PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______

No. 16-3631

______

PLAINS ALL AMERICAN PIPELINE L.P.,

 Appellant

v.

THOMAS COOK, in his capacity as the Secretary of Finance 

for the State of Delaware; DAVID M. GREGOR, in his 

capacity as the State Escheator of the State of Delaware; 

MICHELLE M. WHITAKER, in her capacity as the

Audit Manager for the State of Delaware;

KELMAR ASSOCIATES LLC

______

On Appeal from the United States District Court

for the District of Delaware

(District Court No. 1-15-cv-00468)

District Judge: Honorable Richard G. Andrews

______
2

Argued April 5, 2017

Before: CHAGARES, SCIRICA, and FISHER, 

Circuit Judges

(Opinion Filed: August 9, 2017)

Phillip B. Dye, Jr.

Deborah C. Milner

Vinson & Elkins

1001 Fannin Street

Suite 2300

Houston, TX 77002

Jeremy C. Marwell ARGUED

Christian D. Sheehan

Vinson & Elkins

2200 Pennsylvania Avenue, N.W.

Suite 500 West

Washington, DC 20037

James E. O'Neill, III

Colin R. Robinson

Bradford J. Sandler

Pachulski Stang Ziehl & Jones

919 North Market Street

P.O. Box 8705, 17th Floor

Wilmington, DE 19801

 Attorneys for Appellant
3

Caroline L. Cross

Jennifer R. Noel

Delaware Department of Justice

820 North French Street

Wilmington, DE 19801

Marc S. Cohen

Loeb & Loeb

10100 Santa Monica Boulevard

Suite 2200

Los Angeles, CA 90067

Tiffany R. Moseley

Steven S. Rosenthal ARGUED

John D. Taliaferro

Loeb & Loeb

901 New York Avenue, N.W.

Suite 300 East

Washington, DC 20001

Attorneys for Appellees Thomas Cook, David M. 

Gregor and Michelle M. Whitaker

Marc J. Phillips

Manion Gaynor & Manning

1007 North Orange Street, Tenth Floor

Wilmington, DE 19801
4

Stephen W. Kidder

Ryan P. McManus ARGUED

Hemenway & Barnes

75 State Street, 16th Floor

Boston, MA 02109

Attorneys for Appellee Kelmar Associates LLC

______

OPINION OF THE COURT

______

FISHER, Circuit Judge.

All states have laws authorizing them to seize private 

property through escheat, “a procedure with ancient origins

whereby a sovereign may acquire title to abandoned property 

if after a number of years no rightful owner appears.” Texas v. 

New Jersey, 379 U.S. 674, 675 (1965). But in recent years, 

state escheat laws have come under assault for being 

exploited to raise revenue rather than reunite abandoned

property with its owners. Delaware’s Escheats, or Unclaimed 

Property, Law is no exception; as unclaimed property has 

become Delaware’s third-largest source of revenue, 

companies have brought a wave of lawsuits challenging the 

constitutionality of Delaware’s escheat regime.
5

In this case, Plains All American Pipeline (“Plains”) 

seeks to attack the constitutionality of several provisions of 

the Delaware Escheats Law, as well as Delaware’s demand 

that it submit to an abandoned property audit. But because 

Plains brought suit before Delaware assessed liability based 

on its audit or sought a subpoena to make its audit-related 

document requests enforceable, the District Court dismissed 

the suit, finding that Plains’s claims were unripe except for an 

equal protection claim that it dismissed for failure to state a 

claim. Although we disagree with the District Court that 

Plains’s as-applied, procedural due process claim is unripe 

and will therefore reverse and remand in part, we will affirm 

the District Court’s dismissal in all other respects.

I

A

Rooted in a practice that dates back to feudal times, 

Delaware’s Escheats Law is the mechanism by which 

Delaware takes custody of abandoned property in the State. 

As amended,1the law provides that a holder of “property 

presumed abandoned” must file a yearly report with the State 

Escheator in which it provides information about the property 

 

1 Delaware amended its Escheats Law while this case 

was being briefed. Effective February 2, 2017, the 

amendments adopt some meaningful changes, like limiting 

the look-back period of audits and expressly granting 

Delaware subpoena power to enforce audits. For ease of 

reference, we will cite to the new version of the statute, given 

that the basic framework of the law remains unchanged. In so 

doing, we express no opinion on whether the amendments

would apply retroactively to the Plains audit as they do not 

affect our analysis. 
6

and its possible owner. Del. Code Ann. tit. 12, §§ 1142, 1143. 

When filing the yearly report, the holder must “pay or deliver 

. . . the property described in the report” to the State 

Escheator, id. § 1152, who then takes custody of the property 

and may sell it.

To ensure compliance with the law, the statute permits 

the Escheator to “[e]xamine the records of a person or the 

records in the possession of an agent, representative, 

subsidiary, or affiliate of the person under examination in 

order to determine whether the person complied with this 

chapter.” Id. § 1171(1). And the “State Escheator may 

contract” with private third-parties to perform this audit on 

his or her behalf. Id. § 1178(a). If the person subject to 

examination “does not retain the records required,” the “State 

Escheator may determine the amount of property due using a 

reasonable method of estimation.” Id. § 1176(a). And if the 

State Escheator completes its examination and “determines 

that a holder has underreported unclaimed property due and 

owing,” the State Escheator “shall mail a statement of 

findings and request for payment to the holder that filed.” Id.

§ 1179(a). When liability is assessed, the State may charge 

interest and penalties. Id. § 1183. But the holder of the 

abandoned property may seek judicial review of the 

Escheator’s decision in the Court of Chancery. Id. § 1179(b). 

B

On October 22, 2014, Delaware’s Audit Manager, 

Michelle Whitaker, sent Plains a notice that the State intended 

to audit its records from 1986 through present to evaluate its 

compliance with Delaware’s Escheats Law. In that notice, 

Whitaker informed Plains that Kelmar Associates, a private 

auditing firm that conducts a large percentage of Delaware’s 

unclaimed property audits, would conduct the audit; that she 
7

was “the final arbiter of any disputes that may arise during the 

course of the examination”; and that the audit would be 

expanded back to 1981 if not completed by June 30, 2015. 

J.A. 200.

After Kelmar sent Plains its initial document requests, 

Plains sent a letter raising several constitutional objections to 

the audit and informing Whitaker that it would not respond to 

Kelmar. Dismissing Plains’s concerns as unfounded, 

Whitaker responded that multistate audits were common and 

Delaware’s actions were legal. She directed Plains to 

“produce the records requested” by Kelmar and noted that 

“the State will consider the level of [Plains’s] cooperation 

when determining whether penalties should be assessed, or 

whether any other statutorily available actions should be 

taken, in connection with any past due unclaimed property 

that is identified as a result of the examination.” J.A. 325. 

Plains did not respond to Whitaker. Instead, it sued

Kelmar, Whitaker, Delaware Secretary of Finance Thomas 

Cook, and Delaware State Escheator David Gregor in federal 

court for a declaration that the proposed audit violated the 

Constitution, an injunction preventing the defendants from 

pursuing the audit, and attorney’s fees. In its initial complaint, 

Plains alleged that the proposed audit and portions of 

Delaware’s Escheats Law violated the Fourth Amendment, as 

well as the Ex Post Facto, Due Process, Equal Protection, and 

Takings Clauses of the Constitution. But Plains later amended 

its complaint to add one claim that Kelmar conspired with 

Delaware to violate its rights and two claims that Delaware’s 

Escheats Law was void for vagueness and preempted by 

federal law. 

In July 2015, the Defendants moved to dismiss the 

amended complaint under Federal Rules of Civil Procedure 
8

12(b)(1) and 12(b)(6). The District Court dismissed this case 

on August 16, 2016, finding that Plains’s claims were all 

unripe except for an equal protection claim that it dismissed 

for failure to state a claim. This timely appeal followed.

II

The District Court had federal question jurisdiction 

under 28 U.S.C. § 1331. We have jurisdiction under 28 

U.S.C. § 1291. We exercise plenary review over both a 

district court’s dismissal for lack of ripeness, NE Hub 

Partners, L.P. v. CNG Transmission Corp., 239 F.3d 333, 341 

(3d Cir. 2001), and its dismissal for failure to state a claim 

under Rule 12(b)(6), Monroe v. Beard, 536 F.3d 198, 205 (3d 

Cir. 2008). Where, as here, the defendants move to dismiss a 

complaint under Rule 12(b)(1) for failure to allege subject 

matter jurisdiction, we treat the allegations in the complaint 

as true and draw all reasonable inferences in favor of the 

plaintiff. NE Hub, 239 F.3d at 341.

III

On appeal, Plains argues that the District Court 

improperly dismissed six of its claims—four facial challenges

and two as-applied challenges—as unripe.2 This assertion

 

2

In addition to dismissing the six appealed claims, the 

District Court also dismissed Kelmar from the suit, and 

Plains’s Equal Protection, Ex Post Facto, and Takings Clause 

claims. It is well settled that an issue is waived and need not 

be addressed where, as here, the appellant “did not include 

any argument with respect to [it] or otherwise explain how 

the District Court erred.” Free Speech Coal., Inc. v. Att’y 

Gen. of United States, 677 F.3d 519, 545 (3d Cir. 2012). We 

will accordingly affirm those dismissals.
9

requires us to consider whether Plains has presented a 

justiciable case or controversy.

A

While it is “emphatically the province and duty of the 

judicial department to say what the law is,” Marbury v. 

Madison, 5 U.S. (1 Cranch) 137, 177 (1803), Article III of the 

Constitution limits the federal judiciary’s authority to exercise 

its “judicial Power” to “Cases” and “Controversies.” U.S. 

Const. art. III, § 2. This case-or-controversy limitation, in 

turn, is crucial in “ensuring that the Federal Judiciary respects 

the proper—and properly limited—role of the courts in a 

democratic society.” DaimlerChrysler Corp. v. Cuno, 547 

U.S. 332, 341 (2006) (internal quotation marks omitted). And 

courts enforce it “through the several justiciability doctrines 

that cluster about Article III,” including “standing, ripeness, 

mootness, the political-question doctrine, and the prohibition 

on advisory opinions.” Toll Bros., Inc. v. Twp. of Readington, 

555 F.3d 131, 137 (3d Cir. 2009) (internal quotation marks 

omitted). 

As the District Court noted, this case involves 

ripeness, “a matter of degree whose threshold is notoriously 

hard to pinpoint.” NE Hub, 239 F.3d at 341. But because 

Plains is bringing a preenforcement action, the justiciability 

issue in this case can equally be described in terms of 

standing. See, e.g., MedImmune, Inc. v. Genetech, Inc., 549 

U.S. 118, 128 n.8 (2007) (“The justiciability problem that 

arises, when the party seeking declaratory relief is himself 

preventing the complained-of injury from occurring, can be 

described in terms of standing . . . or . . . ripeness”); Free 

Speech Coal., Inc. v. Att’y Gen. of United States, 825 F.3d 

149, 167 n.15 (3d Cir. 2016) (“[W]hether Plaintiffs have 

standing or their claims are ripe . . . both turn on whether the 
10

threat of future harm . . . is sufficiently immediate to 

constitute a cognizable injury.”); Presbytery of N.J. of 

Orthodox Presbyterian Church v. Florio, 40 F.3d 1454, 1462 

(3d Cir. 1994) (“It is sometimes argued that standing is 

about who can sue while ripeness is about when they can sue, 

though it is of course true that if no injury has occurred, the 

plaintiff can be told either that she cannot sue, or that she 

cannot sue yet.” (internal quotation marks omitted)).

At its core, ripeness works “to determine whether a 

party has brought an action prematurely . . . and counsels 

abstention until such a time as a dispute is sufficiently 

concrete to satisfy the constitutional and prudential 

requirements of the doctrine.” Peachalum v. City of York, 333 

F.3d 429, 433 (3d Cir. 2003). Various concerns underpin it, 

including whether the parties are in a “sufficiently adversarial 

posture,” whether the facts of the case are “sufficiently 

developed,” and whether a party is “genuinely aggrieved.” Id. 

at 433-34. In Abbott Laboratories v. Gardner, 387 U.S. 136 

(1967), abrogated on other grounds by Califano v. Sanders, 

430 U.S. 99 (1977), the Supreme Court laid out two principal

considerations for gauging ripeness including (1) “the fitness 

of the issues for judicial decision” and (2) “the hardship to the 

parties of withholding court consideration.” Id. at 149. And in 

Susan B. Anthony List v. Driehaus (“SBA List”), 134 S. Ct. 

2334 (2014), the Court illustrated that when evaluating 

ripeness as a matter of standing in preenforcement challenges, 
11

we ask whether the plaintiff has “alleged a sufficiently 

imminent injury for the purposes of Article III.” Id. at 2338.

3

“In declaratory judgment cases, we apply a somewhat 

refined test” for ripeness, Khodara Envtl., Inc. v. Blakely, 376 

F.3d 187, 196 (3d Cir. 2004) (internal quotation marks 

omitted), that was first articulated in our decision in StepSaver Data Systems, Inc. v. Wyse Technology, 912 F.2d 643 

(3d Cir. 1990). Under the Step-Saver test, we look to “(1) the 

adversity of the parties’ interests, (2) the conclusiveness of

the judgment, and (3) the utility of the judgment.” Khodara,

376 F.3d at 196 (internal quotation marks omitted). But 

before applying it, two points warrant clarification. 

First, although our Step-Saver test differs in form from 

the ripeness test articulated in Abbott Labs, or the standing 

test articulated in SBA List, it is merely a different framework 

for conducting the same justiciability inquiry. Since StepSaver “simply alters the headings under which various factors 

are grouped,” Phila. Fed’n of Teachers v. Ridge, 150 F.3d 

319, 323 n.4 (3d Cir. 1998), we consider related claims for 

declaratory and injunctive relief under the same Step-Saver

test in a case like this one. See, e.g., NE Hub, 239 F.3d at 339-

49. And when we apply Step-Staver, Abbott Labs’s

“hardship” and “fitness” factors still guide our analysis, as 

does the standing test set forth in SBA List.

 

3

In SBA List, the Supreme Court also suggested that

the prudential components of ripeness may no longer be a 

valid basis to find a case nonjusticiable. 134 S. Ct. at 2347. 

To the extent we discuss prudential ripeness factors, our 

holding does not rest on them; rather, our holding rests on the 

constitutional requirements of Article III.
12

Second, while the three Step-Saver factors “guide our 

disposition,” Step-Saver, 912 F.2d at 647, they “are not 

exhaustive of the principles courts have considered in 

evaluating ripeness.” Armstrong World Indus., Inc. v. Adams, 

961 F.2d 405, 412 (3d Cir. 1992). As we have noted, “where 

the constitutionality of a state provision is at issue, the 

Supreme Court has taken into account the degree to which 

postponing federal judicial review would have the advantage 

of permitting state courts further opportunity to construe the 

challenged provisions.” Id. (brackets and internal quotation 

marks omitted). And courts have also invoked the Ashwander

principle, see Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 

346–47, (1936) (Brandeis, J., concurring), to avoid “ruling on 

federal constitutional matters in advance of the necessity of 

deciding them.” Armstrong, 961 F.2d at 413; see also Renne 

v. Geary, 501 U.S. 312, 324 (1991) (“It is not the usual 

judicial practice . . . to proceed to an overbreadth issue . . . 

before it is determined that the statute would be valid as 

applied.” (internal quotation marks omitted)). With these 

principles in mind, we will analyze the justiciability of 

Plains’s claims.

B

Four of the claims that are the subject of Plains’s 

appeal are facial challenges—three allege that the estimation 

provisions of the Delaware Escheats Law are preempted, void 

for vagueness, and violate substantive due process, while the 

fourth alleges that the Delaware Escheats Law violates the 

Fourth Amendment by not affording precompliance judicial 

review of an auditor’s document demands. The two asapplied claims at issue on appeal include a Fourth 

Amendment challenge to the scope of Kelmar’s document 

requests and a procedural due process challenge to Kelmar’s

appointment to conduct the audit. For the reasons set forth 
13

below, we agree with the District Court that Plains’s four 

facial challenges and its as-applied Fourth Amendment claim 

are unripe.

4 But we disagree with its conclusion that Plains’s 

procedural due process claim is not justiciable. In so holding, 

we will consider Plains’s facial and as-applied challenges 

separately.

Facial Challenges to the Estimation Statute

1. Adversity of Interest

“Parties’ interests are adverse where harm will result if 

the declaratory judgment is not entered.” Travelers Ins. Co. v. 

Obusek, 72 F.3d 1148, 1154 (3d Cir. 1995). As we have 

explained, when “the plaintiff’s action is based on a 

contingency, it is unlikely that the parties’ interests will be 

sufficiently adverse to give rise to a case or controversy 

within the meaning of Article III.” Armstrong, 961 F.2d at 

412-13. But “where threatened action by government is 

concerned, we do not require a plaintiff to expose himself to 

liability before bringing suit to challenge the basis for the 

threat.” MedImmune, 549 U.S. at 128-29. Accordingly, “the 

party seeking review need not have suffered a completed 

harm to establish adversity”—it suffices that there is a 

“substantial threat of real harm and that the threat . . . remain 

real and immediate throughout the course of the litigation.” 

Florio, 40 F.3d at 1463 (internal quotation marks omitted).

 

4

In reaching these conclusions, we note that our 

decision today does not speak to the decision in Marathon 

Petroleum Corp. v. Cook, 208 F. Supp. 3d 576 (D. Del. 

2016), which has been appealed and is pending before 

another panel of this Court. There, a different district judge

found a preemption and as-applied Fourth Amendment 

challenge to the Delaware Escheats Law ripe.
14

Relying principally on Abbott Labs and our decision in 

NE Hub, Plains has taken the position that its interests are 

adverse to Delaware’s because it is being forced to choose 

between complying with a burdensome law and risking

serious penalties. While we agree that a challenge to 

government action is typically ripe when a party is faced with 

that dilemma, we simply cannot find that Plains confronts 

such a situation here.

Since estimation merely requires Plains to sit back and 

wait while Delaware calculates its liability, estimation is not a 

burdensome process “where the impact of the administrative 

action could be said to be felt immediately by those subject to 

it in conducting their day-to-day affairs.” Toilet Goods Ass’n, 

Inc. v. Gardner, 387 U.S. 158, 164 (1967). And while one 

possible result of the estimation process—an arbitrary 

penalty—could harm Plains, that harm would only result after 

Delaware (1) concluded that Plains’s records were 

inadequate, (2) used estimation, (3) found past-due 

abandoned property, and (4) erroneously calculated what was 

owed to the State. As such, the only alleged harm Plains 

could suffer from estimation is based on contingencies and its

substantive due process, void-for-vagueness, and preemption 

claims lack both sufficient adversity for ripeness and a 

cognizable Article III injury. See, e.g., Lujan v. Defenders of 

Wildlife, 504 U.S. 555, 560 (1992) (noting that Article III 

standing requires a party to “have suffered an injury” that is 

“actual or imminent, not conjectural or hypothetical.” 

(internal quotation marks omitted)); Texas v. United States, 

523 U.S. 296, 300 (1998) (“A claim is not ripe for 

adjudication if it rests upon contingent future events that may 
15

not occur as anticipated, or indeed may not occur at all.” 

(internal quotation marks omitted)).5

Unlike estimation, the average Kelmar audit can be 

quite burdensome, costing over one million dollars and 

spanning three to eight years. Pl. Am. Compl. ¶ 52, J.A. 51. 

And Plains maintains that those costs along with Delaware’s 

warning that it would “consider the level of Plains’s 

cooperation when determining whether penalties should be 

assessed,” J.A. 325, have supplied adversity for its Fourth 

Amendment claims. Though we think the adversity inquiry is 

closer for Plains’s challenge to the audit provisions of the

statute than it is for its challenges to the estimation provisions 

of the statute, we still find adversity lacking for two reasons.

First, while “the requirement to go through a 

burdensome process can constitute hardship for the purposes 

of ripeness,” NE Hub, 239 F.3d at 345, our precedent 

confirms that in all but those cases where the administrative 

process is at issue and imposes burdens that directly affect an 

entity’s day-to-day business, the costs of administrative 

investigations are usually not sufficient, however substantial, 

to justify review in a case that would otherwise be unripe. 

Compare Univ. of Med. & Dentistry of N.J. v. Corrigan, 347 

F.3d 57, 70 (3d Cir. 2003) (finding challenge to 

administrative process unripe where “the audit at issue” had

“no direct effect on the plaintiffs’ primary conduct” (internal 

quotation marks omitted)), with NE Hub, 239 F.3d at 342-46 

 

5 Plains responds that the State’s refusal to disavow 

that it will engage in unlawful conduct creates a credible 

threat of harm. See Plains Br. 31-33. But that is not sufficient 

to make these claims justiciable. The “threatened 

enforcement” must still be “sufficiently imminent.” SBA List, 

134 S. Ct. at 2342. 
16

(finding challenge to preempted administrative process ripe 

where subjecting plaintiff to it would affect whether and how 

plaintiff proceeded with significant construction project); see 

also Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 

735 (1998) (“[T]he Court has not considered . . . litigation 

cost saving sufficient by itself to justify review in a case that 

would otherwise be unripe.”); Fed. Trade Comm’n v.

Standard Oil Co. of Cal., 449 U.S. 232, 242 (1980) (noting 

the “substantial” burden on the company “of responding to . . 

. charges” is “different in kind and legal effect.”). Contrary to 

Plains’s arguments on appeal, the administrative process 

being challenged here does not present the circumstances 

required for administrative-process expenses to supply 

adversity. Unlike in NE Hub, the process at issue here is an 

“audit . . . directed only at past conduct,” so “the only effects 

[Plains] will encounter are related to [its] participation in the 

investigatory process and actions that might be taken as a 

result.” Corrigan, 347 F.3d at 70. Like in Corrigan, Plains 

does not argue that Delaware lacks the authority to conduct 

its audit; rather, Plains’s preemption claim is directed at the 

statute’s estimation provisions. And finally, in this case

Kelmar’s audit has not yet begun so it is wholly speculative 

whether the audit will be particularly burdensome and costly 

and result in an enforcement action. The extent of the burden 

is thus “conjectural or hypothetical.” Lujan, 504 U.S. at 560 

(internal quotation marks omitted).

Second, we do not believe Delaware’s request to 

comply with the audit presents the Abbott Labs dilemma that 

exists when “a regulation requires an immediate and 

significant change in the plaintiffs’ conduct of their affairs 

with serious penalties attached to non-compliance.” 387 U.S. 

at 153. Since this audit is an investigation confined to past 

conduct, it does not have the “direct effect” on “day-to-day 
17

business,” id. at 152, that existed in Abbott Labs when 

regulations imposed new obligations requiring the company 

to change labels, destroy stocks, and invest in new supplies. 

And we are not persuaded that Whitaker’s letter attaches 

serious penalties to Plains’s decision not to comply with the 

audit. Even if we found that she threatened a penalty, since 

the penalty cannot be imposed without a finding of unclaimed 

property liability, Plains is not yet in a place where it must 

choose between submitting to the audit or facing penalties—it 

still has a third option where it could refuse to submit to the 

audit without incurring a penalty.

2. Conclusiveness

The next prong of Step-Saver considers whether the 

contest is based on “a real and substantial controversy 

admitting of specific relief through a decree of a conclusive 

character, as distinguished from an opinion advising what the 

law would be upon a hypothetical set of facts.” Florio, 40 

F.3d at 1463 (internal quotation marks omitted). In analyzing 

this factor, two concerns are paramount. First, we consider 

whether “the legal status of the parties” will “be changed or 

clarified.” Travelers, 72 F.3d at 1155. Second, we ask 

“whether further factual development . . . would facilitate 

decision” or “the question presented is predominantly legal.” 

NE Hub, 239 F.3d at 344. 

On this prong, Plains argues that its facial challenges 

to the Escheats Law would result in a conclusive judgment 

because it presents predominately legal claims that require no 

factual development. We disagree. To prevail on its facial 

challenges, Plains must demonstrate that “no set of 

circumstances exists under which the [Escheat Law] would be 

valid,” United States v. Salerno, 481 U.S. 739, 745 (1987), 

and while “predominantly legal questions are generally
18

amenable to a conclusive determination in a preenforcement 

context,” Florio, 40 F.3d at 1468 (emphasis added), that does 

not mean they always are. As the Supreme Court’s decision in

City of Los Angeles v. Patel, 135 S. Ct. 2443 (2015), affirms, 

“when there is substantial ambiguity as to what conduct a 

statute authorizes,” it may be “impossible to tell whether and 

to what extent it deviates from the requirements of the 

[Constitution].” Id. at 2450 (internal quotation marks 

omitted). And in such circumstances, evaluating the 

constitutional validity of the statute “is pre-eminently the sort 

of question which can only be decided in the concrete factual 

context of the case.” Id. at 2449 (quoting Sibron v. New York, 

392 U.S. 40, 59 (1968)).

As the Defendants note, Plains’s constitutional 

challenges to the Escheats Law, like the facial challenges in 

Sibron, involve precisely the sort of case where “further 

factual development would significantly advance our ability 

to deal with the legal issues presented.” Corrigan, 347 F.3d at 

68 (internal quotation marks omitted). The Escheats Law 

contains no definition of what estimation entails, nor does it 

explain whether preenforcement review exists or what it 

looks like. Thus the statute is “susceptible to a wide variety of 

interpretations,” Sibron, 392 U.S. at 60, and because we 

cannot yet state with certainty what conduct is authorized—

let alone that only unconstitutional conduct is allowed—

ruling on Plains’s facial claims now would not result in 

conclusive judgment.

6

 

6

Indeed, Plains concedes in its reply brief that until we 

know whether the amendments apply to its audit and what the 

enforcement proceedings will look like, we lack sufficient 

information to determine whether enforcement proceedings 

would satisfy the Fourth Amendment. Reply Br. 26. And this 
19

3. Practical Utility

Finally, the third prong of the Step-Saver test requires 

us to examine the utility of judgment. “Practical utility goes 

to whether the parties’ plans of actions are likely to be 

affected by a declaratory judgment . . . and considers the 

hardship to the parties of withholding judgment.” NE Hub, 

239 F.3d at 344-45 (internal quotation marks omitted); see 

also Step-Saver, 912 F.2d at 649 (“One of the primary 

purposes behind the Declaratory Judgment Act was to enable 

plaintiffs to preserve the status quo before . . . damage was 

done . . . .”). It also examines whether entry of judgment 

“would be useful to the parties and others who could be 

affected.” Florio, 40 F.3d at 1470. 

While judgment in this case may be of interest to the 

other companies challenging this law, practical utility is not 

satisfied. Since estimation involves no action by Plains, and 

no unclaimed property fine is impending, Plains “would take 

the same steps whether or not it was granted a declaratory 

judgment.” Pittsburgh Mack Sales & Serv. v. Int’l Union of 

 

same issue plagues Plains’s facial challenges to the estimation 

statute. Because in “other contexts and under other statutes, 

courts have routinely permitted the use of statistical 

sampling” to determine amounts owed to the government, 

Chaves Cty. Home Health Serv., Inc. v. Sullivan, 931 F.2d 

914, 919 (D.C. Cir. 1991), and because the Escheat Law does 

not provide a specific estimation method for us to evaluate, 

we would need to see which estimation processes are 

employed before we could determine that estimation violates 

substantive due process, is impermissibly vague in all its 

applications, or is inconsistent with federal common law and 

preempted. 
20

Operating Eng’rs, 580 F.3d 185, 192 (3d Cir. 2009). And to 

the extent a declaratory judgment might spare Plains from a 

costly audit, a judgment before Delaware takes any further 

action would render the utility of a decision remote for the 

same reason a judgment would not be conclusive. Because 

the constitutionality of the Escheats Law appears to turn 

largely on how it is enforced, any decision now would not 

“clarify legal relationships so that plaintiffs (and possibly 

defendants) could make responsible decisions about the 

future.” NE Hub, 239 F.3d at 345 (internal quotation marks 

omitted). Rather, in speculating how the law would be 

enforced, we would leave parties to guess whether Delaware 

could take the same actions in a different matter.

As-Applied Claims

1. Fourth Amendment Claim

Unlike Plains’s facial claims, Plains’s as-applied 

Fourth Amendment claim satisfies the last two prongs of 

Step-Saver. A judgment on these claims would be conclusive. 

It would affect “the legal status of the parties” by determining 

whether Delaware can request the documents they demanded.

Travelers, 72 F.3d at 1155. And further factual development 

is unnecessary—because Kelmar has already issued its 

document requests, we have “a set of facts from which” we 

can “declare the parties’ rights based on those facts.” Id. 

Practical utility is satisfied for similar reasons. Holding that 

the document requests are overbroad would affect what Plains 

turns over, so its “actions are likely to be affected by a 

declaratory judgment.” Step-Saver, 912 F.2d at 649 n.9. And 

“entry of a declaratory judgment . . . in the instant case would 

be useful to the parties and others who could be affected,” by 

providing some guidance on what documents may be 

requested during an audit. Florio, 40 F.3d at 1469.
21

Nonetheless, the fact that this claim satisfies these two 

prongs does not make it ripe—our precedent makes clear that

“plaintiffs raising predominantly legal claims must still meet 

the minimum requirements for Article III jurisdiction,” 

Armstrong, 961 F.2d at 421, and, for the same reasons 

Plains’s facial Fourth Amendment claim lacks adversity, its 

as-applied Fourth Amendment claim does so as well. Again, 

in all but those cases where the administrative process is at 

issue and affects a plaintiff’s primary conduct, the burden of 

an administrative investigation cannot usually itself confer 

Article III jurisdiction. And this is not an Abbott Labs

situation. Whether put in terms of ripeness or standing, 

because the audit is not enforceable, and because its 

occurrence is still based on contingencies, Plains has not 

alleged a “sufficiently imminent injury” that would give rise 

to a justiciable case under Article III of the Constitution. SBA 

List, 134 S. Ct. at 2338.

2. Procedural Due Process Claim

Finally, we hold that the District Court improperly 

concluded that Plains’s as-applied procedural due process 
22

claim is not justiciable.7 To establish a due process violation, 

all Plains must show is that it was required to submit a dispute 

to a self-interested party. See, e.g., Carey v. Piphus, 435 U.S. 

247, 266 (1978) (“Because the right to procedural due process 

is ‘absolute’ in the sense that it does not depend upon the 

merits of a claimant’s substantive assertions . . . we believe 

that the denial of procedural due process should be actionable 

. . . without proof of actual injury.”); United Church of Med. 

Ctr. v. Med. Ctr. Comm’n, 689 F.2d 693, 701 (7th Cir. 1982) 

(“Submission to a fatally biased decisionmaking process is in 

itself a constitutional injury”). And because Kelmar has been 

vested with responsibility for conducting the Plains audit and 

has issued document demands, this claim satisfies all three 

Step-Saver prongs.

As with the as-applied Fourth Amendment claim, the 

conclusiveness and utility prongs of Step-Saver are satisfied. 

No further factual development is needed to address the 

merits of this claim, and a ruling on the merits would be 

 

7 On appeal, Cook, Gregor, and Whitaker argue that 

this claim was not raised below. We disagree. Plains’s 

amended complaint specifically challenges Delaware’s

delegation of authority to Kelmar. Pl. Am. Compl. ¶ 116, J.A. 

68 (“Kelmar has a large financial stake in the outcome of the 

audit and is not a neutral party.”). And Plains reiterated its 

challenge to Kelmar’s appointment in its opposition to the 

Defendants’ motions to dismiss. S.A. 22 (“Plains has asserted 

claims for violations of procedural and substantive due 

process based on . . . Defendants’ improper delegation of 

authority to Kelmar, allowing Kelmar to act in a quasijudicial capacity . . . .”). Perhaps Plains could have been 

clearer. But its challenge to Kelmar’s appointment was 

adequately raised below.
23

“useful to the parties and others who could be affected” given 

Delaware’s widespread use of private auditors. Florio, 40 

F.3d at 1470. In addition, given the nature of a biased 

adjudicator claim, adversity exists. Because the conduct being 

challenged by Plains is the appointment of Kelmar to conduct 

this audit, the harm alleged for this claim is not based on a 

contingency; it is based on conduct that has already occurred. 

Perhaps this arrangement is constitutional, as Delaware 

asserts, but that is a merits question. Whitmore v. Arkansas, 

495 U.S. 149, 155 (1990) (“Our threshold inquiry into 

standing ‘in no way depends on the merits of the 

[petitioner’s] contention that particular conduct is illegal.’” 

(quoting Warth v. Seldin, 422 U.S. 490, 500 (1975))). Since 

all three Step-Saver elements are present, Plains’s procedural 

due process claim is ripe and the District Court erred in 

dismissing it. Travelers, 72 F.3d at 1154. 

IV

Though Cook, Gregor, and Whitaker request that we 

affirm the District Court’s dismissal of Plains’s procedural 

due process claim on the ground that Plains has failed to state 

a claim under Rule 12(b)(6), we think it improper to do so. 

While we “may affirm a district court for any reason 

supported by the record,” Brightwell v. Lehman, 637 F.3d 

187, 191 (3d Cir. 2011), “[g]enerally, in the absence of

exceptional circumstances, we decline to consider an issue 

not passed upon below.” Berda v. CBS Inc., 881 F.2d 20, 28 

(3d Cir. 1989) (internal quotation marks omitted); see also 

Singelton v. Wulff, 428 U.S. 106, 120 (1976) (“It is the 

general rule, of course, that a federal appellate court does not 

consider an issue not passed upon below.”). Here, the 

Delaware Defendants do not identify—nor can we discern—

any exceptional circumstances. Thus we will remand this 

claim for the District Court to address it in the first instance. 
24

V

For the reasons set forth above, we will reverse the 

District Court’s dismissal of Plain’s procedural due process 

claim, and remand it for the District Court’s consideration in 

the first instance. We will affirm the District Court’s

dismissal in all other respects.