Case Information
*1 Before: McKEE, Chief Judge , SMITH, and SLOVITER, Circuit Judges (Filed: September 13, 2013)
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OPINION
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SMITH, Circuit Judge.
On Fеbruary 2, 2010, the Pennsylvania Horse Racing Commission ejected Anthony Adamo and Michael Gill from the Penn National Race Course. Adamo, a race horse trainer, аnd Gill, a race horse owner, were both licensed by the *2 Commonwealth of Pennsylvania. The ejection notice advised that an appeal must be filed within 48 hours оf receipt. Adamo challenged the ejection by filing a timely appeal with the Commission. The parties entered into discussions, and on March 5, 2010, Adamo’s ejection was rescinded.
On June 28, 2010, the Commission issued a notice directing Adamo to personally appear within ten days for an investigative interview. On July 19, the Commission suspended Adamo’s license for failure to appear for the interview. Adamo appealed the suspension to the Pennsylvania Commonwealth Court, which upheld the suspension.
Unlike Adamo, Gill did not file a timely appeal of the ejection. Instead, he filed a request more than two months later seeking either the termination of thе ejection or a hearing. The Commission denied the request as untimely, noting that Gill had adequate notice of the appeal period and an oppоrtunity to exercise his due process rights.
Thereafter, in November 2010, Adamo and Gill filed a complaint in the United States District Court for the Middle District of Pennsylvania, alleging that thе three commissioners and three other individuals affiliated with the Commission (collectively, “the defendants”) had violated their rights to equal protection and proсedural due process under the Fourteenth Amendment to the United States Constitution. During a bench trial, the District Court granted defendants’ motion *3 for judgment as a matter of law on the equal protection claims. After the close of Adamo’s and Gill’s cases–in–chief, the defendants asserted for the first time that they were entitled to qualified immunity. [1] After the conclusion of the trial, the District Court ordered briefing on whether the defendants had waived the affirmative defense of qualified immunity. The Court determined that neither Adamo nor Gill had been prejudiced by the untimely invocation of qualified immunity and that the defendants had not waived the defense. In addition, the Court granted judgment in favor of the dеfendants on Adamo’s and Gill’s claims that they were entitled to pre- and post-ejection hearings. It also concluded that Adamo’s suspension did not violate his right to рrocedural due process. Although Adamo and Gill requested reconsideration, the motion was denied.
This timely appeal followed. [2] Adamo and Gill challenge the District Court’s decision that the dеfendants had not waived the defense of qualified immunity and the Court’s entry of judgment in favor of the defendants on the due process claims. We will affirm.
We review the District Court’s dеcision regarding waiver of the defense of *4 qualified immunity for an abuse of discretion. Eddy v. V. I. Water and Power Auth. , 256 F.3d 204, 209-10 (3d Cir. 2001). The District Court appropriately considered the factors we articulated in Eddy and did not abuse its discretion in concluding that the defense, though raised late in the proceedings, had not been waived.
Adamo and Gill contend that the District Court erred by concluding that the failure to рrovide a hearing before the ejection did not violate their rights to procedural due process. Instead of determining whether Adamo and Gill had proven a due process violation based on the lack of a pre-deprivation hearing, the Court considered whether the right to a pre-deprivation hearing was clearly established at the time of the ejection notice. [3]
In Barry v. Barchi , 443 U.S. 55 (1979), the Supreme Court considered whether a race horse trainer was entitled to a prе-deprivation hearing before the suspension of his license. The Court recognized the substantial interest that the trainer had in avoiding suspension, but it declared that thе “State also has an important interest in assuring the integrity of the racing carried on under its auspices.” Id. at 64. In light of the evidence that suggested a horse had been druggеd, the Court held “the State was entitled to impose an interim suspension, *5 pending a prompt judicial or administrative hearing[.]” Id.
Unlike Barry , which concerned the suspension of a license, this case concerned an ejеction from one race track based on circumstances that pointed to a likely disruption in the orderly conduct of the horse races. Thus, Barry does not сlearly establish that a pre-deprivation hearing was necessary on the facts presented in this case. Accordingly, we conclude that the District Court appropriately considered Barry, noted that the applicable regulations did not require a pre-deprivation hearing, cited to the testimony of record regarding both the prospect of a boycott by the jockeys if Adamo and Gill were present at the track and the need to act quickly to preserve the orderly conduct of a race meeting, and recognized that the regulations provided an appeal process by which the ejection could be challenged. Under these circumstances, we conclude that the District Court did not err in concluding that, at the time of the issuance of the ejection notice to Adamo and Gill, it was not clearly established that a pre- deprivation hearing was required.
Nor are we persuaded that the District Court erred in deciding that Adamo
was not deprived of a prompt post-ejection hearing. The District Court found that
Adamo filed a timely appeal, which prompted discussions that resulted in a
rescission of the ejection. These findings of fact are not clearly erroneous.
See
Fed. R. Civ. P. 52(a)(6). Given the existence of the discussions following the
*6
appeаl, we do not believe that the District Court erred in rejecting Adamo’s claim
that he was deprived of a prompt post-deprivation hearing. The discussions and
the rescission that followed confirm that Adamo had a meaningful opportunity to
be heard.
See Barry
,
The due process claim based on the suspension of Adamo’s license for failure to personally appear for the investigative intеrview is also without merit. We agree with the District Court that Adamo had sufficient notice and an opportunity to be heard.
Gill also asserts that the District Court erred by concluding that his
procedural due process claim based on the lack of a post-deprivation hearing failed
as a matter of law. We are not persuаded. “In order to state a claim for failure to
provide due process, a plaintiff must have taken advantage of the processes that are
avаilable to him . . . unless those processes are unavailable or patently inadequate.
‘A state cannot be held to have violated due process requirements when it has
made procedural protection available and the plaintiff has simply refused to avail
himself of them.’”
Alvin v. Suzuki
, 227 F.3d 107, 116 (3d Cir. 2000) (quoting
*7
Dusanek v. Hannon
,
Finally, we conclude that the District Court did not err in dismissing any
substantive due process claim by Adamo and Gill given the need for strong police
regulation of horse racing,
see Hudson v. Tex. Racing Comm’n
,
For the reasons set fоrth above, we will affirm the judgment of the District Court.
Notes
[1] “Qualified immunity shields government officials from civil damages liability
unless the official violated a statutory or constitutional right that wаs clearly
established at the time of the challenged conduct.”
Reichle v. Howards
, __ U.S.
__,
[2] The District Court exercised jurisdiction under 28 U.S.C. § 1331. We have jurisdiction under 28 U.S.C. § 1291.
[3] We review the grant of qualified immunity, including the clearly established
prong, “de novo as it raises a purely legal issue.”
Sharp v. Johnson
,