San Gerónimo Caribe Project, Inc. v. Acevedo-Vilá

unnecessary points But It is to rehash the postal inspectors. threats to call find, already could just we have described we have outlined above to the incident Assuming, pres do, alone. claim of arguably stand we Alvarado’s construc act of only, that Alvarado’s purposes discharge ent also falls short of the mark. tive to file that he intended informing Colón retaliatory “To constructive dis prove against Colón constituted charges EEO charge, plaintiff] must establish that his [a within the McDonnell protected conduct work environment was hostile.” Hernán framework, then Colon’s threat Douglas Inc., Trading, dez-Torres v. Intercont’l inspectors to “intervene postal ask the (1st Cir.1998). 158 F.3d As we have charges if these ever mate with” Alvarado already explained, Alvarado has not shown be, rialized, seem to might plausibly that his work conditions were so severe as blush, the kind of action that least at first objectively suggest hostile work envi a reasonable worker “could well dissuade necessarily ronment. It follows that Alva charge making supporting from or similarly rado has failed establish that a N., Burlington 548 U.S. discrimination.” person reasonable in similar circumstances 57, 126 2405. compelled resign would have been his not, however, reach fur- need We post. conclusions on this detour. Alvarado

ther III. Conclusion independent not raise an claim related did incident and has described to this above, explained For the reasons we theory actions in relation to his Colon’s grant affirm the district court’s of sum- targeted that he was the victim of mary judgment. brought environment abusive hostile work Affirmed. protected on in retaliation for actions that February we he took 2007—a claim

reject today. Taylor See v. Am. Chem. (1st Cir.2009)

Council, 576 F.Bd

(recognizing argument, refusing but enough “it indicating “reach it” to note PROJECT, GERÓNIMO CARIBE SAN never made in the argument that this INC., Plaintiff, Appellant, briefs”). appellants’ Discharge c. Constructive ACEVEDO-VILÁ, Hon. Aníbal in his Al Finally, briefly we address personal capacity; individual claim, discharge varado’s constructive Sánchez-Ramos, Hon. Roberto his which must also fail as a matter of law. personal capacity; individual constructively To that he was establish Vélez-Roche, P.E., in indi A. his Luis Alvarado have to show discharged, would personal capacity; John vidual “working that his conditions were ‘so diffi Doe; Doe, Defendants, Appellees. Jane that a unpleasant per cult or reasonable No. 09-2566. com son in shoes would have felt [his] ” Roman, 604 F.3d at 42 pelled resign.’ Appeals, United Court of States Inc., of P.R., (quoting Goya Marrero v. First Circuit. Cir.2002)). (1st 7, This is also an F.3d April Heard 2012. standard, objective plaintiff may and a July Decided exclusively by relying such a claim sustain Marrero, 304 F.3d subjective beliefs. at 28. Fallon, Jr.,

Richard H. with whom John García, Fernandez, & and Or- M. García brief, appel- on for lando Fernández were lant. Assis- Peñagaríeano-Brown, I.

Susana General, Department tant of Jus- Solicitor tice, Román-Negrón, with whom Luis R. General, brief, appel- was on Solicitor lees. Shin, Attorney

Sookyoung Assistant General, Coakley, Martha At- with whom Massachusetts, torney General of William Schneider, Maine, Attorney General of J. Delaney, Attorney A. and Michael General brief, Hampshire, were on for the of New and the of Massachusetts Commonwealth ami- Hampshire, of Maine and New States ci curiae. BOUDIN, LYNCH, Judge,

Before Chief THOMPSON, LIPEZ, HOWARD and Judges. Circuit En Banc LYNCH, Judge. Chief whether opinion This en banc addresses by state officials of the mistaken invocation Rico, Justice, granted by Secretary state law to emergency powers and individ major project gives construction ual stay asserting, among members of ARPE proce- claims, rise to a federal claim of denial of other that ARPE violated the Due under the process dural due Parrath-Hud- Process Clause of the Fourteenth Amend doctrine, developed in Parratt v. son by failing ment to hold predeprivation 1908, Taylor, 451 U.S. 101 S.Ct. 68 hearing temporarily suspending before (1981), Palmer, Hudson v. L.Ed.2d permits. construction sought $38 104 S.Ct. 82 L.Ed.2d 468 U.S. million in compensatory damages, as well Burch, (1984), and Zinermon v. rejected as other relief. The district court 108 L.Ed.2d 100 SGCP’s claims the motion to dismiss (1990). hold that the ParratT-Hudson We stage, holding that no predeprivation pro no applies, procedural doctrine so federal cess required under the Parratt-Hud process claim is stated. son doctrine. San Gerónimo Caribe Pro Vila, ject, Inc. v. F.Supp.2d Project, The San Gerónimo Caribe Inc. (D.P.R.2009). (SGCP) appeals from the dismissal of its federal claims. On panel A of this court held that there was 27, 2007, Regulations December a due violation but still affirmed (ARPE), Permits Administration a Puerto court, judgment of the district agency, acting Rico under a statute autho- qualified immunity grounds. San Geróni rizing summary process in emergency situ- Acevedo-Vilá, Project, mo Caribe Inc. v. presenting danger ations an imminent (1st Cir.2011). 650 F.3d 826 panel health, welfare, safety, is- Zinermon, 113, held that under 494 U.S. temporary stay sued a emergency 975, 110 required pro S.Ct. ARPE was ongoing SGCP’s multi-million dollar con- predeprivation vide process before sus project. struction A state intermediate pending permits and the Parratt appellate upheld court the exercise of Hudson doctrine was inapplicable. San emergency powers. stay sixty- lasted Gerónimo, However, 650 F.3d at 836-38. days, three until the Puerto Rico Supreme panel also found that some of this Court vacated it. That court issued past precedent court’s on the matter could 31, 2008, July opinion disagreeing that reasonably have supported ARPE’s deter there had been danger imminent war- mination and affirmed dismissal on the ranting emergency proce- invocation of the grounds that the defendants were entitled concluding stay dure statute and that the qualified immunity. Id. at 838-39. was issued in error in violation of Puerto Rico law. majority A judges of active of this court 24, 2008,

On October grant rehearing SGCP filed a fed- voted to en banc and is- eral against suit the Governor of vacating Puerto sued an order panel opinion.1 banc, granting rehearing 1.In the order precedent en is that circuit relevant to the requested parties this court that the address 'clearly analysis pur- established law’ questions: three poses qualified immunity inquiry? of the principles 1. How do the of the Parratt- 3.Assuming a due violation oc- doctrine, including development Hudson its case, present qualified curred in the does Burch, 113, in Zinermon v. 494 U.S. 110 immunity apply? 975, (1990), apply S.Ct. 108 L.Ed.2d 100 Project, San Gerónimo Caribe Inc. v. Acevedo the circumstances of this case? Vila, 350, (1st Cir.2011). 665 F.3d 351 Is First Circuit law inconsistent so, governing Supreme Court law? If

471 dispute; legal facts are not Inc. v. The Project, Caribe San Gerónimo Cir.2011). from the facts are. (1st conclusions Vila, F.3d 350 665 Acevedo mistake made that the conclude We Background A. Factual (as Rico the Puerto Su- ARPE found Planning Board of January In Court) the “random fits within preme development approved Puerto Rico3 Parratt-Hud- of the prong unauthorized” commercial, residential, mixed and tour- a doctrine, does not and that Zinermon son known as the Paseo Caribe project, ism result, pro- plaintiffs federal As a apply. under the aus- Project, developed to be properly claim cedural SGCP, corpora- held privately pices dismissed. tion. project, SGCP ac- Upon approval I. pro- parcels several of land for quired from Hilton International of Puerto ject plaintiffs as true We assume Hilton, turn, Rico, acquired Inc. had con allegations” factual “well-pleaded parcels Development from the Hotel these Iqbal, v. complaint. in the tained Ashcroft subsidiary of the Tourism Corporation, 1937, 1950, 129 S.Ct. 556 U.S. Rico, in Company of Puerto 1998. These (2009). all reason draw We L.Ed.2d located near the Fortin parcels of land are plaintiff. in favor of the inferences able Boquerón, del the San Ger- San Gerónimo (1st Gozani, F.3d Cir. Hill v. Fortress, a historic structure built ónimo 2011). However, “are not bound to we century, late 16th which is listed on couched legal conclusion as true accept Places. Register National of Historic Iqbal, allegation,” a factual Twombly, Corp. Bell Atl. (quoting legality of the sale of some of As to the SGCP, 550 U.S. lands to in 2002 Puerto (internal (2007)) (PRDOJ) quotation L.Ed.2d 929 is- Department of Justice Rico omitted), that, consider “naked nor do we concluding marks while opinion sued en of further factual devoid within the boundaries of assertion[s] some of the lands (alteration hancement,” origi emerged in Project id. at 1949 had the Paseo Caribe 557, nal) sea, Twombly, they U.S. at were nevertheless not 550 from the (quoting 1955) (internal marks could be quotation public of the domain and part omitted). were, ac- sold, they legislative v. Frati without Soto-Torres as See also (1st Cir.2011). with a celli, 153, opinion This was consistent We tion. 654 F.3d Department of the Justice previous opinion state decisions consider the various also claim.2 from 1970. giving rise to this public record ” (cita 87, adjudications.’ prior from state court Hurley, F.3d 90 n. 1 v. 2. See Parker Cir.2008) omitted) (1st (allowing (quoting Boateng consideration v. InterAmeri tion 56, authenticity Univ., Inc., (1st which are not "documents Cir. 210 F.3d can records; disputed by parties; for official 2000))). claim; plaintiffs’ for documents central sufficiently to in the referred for documents Planning to the Gov- Board is “attached 3. The Page, (quoting v. complaint” Watterson Ann. tit. Office.” P.R. Laws ernor’s Cir.1993)) (internal (1st quotation F.2d charged “guiding the inte- § 62a. It is omitted)); Giragosian Ryan, also mark see Rico,” 62c, gral development of Puerto id. Cir.2008) ("A (1st may court 547 F.3d powers relating possesses variety resolving public record in matters of consider adopt development, including power 12(b)(6) Matters of motion to dismiss. a Rule 62j, zoning regulations, §§ 62o. id. ordinarily include 'documents public record in ARPE4 Beginning opinion December The “recommend[ed] permits necessary for governmental issued all of the concerned executive entities development project. Con- reevaluate all the administrative decisions struction, already conducted in several taken” in light opinion, to be of the new stages, began August Starting which was “the official interpretation of and the Puerto Rico Institute Executive Branch of the Common- nego- into Culture entered unsuccessful wealth of Puerto Rico.” opinion The noted public over access to the Fortin only “advisory” tiations it was and did not Gerónimo, adversely San which had been constitute a final determination of the own- by the construction. Public con- ership question, affected of the land in only troversy developed had over this access authority pronounce courts had the such issue, public protests, 2006 active a judgment. opinion The characterized it- intercession, requiring police begun interest,” had “in public self as given “that occur the site. The Puerto Rico Senate controversies related with the Paseo Car- Project June 2006 authorized a Senate Commis- captured ibe have the attention of investigation.5 sion to conduct an In people,” Feb- our resulting “public outcry.” ruary began the PRDOJ its opinion own The also made clear that it did not investigation developed pass concerns not judgment on “whether a permit ... Fortin, about access to the but was either correct or wrong.” ownership also about the of some of the opinion The that other “recommend[ed]” land on which SGCP’s construction had agencies “perform an exhaustive reevalua been taking place. tion of all permits ... and other deter During investigation, on December regarding minations” the project, and 11, 2007, Secretary the PRDOJ issued an made clear that it did not “dictate the advisory opinion which precise concluded that through method which the differ SGCP was not the rightful owner of cer- governmental ent entities concerned portions tain of the land on which the should proceed with their reevaluation and project built, had been any possible because that land with stay of the construction gained from the appropri- sea and no ongoing.” still It agen stressed that the ate legislation transferring ownership to a pursuant cies should act applicable laws private party had passed. ever been “safeguard! any procedural ] and sub opinion found that previous two rights stantive law or parties affected opinions have,” PRDOJ may were erroneous and including ensuring pro that all disregarded. should be ceedings comported with “due KLRA200800010, 4. At litigation, all times relevant to (P.R.Cir. ARPE 2008 WL 1744564 following had the 6, characteristics. It "at- 2008) (certified was provided Feb. translation Planning tached to the Puerto Rico Board.” by parties)). the 23, (2008). § P.R. pri- Laws Ann. tit. 71a A 2009, In passed Puerto Rico the Permit mary purpose of ARPE was to "exercise the Act, Process Reform which effected substan- functions, responsibilities duties and which changes permit tial process. to ARPE and the Planning may delegate the Board to the Ad- 23, §§ See P.R. seq. Laws Ann. tit. et § 71d(q). ministration.” Id. The Puerto Rico changes These do not concern us here. Court has described ARPE as the "operational Planning arm” of the Board. 5. Counsel for the defendants informed us that Reglamentos y Administración de Permisos Morales, 429, the Senate (2003) that time under the Rivera control 159 P.R.Dec. political (quoted party of a Project, in San Gerónimo Caribe Inc. different from that which Permisos, Reglamentos y v. Administración de controlled the executive branch. 2167(a). § requires The statute ample that ARPE “has Id. It noted law.” “[ajfter an order or resolution is issued quoting the permits,” aside power to set section, agency the according the to this shall This included regulations. relevant any proceed complete proce- “grant promptly that were permits to revoke power required, that has been unless there specific No men dure fraud or error.” ed 2167(e). § adjudi danger.” is imminent Id. “[e]mergency made of the tion was Ann. tit. of P.R. Laws catory procedure” emergency, proce- an different Absent § 2167.6 are to be followed with full formal dures procedures require no- hearings. These day, The next December tice, evidence, right an all administra- introduce publicly ordered Governor adjudication, and a decision suspend permits impartial all for the agencies to tive on the record in the case. id. all construction for an based See project and freeze (outlining rights § that “shall be sixty days. appears This period initial safeguarded any adjudicatory formal step. unusual to have been an § procedure agency”); before id. 14, 2007, Planning December On adjudicato- (outlining for an which, among a resolution Board issued ry hearing). (1) requested com- things, other justifications opinion ARPE stated two for its Secretary of Justice’s ments on (2) emergency procedure it invocation of the ARPE to take measures ordered First, the rec- in its order to show cause. necessary implement statute deemed Secretary ARPE found that the of Jus- opinion, “including, ommendations of limited, tice’s conclusion some the land was holding] administra- but not public in the domain “evidenced the exis- parties’ right to due hearing tive where interest in the reeval- great tence guaranteed.” permits granted uation” of the ARPE had ARPE administrator day That same emergency procedures were needed cause, requesting to show issued an order safeguard rights “in of both order why permits demonstrate SGCP developers and the proponents and the suspended ARPE not be issued should People of Puerto Rico.” resources of the sixty days, halted for and construction “[tjhere Second, ARPE found that have Secretary’s opinion, on the based incidents that could af- also been several later, days hearing for six scheduled safety employees working fect the invoked 2007. The order December project, and of the citizens who on this which is P.R. Laws Ann. tit. holding demonstrations near have been “[ejmergency adjudicatory proce- entitled said land.” allows for adminis- provision dure.” This 2007, before the emergency adjudi- On December agencies trative to “use 19/ complaint filed a hearing, in which ARPE SGCP catory situation procedures in- in the local court of first danger public quiet to the title there is imminent stance, declaratory judgment health, seeking safety and welfare or which re- disputed held lawful title to the agency.” action quires immediate extreme, project legalization the legislature total opinion also noted that the 6. The occur, might ultimately might might need to determine what be some or that there pro- the Paseo Caribe should be done about involving the compromise the modification of extreme, that, ject, explaining at total one compensation paid by SGCP for the project or project part of the built on demolition of the public lands. might place, at the other public land take that subject adjudica- that a full hearing of the land that were the the had portions Rather, hearing. position tive its main opinion. Secretary’s agency was that the should hold no hear- hearing ARPE on the order show all, ing given at or should have it more before two examiners on place cause took notice and time. outset, At one exam- December 20th. the later, 27, 2007, A week on December hearing that the was “not explained iner ARPE issued a Resolution and Order sus- adversarial,” and instead would be focused pending permits halting SGCP’s con- information” so that ARPE “gatherfing] on sixty for a period days, struction regarding “make a could determination ability necessary to extend the term if Stay Order of the ]” construction! “in public interest.” The order first addition, In the examiner made project. Secretary that opin- noted of Justice’s clear that there was no issue as to the ion “casts substantial doubt the owner- validity permits of themselves. SGCP’s ship stay of the land.” ARPE found a dismiss, a motion to SGCP submitted justified given construction this substantial jurisdic- argued which that ARPE had no doubt, in protect public order to inter- only tion because the Puerto Rico courts est; SGCP, namely harm avoid adjudicate could who held valid title to the public, or the land while the issue of proceeding land and that the ARPE was explained title was resolved. ARPE unnecessary regard- as there was no issue authority permits had the to revoke if ing validity permits of SGCP’s fraud, they were obtained error or compliance permits.7 with those which includes circumstances where the This motion to was dismiss denied title, permittee lacks but that it would not hearing. explained One examiner time, permits revoke the at this in- adjudicating ques- ARPE was not the title stead would wait for the courts to decide tion, but rather that because there was rejected the title issue. ARPE also “doubt” over whether properly SGCP timing SGCP’s due notice and ar- land, owned some of the and because gument, saying that while it would leave ARPE permits could issue to those courts, the title determination to the there title, rightful who had ARPE propos- was public was a substantial interest in wheth- ing “to take cautious measures.” The ex- public er the land was domain which war- aminer made clear that this “cautious ranted the use of 2167 to shorten the a “provisional measure[ ]” consisted of fifteen-day typically required time between construction, stay” of pending resolution of holding hearing, notice and the of a P.R. the litigation question over the of title in 3, § Laws Ann. tit. 2159. ARPE stated a courts, per- Puerto Rico and that the ground second for prompt action and issu- being mits were not revoked. stay, concluding ance of the these circumstances, argued hearing SGCP also that the including “the dem- adjudicative hearing, hearing aggression by and the onstrations and different so- process rights ciety groups,” offended its due because the enough were “a matter of vague notice was too and it urgency” had unreason- to call for immediate action and ably prepare short notice to invoking emergency proce- the hear- to warrant ing. objection ARPE noted the for the ARPE suspended dure statute. then record. apparently argue permits stay did not ordered of construction argued properly 7. There no indication that SGCP were not invoked because there was emergency adjudicative procedures danger.” no “imminent rights. court days. process ARPE did not schedule SGCP’s due The sixty concluding, evidentiary hearing cor- ordered that an be hearing, perhaps another out, possible “as it that SGCP would held soon as all the rectly as turned —with law,” guarantees the due by obtain the Puerto Rico of of review promptly after which ARPE must its ini- question of both the title and of reevaluate courts Indeed, hearing place or- tial order. This never took ARPE’s own actions. ARPE’s of “may subject light prompt that it to review further and actions the noted der petition of Puerto Rico courts. SGCP filed a Appeals.” the Court appeals for certiorari from the court deci- permit complied suspen- with the SGCP Rico Supreme sion the Puerto Court sion; the then part project nearing was 15, 2008, on nine February days after the stages. of its final SGCP had completion appeals court’s decision. million approximately in the invested $200 8, 2008, February separate On in the project. proceeding brought court by SGCP ARPE’s promptly appealed order SGCP title, quiet the court of first instance en- Appeals, Puerto Rico which to the Court finding tered judgment SGCP was the February opinion on issued properties underly- valid of all the owner Project, Inc. Gerónimo Caribe v. Ad San ing Project. the Paseo Caribe The court Permisos, Reglamentos y de ministración rejected arguments the contained the KLRA200800010, 2008 WL 1744564 Secretary’s opinion why as to land was the (P.R.Cir. 2008) (certified Feb. transla part public ap- domain. This was The court provided parties). tion pealed the Puerto Rico Supreme Court. ARPE’s and the upheld stay order exer emergency power. February of its It On initial cise also di with the ARPE, properly sixty-day having suspension expire rected that issued soon to adjudicative full stay, petition should hold a for certiorari as to the court question hearing permit suspension appeals’s pending on the decision before Su- Court, possible. preme The court also ARPE or- as soon held entered a second law, that, suspension under Puerto Rico ARPE der extending had of SGCP’s authority to investigate per permits sixty-day period. whether for another erroneously granted, mits had been and to ARPE that “the factual situa- reasoned construction, stay of regarding project order a without need tion” remained the same, judicial stay in ing proceeding. extending to commence a As and it was court, claim, apply light ruling the due of a final on the “absence Rico ing Supreme precedent, Puerto Court whether the land reclaimed the sea in from ARPE in invoking property.” found that did not err this case order emergency adjudication procedures. also “request noted that SGCP could The court also there formal hearing,” found was no administrative which ordering stay, in ARPE would be possible” error as the scheduled “as soon as Secretary any was opinion “binding” request. Justice after such does not agencies of the branch. contend requested hearing, on executive such nor is there evidence in the that such record The court also held that ARPE had hearing requested. was failing promptly a full erred schedule 28, 2008, adjudicative Acting hearing quickly, February for SGCP it had after (but stay, granted ordered and that failure the Puerto Rico stay petition for a writ of not ARPE’s issuance under the SGCP’s certiorari procedure) emergency opinion. violation of issued an San Gerónimo Caribe by general public,” and that Regla de ment the v. Administración Project, Inc. Permisos, granting from nothing prevented 173 P.R.Dec. SGCP y mentos (2008) (certified by access, had not provided apparently translation deed of which it granted court SGCP’s The done.8 parties). the (extended) suspen stay of the for a motion Second, opinion the court issued an by ARPE and allowed SGCP sion ordered decision, in a that ARPE had holding, 3-2 construction, did which SGCP to resume process rights violated under stay granted. was The shortly after the by suspending the law Commonwealth February ARPE’s 25 or court found adjudicatory predepri an permits without contravened extending suspension the der hearing. Gerónimo Caribe vation San Puerto Rico court of judgment of the the Project, Regla Inc. v. Administración de possessed valid first instance Permisos, 174 P.R.Dec. 640 y mentos The total disputed parcels. the title to (certified (2008) by provided translation suspension initial time from the period of background, factual parties). As Supreme vacating Court’s order to the groups opposed court stated that to the sixty-three days. At a suspension project engaged had demonstrations date, granted petition also later the court there, claiming that the construction work respect separate to the for certiorari impeded public had access to the For- in from the court of first appeal taken tin, led the Federal and and this had Con judgment holding that SGCP had stance sumer Affairs of the Puerto Commission

valid title to the land. investigation to start an on Rico Senate 31, 2008, July the Puerto Rico Su On Department June 2006. The of Justice opinions on the issued two preme Court in investigation, had then started its own In lengthy the two cases. merits of process for cluding permit-granting of the the decision of the opinion it affirmed project adjoining lands. dissent, instance, over one court of first Recognizing property that SGCP had a rightful had title to the holding.that SGCP interest in the court noted that permit, underlying project. lands the Paseo Caribe quickly must act Project, where the “Government Caribe v. Est Inc. San Geronimo P.R., order, guarantee safety or health of its ado Libre P.R.Dec. de Asociado (certified “extraordinary” provided translation citizens” or other situa- \(2008) action,” opinion “require also tions that immediate parties). This stressed government may summary procedures. a public that the Fortín San “is use Gerónimo People explained guiding of the of The court that “the cri- good property domain Rico,” delay access to the teria must be whether the that en- Puerto necessary enjoy- starting ordinary procedure “for the use and tails would Fort was Thereafter, arising investigation project sought re out of the the Commonwealth Commonwealth, opinion preclude did consideration judicial holding belonged other or administrative action title to SGCP. August arising investigation. The denied from the concur- court reconsideration Project, ring opinion Caribe of Chief Justice Hernández Den- 2008. San Gerónimo Inc. P.R., way "in no Estado Libre Asociado de 174 P.R.Dec. ton made clear that the decision (2008) (certified interpreted granting legality provided should be translation denial, juridic parties). impunity multiple trans- In the court made in favor of its regarding "the action that occurred said land in clear that its decision was limited to 1990’s,” including legality controversy juridic of those on the classification of the parcels of the bound- land reclaimed from the sea” in two transactions or the "correction land, independent reclaimed from the sea.” did not address concerns aries building a permanent what nent construction precisely, happening, the al[l]ow public property.” possible to avoid.” over intends summary action the with both found, disagreeing court The History Case Procedural B. Federal ARPE, that and appeals court the filed this suit on October SGCP court did The satisfied. was not standard the naming as defendants Governor existed interest” “public that a recognize Justice, Rico, Secretary of the Puerto the question, ownership the respect to with ARPE, indi- other unnamed and head provided justification that the said but raised four claims: complaint The viduals. proce- invoking emergency the ARPE (1) pro- due procedural of federal violation extraordi- from the “very far was dures (2) violation of federal substan- rights, cess allow the that would nary circumstances (3) rights, violation process tive due con- action the immediate use of of the Fourteenth Clause Equal Protection re- The court in the statute. templated” (4) Amendment, of 42 U.S.C. and violation pro- public that argument the jected the three preceding based on the justified project themselves over the tests claims, pendent in addition to state-law finding summary procedures, the use relief, complaint the re- claims. As unrest ... would degree of that “the declaratory judgment that the quested a compliance where the instances the equal rights, each violated SGCP’s health, defendants public danger the imminent compensato- million in an award of and $38 have been acknowl- safety and welfare damages damages, punitive well as ry can protests emphasizing edged,” and defen- fees and costs. The attorneys’ and harming general without controlled Federal dants moved dismiss under mistake” “ARPE made a safety. It said 12(b)(6). They Procedure statute, Rule of Civil emergency procedure invoking the complaint to state argued that the failed particular circumstances “the because process due violation procedural claim of a dan- present imminent this case do not did, and, even if or other violations health, safety and well to the ger im- entitled qualified were defendants being.” munity. justi- found ARPE’s The court then motion to The district referred court permits suspending

fication for 3, 2009, August judge. On magistrate insufficient, holding that “substantial report judge issued a magistrate title validity of SGCP’s about doubt” recommendation, recommending the rele- basis under was not a sufficient filed granted. dismiss be motion to suspend regulations vant statutes and recommenda- objections report to the judgment court entered permits. The tion. permit sus- revoking ARPE’s permanently order, per- and ordered ARPE

pension the district September On pro- permit its revocation manently halt judge’s re magistrate adopted the court ceedings. granted the port and recommendation to dismiss. San Ger motion found that defendants’ One justices dissented. Two F.Supp.2d Project, objective ónimo Caribe majority “provide did not the Par court found that 69. The district individual’s between affected balance plaintiffs barred ratb-Hudson doctrine governmental” protected interest and the claims. Id. 64- procedural to “take interests, specifically failed im qualified found that The court also legitimate interest into consideration Id. at 66-68. apply. munity immi- would preventing has State rejected remaining (stating district court elements of a claim). federal claims and declined to exercise supplemental jurisdiction over the state- The issue is whether on these facts law claims. Id. at 68-69. SGCP has raised a viable claim depri- vation procedural of its federal pro- due objection appeal

SGCP’s raises cess rights rights as those have been ar- procedural to the dismissal of its federal ticulated in the Parrattr-Hudson doctrine process grant due claim and to the Zinermon, 113, and in 494 U.S. 110 S.Ct. immunity. 975.9 primary theory is that the “circumstances of this case”—ARPE’s II. impropriety in invoking the emergency grant We review de novo the of a procedure stay statute to issue a —“are ” 12(b)(6). motion to dismiss under Rule governed by Zinermon and not Pereira-Castillo, v. Feliciano-Hernández Parrattr-Hudson doctrine.10 We outline (1st 527, Cir.2011), 663 F.3d 532 cert. de the Parratt-Hudson doctrine before , — -, 2742, U.S. 132 S.Ct. 183 turning to SGCP’s claim that Zinermon nied 615, (U.S.2012). L.Ed.2d 80 U.S.L.W. 3678 requires finding inappli- Parrattr-Hudson cable on these facts. not any SGCP does raise challenge to the emergency procedure statute, P.R. A. The Parratt-Hudson Doctrine 3, 2167, § Ann. Laws tit. itself. There is claim no proce “established state In Taylor, 527, Parratt v. 451 U.S. 101 deprived dure” it of property 1908, without due S.Ct. (1981), 68 L.Ed.2d 420 process. Logan v. Zimmerman Brush Court held that no predeprivation process Co., 422, 436, 1148, U.S. 102 S.Ct. required was prison where a state guard (1982). L.Ed.2d 265 As to the claim negligently destroyed prisoner’s proper- make, does all agree that ty, SGCP has a long so adequate postdeprivation protected property interest and the defen remedies were available.11 The Court ex- dants acted under color of state law. plained See that “either the necessity quick 428, id. at 102 S.Ct. 1148 (explaining that by action or State the impracticability the procedural due process inquiry is of providing any meaningful predepriva- [plaintiff] “whether deprived of pro process, tion when coupled with the avail- interest, and, so, tected if what process ability of some meaningful means which due”); was his González-Droz v. Gonzá propriety assess the of the State’s action lez-Colón, (1st 1, Cir.2011) 660 F.3d at some time after taking, the initial can appreciate 9. We provided assistance 11.The Court also held that there was no amici curiae the "express Commonwealth of Massa- requirement particular of a state of chusetts and the States of Maine New procedural mind” for a due claim to Hampshire. be maintained under 42 U.S.C. 1983. Par- 527, 535, Taylor, ratt v. 451 U.S. 101 S.Ct. clear, suit, (1981). 10. To be 68 L.Ed.2d portion in this That federal the defen- challenge dants do Parratt not was later "overrule[d] Puerto Rico Su- ... to the ex- preme tent that it hearing Court's determination states that mere lack of due care comply did not may 'deprive' with Puerto Rico law a state official and did an individual life, comply process. they liberty, due property Instead under the Four- so, argue that even Williams, no cause of action for a teenth Amendment.” Daniels v. remedy procedural 327, 330-31, for a claim 106 S.Ct. stated under (1986). the federal constitution. L.Ed.2d 662 confused, believing nating, psychotic, requirements satisfy Id. 101 S.Ct. 1908. in heaven. Id. 110 S.Ct. process.” he was not a that “the loss is sign concluded provided 975. He was with forms state of some established result his to admission and treat- giving consent predict precisely State cannot and the ment, so, resulting and did in his admis- It loss will occur. is difficult when the statutory provisions sion under Florida’s provide howof the State could conceive “voluntary” Id. at admission. deprivation meaningful hearing before patient 975. These allowed for a 541, 101 Id. at place.” takes patient express gave to be admitted if the Palmer, 517, 104 consent, 468 U.S. In Hudson informed which was defined (1984), 3194, 82 L.Ed.2d 393 S.Ct. to a know- requiring patient “make to de- Parrott intentional Court extended 123, 110 willful Id. at ing and decision.” prison a property of state struction investigation 975. A post-release S.Ct. “when guard, explaining deprivations that Burch was and examination found through are random effected property competent sign not to the form probably of a state em- unauthorized conduct and brought he then his federal suit. Id. and procedures are sim- ployee, predeprivation 120,110 at S.Ct. 975. the state cannot ply ‘impracticable’ since did have other methods of ad- Florida deprivations such will occur.” know when The consequences mission. of the use 533, 104 3194. at S.Ct. Whether Id. voluntary than other procedure rather employee knew advance state irrelevant; procedures Depending were considerable. “[t]he was instead deprivation involved, solely type which of admission was controlling inquiry is whether on position provide prede- in a for admis- state is and the duration of procedures 534, at Id. 104 S.Ct. privation process.” changed.12 The substantive standard sion 3194. dif- the different forms admission for example, patient For a fered as well. Burch, 113, 110

In Zinermon v. if like- only involuntarily be admitted could (1990), 975, 108 L.Ed.2d S.Ct. others,” lack injure or or if a ly “to himself not Parratt-Hudson did found that in “ne- care or treatment would result admission improper voluntary to an apply for or refusal to care himself’ glect facility a mental health patient of a There, present to a and threat Burch amounted “real under a Florida statute. Id. at well-being.” halluci- harm to his facility at a health substantial arrived mental involuntary process was a term emer- There another for method allowed short 12. One admission, facility forty- required the admin- only admission which gency which could last professionals required judge, a mental and two mental health eight istrator hours and involuntary placement, and professional, law offi- to recommend or enforcement health notice, required hearing only finding judicial person on a then a cer to admit the counsel, ill, injure appointed and access to medical rec- mentally likely person was examination, ords, others, independent as well as an was in need of care himself or compe- patient responsible appli- whether the was capacity to make determine lacked not, and, Zinermon, to consent to treatment if U.S. at 110 S.Ct. tent cation. guardian appointment of a advocate make procedure 975. A different allowed 122-23, required Id. at 110 S.Ct. five-day a court treatment decisions. commitment and admission, up Involuntary placement last for make 975. could which had to order before months, facility findings injury to after which time likelihood of to six about certain others, patient a court either release the or seek or find a lack of must patient or continuing placement. at present Id. a "real order for would care result Id. S.Ct. 975. patient. harm” to of substantial threat contrast, By voluntary wrongly placed 975. some would individuals into if simply required “express sign treatment allowed to volun- admission tarily without some threshold Id. at S.Ct. determina- informed consent.” 133, 136, tion of deprived competency. he was Id. at alleged 975. Burch S.Ct. 975. because he was voluntary pro consent admitted under Second, already since Florida had an cedures, though it have been even should involuntary established sufficiently was not of clear that he sound placement, say “we cannot that predepri- was state of mind the time he admitted vation here.” impossible Id. voluntarily to be able to consent to admis 110 S.Ct. 975. This was contrast 115, 123, 110 sion. Id. at to Parratt in which it would have made no employees sense for a state to tell its Court, decision, agreed in a 5-4 The losing to make a mistake as mail and it complaint with Burch that his stated a would be absurd to hearing hold on claim. Court found that the Florida employees whether make a should mis- “little provided guidance” statute which take. Id. at 110 975. A S.Ct. state admitting use patients, to when anticipate could not or in control Parmtt 135, 975, at pro- id. and instead in and Hudson when such mistakes would “broadly delegated, vided uncircumscribed made, be whether the were negli- mistakes admitting power” patients, to officials id. gent or intentional. 136,110 at explained 975. The Court S.Ct. delegated power that Florida “a broad to Third, the conduct of the state officials facility, patients” admit the and that was not “unauthorized” in the sense used “[bjecause hospital had Hudson, [the officials] state in Parratt and for two reasons. authority deprive persons of liberty, 138, First, the Id. at in S.Ct. 975. those imposed Constitution on them the State’s guards cases the defendant did not have duty to depriva- concomitant see that no authority broad from the state to commit tion occur without adequate the and negligent deprivations intentional 135, protections.” Id. at 110 S.Ct. 975. Second, that they did. Id. the Zinermon Important analysis the Court’s was that Court stressed the defendants were the easily statute could have contained ad- dealing persons protect “unable to ditional safeguards, requirement such aas their own interests.” Id. staff admissions “determine whether The not Court has addressed

person competent is to give consent” be- Still, the Parrattr-Hudson doctrine since. allowing voluntary fore admission. Id. Thomas, Kennedy Justices and concurring Oliver, also Court advanced “three in Albright basic 510 U.S. finding reasons” inap (1994), for Parratt-Hudson S.Ct. 127 L.Ed.2d 114 set forth plicable. First, Id. S.Ct. their that the views Parratt-Hudson doc- deprivation liberty pre risk of trine stands proposition “[i]n particular dictable and was so as ordinary injury case where has point in law, the admission when by been policy, caused state deprivation procedure, would occur. Id. The by and but random unautho- very found that “the nature mental ill by rized act that can be remedied state law, ness person makes foreseeable that a there is no [federal basis for court] needing 1983,” § mental health will be care unable intervention under in a alleg- suit consent, provide to” informed ing only so there a procedural due claim. was a easily clear and risk J., foreseeable Id. at (Kennedy, S.Ct. 807 emergency procedure This “com We outline judgment). concurring turning at issue here before to “re statute teaching” designed monsense arguments. The statute is enti- state balance between the delicate spect[ ] adjudicatory proce- “[e]mergency courts,” that the tled ensure and federal dure,” agencies and allows to “use emer- Fourteenth Clause of the Due Process adjudicatory procedures gency “a font of not turn into Amendment does in which there is imminent whatev situation upon be superimposed tort law to health, safety danger to the systems may already be administered er requires which immediate ac- welfare or S.Ct. 807 States.” Id Parrott, 544, 101 agency.” P.R. Laws Ann. tion U.S. at (quoting 2167(a). omitted). 1908) Agencies “may only § (internal tit. mark quotation necessary it is take action as with- such circumstances described Parratir-Hudson Application B. (a) justifies which above subsection that “not all conduct contends adjudicatory proce- emergency use of law violates state falls state officials that 2167(b). emergen- Id. Before dures.” and unauthorized’ doc- within the ‘random (a) procedures may cy under subsection argues that the conduct here It trine.” used, must agency “issue or- Parratir-Hudson for does not fall within der that shall include a or resolution Zinermon, First, reasons. like three findings concise determination to effect the authority these officials had fact, law, the reasons conclusions of Second, of. like complained deprivation public agency’s policy justify that Zinermon, predictable it that where is to specific decision take action.” Id. have to choose one or government officials 2167(c). proce- § emergency When the protocols, more there of two or another invoked, agency give must dures are in denials will mistakes which will result be who are re- persons notice “to those Third, impor- “and most process. the order or reso- quired comply to tant, to ... the state could have done more lution,” or which order resolution be- between available guide its officials’choice issued.” Id. upon being comes “effective protocols under circumstances procedural 2167(d). Furthermore, § unlike under a choice would have satis- which correct at in Ziner- the Florida statute issue incorrect fied but an the Constitution mon, invoking emergency pro- after proposition this did not.” For last choice agency “prompt- cedure statute the must on Puerto Rico relies ly proceed any procedure to complete that the statute acknowledgment Court’s that unless there is required, has been nor provide itself “does not definitions 2167(e). § danger.” Id. imminent precisely state what situa- guidelines emergency procedure stat justify agency an tions or circumstances issue, adjudicative language, explic ute on own is ordinary at its deviate] from the [to rule itly exception general to the re emergency proce- an process to invoke” the and it quiring predeprivation process, are derived full arguments These three dure. requires that a condi finding triggering “three directly from the Zinermon Court’s emergency rising to certain lev the Parratir- tion—an finding basic reasons” for (a) els—in is satisfied. Section 494 subsection inapplicable. doctrine U.S. Hudson exception general to the on is a limited disagree We each S.Ct. 975. requirement that doc- point and find the Parratir-Hudson “in provided any formal ad- protections applies trine here. an judicatory procedure agency.” voluntary procedures before use admission that Moreover, requires § existed Zinermon. § Id. 2151.13 emergency proce- agency invoking argument There can be no serious justifying an order its use of dures to issue required finding of triggering “immi- 2167(c). § such Id. procedures. health, danger the public safety nent welfare” grants excessive discretion. alone cast on These differences doubt Emergency procedure similar statutes here, apply Zinermon could even whether widespread the one at here are issue triggering if the conditions themselves re- country. emergency Puerto Rico’s quire judgment by agen- exercise in some is statute modeled a section determining cies in when to invoke them. of the 1981 Model State Administrative did not involve a use of Zinermon statuto- (a) Procedure Act. of that Subsection sec- Further, ry procedures. Zin- emergency provides tion agency may “[a]n use not re- triggering ermon did involve emergency adjudicative proceedings in a quirement that a finding there be that an involving situation danger immediate competent admitting before individual health, safety, requir- welfare voluntary individual under the admis- ing agency immediate action.” 1981 Model Indeed, procedure. exactly sion that was Act, 4-501(a). § State Admin. P. A num- Zinermon, procedure. the flaw in the See have ber states enacted centralized (noting emergency procedure provisions similar to law Florida direct “do[es] act model and the Puerto Rico facility member of the staff to determine See, e.g., law. Cal. Gov’t Code person competent whether give 11460.30(a); § § Idaho Code Ann. 67- consent, involuntary nor to initiate the 5247(1); 17A.18A(1); § Iowa Code Ann. placement procedure every incompe- § 77-536(a); Stat. Kan. Ann. N.D. Cent. Moreover, Zinermon, tent patient”). no 28-32-32; Ann. Code Wash. Rev.Code guidance provided all at was as to when to 34.05.479(1). be, §Ann. It cannot as the voluntary opposed involuntary use logic argument it, would have procedures. See id. These distinctions that these statutes vest so much discretion important. alone are they state officials that would be vulner- to suit able under Zinermon for mistaken 1. by applications. Discretion Provided the Statute Indeed, Supreme the upheld Court a first statutory SGCP’s claim is that the similar, identical, but not emergency pro- language defining qualifies what emer- against cedure statute chal- gency conditions justifying invocation of lenge Virginia Hodel v. Mining Surface the emergency statute does not Ass’n, & Reclamation 452 U.S. sufficiently cabin the discretion of adminis- (1981). S.Ct. 69 L.Ed.2d 1 The agencies trative and so this case with- falls upheld provisions Court of the Surface in Zinermon. Mining Control and Act Reclamation that reject We argument. scope SGCP’s The the Secretary allowed of the Interior of agencies discretion conferred in de- order immediate cessation of activities termining when to emergency proce- use with no predeprivation process if two crite- § equivalent dures under is not to the ria were met. Id. 101 S.Ct. 2352. completely First, uncircumscribed operation discretion to the mining must violate exception (b) (e) 13. That it is is further reinforced subsections of 2167. provide any guidance to state permit required the condition officials. Act or Second, secretary argument-to must did Act. Id. SGCP not make this operation “creates an determine that court appeal panel. district or in its to the safety to the health or danger immediate It did not even before brief this issue causing, or can reason- or is public, support en banc court. have found no We significant, cause im- ably expected to be law, anywhere for this in Puerto Rico land, harm to air or minent environmental argument contrary to Puerto Rico Id. The Act defined water resources.” argued law. SGCP further that the Puer- safety to the health and danger “imminent not, Rico Court had before its existence public” as the condi- case, adopted decision in this sufficient “[r]easonably tion that could practice or limiting principles to cure this deficiency. expected physical cause substantial This is also not so. permit persons harm to outside area deficiency resulting There is no from the condition, practice, violation before such “or which requires immediate action” 301, 101 can Id. at be abated.” S.Ct. argument14 clause. SGCP’s new fails for (alteration in found original). reasons, many beyond waiver. It is not easily “specific standards were these supported by statutory rules of construc- governmental control action' and enough to tion, contrary judicial interpreta- it is deprivation,” of erroneous reduce the risk tion, reading of the fact statute 301, 101 and that “[i]f id. at S.Ct. was not the for the decision basis here. specif- are anything, these standards more interpreted No Puerto Rico case has ic in other autho- than the criteria statutes clause as and unrelated to rizing summary independent administrative action upheld against have chal- imminent It is clear danger been clause. 302,101 lenges,” statute, portion interpret- id. at this when whole, light ed in as a the statute earlier Hodel, argument oral Given before decisions, Rico Puerto court and the cir- argued court for the en banc SGCP case, cumstances of not amount did emergency first that its claim that the time type grant broad standard- here conferred much statute at issue too less discretion in Zinermon. based on largely discretion was other stat- utory language language allowing —the First, the construction of the stat to be emergency procedures invoked support argu ute itself does not requires “which immediate situation argu ment. As conceded at oral the, agency,” action which follows after ment, portion this must of the statute be that “im- language requiring there be portion, construed in light preceding of the health, danger public safety minent to the Ann; emergency procedures which allows for to 3, P.R. Laws and tit. welfare.” only an 2167(a). be used where there is “imminent § claimed the “or which health, safety danger public requires action” immediate clause is to be 3, welfare.” Ann. tit. having independent meaning read P.R. Laws as 2167(a). given § danger public particularly from “imminent This is so health, safety language and welfare” does that this is within a statute enti- clause and conjunctive argument 14. made a new about word "welfare” is used in SGCP also here; danger public requires the term welfare. The term "welfare” in the statute health, health, safety, phrase safety emergency welfare before "public and welfare” is invoked, procedures P.R. Laws vague to confer too much discretion can be Ann. so as 3, Indeed, 2167(a). § so within Zinermon. tit. as to fall adjudicatory “[ejmergency procedure” tied “or” clause as attack well its on the “emergency adjudicato- danger and outlines when imminent clause. The emergency ry procedures” enacted, (empha- 1988, can be used. Id. statute was added). against a portions backdrop sis Other of the statute of Puerto Rico Su- preme emergency procedures precedent make clear that the Court which reads lim- (a) iting principles are to to statutes only authorizing subsection be used summary result, action in narrow As a order to ensure circumstances.15 that those statutes considering comply official with both Puerto the clause after the Rico’s due process clause and word “or” the Four- only would construe to reach teenth Amendment’s Due Process Clause. comparable gravity. circumstances of Cf. Other cases decided after the statute’s en- 330, Reiter v. Corp., Sonotone similarly emphasize actment (1979) that summary 60 L.Ed.2d 931 (“Canons justified only action is in narrow circum- ordinarily of construction sug- stances. gest by disjunctive that terms connected given separate meanings, unless the The Puerto Rico ” context dictates (emphasis otherwise.... opinion in this case does explain, as SGCP added)); Gonzales, Mizrahi v. 492 F.3d argues, statutory language of (2d Cir.2007) (“It is a standard § “precisely 2167 does not state what situ statutory canon of construction that words ations or justify” circumstances summary separated by disjunctive are intended “[njeverthe procedures, but says it also convey different meanings unless the less, prior occasions we have had the otherwise.”); context indicates see also opportunity to precisely scope measure the LLC, (1st

Lawson v. FMR 670 F.3d of the ‘emergency’ concept.” The court Cir.2012) (courts consider “the broader on, relied quoted from, liberally this framework, statutory including particular- precedent in explaining § 2167 only ly nearby language, and the title and justifies the use of summary procedures if caption” in construing terms of a statute there are “extraordinary” circumstances (citations omitted)). that would “imply the existence of a[n]

Judicial construction of the statute also danger health, imminent safety precludes SGCP’s broad reading welfare,” and that guiding “the criteria (b) provides (2008) (certified Subsection of the statute provided by translation agency may only "[t]he take such action as it parties) necessary within the circumstances de- Moreover, (e) pro- subsection of the statute (a) scribed in the above subsection which "[ajfter vides that an order or resolution is justifies emergency the use of adjudicatory section, according issued agency procedures.” P.R. Laws Ann. tit. promptly proceed shall complete any pro- 2167(b). § Summary procedures are cedure that required, has been unless there is justified they to the extent necessary are danger.” imminent P.R. Laws Ann. tit. light specified of the conditions in subsec- 2167(e). (e) Subsection (a), limits the use of supporting tion interpretation a narrow emergency procedures they after have been emergency authority outlined in subsection (a). invoked to danger,” situations of "imminent The Supreme Puerto Rico Court refer- applies and triggering to the enced this conditions of explaining section in that "the (a). require subsection emergency adjudicative Situations that "imme- started agency agency” diate the action the are must be limited what most reason- to is neces- sary, ably light read dangerous under the of as limited to what the situations of "immi- or extraordinary require[].” danger” equivalent nent situation would San kind to "imminent Project, health, danger Gerónimo public Caribe Inc. v. safety Administra- to the and wel- Permisos, Reglamentos ción de y 174 P.R.Dec. fare.” only in exception § entails 2167 is an to used delay that be whether the must would ordinary procedure situations.16 starting emergency an of precisely, what happening, the al[l]ow Contrary argument, to SGCP’s avoid.” summary action intends to the the Supreme before Puerto Rico even did not Court relied on and Supreme case, in this Rico decision Puerto Court’s reaching any precedent overrule judicial statutory guid provided had and conclusion. the construing ance in “immediate action” Ap- of A number of Puerto Rico Court § emergency of 2167 as limited to portion § also 2167 nar- decisions construed peals extraordinary situations of similar or other ARPE invoked the stat- rowly well before urgency.17 notably, opinion Most a 2001 ute here. Moreover, the taken here were actions situations “[ejxcept in that explained of hypothetical in fact based on SGCP’s emergency, true obligated agency the “or which immedi- reading requires of hearing rights” with all outlined hold a ARPE, ate action” clause. Neither the § Ann. and held Laws tit. by P.R. Appeals, Puerto Rico Court of nor the hand, case at such “[i]n that because Supreme Rico Puerto treated exist,” the situation did not emergency an portion “immediate action” of the statute § of an order under agency’s issuance “health, separate safety as from the and El Coman- of law. violated of the portion welfare” statute or reviewed Hípica v. Mgmt. Co. dante Confederación only ARPE’s action as based on the “im- P.R., No. JH-01-47, de 2001 WL 1850793 added) action” ARPE’s stated 17, 2001) mediate clause. (P.R.Cir. (emphasis Dec. (translation danger reasons relied on the imminent provided by U.S. District health, safety, and interpreters). portion other welfare Rico Several Puerto —includ- ongoing fact of explained ing public decisions also demonstra- appellate P.R., 2003) (finding Respi-Care agency’s action authorized 16. See Perdomo v. Perez Inc., KLRA050224, No. 2005 WL 2481385 § where under there was "an imminent (P.R.Cir. 2005) § Aug. (noting health, 2167 is life, wellbeing” danger to the "exception” requirement normal patients, explaining certain the Puerto hearing, quoting treatise predeprivation process precedent Rico Court's due legiti § explaining that use of 2167 "is authorizing providing action "without first clear and immi mized the existence of a necessary right to be heard when it is health, safety danger to the and wellbe nent order, security guarantee safety of the requires ing immediate of the which (translation provided by people” U.S. District agency,” upholding a action from the interpreters)). Rico of Puerto regulation allowing Department of Health procedures summary 2167 because under suspending 17. SGCP contends proceeds emergen clear that it "[i]t is permits ARPE cited and on for its relied when cy faced with the existence situations emergency powers the in A.R.P.E. statement danger health and wellbe of imminent to the Perez, v. P.R.Offic.Trans. Ozores (translation provided by ing citizens” (1986) curiam), (per that "it was D.P.R. interpreters)); Rico U.S. District Puerto policy- grant intent the lawmaker's broad de Méd Torres Álamo Tribunal Examinador making discretion to in the formula- [ARPE] TEM-Q-2003-01, icos, 2004 WL 2419420 No. permit-processing and maintenance tion (P.R.Cir. 2004) Sept. (quoting the same proceedings.” Id. Not did not cite so. ARPE in a discus language from same treatise justifying sum- case in decision to use its (translation provided by § 2167 sion of sup- mary procedures; cited to case was Triple interpreters)); District of Puerto Rico jurisdiction port that it did have and substan- C, Del Del Paciente Inc. v. Procurador Oficina Salud, authority suspend permits after tive La No. De De Beneficiario Reforma 18, 103-01, (P.R.Cir. already granted. they been WL Feb. had 2003 21369138 486

tions, limited, required police intervention. was that this which so such case does not fall within Zinermon. ARPE and the Puerto Rico courts Both (a) of emergency cited subsection Moreover, the view of this court has statute as a whole. long is best been Zinermon viewed as a statutory case where the state scheme result, reject argument As a we conferred so much discretion on state offi- emergency that the statute allowed such cials so as to authorize the state officials’ discretion as to remove unfettered in deprivation rights. actions case from the reach of Parrattt-Hudson. Revere, City See v. Herwins 163 F.3d provided pow ARPE was not “broad (1st Cir.1998) (in 19 Zinermon “the or guidance,” “broadly er little dele and procedure was itself authorized state gated, power.”18 uncircumscribed Ziner law”); Amherst, see also Mard v. Town of 135-36, mon, 975; (1st Cir.2003) 350 F.3d 194 n. 4 Patterson, Lolling see F.2d also (same); Baker, O’Neill v. 210 F.3d (7th Cir.1992) (Zinermon 234 n. does not (1st Cir.2000) (“In Herwins, we viewed apply even where official exercises “dis Zinermon as a case in which law state did authority,” cretion so long “that (albeit authorize the followed discretion was not ‘uncircumscribed’ or unconstitutionally), so that the act unregulated”); otherwise Charbonnet v. officials could be not described as ‘random (5th Lee, Cir.1992) 951 F.2d ”). and unauthorized’ .... We therefore (“[T]he majority Zinermon found that the reject SGCP’s opening premise that Ziner- state actions before it were not ‘unautho mon involved a case of violation of state actually rized’ because the state had Here, statutory law. the state scheme did delegated its officials with the broad au actions, not authorize ARPE’s a and mere thority carry out deprivation alleged mistake officials in exceeding the limits Burch.”); Felder, Mr. Easter House v. of their defined is not authority the stuff of (7th Cir.1990) (en 910 F.2d 1400-01 a due process federal claim. banc) (explaining that “the extent to which Foreseeability Deprivation a the state official’s discretion is ‘uncircum appears scribed’ ... have been deci depriva- SGCP’s second claim is that the factor permitting majority sive in Zin tion at issue here was “foreseeable” as ermon rule that Parrott would not” because, opposed to “random” like Ziner- apply, holding “exercising] a cer mon, predictable it is that where govern- tain amount of discretion authority” ment officials have to choose one anoth- does mean that such discretion was er protocols, of two or more will there be uncircumscribed). Sufficient guidance was mistakes which will result in denials of due ARPE, provided process. and ARPE’s discretion

18. Our any procedural one decision to hold set requirements, that a statute's lions out delegation authority was so broad and providing only hearing be 'infor- ” standardless as not to fall within Parratt-Hud- mal,' hearing plaintiff that the received Massachusetts, son Chmielinski v. 513 F.3d "cannot characterized as from deviation (1st Cir.2008), and that case did not in- added). (emphasis law.” Id. state There, emergency procedures. volve we as- emergency provides statute issue here far required only sessed statute which that a guidance more than that at issue in Chmielin- hearing termination be "informal” nature ski and here there was a deviation from state provided guidance proce- no at all wrong sup- law. SGCP is that Chmielinski to be dures used. Id. at 315. We held that ports its cause. regula- because "[n]either the statute nor the “predictable.” Id. at 110 S.Ct. 975 claim that all it reject SGCP’s

We (“It that a hardly person fit under Zinermon is show is unforeseeable to do to needs that officials could requesting it foreseeable for mental that was treatment illness those consent, and as a result of make mistakes of might incapable be informed mistakes, deprivations be of there would power and that state officials with to argument funda process. SGCP’s patients might apparent admit take their foreseeability mentally misapprehends the willingness to be admitted at face value Zinermon’s aspect of predictability involuntary placement pro- and not initiate of Ziner distinguishing Parratt-Hudson. cedures.”). nothing There comparable was proposition be reduced to mon cannot foreseeability here to the Zinermon error, of there is risk that whenever a risk of the statute created substantial by Parratt-Hudson protections afforded by failing admissions to first erroneous wrote, Pope do not As Alexander apply. a that someone visi- require determination is human.” The Zinermon Court “to err bly ill volun- mentally competent was to every not time an did rule likewise tarily admit himself. sets agency make a choice between must is consistent with that of Our conclusion does not Parratt-Hudson procedures Hardy, other circuits. See Caine v. apply. (5th Cir.1991) (en banc) F.2d Zinermon, risk In erroneous applies where, (explaining Zinermon of an individ- non-emergency commitment conditions, particular “the among other not a dan- who had been shown be ual pre-deprivation administrative ger to himself others was different presents high depriva- of erroneous risk There, it present than risk here. kind House, tion”); F.2d at 1401 Easter that some individu- perfectly was obvious (“The fo- Court’s concern Zinermon at a seeking non-emergency admission als broadly delegated authority on the cused compe- not facility would be mental health gave which the statute the doctors to state Ziner- give to admission. tent consent deprivation at issue and effect (“In- mon, 110 S.Ct. 975 subsequent failure of that same statute to deed, very mental illness nature of safe- provide pre-deprivation for effective needing person it that a makes foreseeable guards. statutory It was in view of this ... care will be unable ‘to mental health oversight the Court concluded that knowing make a willful decision’ ‘pre- deprivation which occurred was admission.”). Given whether to consent ”). and, such, not dictable’ ‘random.’ risk, predictable that indi- this clear under the vol- viduals would admitted Predeprivation 3. Additional Safe- though even untary procedure, admission guards consent, give competent not they were We also note that Zinermon does require not the statute did because because, here unlike Ziner govern not competency. threshold determination mon, practicable pre no additional there is (“[T]he 135, 110 statutes S.Ct. 975 Id. imple process that could be deprivation facility member do direct Zinermon, U.S. at 132- mented. See person whether staff determine (“To determine whether consent, nor to initiate give competent [applies] ... we must ... the Parrott rule involuntary procedure for placement predeprivation ask whether incompetent patient.”). That was every depri risk could address the explained safeguards why the Zinermon alleges.”). In of the kind Burch deprivation was vations risk an. erroneous 488 straightforward require existed a there a hearing

Zinemnon there first be notice and statutory failing: for cure the state to determine may whether the state even easily imposed requirement a emergency could have invoke If power. a prede- compe- a determination of privation hearing that threshold had to be held in these tency circumstances, that place, involuntary take so com- charged “an official procedures pa- mitment would be used for posi- discretion would be the anomalous who, give consent, though willing tients to tion of almost forced being to hold a hear- to give ing were fact unable valid consent to determine whether or not an emer- exists, to mental health gency their condition. Id. so as to then determine 136-37, at 110 975. This predeprivation S.Ct. determina- whether a hearing is consti- holding. tion was critical tutionally required. court’s This cannot be the Weiden, See id. at 110 S.Ct. 975 (explaining proper result.” Catanzaro v. 188 (2d is problem only Cir.1999); “[t]he to ensure that F.3d see also Harris involuntary placement] procedure Akron, (6th [the City 20 F.3d Cir.1994) patients all afforded to who cannot be ad- (explaining that under Ziner- mon, voluntarily”). mitted hospital admission “could have accomplished been under either the volun- That is not true here. In a situation tary involuntary or the proce- admission involving potential here, a emergency, as dure,” but that an emergency under stat- require predeprivation additional safe- ute, existed, an emergency “[i]f guards very would defeat the purpose available course of action removing for the emergency Supreme statute. The threat public safety health and was to” point made Hodel: “The “forthwith,” emergency procedures use however, often Court has acknowledged, noting erroneous determina- “[a]n summary may administrative action emergency tion that no existed would have justified in emergency situations.” very resulted in the threat public 299-300, In 2352. such that the [summary procedure] was intend- circumstances, summary procedures are to prevent”). reasons, ed For these Ziner- justified because necessary “swift action is mon does control here. to protect safety.” health and Id. recently As we The jurispru Court’s holding noted in a case be imprac- would dence regarding emergency procedures to require predeprivation tical hearing: recognizes that even though proce those variety of ... “[T]he circumstances within may error, dures sometimes be invoked in exception which the general [to the re- procedures such satisfy nevertheless quirement of predeprivation process] has process: recognized been demonstrates that the ex- possibility error administrative one,” ception is a flexible Su- “the in any regulatory inheres program; preme case-by-case Court’s approach to statutory programs authorizing emer- impracticality the flexibility reflects of due- gency administrative action prior to a process jurisprudence.” Elena v. Munici- hearing are exception.... no “Discre- (1st Juan, pality San F.3d tion may official action be abused. Cir.2012). Yet requirement it is not a pro- of due Here, very point judicial Puerto Rico’s cess inquiry that there be before emergency procedures is permit public discretion can It be exercised. is suffi- officials to act promptly cient, where there is where only property rights are emergency. concerned, It would make no sense that there stage is at some We ex- at 19-20. Id. redress. judi- vation hearing and opportunity Parratt-Hudson for the but plained determination.” cial limitation: 302-03, 101 S.Ct. Hodel, at 452 U.S. for count- brought might & Casselber be Mytinger v. federal suits Ewing

(quoting 870, 94 in 594, 599, admin- 70 S.Ct. officials Inc., mistakes less local 339 U.S. ry, (1950)).19 state array of laws istering the endless L.Ed. these er- Often ordinances. and local Herwins 4. e.g., procedural a rors have dimension — Parratt-Hudson, that conclusion Our a misaddressed after imposed a tax lien is rein- Zinermon, case governs not tempo- inflict taxes due—and notice of 15, a case Herwins, 163 F.3d forced Assuming or inconvenience. rary harm correctly decided. was agrees which themselves are remedies the state that emer- the exercise addressed Henoins has seemed sufficient adequate, officials. by government powers gency individual errors and random leave such a that requiring summary order There, a courts and state to be corrected basis on the was issued be vacated building agencies. summary action allowing regulation of a at 19. Id. habi- for human building is “unfit a where rely attempt forthwith.” be vacated rejected and must Herwins’s tation We marks (internal quotation Zinermon, that: explaining at 17 163 F.3d owner, Herwins, building omitted). building [wjhile in- [the law led state suit, procedur- alleging a a federal brought closure, his summary invoke spector] that on the basis violation al due summary power use of “authorized” no- required prior building of the closure Constitution, and violate would not He 16-17. hearing. Id. a tice and the kind of exactly use is improper [his] had inspector that evidence introduced that unauthorized” conduct “random violations recklessly reported falsely or (and duty had no government the local so exercise building code n indeed forestall way), to practical no Id. justified. was not summary power hearing through predeprivation a —a with true itself inconsistent procedure Parratt-Hudson, reject- we conditions. emergency Relying on pro- federal ed Herwins’s Id. case, for the but in this claim. As cess also noted true here. We is The same emergen- declaring an mistake official’s for an provide does that “Massachusetts have been there would plaintiff cy, the building a object before opportunity nonetheless, we hearing; a fuller provided Id. emergencies.” except in shut down not entitled was the plaintiff that held here. is true the same Again, of an declaration hearing a before such Zinermon, the “[c]on- that in here, We noted And, as at 19. Id. emergency. con- competent not patients finement of post-depri- means adequate were there Va. pattern. Hodel a such strate different Surface "[a] that Court noted Hodel 19. The Ass’n, Mining abuse Reclamation pattern of & presented if a might be case 69 L.Ed.2d from discernable arbitrary were n. action of a argue this is agency's (1981). administration not of an SGCP does review showing abuse, there facts do summary procedure,” but pattern of case over- had been summary orders three argument. an support such not to demon- from sufficient” was "far turned easily pre-depri- concluding foreseeable and mistaken there an sent was emer- screening feasibly provided could gency warranting stay. vation The case contrast, Id. By cases.” non-emergency very rapidly throughout moved the rele- Herwins; condition obtained in neither period, vant leading stay time to a case. same is true in this We concluded permit suspension by the Puerto Rico Su- official declaring errs “[w]here preme sixty-three after days. emergency, feasible We clarify we do hold remedy.” Id. post-deprivation is a that whenever an official’sconduct violates Her- only attempt distinguish state law the Parratt-Hudson doctrine wins is the that argument the Puerto Rico Zinermon, necessarily applies. Under statutory at issue emergency scheme here may there be certain circumstances war more discretion than the statute at confers ranting the conclusion that such violations issue in Herwins. We doubt that so, is do not fall within the Parratt-Hudson doc already rejected and have the argu- we Zinermon, See trine. 138 n. § that ment 2167 confers such uncircum- 20, 110 (“Contrary S.Ct. 975 to the dis within Zin- so as to scribed discretion fall Hudson, view Parratt and sent’s those ermon. cases not proposition do stand for the sum, grounds In none of SGCP of- in every deprivation case where a is caused Parratt-Hudson distinguishing fers for by an ... departure ‘unauthorized from judgment by has merit. The erroneous practices,’ established state officials can exactly ARPE was type “random escape liability § simply because the encompassed and unauthorized conduct” (omission provides State tort remedies.” by Parratt-Hudson. The Puerto Rico Su- (citation omitted)). original) To the extent preme Court that ARPE simply stated precedent that dicta our suggests otherw “made mistake” invoking emer- ise,20 that dicta is overruled. gency provisions. That court did find that judgment wrong, the ARPE’s but that III. does not case from Parratt- remove reasoning Our toas the failure of the Hudson; it instead establishes this procedural due claim extends be- within Parrattt-Hudson. firmly case fits yond the members ARPE to the defen- That the very unanticipated is kind of mis- dant Secretary Governor and of Justice. error, take that is due to individual not These necessarily claims fail on same by the induced statute. reasoning against claims the other de- argument There is no viable here that independent- fendant fail. The claims also were adequate there postdeprivation ly fad other for reasons. remedies, processes utilized, which were predeprivation address mistakes. In A. The Secretary Justice fact, SGCP did receive prompt postdepri- vation process, when the Supreme Justice, Court of As to Secretary Puerto Rico in related actions both con- provide any SGCP failed to argument be its firmed title and said ARPE had been fore the district court or appeal as to PFZ Props., Rodriguez, See Inc. v. pre-deprivation process 928 F.2d vide does not violate (1st Cir.1991) Clause”); (noting that ”[w]hen a the Due Process see SFW also Are cibo, deprivation property Rodriguez, results from conduct Ltd. v. 415 F.3d 139-40 law, (1st Cir.2005) of state officials violative (quoting of state PFZ Properties on this issue). pro- Court has held that failure to all administra- procedural publicly to a Governor ordered why actions amounted his permits all violation, agencies suspend tive this claim is so Project freeze Paseo Caribe and to all Moreover, issued opinion waived. Project the Paseo Caribe permits for be- Secretary and relied on SGCP peri- freeze construction for an initial all he ARPE ordered lies assertion (60) briefly sixty days.” od of ar- process. right to due to violate SGCP’s first gues, appeal, for the time on clear that did not opinion made allegation suffices to state a through which precise method “dictate if process claim is viable even the con- governmental entities different of the other defendants are “ran- actions proceed with their reevalua- cerned should unauthorized,” because the dom Gov- stay any possible tion and with exempted from Puerto Rico’s ernor ad- ongoing,” construction still stressed ministrative act. See P.R. Laws agencies pursuant should act that the 2102(a)(3) (excluding Ann. tit. from “safeguard! any pro- ] laws and applicable of “agency” the definition the “Office of rights and substantive law or the cedural the Governor and all its attached offices have,” may including en- parties affected excepting application those where the of suring proceedings comported that all with provisions chapter the of have been result, of process “due law.” As a literally expressed”). argument This fails. opinion the is the sole basis for because against the process the claim Secre- outset, At the the complaint itself against the tary, process claim the that demonstrates the Governor’s actions necessarily Secretary fails. scope fall within the of the Parratt-Hud complaint, doctrine. SGCP’s one of son B. The Governor discussing the sentences the actions Governor,21 pleads rests that against SGCP’s claim the Governor also “the legal authority “the not have the upon complaint’s allegation the Governor does complaint essary implement to the the recommendations of It is also doubtful whether Justice,” "including pleads Secretary of the sufficient facts as to the Governor's the hold- ing hearing, to a connection. involvement establish such of an administrative with the complaint simply that the guarantees The asserts Gover- of due of law.” The Plan- Resolution, turn, agencies suspend per- nor all all ning ordered to Board’s based alleged mits. Governor’s order is not Secretary opinion, the Justice’s which complaint, quoted or to in from cited the agencies should act likewise stressed that order, existed, even is no such if it mentioned "safeguard! pursuant applicable ] to laws and Secretary opinion, ARPE’s in the of Justice’s any procedural rights and substantive law or orders, judicial Rico or Puerto have,” parties may including en- the affected opinions in this case. Even that statement suring proceedings comported that all complaint permits not assert that the does "due of law.” suspended regard to were without ordered background, Given this and the dearth of process. to due If the Governor did in fact pled facts as to the contents of the Governor’s order!],” it "public!] a should issue such order, question a there is fair about whether pro- straightforward SGCP have been for to Iqbal’s against meets the claim the Governor order, detail, quotations vide from the more requirement, plausibility” which “facial re- copy complaint. a of it attached to complaint "plead!] quires factual to con- Moreover, tent that allows the court to draw the reason- undisputed lay facts out able inference the defendant is liable permit that led to the clear chain of events alleged.” Iqbal, the misconduct suspension, of the Gov- with no involvement Ashcroft response 556 U.S. ernor ARPE acted in to mentioned. did, (2009). directing Even if it it fails for Planning it to L.Ed.2d 868 Board Resolution preventative nec- the reasons stated in the text. take "the measures deems law, suspend permits by construction de- under Rico Puerto have not been ad- allegation against is held cree.” This all. against dressed at claim SGCP’s assessing SGCP in whether the Parratb- accordingly Governor waived. See P.R. applies Hudson doctrine Governor. LLC, Tel. Co. v. T-Mobile P.R. 678 F.3d Miller, Wright See 5 & Federal (1st Practice Cir.2012). n.58 (3d 302-03, § and Procedure Apart from these independent 2004) (“The pleader ed. must be careful why fails, argument reasons SGCP’s it also not allege facts constitute a defense fails own on its terms. The Governor’s complaint to his claim for A relief.... squarely actions fall within Parratt containing usually a built-in is vul- defense complaint’s Hudson doctrine. The claim 12(b)(6) nerable Rule to a under motion to injury suspension was the its dismiss for failure to claim upon state permits, directly which was ordered granted.”). which can be relief The com- ARPE, Governor, and not who plaint application thus supports alone power lacked the so. do The statute the Parratt-Hudson doctrine to the claim authorizing suspension permits in against the Governor. voked in this delegated power case has develop also failed to ARPE, See P.R. Governor. Laws any argument why as to claim against its (“The (2008) Ann. tit. 71x Administ is not Governor barred the Parratt may ration22 issue orders do or not to Indeed, Hudson opposi doctrine. its do, and to cease and desist so that the dismiss, tion to the motion to SGCP ar necessary preventative control or meas gued that “the lacks any Governor valid ures be taken to the purposes achieve legal authority to suspend construction added)). this chapter....” (emphasis permits by decree.” did not raise Likewise, the Puerto Rico argument the that the Governor should be has stated that stay “[t]he order to differently objection treated until its to the order to cease and is desist one of the magistrate judge’s report and recommen may delegated remedies which be to the dation, and even then did not raise the agencies,” administrative and that “[u]pon argument same appeal. makes on In reviewing organic the acts of several ad in stead it asserted two sentences without agencies ministrative the Common citation to authority the non wealth of Puerto expressly Rico we found ARPE defendants should treated differ such faculty delegated. For example, this ently “the because UAPA does not apply ... occurs with the Regulations and Per in this case officials who are not en Act, mits Administrations 23 L.P.R.A. sec. gaged adjudication.” in argument Consejo 71x.” Para la Protección del Pa on point this panel before the also consist Arqueológico trimonio Terrestre de P.R. v. sentences, ed of two and argument even its Barceloneta, Municipal Gobierno de brief, before the en banc court was consist (2006) added) (emphasis P.R.Dec. ing paragraphs of two which cited as au (quoted in San Gerónimo Caribe Project, thority only § in definition 2102 and Inc., (certified WL transla Chmielinski Basic necessary issues tion provided by the parties)). assess SGCP’s due claim against Governor, Further, such as the ARPE Governor’s au overseen not thority Governor, to direct agencies Board, administrative Planning but an- tion,” 22. The goes statute defines acronym "Administration” as which ARPE. P.R. Regulations (2008). "The 71b(a) § Permits Administra- tit. Laws Ann. of em- legislation governing classification Ann. tit. P.R. Laws agency. See other (“The (2008) Per- Office did not Regulations ployees the Governor’s § 71a created, at- hereby authority on the Governor confer certain mits Administration Planning Rico the Puerto the Governor “[l]acking power, tached to Board.”). not appoint does Legislative The Governor will change could not § (pro- Id. 71c administrator. the ARPE regulations”). a set of through be under the ARPE “shall viding that Indeed, illogical gover- it would be for a Permits Ad- Regulations and of a direction agency to a subordinate nor’s order ministrator,” by a ma- “appointed who is statutory agency on the violate constraints Planning the members of the jority of meaning of to be “authorized” within the the Gover- Board, approval If did governor Parrattr-Hudson. is- nor”). administrator does The ARPE ARPE, his actions were sue order Governor, “an- instead to the but report unauthorized. random and board directly [planning] to the swer[s] functions and performance his/her argument that the SGCP also makes no volition.” Id. While hold office at its shall apply Parratt-Hudson doctrine should dif members were Planning Board’s seven ferently simply because the Governor is a the advice by the Governor with appointed high-ranking official. If that is the intend Senate, 62d, they § id. and consent of reject argument, Nothing ed we it. the duration of appointed were “for Parratt, Hudson, Zinermon, or this cir they were appoint- which quadrennium cuit’s case law states that there is an ex ed,”23 for “only could be dismissed state officials to ception high-ranking cause,” The Act establish- just id. 62e. determining whether the usual method gener- contains no Planning Board ing random or unauthorized. In an action is authori- granting the Governor provision al this, join of two other circuits we the views decisions ty operations to direct its —its Dep’t the matter. See Johnson v. La. of the majority vote through are made (5th Cir.1994) 318, 18 F.3d 322 Agric., §Id. 62i. Board members. Planning high because Odom is a state (“Simply that his actions are develops argument no official does not mean authority automatically to direct the established state has considered Governor Planning Board or either the case outside operations that would take the if not claim that doctrine.”); ARPE. SGCP also does Easter of the Parratt/Hudson authority, (“The it could had such House, the Governor question F.2d at 1400 Puerto ARPE to violate be used to direct ‘high’ ranks or ‘low1 whether a state official permits. in suspending Rico law SGCP’s hierarchy, possibly in the state while rele lacks authori It is clear that the Governor which that vant as indica of the discretion Rico law to alter or ex ty under Puerto exercises, cannot itself be dis- official by duly en authority conferred ceed determination.”). positive of this See, Llovet v. e.g., Díaz de acted statutes. Governor, To the extent the Second Circuit 12 P.R.Offic.Trans.

Office of distinction, (1982) we decline 941, (holding adopted has such 112 D.P.R. 747 are to substitute for clear nate members” who does not make 23. The statute itself staggered. in the case of vacancies from one to four-year are members three, these terms whether does itself state Planning but the statute not amended the Board Puerto Rico stag- were whether the terms of the members provide for an increase in in 2001 to statute 23, § 62d & gered. P.R. Laws Ann. tit. from three to See of board members the number (2008). seven, note the number of "alter- and to increase my v. N.Y. colleagues’ to it. See Rivera-Powell conclusion that follow Elections, 458, Project, F.3d City Bd. San Gerónimo Caribe Inc. Cir.2006) (“This (2d (“SGCP”) court has since relied alleged has not a viable due high- to hold acts process Zinermon claim against defen- are dants, officials who ‘ultimate deci- ranking I willingness do not share their authority and have ‘final sion-maker[s]’ apply “random and unauthorized” matters,’ even if acts significant over those alleged standard to the conduct of the law, contrary consid- are should be outrageous Governor. The behavior of the and unauthorized’ conduct ered ‘random executive, chief Commonwealth’s as al- purposes procedural leged, analyzed should not be in the same (alteration in original) analysis.” (quoting way as the unpredictable unauthorized and nn. Levy, Velez 401 F.3d 91-92 & 14 v. prison employees acts of the whose con- (2d Cir.2005))). & Nor is it clear duct was at issue Parratt and Hudson. apply the Second Circuit would its doctrine Taylor, See Parratt v. 451 U.S. Governor, here because the both as mat- (1981); S.Ct. 68 L.Ed.2d 420 Hudson law, was ter of fact and of not the ultimate Palmer, 468 U.S. nor he

decision-maker did have the final (1984). I L.Ed.2d 393 separate- also write authority suspend be- permits. Simply ly express my view that the official high-ranking cause an does not Court’s Parratt-Hudson jurisprudence, as mean that the official’s actions auto- are Burch, elaborated Zinermon v. 494 U.S. placed matically scope of Par- outside 113, 110 (1990), 108 L.Ed.2d 100 ratt-Hudson, long so those officials are sensibly cannot applied qualified in the statutory bound limits on their authori- immunity My hope context. is that result, ty state law. As a under the Par- will provide soon much-needed clari- applies ratt-Hudson doctrine to bar fication, ending the decades of uncertainty Governor, against claim and surrounding the Parratt-Hudson doctrine. against claim was properly Governor dismissed. I. IV. accept I join the majority’s analysis plaintiffs complaint The dismissal of the against of the claims the ARPE and the is affirmed. Costs are awarded defen- Secretary of Justice. With respect dants-appellees. Governor, however, unnecessary it is in case to undertake the usual Parratt-

LIPEZ, Circuit Judge, concurring. inquiry into Hudson the defendant’s au- two highlights important thority and, This case fac- I shall discretion as ex- ets of the plain, Parratt-Hudson doctrine not I inappropriate believe it is to do so. yet by Supreme my view, addressed the ap- Court: In against the claim the Gover- plication of the “random and unauthorized” nor fails the allegations because do not jurisprudence to highest ranking plausibly a state’s allege a causal link between the availability official and the of im- qualified Governor’s order and the harm to SGCP. munity to state whose of disregard complaint baldly actors The asserts that the Gov- provides ernor, state proce- law the basis for through agency a his directive to offi- dural Although agree construction,24 claim. I cials to halt “willfully complaint quote 24. The not publicly agencies does the Gover- ordered the various that had directly, alleges permits nor but Project "the Governor the issued for to withdraw or remedy a for the harm offi- out constitutional by those actions subsequent caused ¶ Yet, surely the how- caused. complaint, The 30. Compl. cials.” a not in mind the conduct of any relationship did have ever, describe does not executive, acting in his official pronouncement state’s chief the Governor’s between the in rejected the Plan- when it claims capacity, Both subsequent events. “turning ev- administrator Parrott and Hudson to avoid the ARPE Board and ning Secretary injury may have ery alleged of which been previously issued the cited order, acting a state under by inflicted official opinion, not Governor’s Justice’s a proceed- into violation the Four- initiating ‘color law’ impetus for as under suspension cognizable of SGCP’s teenth Amendment led to the ings that Parrott, Thus, effect, complaint § at in 1983.” 451 U.S. project.25 merely order as depicts the Governor’s S.Ct. without political statement outrageous by guberna- suspension permits property rights.

impact appellant’s not torial fiat does resemble low-level involvement in alleged in Parrott Hud- The Governor’s misconduct at issue troubling, son, however. controversy is a allowing procedural on the years five after construction Some involvement claim based on Governor’s part nearing with one begun, had project permit suspension would not make a million al- more than completion and ordinary $200 To federal case out tort. SGCP, the Governor ready invested a contrary, such claim would be consis- suspend permits all the order issued holding longstanding precedent tent with sixty days. for and freeze construction remedy § a is available as involving public emergency There was no injuries inflicted the abuse of state Instead, health, there safety or welfare. law itself. See power, as well state protesters with a group a vocal 167, 175-76, Pape, Monroe Yet, constituency. ac- political significant (1961) (explaining 5 L.Ed.2d 492 S.Ct. complaint, the Governor cording to the created, part, as a 1983 was contemplate did not an edict that issued remedy representing a “against those who for San Gerónimo de- any opportunity capacity were unable State some they before permits hearing its at fend law”); to enforce a state id. unwilling suspended. were (“It is no answer that if has a law which enforced would State unique role as chief The Governor’s Zinermon, relief.”); 494 U.S. give see also raises the executive the Commonwealth (noting that Monroe 110 S.Ct. 975 high of whether defendant’s question “rejected applies only § 1983 the view that hierarchy should state status rights of constitutional to violations inquiry. factor in the Parratt-Hudson law, by state and does if are authorized reasoning, even the majority’s Under had, authority are of state that instigated the reach abuses Governor’s directive events, be with- the State’s statutes or Con- subsequent SGCP would forbidden subsequent complaint alleges "all permits thereby a 25. The suspend and force those agencies suspending by governmental Compl., at 3. See actions to construction.” also halt ¶ Project have "publicly permits the Caribe (alleging the for Paseo id. 29 Governor Secretary's di- either at the agencies to been undertaken all administrative sus- ordered knowledge and with his assistance permits Project rection or pend all for the Paseo Caribe Department the or his subordinates at for an initial that of and to freeze all construction ¶ (60) Compl. 28. days”). of Justice.” period sixty 496

stitution or are torts under the ring); State’s see also id. at (noting law”); common id. 110 S.Ct. 975 Parrattr-Hudson and Zinermon “cannot (“[I]n cases there many quarrel coexist, is ‘no except perhaps by drawing a dis- books’; instead, state on the laws tinction liberty between property, and or problem way is the those laws are between important or are depriva- modest implemented tions, by state (quot- officials.” neither of which the majority in Monroe, ing 473) 365 U.S. at Zinermon adopted”).

(citation omitted)). Scholars have identified “two competing course,

Of § tension visions of among the principles liability,” labeled the Monroe, Parratb-Hudson, “Governmental” model “Legalist” Ziner- and the long mon has model. been Bogart, noted courts (Williams, F.3d at 564 scholars, J., dissenting). traceable to apparent former, Under dis- re agreement flected in within the Monroe, Court about Court’s when decision in liability the unlawful may imposed acts of a state actor should be under 1983 “for all attributable to the constitutional state provide and thus violations committed by governmental the basis a in finding for of a actors scope constitutional their See, employment violation. if e.g., Bogart actor Chapelt, violates —even (4th state Cir.2005) law F.3d 564-65 when committing the (Williams, violation.” J., Id. latter, Under the dissenting); Easter reflected Felder, House v. Parrott Hudson, (7th section 1983 “imposes F.2d liabili Cir.1990) 1408-09 ty only if (Easterbrook, state J., lawmakers endorse a con concurring); Jose R. stitutional Juarez, violation.” Jr., Id.26 The Supreme Court as the Cheshire Escaping Cat: the Section 1988 Allusions to both appear models in the Wonderland, 25 St. Mary’s L.J. 5-7 majority Zinermon, opinion and that (1993) (“Cheshire ”); Cat Larry Alexander, inconsistency has left lower courts debat- Torts, Constitutional Supreme Court, ing whether the Court intended a and the Law Noncontradiction: An Es- (more narrow (more Legalist) broad or say Burch, on Zinermon v. 87 Nw. U.L. Governmental) reading and, of the case— (1993) (“Law Rev. 580-83 Noncon- turn, (more Governmental) narrow tradiction”). Indeed, Judge (more Easterbrook broad Legalist) reading of the Par- has observed the Parratb-Hudson- See, ratt-Hudson doctrine. e.g., Bogart, Zinermon line of cases “resembl[es] 396 F.3d at (Williams, J., dissenting); path of a drunken sailor.” House, Easter Cat, Cheshire Mary’s 25 St. L.J. at 27-37 910 F.2d at (Easterbrook, J., concur- (describing confusion in the courts); lower 26. Crediting Larry Professors Alexander and doesn't matter whether the state and local Paul developing Horton for concept, Pro- lawmakers have infringement forbidden fessor Juarez describes two models as rights, of constitutional attempted or have follows: provide remedy infringements. such What matters is Legalist whether Model state asks official whether state laws infringed has plaintiff's are constitutionally adequate. constitutionally If there is an law, protected adequate state interests.... plaintiff then [U]nder the Govern- cannot Model, bring claim, plaintiffs mental may Section 1983 ... and must in- sue under heard, stead rely on Section state-law 1983 in claims either state or federal cases, court, most in state even court.... The Govern- when the state's lawmakers imposes mental Model have sought prevent duties on more than the violation of con- lawmakers; state and local imposes rights. it stitutional government duties Cat, on all 8, officials (foot- and Cheshire Mary's 25 St. at L.J. 10 agents. model, Under the omitted). Governmental law, tion that line.30 wealth “unauthorized” the Par- sense, ratt-Hudson regardless of whether out, majority points As the at least two prefers one Legalist or Governmental rejected a circuits have defendant’s status model. The Governor is the chief of state aas determinative factor. See Johnson v. and, such, his official always acts are (5th 318, Dep’t Agric., La. 18 F.3d minimum, those of “the State.” At a Mon- Cir.1994); House, Easter 910 F.2d at roe must mean viable section 1983 (en banc). Circuit, 1399-1400 The Second procedural process claim will if arise however, emphasized has the significance the Governor sets motion the denial of of status: “Since the ‘state acts through its procedural protections to an individual en- officials,’ high-level the decisions of these titled to predeprivation process. See Zin- closely officials more resemble established ermon, 494 U.S. at 110 S.Ct. 975 procedures haphazard state than the acts (“The deprivation here is ‘unauthorized’ ” of individual state actors.... Velez v. only in the sense that it was not an act (2d Levy, Cir.2005); 401 F.3d see law, but, instead, sanctioned state was a City also Rivera-Powell v. N.Y. Bd. of ‘deprivation] of rights constitutional ... Elections, (2d Cir.2006). 470 F.3d ” by an official’s position.’ abuse of his The court Velez noted that the defen Monroe, (quoting 365 U.S. at dant, the Chancellor City School (alteration 473) in original)). York, District New had duty “the ... More than two ago decades in Easter governing follow the New York statutes House, Judge Easterbrook observed that regulations,” held that “‘any Court’s inconsistent Parratt- abuse of that authority that rose to the jurisprudence Hudson had “judges left level of a due violation cannot be the inferior federal courts in a difficult ’ ” considered “random and unauthorized.” position, because any effort to reconcile 401 F.3d at 92 (quoting DiBlasio v. Novel and apply the cases will be met awith lo, (2d Cir.2003)). 344 F.3d convincing demonstration ... that there is The circuit conflict is unsurprising in flya in the ointment.” 910 F.2d at 1409. light of the inconsistency and confusion His concurrence in Easter House was precedent described above. See Che by just flanked such debate between Cat, (“If shire 25 St. Mary’s L.J. 24-25 majority and dissenting opinions. The de- are today, we confused it is because the bate is ongoing, and plainly there is a need Supreme Court itself seems to be confused for clarification guidance from the Su- about what it doing is in these preme Section Court. (footnote omitted)).

1983 cases.” With re II. spect Governor, however, I think it plainly unacceptable say that his con Qualified immunity protects govern- duct, albeit improper under Common- ment officials personal from liability for I am not suggesting egate[s] the conduct power [defendants] and author- policymaking officials should be attribut- ity very deprivation to effect the complained able to the purposes State for procedural of a ..., delegate^] and also to them the con- minimum, claim. At a under duty comitant to initiate the safe- Zinermon, the through State “any also acts guards up by guard set against state law to person to delegated whom is responsibili- [deprivations],” unlawful abusing conduct ty giving predeprivation " process.” Easter authority is not 'unauthorized' in the House, J., (Cudahy, F.2d at 1411 dissent- sense the term is used in Parratt and Hud- Zineimon, ing); see also 494 U.S. at "). son that, (explaining S.Ct. 975 where a state "del-

499 however, realize, I that we reached of now arising from violations consti damages focusing clarity on the that conclusion “clearly es rights that were tutional qualified immunity the law. The wrong of challenged when the conduct tablished” procedural of a inquiry the context v. Per Feliciano-Hernández occurred. turn process claim cannot on whether (1st eira-Castillo, 527, 532 F.3d Cir. 663 “ clear the fit the that circumstances 2011). im ‘balances two The doctrine rather mold of Zinermon than ParratC to hold interests —the need portant Hudson. The constitutional violation at they accountable when exercise officials predeprivation pro- of issue is the denial irresponsibly and the need to power cess, and the of to assess reasonableness harassment, distrac officials from shield conduct, we logically the defendant’s must tion, liability they perform their when clarity concerning on the of the law focus ” v. 655 reasonably.’ Cunniffe, duties Glik plaintiffs hearing. entitlement to It (1st Cir.2011) 78, (quoting Pear- F.3d 81 clearly been than has established for more 223, Callahan, 231, 129 v. 555 U.S. son life, “a half-century deprivation (2009)). 808, To 172 L.Ed.2d 565 S.Ct. liberty, or property [ordinarily must] ‘be is to whether a defendant entitled decide preceded by opportunity notice for determine, must immunity, we qualified hearing appropriate to nature of the ” alia, the the law clarity inter establish- case.’ Cleveland Bd. Educ. v. Louder right constitutional issue and ing the mill, 542, 470 105 84 U.S. S.Ct. “whether, particular given the facts (1985) (quoting L.Ed.2d 494 Mullane v. case, have a reasonable defendant would Co., Cent. Bank & Trust 339 U.S. Hanover his conduct violated understood 306, 313, (1950)); 94 70 S.Ct. L.Ed. 865 (al- rights.” constitutional Id. plaintiff’s] also v. Eldridge, see Mathews U.S. (internal quotation in original) 319, 334-35, teration 96 S.Ct. L.Ed.2d 18 omitted). (1976) qualified im- key (describing balancing of inter mark necessary pro ests determine “due munity objective legal “the reasonable- is cess”). acts.” v. ness of official’s Harlow 800, 819, 102

Fitzgerald, 457 U.S. Hence, if we had determined (1982). 2727, 73 L.Ed.2d 396 in this case the defendants had violated rights failing to SGCP’s due I in Section As the discussion demon hearing suspend- a meaningful hold before strates, hard-pressed a court be would quali- for ing permits, their basis surrounding law say that the Parvatt immunity fied should be the defendant’s clearly doctrine is established. Hudson uncertainty about reasonable whether Indeed, original in this panel case con presented “extraordinary circumstances that our case law cluded own contains a valid governmental situation[ which ]” reasonably could read statements justified postponing hearing interest interpretation adopt an erroneous challenged until after the action. United that, thus Parratt Hudson. We held Prop., Daniel Real States James Good had committed though even defendants 43, 53, 126 L.Ed.2d violation, they (1993). Uncertainty applica- about the immunity. qualified entitled to See were bility Parrattr-Hudson irrelevant Project, Inc. v. San Gerónimo Caribe immunity analysis because qualified 9(1st Acevedo-Vilá, F.3d 838-3 nothing has to do the Parratt-Hudson withdraum, Cir.), protecting officials opinion vacated and rationale (en banc). (1st Cir.2011) liability: damages from eliminate F.3d 350 that, injustice, greater in areas where the law is not lation.31 It would be a risk established, officials refrain clearly objective will quali- and undermine independently acting public doctrine, from immunity fied for a court to find sued. See Har being fear of interest for process provide due violation but no low, 814, 102 at S.Ct. 2727. 457 U.S. remedy plaintiff to the because the defen- that the Parratt- thought dant could have

Indeed, out, points “pecu- as SGCP Hudson doctrine would let him (along liarity” of the Parratt-Hudson doctrine is State) off the hook for his violation of that it does not focus on what a reasonable clearly process due law. established light official should have known or done in Rather, law. clearly established sum, immunity In the qualified doctrine Parratt-Hudson-Zinermon question is procedural process due context must alleged whether the official’s misconduct applied consistently purpose with its attributable to the State —and thus reme- shield well-meaning reasonable diable as a constitutional violation. When damages officials from the burden of while Zinermon is found to apply, plain- and the holding accountable those officials who showing clearly tiff succeeds in estab- Glik, power “exercise irresponsibly,” him predeprivation lished law entitled 81. The Parratt-Hudson doctrine F.3d process, official the defendant state should remedy itself denies a federal to individu- personal liability be able avoid als harmed the random and unautho- raising qualified immunity defense based actors; rized conduct of state the uncer- Parratt-Hudson. Granting immunity tainty surrounding scope the doctrine’s clarity based on the lack of as to whether should not be used to further extend the the State bears responsibility would turn immunity rogue state officials. qualified immunity doctrine on its head. The official would effect be seek- III. ing immunity based on a “reasonable” be- wrong i.e., lief his conduct was so it— The surrounding parame confusion was “random and unauthorized” —that ters of the Parratt-Hudson doctrine is not provide procedur- could not the basis for a merely an academic puzzle. The Constitu al due claim. an immunity Such tion demands that attempt we to insure an provide unacceptable would “license to “justice in the individual case.” Laura Harlow, lawless conduct.” See Oren, Signing into Heaven: Zinermon v. 819, 102 2727. Burch, Rights, Federal and State Reme Thirty dies Years Pape, Monroe v. disturbing enough bad-acting It is After (1991). best, escape liability Emory officials L.J. At constitutional injury when the Parratt-Hudson Parratt-Hudson doctrine has doctrine been un applies the wrongful prede- way objective denial of reliable to advance that be privation process is not a messages vio- cause of the mixed from the Herwins, we Oddly, approach As observed in 163 F.3d at 19. seems give might officials an incentive to behave developed the law have as so as to hold outrageously possible the official liable under the Fourteenth in certain circum- Amendment for his own mistake even if the departure stances because the further state had done all it could.... But the law,” "clearly from established the more like- Supreme Court has ruled that in such cases course, ly apply. will Of Parratt-Hudson process, there is no denial risk of state remedies would remain. official, long even so as the state provides adequate means of redress. concerning scope. its Supreme Court high-ranking application rote

doctrine’s particularly officials is trou-

government a stark conflict with

bling, and it creates precedent holding that

long established responsibility for the abuse

the State bears authority by state offi- governmental concern-

cials. The conflict and confusion

ing the Parratt-Hudson doctrine should

not, however, for immuniz- provide basis

ing government officials who have acted disregard personal

blatant of the law from

liability wrongdoing. their Under immunity qualified principles,

standard

only pertinent question when an unconsti- predeprivation process

tutional denial of is whether

has occurred defendant

should have known the Constitution process.

required predeprivation such guidance from the

Additional necessary is both

Court on these issues such time

and inevitable. Until as that speaks, attempting lower courts

provide “justice in the individual case” wary unnecessarily extending

should be process precedents

its be-

yond their narrowest boundaries. America,

UNITED STATES

Appellee, VENTI, Defendant,

Robert J.

Appellant.

No. 11-1385. Appeals,

United States Court of

First Circuit.

Heard June 2012. July

Decided it notes 497 Noncontradiction, in Supreme Nw. Court Hudson described the 87 U.L. Law of (“It inquiry as “whether the is in a posi- state not an overstatement to at 596 is Rev. provide predeprivation pro- tion to for Supreme Court’s constitution- describe Hudson, cess.” 468 U.S. S.Ct. confu- jurisprudence as welter of al torts added). (emphasis thing It is one sion, courts leaving litigants and lower say prison guard that an errant sea.”).27 Juarez completely at Professor actions, instances, actor whose in certain simplifying procedural proposed has procedural cannot be the basis for a due by returning pre- it to process inquiry due they process violation because are standards, i.e., permitting “[sec- Parratt thing acts of “the State.” It is another claims procedural process due tion 1983 responsibility a State from insulate predepri- without challenging deprivations Moreover, the Governor’s conduct.29 low- is a hearings except vation when there employees routinely level interact with imprac- action or when it is quick need for matters, individuals on small private predeprivation hear- provide tical to impossible implement procedures it is Cat, Mary’s ing.” Cheshire 25 St. L.J. prevent some “tort-like” harms from that, quick- 65. He maintains with the occurring. higher you go up impracticality action and limitations on hierarchy, the more formal the interac- claims, danger “there be no should be, tions with the will be- the ‘font transforming of Section 1983 into plausible say comes less the ac- by many of law’ feared so courts.” Id.' tort tor’s conduct was distinct from the State’s at 65-66.28 purpose process inqui- for the of the due Even under a broad construction of the ry. per se actor” Where “state line espoused Parratt and Hud- principle the context of Parratt and Hudson should son, however, actions undertaken worthy subject drawn is a discus- capacity debate, however, in his or her official governor can be no sion. There to the State. The about where the Governor in rela- should be attributed stands (1999) may (noting the confusion be attributable S.Ct. 144 L.Ed.2d 605 Some of to the fact that the issue in Parratt and Hud- frequent "our admonition that the Due Pro- ” hearing. law,’ of a Law son was not denial See merely cess Clause is not a 'font of tort Noncontradiction, 87 Nw. U.L. Rev. at 589 Paul). quoting precedent Our reflects ("The bone of contention in both cases was City the same sentiment. See Herwins v. process up deprivation, not the that led Revere, (1st Cir.1998) (noting F.3d it.”). that, for the but limitation on process provides claims where "the state against 28. The Court first warned redress,” adequate means of “federal suits turning the Fourteenth Amendment into "a brought might be for countless local mistakes Davis, font of tort law” in Paul v. 424 U.S. administering array officials in the endless 693, 701, 96 S.Ct 47 L.Ed.2d 405 ordinances”). of state laws and local (1976), phrase and the has been used fre then, including quently See since Parratt. Amendment, course, pro- 29.The Eleventh (quoting 451 U.S. at 101 S.Ct. 1908 damages liability. states from I refer to tects Rock, also, Paul). e.g., Town Castle See "responsibility” only the State's in the sense Gonzales, 748, 768, 545 U.S. Colo. identifying procedural vio- (2005) (noting 162 L.Ed.2d 658 re- lation under Parratt-Hudson doctrine "continuing reluctance to treat Court's ' quires an examination of whether the State the Fourteenth Amendment as “a font of tort ’ " have, have, law,” Paid)', prevented could and thus should quoting Parratt and Col predeprivation effected lege Prepaid Postsecondary the denial Sav. Bank v. Fla. Bd., 666, 674, employees. Expense Educ. 527 U.S. state

Case Details

Case Name: San Gerónimo Caribe Project, Inc. v. Acevedo-Vilá

Court Name: Court of Appeals for the First Circuit

Date Published: Jul 24, 2012

Citation: 687 F.3d 465

Docket Number: 09-2566

Court Abbreviation: 1st Cir.