2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-27-2009

Donald Picano v. Emerson

Precedential or Non-Precedential: Non-Precedential

Docket No. 08-3208

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2009 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Donald Picano v. Emerson" (2009). 2009 Decisions. Paper 192.

http://digitalcommons.law.villanova.edu/thirdcircuit_2009/192
NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 08-3208

_____________

DONALD PICANO, 

 Appellant

v.

BOROUGH OF EMERSON, a New Jersey municipal corporation; 

JOSEPH SCARPA individually and as BOROUGH ADMINISTRATOR 

OF THE BOROUGH OF EMERSON

 

Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil No. 07-cv-02652)

District Judge: Honorable Peter G. Sheridan

 

Submitted Under Third Circuit LAR 34.1(a)

November 17, 2009

Before: RENDELL, BARRY and CHAGARES, Circuit Judges.

(Filed: November 27, 2009 )

 

OPINION OF THE COURT

 

RENDELL, Circuit Judge.

Plaintiff Donald Picano brought this case under 42 U.S.C. § 1983 against the

Borough of Emerson, New Jersey, where he resides, and against the Borough
2

administrator, Joseph Scarpa (in his official and individual capacities). Picano alleged

that defendants violated his constitutional rights when the Borough enacted and enforced

an ordinance requiring residents to pay their property taxes by check or money order,

rather than in cash. The District Court granted defendants’ motion for summary judgment

as to this claim. Plaintiff filed this timely appeal. 

We will affirm the order of the District Court.

Background

In February or March 2007, the Borough adopted a policy requiring its residents to

pay property taxes by check or money order, rather than in cash. The policy was

motivated, at least in part, by an incident in a nearby township in which a tax collector

had embezzled cash payments of taxes. Plaintiff and other residents of the Borough were

notified of the new policy in writing. Nonetheless, in May 2007, plaintiff visited the

Borough’s Tax Office, tried to pay his taxes in cash, and was refused. Plaintiff

subsequently refused to pay his taxes but, at least as of the time of the District Court’s

decision in June 2008, the Borough had not attempted to enforce a tax lien against

plaintiff’s property.

Plaintiff instituted this litigation and defendants moved for summary judgment. 

The District Court granted the motion. With respect to Picano’s claim that defendants

violated his “substantive due process right to pay his taxes with United States currency,” 

App. 5, the District Court held that the ordinance was permissible as long as the Borough
3

continued to accept other forms of U.S. currency, such as checks. The District Court also

granted summary judgment to defendants on one of the three other causes of action

asserted in the complaint, and Picano voluntarily dismissed the remaining two. On

appeal, Picano does not challenge the dismissal of these three causes of action.

Discussion

The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction

under 28 U.S.C. § 1291.

Our review of a grant of summary judgment is plenary. Gardner v. State Farm

Fire & Cas. Co., 544 F.3d 553, 557 (3d Cir. 2008). “[W]e assess the record using the

same summary judgment standard that guides the district courts.” Id. Thus, defendants

must demonstrate that “there is no genuine issue as to any material fact and that [they are]

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c)(2).

The complaint characterizes plaintiff’s claim as a constitutional violation of his

right to substantive due process. On appeal, however, plaintiff appears to have

abandoned this constitutional claim in favor of a statutory claim based on 31 U.S.C. §

5103. Plaintiff argues that this claim is enforceable under 42 U.S.C. § 1983. Plaintiff’s

arguments have no merit.

As an initial matter, plaintiff appears to have waived all of his claims. Plaintiff has

offered absolutely no argument on appeal regarding his constitutional claim. With respect

to his newly asserted statutory argument, plaintiff himself concedes that he did not raise
4

this argument in the District Court.

Even addressing the merits of plaintiff’s claims, he has cited no authority, and we

have found none, for the proposition that there is a substantive due process right to pay

one’s taxes in cash. We have held that “a legislative act will withstand substantive due

process challenge if the government identifies a legitimate state interest that the

legislature could rationally conclude was served by the statute.” Nicholas v. Pa. State

Univ., 227 F.3d 133, 139 (3d Cir. 2000) (citations and internal quotation marks omitted). 

The ordinance here was justified by the Borough’s legitimate interest in protecting tax

revenues from embezzlement.

Nor can plaintiff assert a claim under § 1983 for a violation of 31 U.S.C. § 5103.

“[T]o sustain a § 1983 action for the violation of a statutory right, a plaintiff must

demonstrate that the federal statute creates an individually enforceable right in the class

of beneficiaries to which he belongs.” A.W. v. Jersey City Pub. Sch., 486 F.3d 791, 801

(3d Cir. 2007). Plaintiff has not even attempted to show that § 5103 creates such a right

or that he should benefit from it, and we do not believe that he could make such a

showing.

Finally, there is no basis for concluding that defendants violated 31 U.S.C. § 5103. 

Section 5103 provides that “United States coins and currency . . . are legal tender for all

debts, public charges, taxes, and dues.” None of the cases cited by plaintiff stands for the

proposition that § 5103 requires a local government (or any other entity) to accept
5

payment in cash, and no court has so held.

We will therefore affirm the order of the District Court.