EASTER HOUSE, an Illinois, not-for-profit corporation, Plaintiff-Appellee, v. Thomas FELDER, Florence McGuire and Joan Satoloe, Defendants-Appellants.
No. 86-2164.
United States Court of Appeals, Seventh Circuit.
Decided July 11, 1989.
As Corrected Aug. 4, 1989.
Argued Nov. 2, 1987. Reargued En Banc Feb. 9, 1989.
P & F is free to petition the NLRB in good faith for a new election and its employees are free to seek a decertification election if appropriate. Zim‘s Foodliner, Inc. v. N.L.R.B., 495 F.2d 1131, 1139 (7th Cir.), cert. denied, 419 U.S. 838, 95 S.Ct. 66, 42 L.Ed.2d 65 (1974). However, “[n]umerous cases hold that employee turnover, standing alone, does not give rise to good faith doubts regarding a union‘s majority status.” Id. at 1141. See also N.L.R.B. v. Stevens Ford, Inc., 773 F.2d 468, 474 (2d Cir.1985) (“Bargaining representatives are presumed to have a continuing majority in an existing unit, absent a showing of doubt about status“).
While the delay is regrettable and primarily the fault of the NLRB, it is not a basis to deny the NLRB‘s petition or order a new election. “Contrary presumptions might encourage employers to file unmeritorious motions in the hope of eventually being relieved of their duty to bargain, either through sheer lapse of time or through inevitable employee turnover.” Western Temporary Servs., 821 F.2d at 1270. Because of the delay, it might not have been an abuse of discretion for the NLRB to conduct a new representation election. Jefferson County, 732 F.2d at 127. However, we decline to remand to the NLRB for a new election and perhaps unnecessarily delay this case any further.
CONCLUSION
The ALJ and NLRB properly concluded that the NLRB has jurisdiction over P & F. The NLRB‘s findings that P & F committed unfair labor practices by refusing to recognize or bargain with the union, unilaterally changing employee work schedules and threatening employees who had lawfully picketed are supported by substantial evidence. Finally, we enforce the NLRB‘s order requiring P & F to pay damages to the employees adversely affected by changes made in their work schedules.
Accordingly, the order of the NLRB is ENFORCED.
James R. Figliulo, Foran, Wiss & Schultz, Carl A. Gigante, Chicago, Ill., for plaintiff-appellee.
Before BAUER, Chief Judge, and CUMMINGS, WOOD, Jr., CUDAHY, POSNER, COFFEY, FLAUM, EASTERBROOK, RIPPLE, MANION and KANNE, Circuit Judges.
KANNE, Circuit Judge.
A jury found that in two separate instances the appellants, employees of the Illinois Department of Children and Family Services, acted under color of state law to deprive Easter House, a Chicago-based adoption agency, of property without due process of law. The district court denied the appellants’ post-trial motions for judgment notwithstanding the verdict or for a new trial. We reverse and hold that
I. BACKGROUND1
Easter House is a Chicago-based adoption agency, owned and operated by Seymour Kurtz, and licensed by the Illinois Department of Children and Family Services (“DCFS“). This suit arises from a series of events involving (1) Easter House‘s application for renewal of its license, (2) its Executive Director‘s decision to depart while the application was pending and open a rival adoption agency with a similar name, (3) the appellants’ decisions, as DCFS employees, to delay action upon Easter House‘s application for renewal of its license and to expedite action upon the former director‘s application to start a new agency, and (4) the appellants’ decision to order various investigations of Easter House‘s operating procedures approximately two years later. According to Easter House, the appellants’ actions were taken under color of state law and deprived Easter House of identifiable constitutionally-protected property interests in violation of
A. The Licensing Conspiracy
Easter House alleged that the appellants conspired with Easter House‘s former Executive Director to deprive it of, among other things, its operating license. This conspiracy involved two separate and distinct prongs. First, the appellants allegedly acted improperly in delaying action upon Easter House‘s application for renewal of its license. Second, Easter House contended that the appellants improperly granted a license to Easter House‘s former Executive Director in an expeditious manner. Easter House claimed that together these two courses of action resulted in a property deprivation in violation of
1. Easter House‘s Application for a Renewal License
Easter House‘s operating license was scheduled to expire on November 30, 1974.
While Easter House‘s application was pending, its Executive Director, Millicent Smith, decided to leave, apparently on less than amicable terms. On December 30, 1974, while Satoloe was on vacation, Smith met with Satoloe‘s immediate supervisor, Florence McGuire, the licensing supervisor for the DCFS‘s central district, to tell her of her plans to leave Easter House and start a new adoption agency.2
At that meeting, Smith described the reasons for her growing disenchantment with Easter House.3 She informed McGuire that she had been planning to leave Easter House for some time, but had delayed her action until Kurtz, Easter House‘s owner, had left on a year-end vacation. Apparently, his absence would facilitate her ability to start a rival adoption agency called the Easter House Adoption Agency, Inc. (“Easter House II“).4 She told McGuire that she had decided to use a name closely resembling Easter House and to take Easter House‘s files5 to ensure that her leaving would not deprive her of the rewards to which she felt entitled based upon her long tenure at Easter House.
After the meeting, McGuire called the DCFS‘s Springfield office to request a delay in the mailing of Easter House‘s renewed license. On the following day, December 31, 1974, Smith wrote to Satoloe and Thomas Felder, the chief of the DCFS for the central district, and described the prior day‘s meeting as well as stressed the importance of rapid action upon Easter House II‘s charter application. In a letter to McGuire, Smith also indicated that Fran Riley, Easter House‘s only other trained social worker, had decided to leave Easter House and join Easter House II. Smith also thanked McGuire for withholding Easter House‘s license. On that same day, Smith wrote to Kurtz resigning her position at Easter House.
After discussing Easter House‘s situation with McGuire, Felder agreed with McGuire that Easter House‘s renewed license should remain on hold at the Springfield office. On January 6, 1975, Felder wrote to Kurtz, informing him that the departures of Smith and Riley, Easter
Two days after sending the first letter, Felder, upon the advice of a DCFS attorney, wrote a second letter to Kurtz. Felder informed Kurtz that the January 6th letter had been incorrect and that, pursuant to the
During the period between the decision to withhold renewal and Kurtz‘s response, the DCFS received two inquiries about the status of Easter House, one from a lawyer representing prospective clients and one from a social worker interested in applying for the position which Smith previously had held. Both callers were told that Easter House had no license. The DCFS further informed the prospective job applicant that the DCFS was in the process of reviewing Easter House‘s “entire program.” Also during this period, Felder wrote to Judge Comerford, then the Chief Judge dealing with adoptions in Cook County, and notified him that Easter House was no longer licensed to make adoption placements.
Kurtz received both of Felder‘s letters on January 12, 1975. On January 22, 1975, Kurtz wrote to the DCFS, requesting a hearing and a written statement of charges. On February 4, two weeks after he had hired a new Executive Director, Kurtz met with Felder to discuss information which Kurtz had obtained about Smith‘s new operation and the relicensing of Easter House. At that meeting, Kurtz waived the hearing which had been offered in the January 8th letter after Felder assured him that the absence of proper staff was the only barrier to the issuance of Easter House‘s license. Soon thereafter, Satoloe visited Easter House and approved the new Executive Director‘s credentials. On February 19, 1975, Easter House received its renewed license to operate as a child welfare agency during the period from December 1, 1974, through November 30, 1975—in effect, never losing its legal authority to operate as an adoption agency.
2. Easter House II‘s Charter Application
The alleged conspiracy to deprive Easter House of its license had a second part. Easter House contended below that the DCFS‘s actions in granting Smith‘s license
In Illinois, child welfare agencies, such as Easter House and Easter House II, must apply to the Illinois Department of State for a charter which operates essentially as a certificate of incorporation. However, unlike ordinary corporations, child welfare agencies are subjected to charter studies by the DCFS in addition to the usual processing by the Illinois Department of State. According to testimony at trial, charter studies for child welfare agencies are intended to ensure that new agencies would serve the public interest. An ordinary DCFS charter study seeks to determine, among other things, whether an agency will serve a public need and whether the people forming the agency are reputable.
In addition to the charter application, which both the Department of State and the DCFS review, a child welfare agency must submit an application for an initial license directly to the DCFS. The DCFS‘s investigation undertaken prior to issuing a charter and initial license does not differ significantly from the investigation performed in connection with license renewals. If the DCFS issues a license, either an initial license or a renewed license, it in effect certifies that the child welfare agency conforms with the DCFS‘s minimum standards.
Easter House II submitted a charter application to the Illinois Department of State on December 17, 1974. The application was forwarded to the appellants at the DCFS‘s Chicago office on January 2, 1975. On January 6, 1975, Easter House II submitted its license application to the DCFS. On February 6, 1975, the DCFS‘s Chicago office forwarded to its Springfield office a recommendation that a charter license be issued to Easter House II.
At trial, Easter House produced evidence that the DCFS‘s approval of Easter House II‘s charter and license application had been extremely irregular. First, it showed that the appellants knew of conduct by Smith that, at a minimum, cast doubt upon her fitness. For example, from the appellant‘s direct interactions with Smith and from complaints lodged by Kurtz, they knew that (1) Smith had attempted (albeit unsuccessfully) to divert Easter House‘s mail and telephone calls to her new address, (2) she had insisted upon using the name confusingly similar to Easter House‘s despite warnings that the similarity could mislead the public,7 (3) Smith had taken files from Easter House,8 and (4) she attempted to place an adopted child with a couple, who believed they were still working with Easter House, before Easter House II was licensed.9
Easter House also produced evidence that the charter and license studies were not conducted in accordance with normal procedures. For example, the jury heard evidence that the appellants may have fabricated certain aspects of the charter investigation. Furthermore, the appellants allegedly prepared the license study several days after deciding to approve Smith‘s application. Although the license study is undated, its text refers to a March 17, 1975, letter from the head of the DCFS to the Secretary of State, indicating that it was completed forty-one days after the Chicago office‘s recommendation had been sent to Springfield.
B. The Conspiracy to Harass
Easter House also alleged below that the appellants participated in a second distinct conspiracy, a conspiracy to harass Easter House in violation of
At trial, Easter House offered evidence to prove that Felder and McGuire conducted an intensive investigation of Easter House, beginning in late 1976 with McGuire‘s review of Easter House‘s subsequent application to renew its license. Later, in early 1977, the DCFS dispatched investigator Tom Howard to undertake a more thorough review.10 At trial, Howard testified that upon three occasions he reported negative results to the appellants and offered his opinion that Easter House was operating legally. He further testified that upon each occasion the appellants instructed him to redouble his efforts to find evidence of wrongdoing.
II. DISCUSSION
On appeal, the appellants raise a wide variety of issues. However, we need only consider those arguments which address the applicability of
A. The Licensing Conspiracy
The parties concede that the appellants’ actions in processing the licensing applications submitted by Easter House and by Smith were taken under color of state law. However, the appellants dispute Easter House‘s ability to satisfy the remaining inquiries dictated by Parratt. Specifically, they do not believe that it can demonstrate that an actual deprivation of an identified property interest occurred. Moreover, even assuming that such a deprivation occurred, the appellants believe that Easter House received all of the due process protection which Parratt and its progeny contemplate.
1. Deprivation of a Property Interest
Whether Easter House can identify a property interest of which it was deprived is a difficult question.11 Property, for purposes of the due process clause of the fourteenth amendment, is “a legitimate claim of entitlement.” Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). A claim of entitlement is “defined by existing rules or understandings that stem from an independent source such as state law.” Id. We believe that the statutory and regulatory limitations upon the DCFS‘s authority to deny license renewals to child welfare agencies created such a legitimate claim of entitlement. See
However, the issue remains whether Easter House ever suffered a deprivation of the identified property interest. Apparently, agencies with renewal applications pending do not need to have a current license in hand to operate. Furthermore, although Easter House‘s license expired November 31, 1974, Easter House never curtailed any aspect of its operations prior to Smith‘s departure at the end of December. More importantly, the DCFS never indicated that it considered Easter House‘s interim operation improper.12
Easter House argues that the January 6th letter from Felder to Easter House could be interpreted as an order that Easter House cease operations under
The appellants respond that Easter House misreads the January 6th letter or at least improperly attempts to read the letter without considering the surrounding facts and circumstances. They point out that Easter House did not receive the letter until January 21 when it also received the January 8th letter which allowed it ten days to request a hearing before denial of its application for renewal would become final. Thus, the January 8th letter could be viewed as having restored Easter House to interim operating status—a status which, under the statute, the DCFS could revoke only after (1) holding a formal hearing, (2) reaching a decision adverse to Easter House, and (3) either issuing an order requiring immediate termination of operations or obtaining a court order affirming its determination.
Fortunately, we need not resolve this issue definitively. We are not wholly convinced that a deprivation of constitutional magnitude occurred in light of the DCFS‘s January 8th letter granting Easter House an opportunity to request a predeprivation hearing. Nevertheless, because the appellants may have undercut the value of Easter House‘s “legal license” by their communications with Judge Comerford and the potential employees and adoptive parents, we will assume that such a deprivation occurred. We thus turn to the more challenging issue presented by this appeal.
2. Due Process Guarantees After Parratt
The appellants contend that Easter House received all of the process which was due and that it cannot maintain a
a. Parratt and Its Progeny Generally
In Parratt, a state prisoner sued prison officials under
either the necessity of quick action by the State or the impracticality of providing any meaningful deprivation process, when coupled with the availability of some meaningful means by which to assess the propriety of the State‘s action at some time after the initial taking ... satisf[ies] the requirements of procedural due process.
451 U.S. at 539, 101 S.Ct. at 1915 (footnote omitted).
The Court noted that the state had promulgated predeprivation procedures which were adequate to protect the plaintiff‘s property interests, but that the state employee failed to follow the established policy. 451 U.S. at 543, 101 S.Ct. at 1917. The Court concluded that situations “involving a tortious loss of ... property as a result
The Court reaffirmed the Parratt rationale in Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982). In Logan, a plaintiff filed a timely charge of unlawful conduct with a state employment commission. According to state law, the commission then had 120 days in which to convene a fact-finding conference. However, through the commission‘s inadvertence, it scheduled the plaintiff‘s hearing five days beyond the jurisdictional deadline and subsequently refused to consider the claim.
The Supreme Court held that Parratt did not bar the plaintiff‘s
Finally, in Hudson v. Palmer, the Court extended Parratt to cover the random and unauthorized “intentional conduct” of state employees. In that case, a federal inmate brought a
b. Applying Parratt in this Appeal
Easter House argues that the appellants’ conduct cannot be characterized as random or as unauthorized under Parratt. It contends that Parratt and its progeny do not apply where a property deprivation results from the action of “high-level state and local officials” who are “engaged in a conspiracy to violate a citizen‘s constitutional rights.” This argument has three subparts: (1) that Parratt and its progeny are limited to minor deprivations of property; (2) that an “intentional conspiracy” can
i. Minor -vs- Substantial Deprivations of Property
Easter House relies upon Bretz v. Kelman, 773 F.2d 1026 (9th Cir.1985) (en banc), to support its contention that Parratt and Hudson only apply in cases involving minor deprivations of property. In Bretz, the Ninth Circuit Court of Appeals, sitting en banc, considered a plaintiff‘s claim that police, prosecutors, and various personal enemies conspired to accuse and prosecute him falsely for burglary. The court held that Parratt did not apply because it is “directed at minor infractions of prisoner interests.” Id. at 1031. Because the court was presented with a suit involving the deprivation of a liberty interest, it declined to apply Parratt.13
At least one court has disagreed with the Bretz court‘s statement that Parratt and Hudson only address minor deprivations, whether deprivations of property or liberty interests. In Holloway v. Walker, 790 F.2d 1170 (5th Cir.1986), the Fifth Circuit Court of Appeals expressly rejected Bretz, stating, “Nothing in Parratt or Hudson suggests that the holdings of these cases are confined to minor deprivations of ... property. If the Supreme Court intended to announce a constitutional rule of lex non curat de minimis, it would have said so.” Id. at 1172.14
We find Holloway more persuasive than Bretz. The Supreme Court‘s pronouncements in Parratt and Hudson do not lend themselves to limitations based upon the size and nature of the injuries suffered. Accord Kauth v. Hartford Ins. Co., 852 F.2d 951 (7th Cir.1988) (although not addressing this argument specifically, we applied Parratt to claims for damages in excess of $17,000.00). Further, we find it difficult to believe that the Supreme Court would base a constitutional principle solely upon the value of property involved and afford greater protection to persons possessing greater wealth of which they were deprived. Finally, an employee‘s actions are no less “random” or “unauthorized” because they result in an injury of greater monetary consequence. We therefore reject Easter House‘s attempt to place a “de minimis” limitation upon Parratt and Hudson.
Easter House next contends that because the appellants’ actions were undertaken as part of a conspiracy to deprive it of constitutionally protected rights, their conduct cannot be characterized as “random” under Parratt. Easter House again relies upon the Ninth Circuit‘s decision in Bretz, and finds further support in the Third Circuit Court of Appeals’ decision in Labov v. Lalley.
In Bretz, the Ninth Circuit was impressed by the plaintiff‘s decision to plead the existence of injuries resulting from a conspiracy by certain governmental officials to arrest and try him upon allegedly false burglary charges. With little discussion, it held that “by definition,” a conspiracy “cannot be a random act, even if it was accomplished without the endorsement of the state governmental apparatus.” 773 F.2d at 1031.
In Labov, the Third Circuit Court of Appeals considered a complaint which pleaded a conspiracy to deprive the plaintiff of “substantive liberty interests under the first amendment.” The court agreed with the Bretz court‘s holding, stating that Parratt and subsequent cases “do not apply to charges of intentional conspiratorial conduct under color of state law. Such conduct, if it can be proved, is not the kind of isolated, unpredictable, and thus unpreventable conduct with which the Supreme Court purports to deal in the Parratt v. Taylor line of cases.” 809 F.2d at 223 (citing Davidson v. O‘Lone, 752 F.2d 817, 828 (3d Cir.1984), aff‘d sub nom. Davidson v. Cannon, 474 U.S. 344, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986)).
In contrast, the Fifth and Sixth Circuit Courts of Appeal rejected the Bretz court‘s per se conspiracy rule. In Holloway, the Fifth Circuit held that a conspiracy in fact may be a random act if, “[f]rom the point of view of the state[,] the state cannot anticipate or control such conduct in advance.” 790 F.2d at 1172 (citing Hudson, 468 U.S. at 533, 104 S.Ct. at 3203). The court reasoned, “Of course, a conspiracy is not random from the point of view of the conspirators but this is to say no more than that a conspiracy is an intentional act, rather than a negligent one. The effect of the Ninth Circuit‘s holding is to revive the intentional/negligent act distinction, rejected in Hudson, in another form.” Id.; accord Fields v. Durham, 856 F.2d 655, 657 (4th Cir.1988), pet. for cert. filed (Dec. 12, 1988). Similarly, in National Communications Sys., Inc. v. Michigan Public Service Comm‘n, 789 F.2d 370, 372-73 (6th Cir.1986), the Sixth Circuit Court of Appeals rejected a per se conspiracy rule, likewise reasoning that a conspiracy allegation is merely another form of intentional conduct which Parratt clearly addresses after Hudson.
We again agree with the Fifth Circuit‘s reading of Parratt and Hudson. The focus always must be whether, from the state‘s point of view, the employees’ actions were “random and unauthorized.” Whether the injuries suffered resulted from the concerted actions of several state employees or merely the action of a single employee is irrelevant. Only if a plaintiff can demonstrate that the substantive nature of the alleged improper conduct was either authorized or not random do Parratt and Hudson become inapplicable. As the Supreme Court noted in Hudson, “intentional acts are even more difficult to anticipate because one bent on intentionally depriving a person of his property might well take affirmative steps to avoid signalling his intent.” 468 U.S. at 533, 104 S.Ct. at 3203-04. We believe that this rationale may apply even more strongly when the intentional conduct alleged involves a full-blown, multi-facted conspiracy. We therefore reject Easter House‘s reliance upon an absolute rule that a conspiracy is per se non-random conduct.
Nevertheless, Easter House also apparently believes that because the alleged licensing conspiracy had two separate prongs, the renewal application and the Easter House II charter application, then the conspiracy involved multiple acts which even under a traditional Parratt inquiry takes the conspiracy outside the realm of random. However, from the state‘s per-
Easter House cannot demonstrate that the appellants’ actions, even if involving a conspiracy to destroy Easter House, were anything but a single instance of improper conduct involving multiple employees engaged in a single scheme for a relatively short period of time. The licensing conspiracy remains nothing more than a random decision of state employees to disregard state policy and procedure which resulted in injuries to Easter House. As a result, Easter House has failed to demonstrate how the existence of a conspiracy removes this case from the dictates of Parratt.
iii. Employee Status and the Definition of Random and Unauthorized Conduct
Easter House next argues that the appellants’ status as “high-level state employees or officials” automatically renders Parratt inapplicable. It believes that the actions of such employees cannot be characterized as either “random” or as “unauthorized.” We thus must determine whether Parratt contemplates an employment status-conscious exception to its application.
In Taverez v. O‘Malley, 826 F.2d 671 (7th Cir.1987), we noted that the phrase “random and unauthorized” may be interpreted both narrowly and broadly. When read narrowly, the phrase “merely identifies the situation where a predeprivation remedy is infeasible because the officials authorized to grant such a hearing are unaware of the deprivation before it occurs.” Id. at 677; see also Matthiessen v. Board of Educ., 857 F.2d 404, 407 n. 3 (7th Cir.1988); Wilson v. Civil Town of Clayton, 839 F.2d 375, 380 (7th Cir.1988). “This may be because ‘the person committing the unconstitutional act may be employed at such a low level of state or local government that the official authorized to grant a pre-deprivation hearing would be unaware of the person‘s actions.‘” Matthiessen, 857 F.2d at 407 n. 3 (quoting Wilson, 839 F.2d at 380).
However, when interpreted more broadly, the phrase may “place[] beyond the reach of
In Taverez, as well as in Matthiessen, we intimated that perhaps a narrower reading of Parratt might be wise to protect the important purposes which
Easter House argues that a very narrow reading of Parratt is appropriate because of the employment status of the state employees involved. It correctly notes that Parratt is based upon the principle that a state should not be held accountable for deprivations when a predeprivation hearing is “impracticable.” It then contends that,
In Hudson, the Supreme Court addressed a very similar argument. There, the Court stated:
[The plaintiff] contends that, because an agent of the state who intends to deprive a person of his property “can provide predeprivation process, then as a matter of law he must do so.” ... This argument reflects a fundamental misunderstanding of Parratt. There, we held that postdeprivation procedures satisfy due process because the state cannot possibly know in advance of a negligent deprivation or property. Whether an individual employee himself is able to foresee a deprivation is simply of no consequence. The controlling inquiry is solely whether the state is in a position to provide for predeprivation process.
468 U.S. at 534, 104 S.Ct. at 3204 (emphasis in original).
In Parratt, the Court did not face a situation where “high ranking” officials had refused to follow adequate state procedures. Nevertheless, the Court noted that an adequate state procedure existed and that a person who, regardless of rank, could have provided the protection chose not to do so. 451 U.S. at 531, 543-44, 101 S.Ct. at 1910, 1917. The Fifth Circuit Court of Appeals, and more recently the Fourth Circuit Court of Appeals, have interpreted Hudson and Parratt as foreclosing the per se status-conscious exception argument which Easter House makes today.
In Holloway, the Fifth Circuit held that Parratt and Hudson are not confined “to the actions of low level state employees who lack the power to grant a hearing.” 790 F.2d at 1173. The court went on to state:
If laws and regulations providing due process exist in theory but are systematically ignored in fact then clearly a deprivation of liberty or property, though technically unauthorized by these laws, would not be “random.” On the other hand, if the state system, by procedure and in ordinary practice, does in fact provide the plaintiff with due process, no violation of the guarantee contained in the national constitution occurs merely because the official who randomly deprives him of liberty or property without the hearing required by state law has the power to grant such a hearing.
Id. In effect, the Fifth Circuit decided that a broader reading of Parratt was appropriate.
In Fields, the Fourth Circuit Court of Appeals adopted the Fifth Circuit‘s rationale. In that case, the Fourth Circuit considered a plaintiff-college dean‘s claim that the college president, the college, the board of trustees, the Mayor of Baltimore, and the Baltimore City Council violated his due process rights by their failure to follow the procedures required by the college‘s bylaws and the terms of his employment agreement in connection with his discharge. 856 F.2d at 656. The court rejected the plaintiff‘s attempts to distinguish Parratt and Hudson because the defendants in his case were high-ranking officials who were charged with the responsibility of providing the due process protections which the state had guaranteed in writing.
The Fourth Circuit discussed and adopted the Holloway court‘s analysis, stating, “High-ranking officials are bound by the rule of law and their departures therefrom, no less than those of others, are subject to the Parratt holding. The theory of Parratt—that the states possess the primary opportunity to redress unauthorized deprivations of property interests—applies [to such] alleged deprivations in full force.” Id. at 659. The Sixth Circuit apparently agrees with these courts’ reading of Parratt. See National Communications Sys., 789 F.2d at 372-73 (court stating that Parratt applies to conspiratorial acts “where the alleged conspirators are the public officials whose duty it was to see
We believe that the Fourth, Fifth, and Sixth Circuit Courts of Appeal have correctly refused to focus solely upon the employment status of the state employee in determining the applicability of Parratt. The inquiry which the Supreme Court deems relevant is whether the employee‘s actions were random and unauthorized from the state‘s perspective, not whether the employee held any certain position in the governmental hierarchy. Thus, we refuse to hold that Parratt and its progeny do not apply in cases involving a “high-ranking” state or local official‘s failure to provide the due process protection when that official has the authority and duty to do so.
Easter House cannot demonstrate that the appellants alleged improper activity was anything other than a random occurrence. It points to nothing which indicates that the state knew or should have known that the appellants or other state employees had disregarded, or were likely to disregard, the state‘s formal policy and established procedure under these circumstances thereby perhaps “implicitly authorizing” the transgressions. Thus, the state could not foresee the appellants’ actions or formulate procedures to safeguard against their actions. We therefore conclude that Parratt controls regardless of the appellants’ employment status.
Easter House next argues that even under a broader reading of Parratt, which requires proof that a loss occurred because the state itself adopted an inadequate policy or procedure, the employment status of the appellants renders Parratt inapplicable. It asserts that “the single act of a sufficiently high-ranking policymaker may equate with or be deemed established state procedure....” See, e.g., Matthiessen, 857 F.2d at 407 n. 3; Taverez, 826 F.2d at 677; see also Dwyer v. Regan, 777 F.2d 825, 832-33 (2d Cir.1985); Stana v. School Dist. of City of Pittsburgh, 775 F.2d 122, 130 (3d Cir.1985); Bretz, 773 F.2d at 1031; Fetner v. City of Roanoke, 813 F.2d 1183, 1185 (11th Cir.1987) (rationale reaffirmed by a plurality of the court, sitting en banc, in Burch v. Apalachee Community Mental Health Services, 840 F.2d 797, 801-02 (11th Cir.1988)). Easter House contends that the appellants qualify as sufficiently high-placed policymakers whose allegedly improper conduct constitutes an inadequate “established state procedure” under Logan, thereby precluding the application of Parratt, even though the conduct contravened formal state policy and procedure as expressed in written statutes, regulations, and procedural manuals. See Matthiessen, 857 F.2d at 407 n. 3.
We do not disagree that the acts of a state employee are attributable to the state itself. However, in the Parratt analysis, this principle means nothing more than an employee acts under color of state law during the performance of his job-related duties. The issue is whether a single act of employee misconduct, which clearly contravenes established state policy and procedure as contained within formal rules, regulations, and statutes, automatically becomes the state‘s new position in all similar matters or whether the act, when viewed from the state‘s perspective, is merely a “random and unauthorized” deviation.
Without a doubt, the employee‘s position in the governmental hierarchy is relevant to this inquiry. For example, consider a variety of situations in which a state‘s policy and procedures in a given area are delegated to a specified policymaker, be it a single person, a committee, or the state legislature. If the policymaker establishes policy and procedure on an informal basis without the aid of formal policy and procedure guidelines, i.e., decides policy on a case-by-case basis, then his pronouncement in a given case reflects the state‘s position. Thus, a party who suffers a loss without due process protection in his individual case may easily argue that the loss occurred as a result of an inadequate established procedure.
In another scenario, consider a policymaker, or series of policymakers, who establishes policy and procedure through a deliberative, or even legislative, process which culminates in a certain concrete posi-
We believe that this case more closely reflects the latter of these two possible scenarios. The state of Illinois established the DCFS‘s licensing procedures through the traditional legislative process. It created a body of concrete statutory law which established a step-by-step policy and procedure for granting and renewing the licenses of child welfare agencies, as well as provided the framework for the DCFS‘s own day-to-day policy and procedure manual. In effect, the “policymaker” is the state legislature. It is true that the state delegated some of the rulemaking power to the DCFS itself, but that entity likewise set its formal policies and procedures through a deliberative process which culminated in a set of formal rules and regulations. Thus, the combination of the state legislature‘s and the DCFS‘s formal pronouncements comprise the state‘s established procedure.
Because the state promulgated policy and procedure by formal means, the employment status of the state employee violating that procedure must be considered much less important in determining whether a deviation from the policy may be characterized as random and authorized under Parratt. Even if we assume that the appellants qualify as “policymakers” themselves—which we doubt given their position in the governmental hierarchy but will assume solely for the sake of analysis—their own “policy,” which at absolute best may be characterized as informal, cannot be said automatically to preempt or displace otherwise adequate existing state policy and procedure. Because the state, through its designated policymaking branches, created its formal policies and procedures, we cannot entertain a claim that the single act of a state employee now reflects the state‘s established policies and procedures.
If, as Easter House contends, this case more closely resembled Logan than Parratt and Hudson, then we of course would be forced to find that the state‘s established procedure was itself inadequate to guarantee the requisite due process protection. In Logan, the state had passed a statute which required a claimant under the state‘s employment laws to file a claim with the state employment commission prior to filing a lawsuit. The law also required the commission to hold a hearing upon the claim within 120 days thereafter. However, the law further provided that the claimant‘s claim would be barred if for any reason the hearing was not held within 120 days, although the commission was required to grant the hearing automatically. When the commission failed to hold his hearing within 120 days which resulted in a jurisdictional bar to the claimant‘s employment claim, the claimant in Logan filed a
The Supreme Court stated that the plaintiff‘s complaint should not be characterized as challenging the high-ranking state employees’ failure to grant his requisite hearing in a timely manner when they had a duty to do so. Rather, the Court noted that the procedure itself was inadequate, not because the commission failed to grant the hearing, but because the statute contained a series of provisions which would allow a deprivation to occur “by operation of law” under a wide-variety of possible scenarios. 455 U.S. at 436, 102 S.Ct. at 1158. That is, because the law mandated the claimant to file a claim with the commission before he could proceed in court,
In Logan, the state‘s procedure would have been adequate and the commission‘s actions arguably in question only if the state procedure had absolutely provided that no deprivation could occur without a hearing—rather than holding that a deprivation could occur without a hearing if the hearing was not held within 120 days—and the commission somehow managed to extinguish the claimant‘s claim without holding a hearing. Thus, contrary to Easter House‘s assertions, the high-ranking Logan defendants’ failure to perform their duties did not constitute an “established state procedure“; the state statute itself was the inadequate component in the deprivation process.
In contrast, here the State of Illinois adopted a procedure which provided adequate due process protection; it contained no loopholes which would allow a deprivation to occur without due process unless the state employees acted in an unforeseen way. For example, the state‘s procedure detailed the method in which renewal licenses and charter applications should be handled. The law at that time even provided that in the case of the former a child welfare agency could continue to operate without a current license in hand while awaiting a final decision by the state and the courts upon its application for a renewal license. See supra note 12 (discussing
Only when the appellants took action which went beyond the realm of the foreseeable did Easter House suffer a property deprivation. If the appellants had merely refused to follow established procedure, Easter House still would have been able to operate pending a final determination by the courts. However, because the appellants took further steps—contacting the adoption court and responding incorrectly to inquiries by prospective parents and job applicants—Easter House arguably experienced a property deprivation. As a result, we believe that Logan is distinguishable and that Parratt provides the proper analysis.
We conclude that Easter House cannot maintain a
iv. Adequate State Law Remedies
Having decided that the appellants’ conduct may be characterized as random and
Easter House apparently believes that the remedies available under Illinois law are not as substantial as those available under
Initially, we note that Easter House may seek a wide variety of relief under numerous legal theories. For example, Illinois common law provides a former employer with a remedy against a former employee who solicits key clients and improperly exploits benefits gained by his or her prior employment. See, e.g., Corroon & Black of Ill., Inc. v. Magner, 145 Ill.App.3d 151, 98 Ill.Dec. 663, 494 N.E.2d 785 (1986); Smith-Shrader Co. v. Smith, 136 Ill.App.3d 571, 91 Ill.Dec. 1, 483 N.E.2d 283 (1985). In a similar vein, Illinois law recognizes a tort action which businesses may bring against parties which interfere with business relationships or their right to conduct business generally. See, e.g., American Pet Motels, Inc. v. Chicago Veterinary Medicine Ass‘n, 106 Ill.App.3d 626, 62 Ill.Dec. 325, 435 N.E.2d 1297 (1982); Streif v. Bovinette, 88 Ill.App.3d 1079, 44 Ill.Dec. 372, 411 N.E.2d 341 (1980). In addition, under Illinois law, an injured party may bring an action if a third party interferes with the injured party‘s contractual relations or if “tortiously interferes” with the injured party‘s “prospective economic advantage.” See, e.g., Singh v. Curry, 667 F.Supp. 603 (N.D.Ill.1987); Williams v. Weaver, 145 Ill.App.3d 562, 99 Ill.Dec. 412, 495 N.E.2d 1147 (1986); Galinski v. Kessler, 134 Ill.App.3d 602, 89 Ill.Dec. 433, 480 N.E.2d 1176 (1985).
Illinois courts also have stated that the right to do business constitutes “property,” and access to one‘s place of business or the enjoyment of the good will attending it are incidents of “property,” as respects liability for interference therewith. See, e.g., Meadowmoor Dairies v. Milk Wagon Drivers’ Union of Chicago, 371 Ill. 377, 21 N.E.2d 308 (1939). Thus, a business may bring an action for the tort of malicious and wrongful impairment of property if it is based upon a civil wrong. See, e.g., Nemanich v. Long Grove Country Club Estates, Inc., 119 Ill.App.2d 169, 255 N.E.2d 466 (1970). Finally, to protect its interest in exclusive use of its name, Easter House might bring a deceptive trade practice action under paragraph 313 of chapter 121½ of the Illinois Revised Statutes and seek both injunctive relief as well as any other “remedies otherwise available against the same conduct under the common law and other statutes of the state.”
We believe that these potential causes of actions, among others, adequately afford Easter House “meaningful post-deprivation remedies” sufficient to provide the requisite due process protection.15 As for Easter House‘s qualified immunity concerns, we do not think that the otherwise adequate state law remedies will be curtailed by the appellants’ ability to avail themselves of the immunity which public officials ordinarily enjoy.
Finally, we also must reject Easter House‘s characterization of the state recovery process as a “lengthy and speculative process” which forecloses the application of Parratt. In Hudson, the Supreme Court rejected an argument that state law relief should be deemed inadequate because it “is far from certain and complete.” 468 U.S. at 535, 104 S.Ct. at 3205. The Court also stated that whether an injured party “might not be able to recover under [the state law] remedies the full amount which he might receive in a
We note that almost all litigation, whether conducted in a state or federal forum, may be characterized as a lengthy and speculative process. Litigants often decry the speed with which courts administer justice and likewise may lament that a particular forum may yield a more favorable result depending upon the nature of the claim and the particular position they support. However, we should not reject the application of Parratt unless the remedy which an injured party may pursue in state court can readily be characterized as inadequate to the point that it is meaningless or nonexistent and thus in no way can be said to provide the due process relief guaranteed by the fourteenth amendment. Consequently, we hold that Easter House‘s arguments are misplaced.
Based upon our reading of Hudson and Parratt, we hold that adequate state remedies exist to correct any injuries which may have resulted from the appellants’ improper conduct. We do not intend our decision to be read as foreclosing
B. The Conspiracy to Harass16
We now must analyze the second count of Easter House‘s complaint, which seeks damages for the DCFS‘s repeated investigations in 1977, to determine whether it states a claim for relief under
Easter House argues that it has a due process right “to be free from unfounded harassment.” However, we agree with the appellants that Easter House has not identified any support for its argument that such a right exists or demonstrated whether this purported “right” implicates a property or liberty interest.
In substance, Count II of Easter House‘s complaint seems to be a claim for malicious prosecution. Ordinarily, a claim of malicious prosecution does not state a basis for relief under
Clearly, unwarranted investigation by licensing officials, conducted in a manner calculated to discourage customers or interfere with a licensee‘s business, may violate a property right. See, e.g., McGee v. Hester, 724 F.2d 89, 92 (8th Cir.1983); see also McGee v. Hester, 815 F.2d 1193 (8th Cir.1987) (affirming jury verdict for plaintiff), cert. denied, 484 U.S. 963, 108 S.Ct. 451, 98 L.Ed.2d 392 (1987); Reed v. Village of Shorewood, 704 F.2d 943, 949 (7th Cir.1983) (opining that “harassment of customers, employees and relentless, baseless prosecutions” may constitute deprivation of property). However, Easter House‘s allegations of impropriety do not rise to the level of a property deprivation of constitutional magnitude. Easter House‘s only alleged injuries are the cost of answering the questions of the DCFS‘s investigator and making files available to them. Such “injuries” do not rise to the level of a constitutional deprivation of property. See, e.g., Reichenberger v. Pritchard, 660 F.2d 280, 285 (7th Cir.1981) (“legal fees expended by the plaintiffs in the administrative proceedings cannot qualify as a constitutional injury absent a showing of deprivation of constitutional magnitude“). We therefore hold that the district court erred in refusing to grant the appellants’ motion for a directed verdict upon Count II of Easter House‘s complaint.17
III. CONCLUSION
Today, we apply the principles established by a line of authority flowing from Parratt v. Taylor to maintain a delicate balance between the state and federal legislative and judicial systems. Where adequate post-deprivation remedies exist in a state to redress a property deprivation which has resulted from an employee‘s random and unauthorized deviation from established state policy and procedure, a party cannot maintain a
With respect to the licensing conspiracy, Easter House had a property interest in its 1974 renewal license, and we have assumed that the appellants deprived it of that right by participating in the alleged licensing conspiracy. Nevertheless, we specifically reject Easter House‘s arguments that (1) Parratt is limited to minor deprivations of property, (2) a conspiracy can never be characterized as involving random and unauthorized conduct, (3) the failure of high ranking state and local officials to provide the due process protections which the state has placed in their hands amounts to established state procedure which is per se authorized improper state activity, and (4) Illinois has failed to provide meaningful post-deprivation remedies.
With respect to the alleged conspiracy to harass, we conclude that Easter House has failed to support its assertion that it has a right “to be free from unfounded harassment.” Easter House plainly has failed to demonstrate that it suffered a deprivation of constitutional magnitude sufficient to turn its malicious prosecution claim into one cognizable under
The district court‘s decision therefore is REVERSED and we REMAND the case and ORDER the district court to enter judgment in favor of the appellants.
EASTERBROOK, Circuit Judge, concurring.
An adoption agency without the staff required by state law can‘t operate. Easter House concedes that for an extended period it lacked essential staff. It would be straightforward to hold that in such circumstances the Constitution does not require a hearing before the state may suspend the agency‘s license and tell other public officials (such as the Chief Judge of the Circuit Court) what it has done. See FDIC v. Mallen, 486 U.S. 230, 108 S.Ct. 1780, 1787-88, 100 L.Ed.2d 265 (1988). The parties have not made such an argument, so I join the majority‘s opinion, which assumes that a prior hearing was necessary and ably interprets Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981). We have been told that Parratt allows a subsequent hearing to suffice only when “random and unauthorized” conduct makes it “impossible or impracticable to provide a meaningful hearing before the deprivation“, Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172, 195, 105 S.Ct. 3108, 3121, 87 L.Ed.2d 126 (1985). The court today elaborates on “random and unauthorized“. I wonder, however, whether the principle has a scope as limited as Williamson County suggests.
When a state official violates state law, the usual (and constitutionally appropriate) response is a suit in state court. See DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 109 S.Ct. 998, 1007, 103 L.Ed.2d 249 (1989); Archie v. City of Racine, 847 F.2d 1211, 1216-17 (7th Cir.1988) (en banc). At bottom, all this case is about—all most Parratt cases are about—is a state official‘s violation of state law. Instead of decking the state-law claim in constitutional garb, the victim should proceed to state court. Trying this as a “constitutional” case has delayed it for thirteen years. Litigation is slow and often unsatisfactory; constitutional litigation, with a cloud of ancillary issues from abstention to immunity, is slower and less satisfactory than the norm. Far better to treat state-law errors as just that, and get on with the remedy.
“Process is not an end of itself. Its constitutional purpose is to protect a substantive interest to which the individual has a legitimate claim of entitlement.” Olim v. Wakinekona, 461 U.S. 238, 250, 103 S.Ct. 1741, 1748, 75 L.Ed.2d 813 (1983). The process that is “due” under the Constitution depends on what is necessary to “protect a substantive interest“. One way to protect the entitlement is with a foolproof system of prior hearings, followed by appellate review, restudy, and re-restudy un-
Which approach is superior depends on the costs of process, the costs of error (in both directions, for omissions to act can be disastrous), and the ability of subsequent remedies to deter and compensate. Most of our lives are lived out in the shadow of the second approach. People make, keep, or break contracts, then face the music in court. Employers hire and fire, design and release products, sell securities, and so on, knowing that damages remedies lie in wait. This usual system, a form of ex post settling-up, works best when the rate of error is low in the main and can be held within acceptable limits by the threat of damages. If things rarely go wrong (whether because there is a low native risk of error or because the threat of damages is a potent deterrent), it is far better to allow prompt action and conserve the legal system for the claim that something has gone amiss than it is to delay every decision and hold a costly hearing in every case. Donald Wittman, Prior Regulation versus Post Liability: The Choice Between Input and Output Monitoring, 6 J.Legal Studies 193 (1977).
Even when mistakes are sufficiently common (and costly when they occur) that a system of prior review is worthwhile, that system will not operate perfectly. A sensible approach to the design of procedures incorporates elements of the different approaches. Because no system is foolproof, we may choose to accept a little less accuracy from the prior review in exchange for a little more care in subsequent review. You can always trade off a somewhat weaker system of before-the-fact controls for better after-the-fact remedies: for example, informal hearings or consultation before decision, but more complete study plus damages later. The message of Parratt is that the Due Process Clause does not sit athwart this tradeoff. “[P]rocedural due process rules are shaped by the risk of error inherent in the truthfinding process as applied to the generality of cases, not the rare exceptions.” Mathews v. Eldridge, 424 U.S. 319, 344, 96 S.Ct. 893, 907, 47 L.Ed.2d 18 (1976). If the state designs a system of procedures—including both hearings before the event and processes afterward to correct miscues—that holds the rate of error adequately low in light of the costs of error (taking into account the speed and accuracy with which state courts rectify mistakes), it does not help understanding to call blunders in execution violations of the Constitution, as opposed to slip-ups inevitable in the administration of any human institution. When the net rate of error is low enough that the system satisfies constitutional norms, the exceptions—problems of implementation rather than design—should be seen as violations of state law without independent constitutional significance.
Judge Stevens made this point in Bonner v. Coughlin, 517 F.2d 1311, 1318-20 (7th Cir.1975), modified en banc, 545 F.2d 565 (1976), elaborating on the fact that the Clause is addressed to the “state” as an entity rather than any individual state actor. Although a particular state actor (a person acting “under color of state law“) may violate another‘s rights, the “state” comprises not only such predators but also others who will put things right, including
Emphasizing that due process means a system of procedures and entitlements does not mean that the state hasn‘t “really” acted until the last state actor has performed the last act. Home Telephone & Telegraph Co. v. City of Los Angeles, 227 U.S. 278, 33 S.Ct. 312, 57 L.Ed. 510 (1913), rejected that position. Henry Paul Monaghan, State Law Wrongs, State Law Remedies, and the Fourteenth Amendment, 86 Colum. L. Rev. 979 (1986). See also Ex parte Virginia, 100 U.S. 339, 346-48, 25 L.Ed. 676 (1879). A deed with current effect may be state action, and unlawful (or unconstitutional) immediately, even though the state plans to reverse the action later. If the government builds a highway across your land, it has “taken” that land even though it plans to remove its concrete in 50 years. But asking when the state has acted distracts attention from the pertinent question: whether the state offers “due process of law” to those aggrieved by the proposed or completed act. Answering that question requires an understanding of many sequential acts even though the first deprivation is unquestionably state action—and is remediable by a federal court if the rest of the state‘s plans do not add up to due process.
From this perspective, whether the acts in question were “random and unauthorized” is important only to the extent the frequency of error conveys information about the adequacy of the state‘s procedural apparatus. Frequent errors, caused by features designed into the state‘s system, may show that the system does not deliver due process of law. E.g., Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982). By the same token, action that always precedes hearings may comply with the Due Process Clause if the state offers damages as balm, even though the Clause would require a prior hearing if there were no subsequent remedy. Ingraham v. Wright, 430 U.S. 651, 674-82, 97 S.Ct. 1401, 1414-18, 51 L.Ed.2d 711 (1977). Ingraham, which held that the Constitution allows teachers to paddle their pupils first so long as the state offers litigation later, is the progenitor of Parratt. Ingraham states the rule; Parratt is one implementation.
How much error is too much is of course the critical question. Justice Stevens thought that injuries caused by erroneous corporal punishment are too grave to rest content with subsequent litigation as the sole source of both deterrence and compensation. Ingraham, 430 U.S. at 701-02, 97 S.Ct. at 1427 (dissenting). Federal courts issue writs of habeas corpus when states have deprived persons of liberty through faulty procedures, even though the states’ systems may function flawlessly in 99.44% of the cases. So we do not always define due process as a system of procedures adequate in the main. All the same, it is difficult to believe that the Constitution treats judicial hearings after the fact—the model of “due” process copied to greater or lesser degrees by agencies—as inadequate in the ordinary case of a public official‘s departure from rules prescribed by state law, rules that are constitutionally sufficient if followed.
If bureaucrats in Illinois routinely rode roughshod over adoption agencies, yanking licenses and spreading calumnies so often that these practices became “the state‘s” policy, and then huddled under a blanket of immunity, we could conclude that the state as an entity does not offer due process of law. This approach has obvious parallels to the question whether the seemingly unauthorized acts of public employees should be attributed to a local government for purposes of Monell v. New York Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). E.g., City of Canton v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989); City of St. Louis v. Praprotnik, 485 U.S. 112, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988).
CUDAHY, Circuit Judge, with whom CUMMINGS, Circuit Judge, joins, concurring in part and dissenting in part:
As the majority opinion indicates, I was the author of the original panel opinion in this case, 852 F.2d 901, which reversed the “conspiracy to harass” count but affirmed the jury verdict on the licensing conspiracy count. I rely primarily on that opinion with respect to the issues addressed here.
This is a close case (and in fact one that originated 13 years ago and has now been before this court four times). But it seems to me to be close for reasons other than those relied on by the majority to reverse the jury verdict. Thus the key issue in the case seems to me to be whether Easter House was in fact deprived of a property interest. I am satisfied that, based on the jury verdict to the effect that it was, this issue favors the plaintiff, and the en banc majority does not disagree. There is also in this case a fairly close issue of qualified immunity. This was resolved favorably to the plaintiff by the panel and the en banc majority has not suggested a different result.
The issue whether the acts here were “random and unauthorized” of course did not even arise as a matter of theory until the case was well into middle age. See Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981); Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984). In addressing this issue, the panel relied primarily on Taverez v. O‘Malley, 826 F.2d 671 (7th Cir.1987), a governing precedent in this circuit, which the majority here suggests would lead to the panel result rather than to the en banc outcome. (“In Taverez, as well as in Matthiessen, we intimated that perhaps a narrower reading of Parratt might be wise to protect the important purposes which section 1983 serves.” supra, at 1470.) Since Taverez, of course, there have been other decisions in other circuits that may lead us on a merry chase in attempting to resolve the problem at hand. But there is nothing in these decisions which should invalidate the well-buttressed panel result.
The majority here now says that the conspiratorial acts of the person who was de facto the ultimate decisionmaker (Felder) are “random and unauthorized” from the perspective of the “state“. Who or what is the “state“? According to the majority, it is the legislature. And the acts of senior officials, which are alleged to be “unauthorized” by statute or regulation, are unforeseeable and hence not actionable. Only an “established state procedure” on all fours with the one in Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982), can give rise to a procedural due process claim for a property deprivation. Admittedly this rule has the virtue of drawing a bright line, although at the expense of withdrawing any civil rights remedy for the overwhelming bulk of official misconduct under color of state law that involves property. In theory some state remedies remain but the majority “flies low” over these—reinforcing the impression that they have slight practical significance.
Stripped of their analytical intricacies, Parratt and Hudson teach a fairly straightforward lesson (or so I had thought before today‘s decision): while the procedural aspect of the due process clause1
But the present case does not involve a “fluke” occurrence with a state officer acting entirely outside his lawful authority. Felder was authorized, at least de facto, to take the very kind of action involved here—grant, deny or refuse to renew adoption agency licenses. If the State gave Felder this authority, it could also have constrained his power by appropriate pre-deprivation procedures. (Recall that no argument is being made here that the State is itself liable for Felder‘s misdeeds.) I simply cannot believe that this is the sort of situation which the Supreme Court intended to address in Parratt or Hudson.
The metaphysics of “random and unauthorized” events is daunting. In fact, the dictionary definition of “random” as “lacking ... a regular ... pattern,” Webster‘s New International Dictionary 1880 (3d ed. 1976), is reminiscent of an even more puzzling problem in metaphysics, the RICO “pattern“. Presumably, the operative characteristic sought to be identified is foreseeability. Are individual acts of high state officials “foreseeable” by the “state” so that due process can be provided? It would seem logical that if the official in question were high enough up the ladder to provide the process which the Constitution required, then what was foreseeable by that official should be the relevant area for analysis. And, since everything in that area was by definition foreseeable by the official in question, the “random and unauthorized” test would be met. An official at the process-granting level (such as Felder) would in effect be the “state” for the purposes involved here. See also Burch v. Apalachee Community Mental Health Servs., Inc., 840 F.2d 797, 802 (11th Cir.1988) (en banc); Bretz v. Kelman, 773 F.2d 1026, 1031 (9th Cir.1985) (en banc).
To put matters somewhat differently, one might say that a state official‘s actions are foreseeable by the state where the state has vested that official, either de jure or de facto, with substantial discretionary authority to create, maintain or extinguish property rights of members of the public. In such a situation, the state has created a significant risk that the empowered official might arbitrarily deprive a citizen of property without adequate procedures; it can hardly be said that the erroneous taking of
At least before today‘s decision, I would have thought it clear that the due process clause mandated notice and hearing for more than simply state action that was specifically authorized by state statute or regulation. Instead, I had thought that misconduct by officials supervising the state‘s procedural machinery, or officials granted discretionary authority over individuals’ property rights, would be subject to the constitutional requirement that any deprivation be preceded by a meaningful opportunity to challenge the state‘s decision.
As Judge Easterbrook‘s concurrence explicitly acknowledges, the majority‘s insistence that an “established state procedure” cause a property deprivation is reminiscent of the analysis employed in determining whether a municipality‘s “policy or custom” is responsible for the constitutional violations of municipal employees, so that the municipality is itself liable for the constitutional torts of its agents. See generally Jett v. Dallas Indep. School Dist., 491 U.S. 701, 109 S.Ct. 2702, 2722-24, 105 L.Ed.2d 598 (1989); Canton v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989); City of St. Louis v. Praprotnik, 485 U.S. 112, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988) (plurality opinion); id. at 123 (Brennan, J., concurring in the judgment); Erwin v. County of Manitowoc, 872 F.2d 1292, 1297-99 (7th Cir.1989). However, the present inquiry is fundamentally different from the municipal liability question. The municipal liability doctrine does not define a constitutional violation; instead, the municipal liability inquiry only asks who will pay for a constitutional violation previously found to exist. In the municipal liability context, it may not be inequitable to deny the victim of a constitutional violation recovery from a particular source of compen-
Another point of great difficulty is the availability of state remedies. The majority states that Easter House “may seek” a “wide variety of relief under numerous legal theories.” It goes on to describe these arguable remedies as “potential causes of action.” It dispatches the thorny question of immunity with a single paragraph and attempts no analysis in depth. I respectfully submit that rights conferred by the United States Constitution should not be denied a remedy without some serious investigation of the adequacy of alternative state procedures. See also Gregory v. Town of Pittsfield, 470 U.S. 1018, 1022-23, 105 S.Ct. 1380, 1382-83, 84 L.Ed.2d 399 (1985) (O‘Connor, J., joined by Brennan and Marshall, JJ., dissenting from denial of certiorari).
As courthouse doors continue inexorably to swing shut, the protection of citizens against abuses of power shrinks to the point of disappearance. This seems to be the message of today‘s decision.
STAFF BUILDERS SERVICES, INC., Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner, and Local 880, Service Employees International Union, AFL-CIO, CLC, Intervening Respondent.
Nos. 88-2308 and 88-2514.
United States Court of Appeals, Seventh Circuit.
Argued June 9, 1989.
Decided July 13, 1989.
Notes
Because we believe that the district court should have granted a directed verdict on the second count of Easter House‘s complaint, we consequently hold that it erred in giving this instruction.Easter House has a constitutional right and liberty to operate its business without unfounded harassment by State officials.... If you find that Easter House‘s due process rights were violated, but that it suffered no actual injury resulting from the violation, then you should award Easter House nominal damages in the amount of one dollar.