court . . . because only procedural iss ues are implicated." Id. at 1559 (emphasis in original); s ee also id. at 1561 ("McKinney's allegation is procedural: the Co unty failed to provide one of the elements of procedural due proce ss -- an unbiased decisionmaker."). I agree, as I discuss f urther below. Second, crucial to the court's decision was th e distinction between legislative acts and non-legislative or exe cutive acts. Executive acts, such as employment decisions, typic ally apply to one person or to a limited number of persons, while legislative acts, generally laws and broad executive regulation s, apply to large segments of society. Id. at 1557 n.9. The c ourt criticized its prior decision in Hearn v. City of Gainesville, 688 F.2d 1328 (11th Cir. 1982) -- its first case to apply substan tive due process analysis to an arbitrary termination claim -- beca use "[i]n that case, where a terminated employee challenged an exe cutive act, we cited Nebbia [v. New York, 291 U.S. 502 (1934)], wh ere a legislative act (to wit, a law) was at issue." Id. at 1558 n.14. The court added that "[i]t is imperative that a str icter segregation of these two distinct case-categories b e maintained."

Id. The court indicated that rational basis reviewunder the substantive component of the Due Process Clause is appropriate only in the context of challenges to legislative action. Id. at 1557-58 & nn. 9 & 14; see also TRM, Inc. v. United States, 52 F.3d 941, 945 & n.17 (11th Cir. 1995) (applying rational basis re view to substantive due process challenge to regulation und er Food Stamp Act and noting that "[t]his standard is not affecte d by our decision in McKinney" because "[t]he holding of tha t case was specifically limited to substantive due process cha llenges to nonlegislative acts") (citations omitted); Sullivan Pr operties, Inc. v. City of Winter Springs, 899 F. Supp. 587, 594-96 (M.D. Fla. 1995) (considering the impact of McKinney on substa ntive due process challenges in the area of zoning and the gr anting of building permits; concluding that there is a "subst antive due process cause of action for arbitrary and unreasona ble zoning ordinances" but not for "substantive due process cl aims [challenging] executive acts granting or denying a particular building permit application"). I again agree. Like the prior decisions in the Eleventh Circu it, a decision allowing Homar to maintain a substantive due proces s claim based on an allegation of bad faith would elevate Homar's pr ocedural challenges to substantive due process status. Assu ming that there is a factual issue regarding whether defendants act ed in bad faith, I question the wisdom of recognizing a substantive due process claim where a university fails to provide adequate procedural due process and where the way in which procedural due p rocess is denied could give rise to an inference of bad faith. This sort of "substantive procedural due process claim" is preci sely what troubled both the Eleventh Circuit in McKinney and a unanimous NewJersey Supreme Court in Rivkin, and I would not rec ognize such a

claim. It seems to me that Homar's claim is clearl y procedural and should be recognized as such. Further, the cases upon which Homar relies ess entially derive -- as is discussed more fully below -- from Pace Re sources, Inc. v. Shrewsbury Tp., 808 F.2d 1023 (3d Cir.), cert. deni ed, 482 U.S. 906 (1987), and Rogin v. Bensalem Tp., 616 F.2d 680, 68 9 (3d Cir. 1980), cert. denied, 450 U.S. 1029 (1981), both of which involve challenges to zoning ordinances and thus challenges to legislative acts. The cases that have applied Pace Resources a nd Rogin in challenges to non-legislative acts have, in my view , fallen into the trap identified by the Eleventh Circuit in McKi nney. I would not extend them into the public employment setting. B. Assuming for the sake of argument that the re is a substantive due process claim for arbitrary and cap ricious nonlegislative actions by public employers and that Ho mar's interest in his position as a campus police officer constitu ted a "property" interest for substantive due process purposes, I no netheless conclude that Homar seeks application of the wrong standard in evaluating his claim. Under true rational basis re view -- which is

the most that Homar is entitled to where he is asse rting the violation of a non-fundamental, state-created prope rty interest --

I think that Homar failed to create a fact issue as to whether the university violated his substantive due process rig hts. The appropriateness of summary judgment as to Homar's substantive due process claim requires consideratio n of what Homar must show to establish a substantive due process vi olation. Homar argues that our cases hold that a plaintiff can est ablish a substantive due process violation by proving that t he government's actions were motivated by bias, bad faith, or impro per motive. Homar contends that a public employee who suffers a n adverse employment decision may maintain a substantive due process claim against the public employer by showing (1) that the employer's actions were not rationally related to a legitimate government interest or (2) that the employer's actions were mo tivated by (a) bias, (b) bad faith, or (c) improper motive. I do not agree. First, as I alluded to above, we have never ap plied this test in the public employment context, and I would not e xtend this test to this context, whatever its appropriateness in ot her contexts. Further, it seems to me that the statements in our opinions regarding the nature of rational basis review in su bstantive due process cases have evolved in a strange and, I thin k, unintended way. Beginning with unobjectionable descriptions o f classical rational basis review, our opinions eventually reac hed the point of suggesting that a plaintiff can state a substantive due process claim merely by alleging that an individual decisio n resulting in the deprivation of a property right was taken in ba d faith. The Supreme Court has never sanctioned such a broad pro position, and I am confident that this cannot be the law. If a pla intiff like Homar has a substantive due process claim in this c ontext, it seems to me that he must show that the employer's actions were not rationally related to a legitimate government inter est and that mere allegations of bad faith cannot suffice. In Pace Resources, Inc. v. Shrewsbury Tp., 808 F.2d 1023 (3dCir.), cert. denied, 482 U.S. 906 (1987), plaintiff challenged a

municipality's land use restrictions on substantive due process grounds. In describing the "narrow review" over zo ning ordinances, we quoted our prior decision in Rogin v. Bensalem T p., 616 F.2d 680, 689 (3d Cir. 1980), cert. denied, 450 U.S. 102 9 (1981): "The test for determining whether a law compor ts with substantive due process is whether the law is rationally related to a legitimate state interest. `[T]h e law need not be in every respect logically consistent w ith its aims to be constitutional. It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it.'" 808 F.2d at 1034 (quoting Rogin, 616 F.2d at 689) ( quoting Williamson v. Lee Optical, 348 U.S. 483, 487-88 (19 55)) (brackets in Rogin). We explained that "[a] plaintiff making a substantive due process claim in federal court has the burden o f showing that the regulation is arbitrary or irrational. Thus to state a claim, Pace's complaint would have to allege facts that wo uld support a finding of arbitrary or irrational legislative acti on by the Township." Id. at 1035 (citations omitted). After concluding that "Pace's complaint fails to make any factual allegat ions that indicate irrationality" and that "Pace does not pre sent a case involving actions aimed at this developer for reaso ns unrelated to land use planning," we concluded that "[b]ecause it appears on the face of the amended complaint that the Township dec isionmakers

could have had rational reasons for the decisions c ontested here and because that complaint alleges no facts suggest ing arbitrariness, it fails to state a substantive due process claim upon which relief can be granted." Id. at 1035-36 (citation omitted). In Bello v. Walker, we noted the rational basi s review articulated in Pace Resources, but we focused on th e language from Pace stating that the plaintiff there did not alleg e "actions aimed at this developer for reasons unrelated to land use planning." Bello v. Walker, 840 F.2d 1124, 1129 (3d Cir.) (cit ation omitted), cert. denied, 488 U.S. 851 (1988). We thus disting uished Pace

Resources and announced as follows: We need not define, at this juncture, the outer limits of the showing necessary to demonstrate that a governmental action was arbitrary, irrational, or tainted by improper motive. The plaintiffs in this ca se presented evidence from which a fact finder co uld reasonably conclude that certain council membe rs, acting in their capacity as officers of the municipal ity improperly interfered with the process by whic h the municipality issued building permits, and that they did so for partisan political or personal reasons unrelated to the merits of the application for the permi ts. These actions can have no relationship to any legiti mate governmental objective, and if proven, are suf ficient to establish a substantive due process violation actionable

under section 1983. Id. at 1129-30 (footnote omitted).Next, the panel in Midnight Sessions paraphras ed Bello and

stated that "a plaintiff may maintain a claim of su bstantive due process violation upon allegations that the governm ent deliberately and arbitrarily abused its power." Midnight Sessio ns, Ltd. v. City of Phil., 945 F.2d 667, 683 (3d Cir. 1991) (citatio n omitted), cert. denied, 503 U.S. 984 (1992). "Thus, allegati ons that the government's actions in a particular case were moti vated by bias, bad faith, or improper motive . . . may support a f inding of substantive due process violation." Id. (citing Be llo and Pace Resources). In Parkway Garage, Inc. v. City of Phil., 5 F. 3d 685, 692 (3d Cir. 1993), we explained that "[s]ubstantive due pr ocess protects citizens from arbitrary and irrational acts of gove rnment." Id. at 692 (citing Rogin v. Bensalem Tp., 616 F.2d 680, 68 9 (3d Cir. 1980), cert. denied, 450 U.S. 1029 (1981)). We the n stated the following test (which is the test quoted by the par ties in this case): "A violation of substantive due process rig hts is proven: (1) if the government's actions were not rationally related to a legitimate interest; or (2) `if the government's ac tions in a particular case were in fact motivated by bias, badfaith or improper motive.'" Id. (citation omitted); see als o Blanche Road Corp. v. Bensalem Tp., 57 F.3d 253, 263 (3d Cir.), cert. denied, 116 S. Ct. 303 (1995). From Rogin to Parkway Garage, then, we have mo ved from inquiring merely whether a legislative act survivedpure rational basis review to inquiring whether actions by specif ic defendants vis-a-vis a specific plaintiff were somehow imprope r. It seems to me that our cases began looking to governmental con duct that might prove a lack of rational basis, but we have now set forth an entirely separate test for evaluating substantive d ue process claims that is independent of standard rational bas is review. Seealso Rivkin, 671 A.2d at 576-77 (declining to follow DeB lasio and Bello and stating that "[i]t is a mistake . . . to equate the concept of `arbitrary and irrational' governmental land use decisions with the substantive component of the Due Process Clause of the Fourteenth Amendment"). In my view, the cou rt should take the next available opportunity to clarify that the appropriate test

is true rational basis review. If we are to recognize substantive due process claims in the public employment context -- which, for the reasons discussed above, I think would be a mistake -- then, in my vi ew, we should ask merely whether the plaintiff can show that the employer's actions were not rationally related to a legitimate government interest. It should not be enough to allege bad fa ith by a single governmental actor; the overall conduct complained of must be unrelated to any legitimate governmental interest. If this mode of analysis is applied to this case, I think that it i s clear that the university's actions were rationally related to its legitimate interests, and, indeed, Homar does not contend othe rwise. C. In sum, substantive due process applies wh ere there is a fundamental right at stake or legislation is challe nged as having no rational relationship to any legitimate governme nt interest. Here, plaintiff suggests no fundamental right withi n the meaning of the substantive component of the Due Process Clause ; nor isplaintiff challenging a legislative act on rational -basis grounds.

In my view, then, plaintiff has no substantive due process claim on the undisputed facts presented.

III. For the foregoing reasons, I respectfully diss ent from the majority's conclusion, set forth in section III.A, that Homar had a right to a hearing prior to his suspension. Alth ough I join in section IV of the opinion remanding the substantive due process issue to the district court, I do not believe that Homar's substantive due process claim should survive a moti on for summary judgment on remand.