1996 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-18-1996

Homar v. Gilbert

Precedential or Non-Precedential:

Docket 95-7218

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Recommended Citation

"Homar v. Gilbert" (1996). 1996 Decisions. Paper 104.

http://digitalcommons.law.villanova.edu/thirdcircuit_1996/104
 

 UNITED 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 director 

 of Human Res. at E.S. Univ.; DAVID MARAZAS, Individually, 

 and in his capacity as Police Chief of E.S. Univ; 

 CURTIS ENGLISH, Individually, and in his capacity 

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

 

 Appeal from the United States District Court 

 for the Middle District of Pennsylvania 

 (D.C. Civil No. 93-cv-0852) 

 

 Submitted Under Third Circuit LAR 34.1(a) 

 Thursday, November 2, 1995 

 

 Before: NYGAARD, ALITO, and SAROKIN, Circuit Judges 

 (Filed July 18, 1995) 

 James V. Fareri 

 Mervine, Brown, Newman, 

 Williams & Mishkin, 

 712 Monroe Street 

 P.O. Box 511 

 Stroudsburg, PA 18360 

 

 Attorney for Appellant 

 

 Gwendolyn T. Mosley 

 Office of Attorney General 
 15th Floor, Strawberry Square 

 Harrisburg, PA 17120 

 Attorneys for Appellees 

 

 OPINION OF THE COURT 

 

SAROKIN, Circuit Judge. 

 Plaintiff Richard Homar was suspended without pay from his 

position as a police officer at East Stroudsburg University after 

his arrest on drug-related charges. The criminal charges against 

Homar were eventually dismissed, but Homar was nonetheless 

subsequently demoted to the position of groundskeeper. Homar filed 

suit in federal district court seeking reinstatement, backpay and 

damages for violations of his due process rights. The district 

court entered summary judgment in favor of defendants. Plaintiff 

appeals. 

 Although we conclude that these circumstances warranted and 

justified an immediate suspension of employment without 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 damages 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 rights 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 demote, terminate, 

or extend his suspension. At such a hearing, the employee is 

entitled to know the evidence against him and be afforded 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 police 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 day, the 

Pennsylvania State Police filed a criminal complaint against Homar 

charging him with possession of marijuana, possession with intent 

to deliver and criminal conspiracy. 

 The state police called David Marazas, ESU's police chief and 

Homar's supervisor, to inform him of Homar's arrest and the charges 

against him. Marazas then informed Gerald Levanowitz, ESU's 

Director of Human Resources, to whom ESU President James Gilbert 
had delegated authority to discipline and suspend ESU employees. 

Levanowitz decided immediately to suspend Homar without pay. No 

pre-suspension hearing was held. 

 On August 27, Homar received a letter from Levanowitz advising 

him that he was suspended without pay pending further investigation 

and disposition of the criminal charges. The letter advised Homar 

that any administrative action taken by the University against him 

"[did] not have to coincide with the disposition of those charges 

through the legal process." Appendix ("App.") at 197. 

 District Justice Charles P. Eyer dismissed all criminal 

charges against Homar on September 1, 1992. Levanowitz still 

refused to lift Homar's suspension. 

 On September 11, 1992, Levanowitz, along with two ESU police 

sergeants who were assigned to conduct an investigation on Homar, 

met with two state troopers and a Corporal to discuss Homar's 

situation. App. at 143. One of the troopers was the state trooper 

who signed the criminal complaint against Homar. At this meeting, 

Levanowitz was provided with a copy of a page from the Pennsylvania 

State Police investigative file regarding Homar, called the 

"Supplemental Report." This report includes statements 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 of 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. Homar contests 

that he ever made these statements. 

 On September 15, 1992, Levanowitz called Homar and arranged 

for a meeting three days later. Levanowitz explained that this 

meeting would be an "administrative hearing," and that 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, 1992, along with 

his union representative. Besides Levanowitz, Marazas was also 

present, as well as Levanowitz's secretary. At the start of the 

meeting, Homar's union representative requested that Homar's 

attorney be present. Levanowitz responded that if Homar so chose, 

they would have to postpone the meeting until a later time. Homar 

opted to proceed with the meeting unrepresented. According to the 

notes taken by Levanowitz's secretary, Levanowitz made the 

following statement to Homar: 

 The purpose of this meeting today is to give you 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 presenting 

 your case. 

App. at 205. 

 Levanowitz maintained at a deposition held later that he had 

told Homar that "the State Police had given [him] some evidence 

very serious in nature," App. at 164, and that he offered Homar the 

opportunity to present his side of the story. Levanowitz never 

informed Homar that he had received the Supplemental Report from 

the state police containing his alleged confession. 
 On September 23, 1992, Levanowitz wrote a letter to Homar 

advising him that he was being demoted from the position 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 the Campus 

 Police Department to the position of Groundskeeper. . . 

 . The action is effective retroactive to August 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 Facilities 

 Management Office. Your new rate of pay as Groundskeeper 

 will be $552.80 bi-weekly. 

 This action is being taken as a result of admissions 

 made by yourself to the Pennsylvania State Police on 

 August 26, 1992 that you maintained association with 

 individuals whom you knew were dealing in large 

 quantities of marijuana and you obtained marijuana from 

 one of those individuals for your own use. Your actions 

 constitute a clear and flagrant violation of Sections 200 

 and 200.2 of the East Stroudsburg University Police 

 Department Manual. 

App. at 208 (footnote added). 

 After this letter was issued, the president of the union 

representing Homar requested that Homar have an opportunity to meet 

with President Gilbert regarding the letter. The meeting occurred 

on September 24, 1992 at 2:00 p.m. By this time, Homar had 

received and read a copy of the Supplemental Report. Gilbert 

provided Homar with an opportunity to respond to the charges and to 

Levanowitz's decision. Gilbert nonetheless sustained the 

suspension. 

 After failing to obtain relief through his union grievance 

procedure, Homar filed a complaint in the district court for the 

Middle District of Pennsylvania against Gilbert, Levanowitz and 

Marazas. His complaint alleges that the procedures by which he was 

suspended and then demoted lacked required due process, that 

defendants' actions deprived him of liberty and property, and that 

his substantive due process rights were also violated. The 

district court entered summary judgment in favor of the defendants 

on March 17, 1995. Homar then appealed to this court. 

 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 summary judgment 

is plenary, and we thus apply the same standards that 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 appropriately 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 such that a 

reasonable jury could return a verdict for the nonmoving party," 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), summary 

judgment shall not be granted. Homar, as the nonmoving 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 provide him a 

meaningful pre-deprivation hearing prior to his suspension without 

pay and his subsequent demotion from police officer to 

groundskeeper. 

 In Cleveland Bd. of Education v. Loudermill, 470 U.S. 532 

(1985), the United States Supreme Court held that when a public 

employee has a property interest in his or her employment he or she 

is entitled to a meaningful pre-termination hearing. Such a 

hearing need not be elaborate, but rather "an initial check against 

mistaken decision -- essentially, a determination of 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 termination: 

 [a] tenured public employee is entitled to oral 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 she] is deprived 

of any significant property interest, except for extraordinary 

situations where some valid governmental interest is at stake that 

justifies postponing the hearing until after the event." Boddie v. 

Connecticut, 401 U.S. 371, 379 (1971); see also Loudermill, 470 

U.S. at 542; Bell v. Burson, 402 U.S. 535, 542 (1971). This 

fundamental right to a pre-deprivation hearing is not abridged by 

the availability of extensive post-deprivations remedies. SeeMorton v. 

Beyer, 822 F.2d 364, 368 (3d Cir. 1987) (holding that 

"the availability of extensive post-termination procedures 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]he 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 completely terminated 

from his employment with ESU, he was terminated from 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 dispute among the 

parties that Homar had a property interest in his employment as 

police officer. Rather, the dispute concerns the degree of due 

process to which Homar was entitled prior to his suspension 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 his suspension 

without pay from his position as an ESU police officer. 

 It is undisputed that Homar was not afforded any kind of 

hearing prior to his suspension without pay immediately 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 one," ESU had a 

compelling interest in "taking prompt action to maintain public 

confidence in its police force." Appellee's Brief at 15. Indeed, 

the Supreme Court has explained that 

 [a]n important government interest, accompanied by a 

 substantial assurance that the deprivation is not 

 baseless or unwarranted, may in limited cases demanding 

 prompt action justify postponing the opportunity 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 situations where 

some valid governmental interest is at stake that justifies 

postponing the hearing until after the event"). 

 The district court agreed with ESU, finding that it was 

permissible for the university to suspend Homar without 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. Lopez, 419 U.S. 

565, 579 (1975)). It then applied the analysis prescribed by Logan 

v. Zimmerman Brush Co., assessing the competing interests involved, 

including "the importance of the private interest, and the length 

and finality of the deprivation, . . . the likelihood of 

governmental error, . . . and the magnitude of the governmental 

interests involved." Id., typescript at 11 (quoting Logan v. 

Zimmerman Brush Co., 455 U.S. 422, 434 (1982)). While the district 

court recognized that Homar's "private interest was strong," it 

found that "the deprivation incident to a suspension was only 

temporary and of a relatively brief duration (approximately one 

month)." Id., typescript at 11. The district court concluded that 

Homar's interest in avoiding such a "temporary" and "brief" 

deprivation was not as compelling as "the governmental interest in 

preserving public confidence in law enforcement." Id., 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 (quoting Hicks v. 

City of Watonga, Okl., 942 F.2d 737, 746 n.4 (10th Cir. 1991). 

 We agree with the district court that there was a compelling 

governmental interest which supports ESU's decision to suspend 

Homar immediately and without a hearing pending further 

investigation. The university has a substantial interest in 

maintaining public confidence in the ESU police force, and Homar's 

arrest on drug charges certainly suffices to ensure that the 

university's concerns were not baseless or unwarranted, as required 

by the Supreme Court. See Mallen, 486 U.S. at 240. In 
circumstances 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 suspension without 

pay must be preceded by notice and an opportunity to be heard in 

all instances. Initially, the Court noted that it had "frequently 

recognized the severity of depriving a person of the means of 

livelihood." Loudermill, 470 U.S. at 543. Then the Court 

explained that, while it recognized that there were some limited 

instances in which a strong governmental interest might warrant 

immediately removing a person from a position without a hearing, 

"in those situations where the employer perceives a significant 

hazard in keeping the employee on the job, it can avoid the problem 

by suspending with pay." Id. at 544-45 (emphasis added). 

 Other circuits which have examined this language in Loudermillhave 

disagreed with regard to its precise mandate. At least one 

court of appeals has read Loudermill to require that an employee be 

provided an opportunity to be heard prior to suspension without 

pay. See Everett v. Napper, 833 F.2d 1507, 1512 (11th Cir. 1987) 

(holding that, under Loudermill a suspended firefighter was 

entitled to a hearing prior to suspension because he was not paid 

during his suspension). The Federal Circuit, by contrast, noted 

that Loudermill's prescription of suspension with pay in situations 

where significant hazards would result from continued employment 

was only dicta: "We agree that in the instant case, the government 

could have suspended with pay. Nevertheless, we cannot 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 Loudermill, have on 

occasion allowed suspension without pay to stand even in the 

absence of a pre-deprivation hearing. See, e.g., Jones v. City of 

Gary, Ind., 57 F.3d 1435, 1436 (7th Cir. 1995); Ambus 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 issue 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 hearing is only 

constitutional if the suspension is one with pay. In Bradley, we 

were called upon to decide, among other issues, whether a teacher 

who had been effectively suspended without pay and without a 

hearing for one year prior to being officially terminated, 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 upon 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 Loudermill, in 

circumstances where a governmental employer perceives substantial 

hazards in keeping an employee on the job, it may suspend the 
employee with pay until such time that a hearing may be held. Id.(citing 

Loudermill, 470 U.S. at 544-45). We concluded, however, 

that "Loudermill [did] not govern [that] case because 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 job and thereby 

suspend him without a pre-suspension hearing without pay. Had we 

determined that Bradley had been suspended with pay, we presumably 

would have found that the Loudermill exception -- essentially the 

Mallen exception -- applied. Thus, while Bradley does not 

explicitly declare that suspension without pay and without a presuspension hearing always violates due process, such 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 suspension is 

preceded by some kind of pre-suspension hearing, providing the 

employee with notice and an opportunity to be heard. We think that 

such a holding is not only consistent with, and suggested by, 

Loudermill, but it is also eminently sensible. It is imperative 

that employers be provided with adequate flexibility to allow them 

to protect the public and respond to emergency situations 

expediently. Suspension with pay addresses these important 

concerns while simultaneously protecting the fundamental rights of 

an employee to due process prior to being deprived of his or her 

property interest in employment and its accompanying salary. 

Furthermore, this conclusion seems consistent with the Supreme 

Court's holding in Zimmerman Brush that, in determining the timing 

and nature of an appropriate hearing, courts should assess the 

competing interests involved and arrive at an appropriate 

accommodation. Zimmerman Brush, 455 U.S. at 434. 

 As noted above, the district court treated Homar's suspension 

as a suspension with pay: 

 That Homar was originally suspended without pay does not 

 warrant a finding that he was deprived of property 

 without due process. At most, he was denied use of his 

 salary for a very brief period of time. To recognize a 

 cause of action for denial of due process under these 

 circumstances would clearly elevate form over substance. 

 * * * 

 Since he clearly could be suspended with pay without 

 implicating due process concerns, and within one month 

 after being suspended he was awarded full pay for the 

 period of suspension, any injury resulting from 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 court'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 individual 
 suspended without pay happened to obtain paid leave 

 thereafter. . . . That may affect the damages ultimately 

 awarded, but if there was a violation of due process, 

 [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 that 

he was "to be suspended without pay, effective immediately on 

8/26/92, from [his] position as a police officer at East 

Stroudsburg University." App. at 197. For a period of 

approximately one month, Homar's very livelihood was threatened 

because he received no salary. As far as Homar knew at the time of 

his suspension, he had no prospects whatsoever of receiving any 

wages for the indefinite duration of his suspension. It was not 

until he received his letter of demotion on September 24, 1992 -- 

nearly a month after he was suspended -- that he learned 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 his suspension, 

we note that according to Defendant's Statement of Material Fact 

accompanying their Motion for Summary Judgment, Levanowitz did not 

authorize Homar's backpay at the rate of a police officer until 

February 16, 1993. Thus, for nearly six months, Homar was deprived 

of a salary that was rightfully his. Furthermore, there is 

evidence to suggest that ESU only agreed to pay this rate upon 

pressure from Homar's union representative. 

 Accordingly, we find that Homar was entitled to notice and 

at least some kind of hearing prior to being suspended without 

pay. It is undisputed that Homar received no hearing 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 demotion to the 

position of groundskeeper. 

 As outlined above, Loudermill requires that a public employee 

with a property interest in his or her employment be granted a 

meaningful pre-termination hearing. Loudermill, 470 U.S. at 545- 

46. We reiterate that it is of paramount importance that this 

hearing take place prior to the deprivation. As explained above, 

absent compelling government interests justifying postponement of 

a hearing, the hearing must take place before the deprivation, seeBoddie, 

401 U.S. at 379; Loudermill, 470 U.S. at 542; Bell, 402 

U.S. at 542, because "the only meaningful opportunity to invoke the 

discretion of the decisionmaker is likely to be before the 

termination takes effect." Id.; see also, Board of Regents v. 

Roth, 408 U.S. 564, 570 n.7 (1972). Indeed, this right to predeprivation due process is so fundamental that it remains "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 elaborate. As 

explained by the Supreme Court, "'something less' than a full 

evidentiary hearing is sufficient prior to adverse administrative 
action." Loudermill, 470 U.S. at 545 (citations omitted). 

Nonetheless, the hearing must be sufficient to inform the employee 

of the evidence against him or her and to respond to 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 meaningful hearing 

is a sufficient explanation of the employer's evidence to permit a 

meaningful response." Id. 

 Under the circumstances presented here, where Homar was 

suspended from his position pending further investigation into his 

activities, it is clear that there was no compelling government 

issue at stake that would require ESU to immediately deprive Homar 

of his employment. Any concerns about preserving public 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 question for us to 

answer, then, is whether the university provided him such a 

hearing. 

 The district court concluded that the "administrative hearing" 

which took place on September 18 did not meet the due process 

requirements of a pre-deprivation hearing because it "did not allow 

[Homar] to make a meaningful response to the damaging information 

found in the supplemental report." D. Ct. Op., typescript at 15. 

We agree. 

 During the September 18 meeting, Levanowitz only told Homar 

that the State Police had given him some "evidence very serious in 

nature." App. at 164. While it safely can be presumed that Homar 

knew that ESU's concerns about his employment arose from his arrest 

on drug charges, Homar was not aware of the allegations made 

against him by the troopers that were presented in the Supplemental 

Report, namely that he allegedly confessed to knowing that Crompton 

and Habhab were drug dealers and to receiving marijuana from Habhab 

during his employment as a police officer. More to the point, 

Homar was completely unaware that Levanowitz had received a copy of 

the Supplemental Report containing these allegations. Under these 

circumstances it is very clear that Homar's right to a meaningful 

pre-deprivation hearing was denied. See Tucker, 868 F.2d at 80 

(holding that suspended police officers who were not told anything 

specific about drug use allegations or the evidence regarding the 

allegations were deprived of their due process rights because they 

had no opportunity to explain or rebut evidence). 

 In spite of its conclusion regarding the insufficiency 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 Gilbert, prior to 

which Homar had received and read the Supplemental Report, was a 

meaningful pre-termination hearing. D. Ct. Op., typescript at 16. 

Given that Homar was afforded an opportunity to review the 

Supplemental Report and offer meaningful responses to the 

allegations, we find that this meeting afforded Homar with 

sufficient procedural due process protections assuming it took 

place prior to his demotion becoming effective. While 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, 423 U.S. 948 
(1975), only if this hearing took place before his demotion tookeffect can 

we conclude that he was afforded meaningful due process. 

 The district court held as a matter of law that Homar's 

dismissal from his position as a police officer took 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 Homar would have 

started his evening shift as police officer should Gilbert have 

decided to reinstate him to that position," id., and thus concluded 

that "Gilbert's decision that Homar could not return to ESU as a 

police officer is properly viewed as the point in time when Homar 

was deprived of his position as an ESU police officer." Id. 

 We disagree with the district court that the point in time at 

which Homar's demotion became effective is clear. There is 

substantial evidence in the record to support a conclusion 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 September 23, 1992. In 

that letter, Levanowitz informed Homar that he was "to be demoted 

from [his] position as a Police Officer I in the Campus Police 

Department to the position of Groundskeeper, a position [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 informed Homar that 

this "action is effective retroactive to August 26, 1992." App. at 

208 (emphasis added). Homar testified during a deposition that he 

was already working as a groundskeeper at the time of his September 

24th, 2:00 p.m. meeting with Gilbert. There is thus evidence 

suggesting that Homar had already been demoted to groundskeeper 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 conclusion on two 

grounds. First, the court determined that "[t]he significance of 

the meeting was that Gilbert held ultimate decision-making 

authority regarding whether Homar would remain employed 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 meeting with Gilbert. 

App. at 225. This fact seems to suggest that Levanowitz's demotion 

of Homar would have become effective without Gilbert's approval, 

which would render Levanowitz's letter the final demotion. 

Levanowitz's authoritative tone in the letter similarly supports 

this conclusion. 

 The district court also concluded that the meeting with 

Gilbert had taken place prior to Homar's demotion because it 

occurred before 4 p.m., the time at which Homar would normally 

begin his shift as a police officer. Id. at 16. We disagree that 

the timing of the demotion is so clear. We think there is 

certainly an issue of material fact as to whether Homar's demotion 

became effective on August 26, as stated in the letter; at 7:00 

a.m. on September 24, the date he was told to report 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 officer. Unless 
defendants expected Homar to act as both groundskeeper and police 

officer on September 24, the facts appear to support the conclusion 

that Homar's demotion was effective at the latest by 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 demotion became 

effective, and that the district court's grant of summary judgment 

was therefore inappropriate. See Anderson v. Liberty Lobby, Inc., 

477 U.S. 242, 248 (1986) (holding summary judgment is inappropriate 

if there is evidence "such that a reasonable jury could return a 

verdict for the nonmoving party."). Accordingly, we reverse the 

district court's entry of summary judgment regarding 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 rights is proven: . 

. . 'if the government's actions in a particular case were in fact 

motivated by bias, bad faith or improper motive. . . ,'" id.(quoting 

Midnight Sessions, Ltd. v. City of Philadelphia, 945 F.2d 

683 (3d Cir. 1991), cert. denied, 503 U.S. 984 (1992)), Homar 

points to several facts that he argues demonstrate that his 

suspension and demotion were motivated by bias, bad faith or 

improper motive. 

 The district court granted summary judgment in favor of 

defendants on this claim on the ground that there was no genuine 

issue of material fact as to whether Levanowitz, Gilbert or any 

other ESU official was motivated by bias, bad faith or improper 

motive. 

 While we agree with the district court that the evidence in 

this case does not support a conclusion that Levanowitz or any 

other ESU official was motivated by an improper motive in 

suspending and then demoting Homar, for there is, indeed, "nothing 

improper about conducting an investigation of a law enforcement 

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 officials acted in 

bad faith. Several events leading up to Homar's demotion suggest 

that Levanowitz did not engage in a good faith effort to accord 

Homar appropriate due process protection throughout his ordeal. 

Levanowitz never informed Homar that he had received and read the 

Supplemental Report prior to their September 18 meeting; Levanowitz 

ordered that a poll be taken among police officers regarding 

whether Homar should be allowed to return to the force, which is 

certainly a very strange proceeding outside the realm of 

traditional due process proceedings; and Levanowitz issued the 

September 23 letter of demotion prior to the meeting with President 

Gilbert -- a meeting which occurred only after Homar's union 

representative requested it take place. Such events might lead a 

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

produce this result. 

 Our conclusion that there is a genuine issue of material fact 

as to whether ESU officials were motivated by bad faith, however, 

does not lead us to remand this matter simply for a factual 

finding. A more fundamental legal question must first be 

addressed, namely whether Homar's property interest in his statecreated job is an interest worthy of protection under substantive 

due process. DeBlasio v. Zoning Bd. of Adjustment, 53 F.3d 592, 

598, 600 (3d Cir. 1993) (holding that before addressing the 

sufficiency of the evidence of improper motive, a court addressing 

a substantive due process claim should first consider whether the 

plaintiff possesses a property interest worthy of substantive 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 process protections 

are protected by the concept of substantive due process." Reich v. 

Beharry, 883 F.2d 239, 244 (3d Cir. 1989). In order to state a 

substantive due process claim, "a plaintiff must have been deprived 

of a certain quality of property interest." DeBlasio, 53 F.3d at 

600. 

 The parties did not address before the district court the 

question of whether a state-created property interest in employment 

is the "certain quality" of property interest worthy of protection 

under the substantive due process clause, nor did the district 

court consider it. While courts of appeals do have discretion to 

consider and resolve certain issues for the first time 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 federal appellate 

courts do not consider an issue not passed upon below. Singleton, 

428 U.S. at 120. 

 In the instant case, we think it appropriate to remand this 

issue for consideration in the first instance by the 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 what 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 substantive due process 

protection," id., but we have found that neither interest in prompt 

receipt of payment for professional services provided to the state, 

Reich, 883 F.2d at 244-45, nor state law entitlement to water and 

sewer services, Ransom v. Marrazzo, 848 F.2d 398, 411-12 (3d Cir. 

1988) are the "certain quality" of property interest worthy of 

substantive due process protection. We also have strongly 

suggested in dictum that a student's right to continued 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 implicitly protected 

by the Constitution.'" Mauriello v. U. of Med. & Dentistry of 

N.J., 781 F.2d 46, 40 (3d Cir. 1986) (quoting Regents of University 
of Michigan v. Ewing, 474 U.S. 214, 229-30 (Powell, J., 

concurring). None of the property interests formerly considered 

are especially analogous to the property interest in state-created 

employment. Given the complexity of this issue, we think it 

appropriate to allow the district court the first opportunity to 

consider it. Should this issue return to us on appeal, we will 

benefit from the district court's analysis. Furthermore, we have 

already determined to remand this matter on the procedural due 

process ground as well, eliminating any concern about the injustice 

of delaying the final conclusion of this case. Accordingly, we 

remand this question to the district court for consideration there. 

 V. 

 Additionally, Homar contends that a genuine issue of material 

fact exists as to whether Homar's due process rights were violated 

because defendants made public statements about his suspension that 

stigmatized Homar and damaged his reputation. Specifically, Homar 

alleges that ESU violated his protected liberty interest in two 

ways. First, he alleges that ESU seriously damaged his good name 

and reputation by publicly disclosing the charges against him. 

Second, Homar alleges that ESU imposed a stigma or disability on 

him, foreclosing his freedom to take advantage of other 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 process "where a 

person's good name, reputation, honor or integrity is at stake 

because of what the government is doing to him." Roth, 408 U.S. at 

573. Homar claims that this liberty interest was implicated in the 

instant case because ESU's demotion of him "'damage[d] his standing 

and associations in the community.'" Appellant's Brief at 28 

(citing Roth, 408 U.S. at 573). Homar may only prevail on this 

claim if he can demonstrate that the government "create[d] and 

disseminate[d] a false and defamatory impression about [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 investigation into 

his activities in a small article that appeared in the Pocono 

Record newspaper, coupled with his subsequent demotion, 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 indicate that ESU 

publicly disclosed the outcome of its investigation or the fact 

that it demoted Homar to groundskeeper. We accordingly find that 

Homar has no liberty interest claim. See Tucker, 868 F.2d at 82 

(holding that no liberty interest was implicated when press release 

about discharge of police officers was not misleading). 

 B. 

 Homar further alleges that ESU violated his liberty 

interest because it imposed "a stigma . . . that foreclosed his 

freedom to take advantage of other employment opportunities." 

Roth, 408 U.S. at 573. Yet Homar has proffered no evidence to 
suggest that the disciplinary actions taken by the university had 

in any way foreclosed other employment opportunities. Indeed, 

Homar testified at his deposition that he had not sought out a 

position with any other employer since his demotion. App. at 50. 

Furthermore, as noted above, Homar makes no allegations that any 

information in the newspaper article was untrue; the university 

never even publicly disclosed that Homar was terminated from his 

job as police officer. Under such circumstances, we cannot find 

that Homar's liberty interest was implicated. Tucker, 868 F.2d at 

83. 

 Accordingly, we affirm the district court's issuance 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 dissenting in part. 

 I write separately for two reasons. First, I would hold, 

based on the undisputed facts of this case, that the university's 

suspension of Homar without pay and without a hearing 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 disagree with the 

majority's decision to remand the substantive due process question 

to the district court, I wish to set forth my own views 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 Mallen, the Supreme 

Court observed that "[a]n important government interest, 

accompanied by a substantial assurance that the deprivation is not 

baseless or unwarranted, may in limited cases demanding prompt 

action justify postponing the opportunity to be heard until after 

the initial deprivation." Id. at 240 (citations omitted); 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 length 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 should 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 case, a presuspension hearing was not, in my view, essential. Within a few 

hours of the August 26, 1992, drug raid that resulted in Homar's 

arrest, the university learned that Homar had been charged with 

possession of marijuana, possession with intent to deliver 
marijuana, 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 been arrested and 

to ask whether he was suspended. Homar was informed that he was 

suspended, and this was confirmed by letter delivered the same 

day. 

 I do not think that the university violated Homar's right to 

procedural due process when it suspended him from his position as 

a campus police officer after learning that he had been arrested 

and charged with drug violations. There was probable cause to 

support the criminal charges and hence a substantial assurance that 

the deprivation was not baseless or unwarranted. The university 

was certainly entitled to take the position that Homar could not be 

permitted to work as a campus police officer with such charges 

outstanding, and there was thus, as the majority concedes, a 

compelling government interest present. And the university needed 

to act promptly. The majority admits all of this but finds that 

the university had to suspend Homar with pay. I find no 

requirement that in such circumstances a public employer must pay 

its suspended employees. 

 B. In reaching its conclusion to the contrary, the majority 

declares that "a governmental employer may not suspend an employee 

without pay unless that suspension is preceded by some 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 hearing or suspend 

the employee with pay. This holding is based on one sentence of 

dictum from Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 

544-45 (1985), the Eleventh Circuit's reliance on that dictum in 

Everett v. Napper, 833 F.2d 1507, 1512 (11th Cir. 1987), and this 

court's opinion in Bradley v. Pittsburgh Bd. of Educ., 913 F.2d 

1064 (3d Cir. 1990). These bases do not, in my view, withstand 

scrutiny. 

 With regard to Loudermill, I note that the Supreme 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 (citations 

omitted). It is of course true, as the Court later notes, that an 

employer can avoid any due process problems associated with keeping 

a dangerous employee on the job by suspending the employee with 

pay, id. at 544-45, "for then there is not a deprivation." 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 read Loudermillas 

holding that the government must suspend him with pay." Engdahl 

v. Department of Navy, 900 F.2d 1572, 1578 (Fed. Cir. 1990). I 

agree. 

 The Eleventh Circuit's decision in Everett, which was issued 

before the Supreme Court's decision in Mallen, simply relies on the 

Loudermill dictum. Numerous courts of appeals have reached a 
contrary conclusion regarding the import of Loudermill, 

particularly after Mallen. See Jones v. City of Gary, 57 F.3d 

1435, 1441-45 (7th Cir. 1995) (no pre-suspension hearing required 

where firefighter was suspended without pay; plaintiff's property 

interests were adequately protected by post-deprivation hearing); 

id. at 1445-46 (Ripple, J., concurring) ("there are circumstances 

in which the need for swift action on the part of those 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 required by Loudermill") 

(citations omitted); Chaney v. Suburban Bus Div. of the Regional 

Transp. Auth., 52 F.3d 623, 628 (7th Cir. 1995) (plaintiff bus 

driver suspended without pay after bus hit and injured pedestrian; 

no pre-suspension hearing necessary as employer's interests 

"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 the school 

learned that the teacher had been arrested on drug charges; court 

stated that "the substantiated knowledge that a teacher had been 

arrested for drug sales raised a substantial government interest 

justifying immediate suspension without pay"), aff'd as modified onother 

ground, 995 F.2d 992 (10th Cir. 1993) (en banc); Strong 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; court stressed 

that probable value of hearing was not very great because parties 

were well aware of each other's assertions), cert. denied, 498 U.S. 

897 (1990); see also Richardson v. U.S. Customs Service, 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 reasonable cause 

for an agency to believe that the employee has committed such a 

crime, and, when the nature of the crime alleged relates to the 

employee's ability to perform his or her duties, an agency may 

summarily suspend the employee, without pay, pending the outcome of 

the criminal proceedings.") (citations omitted); Bailey v. Board of 

County Commissioners of Alachua County, 956 F.2d 1112, 1123-24 & 

n.13 (11th Cir.) (qualified immunity) (stressing flexibility of 

standard regarding necessity of pre-deprivation hearing where 

prison guard was suspended without pay upon his arrest), cert.denied, 506 

U.S. 832 (1992); Gamble v. Webb, 806 F.2d 1258, 1261 

(5th Cir. 1986) (relying upon Loudermill's statement that "`there 

are, of course, some situations in which a post-deprivation hearing 

will satisfy due process,'" and concluding, under Logan 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 due process cases 

in general and unlike the majority's blanket rule -- reflect a 

balancing of interests based on the particular circumstances of 

each case. 

 I also believe that the majority has misinterpreted our 

opinion in Bradley. Citing Bradley, 913 F.2d at 1077, the majority 

states that Bradley implies that suspension without pay and without 
a pre-suspension hearing always violates due process. 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 Bradley was 

 entitled to a pre-suspension hearing, as he contends, or 

 whether a post-suspension hearing sufficed. CompareLoudermill, 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 employment did 

 not outweigh employee's interest in retaining employment, 

 pre-termination hearing was required) with FDIC 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 protect bank and 

 depositors, a post-suspension hearing within a reasonable 

 time was sufficient). 

 

 Bradley received no hearing, either before or after 

 the suspension, and hence if he was suspended, as the 

 record suggests, he was deprived of due process. 

913 F.2d at 1078. In my view, far from implying anything, the 

Bradley panel expressly reserved decision on the issue presented in 

this case. 

 I would resolve that issue in this case by following the great 

weight of federal appellate authority cited above and holding that 

whether a pre-suspension hearing was required in this particular 

case requires a balancing of the relevant factors. For the reasons 

already expressed above, I would hold that in the circumstances of 

this case, a pre-suspension hearing was not required and that a 

post-suspension hearing within a reasonable time after the 

suspension was sufficient. It may be that the university failed to 

conduct a sufficiently prompt or adequate post-suspension hearing 

after the criminal charges were dismissed on September 1, 1992, but 

that is a different question. Moreover, as in Strong, I am not 

sure how a pre-suspension hearing on August 26, 1992, would have 

made any difference. The only fact important to the university's 

decision was whether Homar had been arrested and charged. 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 been "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 interest requiring 

prompt action is what permits an employer to suspend an employee 

without a pre-suspension hearing but with pay. I think that this 

is inaccurate. It is my understanding that a public employer may 

generally suspend a public employee for cause, with pay, and 

without a hearing -- even absent an emergency situation -- 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. 1991) ("[N]o 

property interest was infringed at Mr. Hicks' first round of 

hearings when he was suspended and then reprimanded. Mr. Hicks 
suffered no loss in pay because of the pre-hearing suspension. 

Suspension with pay does not raise due process concerns.") 

(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 deprivation of property 

interest, and opining that "bad-faith" suspension with pay might 

infringe liberty interest); Koelsch v. Town of Amesbury, 851 F. 

Supp. 497, 500 (D. Mass. 1994) ("A public employee's suspension 

with pay does not implicate a constitutionally protected property 

interest.") (citations omitted). Under the majority's reasoning, 

the important government interest requiring prompt action is 

rendered a nullity because it simply allows the employer to do what 

it could do in a typical non-emergency, for-cause suspension 

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 due process claim, 

I write separately to set forth my views on the viability of that 

claim. I do not think that a plaintiff has a substantive 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 seems to me that 

he must show that the employer's actions were not rationally 

related to a legitimate government interest; mere allegations of 

bad faith cannot suffice. 

 A. Neither the Supreme Court nor this court has previously 

held that a plaintiff has a substantive due process claim for a 

non-legislative deprivation of a state-created property interest by 

a public employer. The Eleventh Circuit recently overruled 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 reasons stated in 

McKinney, which I find persuasive, I believe that Homar's 

allegations state only procedural due process claims. 

 In McKinney, the Eleventh Circuit considered the following 

issue: "whether, under the Fourteenth Amendment, a government 

employee possessing a state-created property interest 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 capricious nonlegislative government action." Id. at 1553. Sitting en banc, a 

unanimous Eleventh Circuit answered "no," and in an effort to bring 

its cases back into line with Supreme Court precedent, overruled a 

decade of its prior decisions. The court held that "in nonlegislative cases, only procedural due process claims 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 process claim" in 

that it "amounts to an allegation that the State failed to furnish 

an impartial tribunal, which `is a matter of procedural, not 
substantive, due process'") (citations omitted). 

 Two aspects of the Eleventh Circuit's opinion in McKinney bear 

emphasis here. First, the court concluded that allegations of 

arbitrary and capricious action by governmental employers affecting 

an individual's property interest in public employment "will not 

make out a substantive due process claim under the jurisprudence of 

the Supreme Court . . . because only procedural issues are 

implicated." Id. at 1559 (emphasis in original); see also id. at 

1561 ("McKinney's allegation is procedural: the County failed to 

provide one of the elements of procedural due process -- an 

unbiased decisionmaker."). I agree, as I discuss further below. 

 Second, crucial to the court's decision was the distinction 

between legislative acts and non-legislative or executive acts. 

Executive acts, such as employment decisions, typically apply to 

one person or to a limited number of persons, while legislative 

acts, generally laws and broad executive regulations, apply to 

large segments of society. Id. at 1557 n.9. The court criticized 

its prior decision in Hearn v. City of Gainesville, 688 F.2d 1328 

(11th Cir. 1982) -- its first case to apply substantive due process 

analysis to an arbitrary termination claim -- because "[i]n that 

case, where a terminated employee challenged an executive act, we 

cited Nebbia [v. New York, 291 U.S. 502 (1934)], where 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 stricter 

segregation of these two distinct case-categories be maintained." 

Id. The court indicated that rational basis review under 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 review to 

substantive due process challenge to regulation under Food Stamp 

Act and noting that "[t]his standard is not affected by our 

decision in McKinney" because "[t]he holding of that case was 

specifically limited to substantive due process challenges to nonlegislative acts") (citations omitted); Sullivan Properties, Inc. 

v. City of Winter Springs, 899 F. Supp. 587, 594-96 (M.D. Fla. 

1995) (considering the impact of McKinney on substantive due 

process challenges in the area of zoning and the granting of 

building permits; concluding that there is a "substantive due 

process cause of action for arbitrary and unreasonable zoning 

ordinances" but not for "substantive due process claims 

[challenging] executive acts granting or denying a particular 

building permit application"). I again agree. 

 Like the prior decisions in the Eleventh Circuit, a decision 

allowing Homar to maintain a substantive due process claim based on 

an allegation of bad faith would elevate Homar's procedural 

challenges to substantive due process status. Assuming that there 

is a factual issue regarding whether defendants acted 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 process is denied 

could give rise to an inference of bad faith. This sort of 

"substantive procedural due process claim" is precisely what 

troubled both the Eleventh Circuit in McKinney and a unanimous New 
Jersey Supreme Court in Rivkin, and I would not recognize such a 

claim. It seems to me that Homar's claim is clearly procedural and 

should be recognized as such. 

 Further, the cases upon which Homar relies essentially derive 

-- as is discussed more fully below -- from Pace Resources, Inc. v. 

Shrewsbury Tp., 808 F.2d 1023 (3d Cir.), cert. denied, 482 U.S. 906 

(1987), and Rogin v. Bensalem Tp., 616 F.2d 680, 689 (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 and Rogin in 

challenges to non-legislative acts have, in my view, fallen into 

the trap identified by the Eleventh Circuit in McKinney. I would 

not extend them into the public employment setting.

 B. Assuming for the sake of argument that there is a 

substantive due process claim for arbitrary and capricious nonlegislative actions by public employers and that Homar's interest 

in his position as a campus police officer constituted a "property" 

interest for substantive due process purposes, I nonetheless 

conclude that Homar seeks application of the wrong standard in 

evaluating his claim. Under true rational basis review -- which is 

the most that Homar is entitled to where he is asserting the 

violation of a non-fundamental, state-created property interest -- 

I think that Homar failed to create a fact issue as to whether the 

university violated his substantive due process rights. 

 The appropriateness of summary judgment as to Homar's 

substantive due process claim requires consideration of what Homar 

must show to establish a substantive due process violation. Homar 

argues that our cases hold that a plaintiff can establish a 

substantive due process violation by proving that the government's 

actions were motivated by bias, bad faith, or improper motive. 

Homar contends that a public employee who suffers an 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 motivated by (a) 

bias, (b) bad faith, or (c) improper motive. I do not agree. 

 First, as I alluded to above, we have never applied this test 

in the public employment context, and I would not extend this test 

to this context, whatever its appropriateness in other contexts. 

Further, it seems to me that the statements in our opinions 

regarding the nature of rational basis review in substantive due 

process cases have evolved in a strange and, I think, unintended 

way. Beginning with unobjectionable descriptions of classical 

rational basis review, our opinions eventually reached the point of 

suggesting that a plaintiff can state a substantive due process 

claim merely by alleging that an individual decision resulting in 

the deprivation of a property right was taken in bad faith. The 

Supreme Court has never sanctioned such a broad proposition, and I 

am confident that this cannot be the law. If a plaintiff like 

Homar has a substantive due process claim in this context, it seems 

to me that he must show that the employer's actions were not 

rationally related to a legitimate government interest and that 

mere allegations of bad faith cannot suffice. 

 In Pace Resources, Inc. v. Shrewsbury Tp., 808 F.2d 1023 (3d 
Cir.), 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 zoning ordinances, 

we quoted our prior decision in Rogin v. Bensalem Tp., 616 F.2d 

680, 689 (3d Cir. 1980), cert. denied, 450 U.S. 1029 (1981): 

 "The test for determining whether a law comports with 

 substantive due process is whether the law is rationally 

 related to a legitimate state interest. `[T]he law need 

 not be in every respect logically consistent with 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 (1955)) (brackets 

in Rogin). We explained that "[a] plaintiff making a substantive 

due process claim in federal court has the burden of showing that 

the regulation is arbitrary or irrational. Thus to state a claim, 

Pace's complaint would have to allege facts that would support a 

finding of arbitrary or irrational legislative action by the 

Township." Id. at 1035 (citations omitted). After concluding that 

"Pace's complaint fails to make any factual allegations that 

indicate irrationality" and that "Pace does not present a case 

involving actions aimed at this developer for reasons unrelated to 

land use planning," we concluded that "[b]ecause it appears on the 

face of the amended complaint that the Township decisionmakers 

could have had rational reasons for the decisions contested here 

and because that complaint alleges no facts suggesting 

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 basis review 

articulated in Pace Resources, but we focused on the language from 

Pace stating that the plaintiff there did not allege "actions aimed 

at this developer for reasons unrelated to land use planning." 

Bello v. Walker, 840 F.2d 1124, 1129 (3d Cir.) (citation omitted), 

cert. denied, 488 U.S. 851 (1988). We thus distinguished 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 case 

 presented evidence from which a fact finder could 

 reasonably conclude that certain council members, acting 

 in their capacity as officers of the municipality 

 improperly interfered with the process by which 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 permits. These 

 actions can have no relationship to any legitimate 

 governmental objective, and if proven, are sufficient to 

 establish a substantive due process violation actionable 

 under section 1983. 

Id. at 1129-30 (footnote omitted). 
 Next, the panel in Midnight Sessions paraphrased Bello and 

stated that "a plaintiff may maintain a claim of substantive due 

process violation upon allegations that the government deliberately 

and arbitrarily abused its power." Midnight Sessions, Ltd. v. City 

of Phil., 945 F.2d 667, 683 (3d Cir. 1991) (citation omitted), 

cert. denied, 503 U.S. 984 (1992). "Thus, allegations that the 

government's actions in a particular case were motivated by bias, 

bad faith, or improper motive . . . may support a finding of 

substantive due process violation." Id. (citing Bello 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 process protects 

citizens from arbitrary and irrational acts of government." Id. at 

692 (citing Rogin v. Bensalem Tp., 616 F.2d 680, 689 (3d Cir. 

1980), cert. denied, 450 U.S. 1029 (1981)). We then stated the 

following test (which is the test quoted by the parties in this 

case): "A violation of substantive due process rights is proven: 

(1) if the government's actions were not rationally related to a 

legitimate interest; or (2) `if the government's actions in a 

particular case were in fact motivated by bias, bad faith or 

improper motive.'" Id. (citation omitted); see also 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 moved from 

inquiring merely whether a legislative act survived pure rational 

basis review to inquiring whether actions by specific defendants 

vis-a-vis a specific plaintiff were somehow improper. It seems to 

me that our cases began looking to governmental conduct that might 

prove a lack of rational basis, but we have now set forth an 

entirely separate test for evaluating substantive due process 

claims that is independent of standard rational basis review. Seealso 

Rivkin, 671 A.2d at 576-77 (declining to follow DeBlasio 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 court 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 view, 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 faith 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 is clear that the 

university's actions were rationally related to its legitimate 

interests, and, indeed, Homar does not contend otherwise. 

 C. In sum, substantive due process applies where there is a 

fundamental right at stake or legislation is challenged as having 

no rational relationship to any legitimate government interest. 

Here, plaintiff suggests no fundamental right within the meaning of 

the substantive component of the Due Process Clause; nor is 
plaintiff 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 dissent from the 

majority's conclusion, set forth in section III.A, that Homar had 

a right to a hearing prior to his suspension. Although 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 motion for summary 

judgment on remand.