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            Title Homar v. Gilbert

 

            Date 1995

            By

            Subject Other\Concurring & Dissenting

                

 Contents

 

 

Page 1

37 of 64 DOCUMENTS

RICHARD J. HOMAR, Appellant v. JAMES E. GILBERT, Individually, and in his capacity as Pres. of E.S. Univ.; GERALD LEVANOWITZ, Individually, and in his capacity as director of Human Res. at E.S. Univ.; DAVID MARAZAS, Individually, and in his capacity as Police Chief of E.S. Univ; CURTIS ENGLISH, Individually, and in his capacity as V.P. of E.S. Univ.

No. 95-7218

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

89 F.3d 1009; 1995 U.S. App. LEXIS 41027; 12 I.E.R. Cas. (BNA) 1368

November 2, 1995, Submitted Under Third Circuit LAR 34.1(a) July 18, 1995, Filed

SUBSEQUENT HISTORY: Judgment reversed and case remanded June 9, 1997, Reported at:  1997 U.S. LEXIS

3546.

PRIOR HISTORY: **1  Appeal from the United States

District  Court  for  the  Middle  District  of  Pennsylvania.

(D.C. Civil No. 93-cv--0852).

DISPOSITION: Affirmed in part, reversed in part, and remanded.

CASE SUMMARY:

PROCEDURAL POSTURE: Plaintiff police officer ap- pealed a decision from the United States District Court for the Middle District of Pennsylvania that granted summary judgment  in  favor  of  defendant  university  in  plaintiff's action claiming that defendant violated his due process rights and marred his good name by disclosing informa- tion to the public regarding an investigation of plaintiff.

OVERVIEW:  Defendant  university  employed  plaintiff police  officer.  Plaintiff  was  arrested  on  drug-related charges and was immediately suspended without pay. The charges  were  subsequently  dismissed,  but  plaintiff  was demoted to a groundskeeper position. Plaintiff initiated an action against defendant alleging that his procedural due process and substantive due process rights were violated because  he  was  suspended  and  demoted  without  a  for- mal hearing process. Plaintiff also alleged that defendant marred his good name by disclosing information regard- ing its investigation of plaintiff. The trial court granted summary judgment in favor of defendant. On appeal, the court affirmed the decision as to plaintiff's claim for dis- semination of information, but reversed and remanded on plaintiff's due process claims. There was no evidence that

defendant publicly disclosed information regarding plain- tiff. Plaintiff was entitled to notice and hearing prior to being suspended and demoted without pay. The informal meeting with defendant's president did not satisfy such re- quirements. Plaintiff was deprived of his property interest in employment without adequate due process.

OUTCOME:  The  court  affirmed  the  decision  grant- ing summary judgment in favor of defendant university on plaintiff police officer's dissemination of information claim, but reversed and remanded on plaintiff's due pro- cess claims. Plaintiff did not prove that defendant publicly disseminated information about him. Plaintiff was entitled to notice and a hearing before he was suspended without pay and demoted.

LexisNexis(R) Headnotes

Administrative Law > Agency Adjudication > Hearings Governments  >  State  &  Territorial  Governments  > Employees & Officials

HN1  Once suspended, an employee is entitled to a hear- ing before any further action is taken to demote, terminate, or extend his suspension. At such a hearing, the employee is entitled to know the evidence against him and be af- forded the opportunity for a meaningful response.

Civil  Procedure  >  Appeals  >  Standards  of  Review  > Standards Generally

Civil  Procedure  >  Summary  Judgment  >  Summary

Judgment Standard

HN2  The court's review of the district court's order for summary judgment is plenary, and the court thus applies the  same  standards  that  were  applicable  in  the  district court. Summary judgment is appropriately granted when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law.

89 F.3d 1009, *; 1995 U.S. App. LEXIS 41027, **1;

12 I.E.R. Cas. (BNA) 1368

Page 2

Fed. R. Civ. P. 56(c). If, however, the evidence is such that a reasonable jury could return a verdict for the nonmoving party, summary judgment shall not be granted. Administrative Law > Agency Adjudication > Hearings Governments  >  State  &  Territorial  Governments  > Employees & Officials

HN3  When a public employee has a property interest in his or her employment he or she is entitled to a mean- ingful pre-termination hearing. Such a hearing need not be elaborate, but rather an initial check against mistaken decision, essentially, a determination of whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action. Prior to termination, a tenured public employee is entitled to oral or written notice of the charges against him, an ex- planation of the employer's evidence, and an opportunity to present his side of the story.

Administrative Law > Agency Adjudication > Hearings Constitutional Law > Substantive Due Process > Scope of Protection

HN4  Due process entitles a party to a hearing before he or she is deprived of any significant property interest, except for extraordinary situations where some valid gov- ernmental interest is at stake that justifies postponing the hearing until after the event. This fundamental right to a pre-deprivation hearing is not abridged by the availability of extensive post-deprivations remedies.

Administrative Law > Agency Adjudication > Hearings Constitutional Law > Substantive Due Process > Scope of Protection

HN5  An important government interest, accompanied by a substantial assurance that the deprivation is not base- less  or  unwarranted,  may  in  limited  cases  demanding prompt  action  justify  postponing  the  opportunity  to  be heard until after the initial deprivation.

Administrative     Law         >              Agency   Adjudication        > Prehearing Activity

Governments  >  State  &  Territorial  Governments  > Employees & Officials

HN6  Suspension without pay must be preceded by no- tice and an opportunity to be heard in all instances. While there are some limited instances in which a strong gov- ernmental interest might warrant immediately removing a person from a position without a hearing, in those situa- tions where the employer perceives a significant hazard in keeping the employee on the job, it can avoid the problem by suspending with pay.

Administrative Law > Agency Adjudication > Hearings Governments  >  State  &  Territorial  Governments  > Employees & Officials

Constitutional Law > Substantive Due Process > Scope

of Protection

HN7   A  governmental  employer  may  not  suspend  an employee without pay unless that suspension is preceded by some kind of pre-suspension hearing,  providing the employee with notice and an opportunity to be heard. It is imperative that employers be provided with adequate flexibility  to  allow  them  to  protect  the  public  and  re- spond  to  emergency  situations  expediently.  Suspension with  pay  addresses  these  important  concerns  while  si- multaneously protecting the fundamental rights of an em- ployee to due process prior to being deprived of his or her  property  interest  in  employment  and  its  accompa- nying  salary.  Furthermore,  determining  the  timing  and nature of an appropriate hearing, courts should assess the competing interests involved and arrive at an appropriate accommodation.

Constitutional Law > Procedural Due Process > Scope of Protection

Governments  >  State  &  Territorial  Governments  > Employees & Officials

HN8  The right to procedural due process cannot be so ephemeral that it evaporates because an individual sus- pended without pay happened to obtain paid leave there- after. That may affect the damages ultimately awarded, but if there was a violation of due process, the employee is entitled to have that right vindicated.

Administrative Law > Agency Adjudication > Hearings Governments  >  State  &  Territorial  Governments  > Employees & Officials

Constitutional Law > Substantive Due Process > Scope of Protection

HN9  A public employee with a property interest in his or her employment be granted a meaningful pre-termination hearing. It is of paramount importance that this hearing take  place  prior  to  the  deprivation.  Absent  compelling government interests justifying postponement of a hear- ing, the hearing must take place before the deprivation, because  the  only  meaningful  opportunity  to  invoke  the discretion  of  the  decisionmaker  is  likely  to  be  before the  termination  takes  effect.  Indeed,  this  right  to  pre- deprivation due process is so fundamental that it remains even if extensive post-deprivation remedies are afforded. Administrative Law > Agency Adjudication > Hearings Governments  >  State  &  Territorial  Governments  > Employees & Officials

Constitutional Law > Substantive Due Process > Scope of Protection

HN10  The pre-deprivation hearing need not be elabo- rate. Something less than a full evidentiary hearing is suf- ficient prior to adverse administrative action. Nonetheless, the hearing must be sufficient to inform the employee of the  evidence  against  him  or  her  and  to  respond  to  the

89 F.3d 1009, *; 1995 U.S. App. LEXIS 41027, **1;

12 I.E.R. Cas. (BNA) 1368

Page 3

evidence. A sin qua non of a meaningful hearing is a suf- ficient explanation of the employer's evidence to permit a meaningful response.

Administrative Law > Agency Adjudication > Hearings Governments  >  State  &  Territorial  Governments  > Employees & Officials

Constitutional Law > Substantive Due Process > Scope of Protection

HN11  While true that an employee is not entitled to a pre-decision hearing, only if this hearing took place be- fore his demotion took effect can the court conclude that he was afforded meaningful due process.

Constitutional Law > Substantive Due Process > Scope of Protection

HN12  A violation of substantive due process rights is proven:  if the government's actions in a particular case were  in  fact  motivated  by  bias,  bad  faith  or  improper motive.

Constitutional Law > Procedural Due Process > Scope of Protection

Constitutional Law > Substantive Due Process > Scope of Protection

HN13  Not all property interests worthy of procedural due process protections are protected by the concept of substantive  due  process.  In  order  to  state  a  substantive due process claim, a plaintiff must have been deprived of a certain quality of property interest.

Civil       Procedure              >              Appeals  >              Reviewability       > Preservation for Review

HN14   While  courts  of  appeals  do  have  discretion  to consider and resolve certain issues for the first time on appeal, such as where the proper resolution is not in doubt or where injustice might otherwise result, it is a general rule that federal appellate courts do not consider an issue not passed upon below.

Governments  >  State  &  Territorial  Governments  > Employees & Officials

Constitutional Law > Substantive Due Process > Scope of Protection

HN15   A  person  has  a  liberty  interest  in  employment actions which require due process where a person's good name, reputation, honor or integrity is at stake because of what the government is doing to him.

COUNSEL: James V. Fareri, Mervine, Brown, Newman, Williams & Mishkin, 712 Monroe Street, P.O. Box 511, Stroudsburg, PA 18360, Attorney for Appellant.

Gwendolyn  T.  Mosley,   Office  of  Attorney  General,

15th  Floor,  Strawberry  Square,  Harrisburg,  PA  17120, Attorneys for Appellees.

JUDGES:               Before:    NYGAARD,           ALITO,   and

SAROKIN, Circuit Judges. OPINIONBY: SAROKIN OPINION:

*1011   OPINION OF THE COURT

SAROKIN, Circuit Judge.

Plaintiff Richard Homar was suspended without pay from his position as a police officer at East Stroudsburg University after his arrest on drug-related charges. The criminal  charges  against  Homar  were  eventually  dis- missed,  but  Homar  was  nonetheless  subsequently  de- moted to the position of groundskeeper. Homar filed suit in  federal  district  court  seeking  reinstatement,  backpay and damages for violations of his due process rights. The district court entered summary judgment in favor of de- fendants. Plaintiff appeals.

Although we conclude that these circumstances war- ranted and justified an immediate suspension of employ- ment **2    without a hearing, the added suspension of pay necessitated a hearing. Furthermore, the subsequent restoration of that pay cannot serve to cure the due process violation. It may serve to reduce the damages to which the employee may be entitled, but the deprivation must be viewed at the time of its occurrence, not as

89 F.3d 1009, *1012; 1995 U.S. App. LEXIS 41027, **2;

12 I.E.R. Cas. (BNA) 1368

Page 4

*1012    belatedly  corrected  by  later  action;  otherwise employers could violate the due process  rights of their employees and simply cure those violations through the means of retroactive pay.

We also hold that HN1  once suspended, an employee is entitled to a hearing before any further action is taken to demote, terminate, or extend his suspension. At such a hearing, the employee is entitled to know the evidence against him and be afforded the opportunity for a mean- ingful response. We conclude that there is a genuine issue of material fact as to whether such a hearing was afforded here, and we thus reverse the order of summary judgment.

I.

Plaintiff Richard Homar was employed as a police of- ficer at East Stroudsburg University ("ESU"). On August

26, 1992, Homar was arrested when a drug raid took place at the home of his friend, James Crompton, whom he was visiting. That same day,   **3    the Pennsylvania State Police filed a criminal complaint against Homar charging him with possession of marijuana, possession with intent to deliver and criminal conspiracy.

The state police called David Marazas, ESU's police chief and Homar's supervisor, to inform him of Homar's arrest  and  the  charges  against  him.  Marazas  then  in- formed  Gerald  Levanowitz,  ESU's  Director  of  Human Resources,  to  whom  ESU  President  James  Gilbert  had delegated authority to discipline and suspend ESU em- ployees.  Levanowitz  decided  immediately  to  suspend Homar without pay. No pre-suspension hearing was held. On   August   27,   Homar   received   a   letter   from Levanowitz  advising  him  that  he  was  suspended  with- out pay pending further investigation and disposition of the criminal charges. The letter advised Homar that any administrative action taken by the University against him

" did  not have to coincide with the disposition of those charges through the legal process." Appendix ("App.") at

197.

District Justice Charles P. Eyer dismissed all criminal charges against Homar on September 1, 1992. Levanowitz still refused to lift Homar's suspension.

On September 11, 1992, Levanowitz, along with two ESU police sergeants **4    who were assigned to con- duct an investigation on Homar, met with two state troop- ers  and  a  Corporal  to  discuss  Homar's  situation.  App. at  143.  One  of  the  troopers  was  the  state  trooper  who signed  the  criminal  complaint  against  Homar.  At  this meeting, Levanowitz was provided with a copy of a page from the Pennsylvania State Police investigative file re- garding Homar, called the "Supplemental Report." This report  includes  statements  attributed  to  Homar  that  he allegedly  made  to  the  Pennsylvania  State  Police  when he was interviewed shortly after his arrest. According to the Supplemental Report, Homar admitted his knowledge of  drug  dealing  by  Crompton  and  another  man  named Habhab, and Homar further admitted that he had received marijuana  from  Habhab  for  his  own  use  while  he  was employed as an ESU police officer. Homar contests that he ever made these statements.

On  September  15,  1992,  Levanowitz  called  Homar and arranged for a meeting three days later. Levanowitz explained that this meeting would be an "administrative hearing," and that accordingly Homar had a right to have his union representative present but that he did not have a right to legal counsel.

Homar  attended  this  meeting   **5    on  September

18,  1992,  along  with  his  union  representative.  Besides Levanowitz,   Marazas   was   also   present,   as   well   as Levanowitz's  secretary.  At  the  start  of  the  meeting, Homar's union representative requested that Homar's at- torney be present. Levanowitz responded that if Homar so chose, they would have to postpone the meeting until a later time. Homar opted to proceed with the meeting un- represented. According to the notes taken by Levanowitz's secretary,  Levanowitz  made  the  following  statement  to Homar:

The purpose of this meeting today is to give you an opportunity to provide any informa- tion  on  your  own  behalf  that  would  assist us in making a determination concerning the action that would end your

89 F.3d 1009, *1013; 1995 U.S. App. LEXIS 41027, **5;

12 I.E.R. Cas. (BNA) 1368

Page 5

*1013  suspension and any information that would be of help to you in presenting your case.

**7

the period of his suspension.

App. at 205.

Levanowitz maintained at a deposition held later that he had told Homar that "the State Police had given him  some evidence very serious in nature," App. at 164, and that he offered Homar the opportunity to present his side of the story. Levanowitz never informed Homar that he had received the Supplemental Report from the state po- lice containing his alleged confession.   **6

On September 23, 1992, Levanowitz wrote a letter to Homar advising him that he was being demoted from the position of police officer to the position of groundskeeper. The text of the letter reads, in pertinent part, as follows:

This is to inform you that you are to be de- moted from your position as a Police Officer I  in  the  Campus  Police  Department  to  the position of Groundskeeper. . . . The action is effective retroactive to August 26, 1992, and you are to be given back pay to that date at the rate of pay for a Groundskeeper. You are to report to work at 7:00 A.M. on September 24,

1992  at  the  Facilities  Management  Office. Your new rate of pay as Groundskeeper will be $552.80 bi-weekly. n1

This   action   is   being   taken   as   a   re- sult of admissions made by yourself to the Pennsylvania  State  Police  on  August  26,

1992  that  you  maintained  association  with individuals  whom  you  knew  were  dealing in large quantities of marijuana and you ob- tained marijuana from one of those individu- als for your own use. Your actions constitute a clear and flagrant violation of Sections 200 and 200.2 of the East Stroudsburg University Police Department Manual.

App. at 208 (footnote added).

n1 On February 16, 1993, Levanowitz directed retroactive payment to Homar of the difference in groundskeeper salary and police officer's salary for

After this letter was issued, the president of the union representing Homar requested that Homar have an oppor- tunity to meet with President Gilbert regarding the letter. The meeting occurred on September 24, 1992 at 2:00 p.m. By this time, Homar had received and read a copy of the Supplemental  Report.  Gilbert  provided  Homar  with  an opportunity to respond to the charges and to Levanowitz's decision. Gilbert nonetheless sustained the suspension. After   failing   to   obtain   relief   through   his   union grievance procedure, Homar filed a complaint in the dis- trict court for the Middle District of Pennsylvania against Gilbert, Levanowitz and Marazas. His complaint alleges that the procedures by which he was suspended and then demoted  lacked  required  due  process,  that  defendants' actions deprived him of liberty and property, and that his substantive  due  process  rights  were  also  violated.  The district court entered summary judgment in favor of the defendants on March 17, 1995. Homar then appealed to

this court. II.

The district court had jurisdiction over this action pur- suant to 28 U.S.C. §§ 1331 and 1343 and 42 U.S.C. § 1983. This court has jurisdiction over the appeal of the district court's **8   final decision under 28 U.S.C. § 1291.

HN2  Our review of the district court's order for sum- mary judgment is plenary,  and we thus apply the same standards that were applicable in the district court.   J.F. Feeser, Inc. v. Serv-A--Portion, Inc., 909 F.2d 1524, 1530

(3d Cir.,  1990),  cert. denied,  499 U.S. 921,  113 L. Ed.

2d 246,  111 S. Ct. 1313 (1991). Summary judgment is appropriately granted when "there is no genuine issue as to any material fact and the moving party is entitled to a  judgment  as  a  matter  of  law."  Fed.  R.  Civ.  P.  56(c). If, however, "the evidence is such that a reasonable jury could return a verdict for the nonmoving party," Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d

202, 106 S. Ct. 2505 (1986), summary judgment shall not be granted. Homar, as the nonmoving party, is entitled to have all reasonable inferences drawn in his favor. See J.F. Feeser, 909 F.2d at 1531.

89 F.3d 1009, *1014; 1995 U.S. App. LEXIS 41027, **8;

12 I.E.R. Cas. (BNA) 1368

Page 6

*1014   III.

Homar's first claim is that ESU failed to provide him a meaningful pre-deprivation hearing prior to his suspen- sion without pay and his subsequent demotion from police officer to groundskeeper.

In Cleveland Bd. of Education v. Loudermill, 470 U.S.

532, 84 L. Ed. 2d 494, 105 S. Ct. 1487 (1985), the United States Supreme Court held that HN3  when a public em- ployee has a property **9   interest in his or her employ- ment he or she is entitled to a meaningful pre-termination hearing. Such a hearing need not be elaborate, but rather

"an initial check against mistaken decision-- essentially, a determination of whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action." Id. at 545-46. Loudermill specifically requires that prior to termination:

a  tenured public employee is entitled to oral or written notice of the charges against him, an  explanation  of  the  employer's  evidence, and an opportunity to present his side of the story.

Id. at 546.

The Supreme Court has made it eminently clear that

HN4   due  process  entitles  a  party  to  such  a  hearing

"before he or she  is deprived of any significant prop- erty  interest,  except  for  extraordinary  situations  where some valid governmental interest is at stake that justifies postponing the hearing until after the event." Boddie v. Connecticut, 401 U.S. 371, 379, 28 L. Ed. 2d 113, 91 S. Ct. 780 (1971); see also Loudermill, 470 U.S. at 542; Bell v. Burson, 402 U.S. 535, 542, 29 L. Ed. 2d 90, 91 S. Ct.

1586 (1971). This fundamental right to a pre-deprivation hearing is not abridged by the **10   availability of ex- tensive post-deprivations remedies. See Morton v. Beyer,

822 F.2d 364, 368 (3d Cir. 1987) (holding that "the avail- ability of extensive post-termination procedures does not eliminate the essential requirement of due process that a hearing be provided before discharge");  Gniotek v. City of Philadelphia, 808 F.2d 241, 243 (3d Cir. 1986) (noting that "the predeprivation hearing need not be elaborate, but it is necessary, even if extensive post-deprivation reme-

dies are afforded."), cert. denied, 481 U.S. 1050, 95 L. Ed.

2d 839, 107 S. Ct. 2183 (1987).

While we recognize that Homar was not completely terminated from his employment with ESU, he was ter- minated from his position as a police officer and received a reduction in his pay. Accordingly, we find the require- ments  of  Loudermill  to  be  applicable  in  this  instance. Indeed, there is no dispute among the parties that Homar had a property interest in his employment as police officer. Rather, the dispute concerns the degree of due process to which Homar was entitled prior to his suspension without pay and prior to his demotion from his position as police officer to groundskeeper.

A.

We will first address Homar's contention that he was

**11   entitled to notice and an opportunity to be heard prior to his suspension without pay from his position as an ESU police officer.

It is undisputed that Homar was not afforded any kind of hearing prior to his suspension without pay immedi- ately following his arrest on drug charges. ESU nonethe- less argues that Homar's due process rights were not vio- lated because, while Homar's interest in remaining in his job is "an important one," ESU had a compelling interest in "taking prompt action to maintain public confidence in  its  police  force."  Appellee's  Brief  at  15.  Indeed,  the Supreme Court has explained that

HN5

an important government interest, accompa- nied by a substantial assurance that the depri- vation is not baseless or unwarranted, may in limited cases demanding prompt action jus- tify postponing the opportunity to be heard until after the initial deprivation.

FDIC v. Mallen, 486 U.S. 230, 240, 108 S. Ct. 1780, 100

L. Ed. 2d 265 (1988); see also Boddie, 401 U.S. at 379

(noting that there can be "extraordinary situations where some valid governmental interest is at stake that justifies postponing the hearing until after the event").

89 F.3d 1009, *1015; 1995 U.S. App. LEXIS 41027, **11;

12 I.E.R. Cas. (BNA) 1368

Page 7

*1015   The district court agreed with ESU, finding that it was permissible **12    for the university to suspend Homar without pay and without a hearing. The court first noted  that  "both  the  timing  and  the  nature  of  requisite process depends upon an 'appropriate accommodation of the competing interests involved.'" Homar v. Gilbert, No. CV-93--0853, typescript at 11 (M.D. Pa., March 17, 1995)

(hereinafter "D. Ct. Op.") (citing Goss v. Lopez, 419 U.S.

565, 579, 42 L. Ed. 2d 725, 95 S. Ct. 729 (1975)). It then applied the analysis prescribed by Logan v. Zimmerman Brush  Co.,  assessing  the  competing  interests  involved, including "the importance of the private interest, and the length and finality of the deprivation, . . . the likelihood of governmental error, . . . and the magnitude of the govern- mental interests involved." Id., typescript at 11 (quoting Logan v. Zimmerman Brush Co., 455 U.S. 422, 434, 71

L. Ed. 2d 265,  102 S. Ct. 1148 (1982)). While the dis- trict court recognized that Homar's "private interest was strong," it found that "the deprivation incident to a suspen- sion was only temporary and of a relatively brief duration

(approximately  one  month)."  Id.,  typescript  at  11.  The district  court  concluded  that  Homar's  interest  in  avoid- ing such a "temporary" and "brief" deprivation was not as  compelling  as  "the   **13    governmental  interest  in preserving  public  confidence  in  law  enforcement."  Id., typescript at 12. The court found its conclusion bolstered by the fact that Homar was eventually awarded full pay and benefits for the period of suspension, noting that "'sus- pension with pay does not raise due process concerns.'" Id.,  typescript at 13 (quoting Hicks v. City of Watonga, Okl., 942 F.2d 737, 746 n.4 (10th Cir. 1991).

We agree with the district court that there was a com- pelling governmental interest which supports ESU's deci- sion to suspend Homar immediately and without a hearing pending further investigation. The university has a sub- stantial interest in maintaining public confidence in the ESU police force, and Homar's arrest on drug charges cer- tainly suffices to ensure that the university's concerns were not baseless or unwarranted, as required by the Supreme Court.  See  Mallen,  486  U.S.  at  240.  In  circumstances

where public safety is implicated, "not even an informal hearing . . . must precede a deprivation." Caine v. Hardy,

943 F.2d 1406, 1412 (5th Cir. 1991) (en banc), cert. de- nied, 503 U.S. 936, 117 L. Ed. 2d 618, 112 S. Ct. 1474

(1992).

Nonetheless, we find that Homar's due process rights were **14   violated because he was suspended without pay. The Supreme Court's decision in Loudermill strongly suggests that HN6  suspension without pay must be pre- ceded  by  notice  and  an  opportunity  to  be  heard  in  all instances. Initially, the Court noted that it had "frequently recognized the severity of depriving a person of the means of  livelihood."  Loudermill,  470  U.S.  at  543.  Then  the Court explained that, while it recognized that there were some limited instances in which a strong governmental in- terest might warrant immediately removing a person from a position without a hearing, "in those situations where the  employer  perceives  a  significant  hazard  in  keeping the  employee  on  the  job,  it  can  avoid  the  problem  by suspending with pay." Id. at 544-45 (emphasis added). Other circuits which have examined this language in Loudermill have disagreed with regard to its precise man- date. At least one court of appeals has read Loudermill to require that an employee be provided an opportunity to be heard prior to suspension without pay. See Everett v. Napper, 833 F.2d 1507, 1512 (11th Cir. 1987) (holding that, under Loudermill a suspended firefighter was enti- tled to a **15   hearing prior to suspension because he was not paid during his suspension). The Federal Circuit, by contrast, noted that Loudermill's prescription of sus- pension with pay in situations where significant hazards would result from continued employment was only dicta:

"We agree that in the instant case, the government could have suspended with pay. Nevertheless, we cannot read Loudermill as holding the government must suspend . .

.  with  pay."  Engdahl  v.  Dept.  of  Navy,  900  F.2d  1572,

1578 (Fed. Cir. 1990). Other circuits, while not explicitly addressing Loudermill, have on occasion allowed suspen- sion without pay to stand even in the absence of a pre- deprivation hearing.

89 F.3d 1009, *1016; 1995 U.S. App. LEXIS 41027, **15;

12 I.E.R. Cas. (BNA) 1368

Page 8

*1016    See,  e.g.,  Jones v. City of Gary,  Ind.,  57 F.3d

1435, 1436 (7th Cir. 1995); Ambus v. Granite Bd. of Educ.,

975 F.2d 1555, 1558, 1562 (10th Cir. 1992), modified on rehearing by, 995 F.2d 992 (10th Cir. 1993) (en banc). n2

n2  In  disagreeing  with  our  conclusion  that Loudermill suggests that a state employer may not suspend  an  employee  without  pay  absent  a  pre- suspension hearing, the dissent lists several addi- tional cases that it contends interpret the language in Loudermill differently. Dissent, typescript at 4-

6.  Only  Engdahl  and  Bailey  v.  Board  of  County Comm'rs of Alachua County, 956 F.2d 1112, 1124 n. 13 (11th Cir. 1992) actually squarely consider the Loudermill  language,  however,  and  the  Eleventh Circuit in Bailey failed to acknowledge its previ- ous contrary precedent in Everett. The remainder simply  allow  suspensions  without  pay  and  with- out a pre-deprivation hearing to stand without dis- cussing whether Loudermill anticipates that such a practice should be permitted. In the absence of such discussions,  we  do  not  think  these  decisions  can be  characterized  as  reaching  any  conclusion  one way  or  the  other  about  the  Loudermill  language. Furthermore, we do not think that Mallen can be read to undermine the message of Loudermill, as it  includes  no  discussion  of  suspension  with  pay versus suspension without pay; indeed, the opinion does not disclose whether the bank president there was suspended with pay or without pay.

**16

This court has not precisely addressed this issue in the past. However, our decision in Bradley v. Pittsburgh Bd. of Educ., 913 F.2d 1064 (3d Cir. 1990), may be read to imply that, under Loudermill, suspension without a pre- deprivation hearing is only constitutional if the suspen- sion  is  one  with  pay.  In  Bradley,  we  were  called  upon to  decide,  among  other  issues,  whether  a  teacher  who had been effectively suspended without pay and without a hearing for one year prior to being officially terminated, had been deprived of his procedural due process rights. The  employer  in  Bradley  ultimately  provided  Bradley full sabbatical pay for the year in question. The district court  had  relied  upon  Loudermill  to  conclude  that  the employer was entitled to suspend Bradley without a pre- suspension hearing because he eventually had been pro- vided payment for the period of suspension. Id. at 1077. In  reviewing  this  decision,  we  first  acknowledged  that under Loudermill, in circumstances where a governmen-

tal employer perceives substantial hazards in keeping an employee on the job, it may suspend the employee with pay until such time that a hearing may be held. Id. (citing

**17   Loudermill, 470 U.S. at 544-45). We concluded, however, that "Loudermill did  not govern that  case be- cause Bradley was suspended without pay." Id. We thus implicitly,  but necessarily,  rejected the idea that a gov- ernment employer could cite to the substantial hazards of keeping an employee on the job and thereby suspend him without a pre-suspension hearing without pay. Had we de- termined that Bradley had been suspended with pay, we presumably would have found that the Loudermill excep- tion -- essentially the Mallen exception -- applied. Thus, while Bradley does not explicitly declare that suspension without pay and without a pre-suspension hearing always violates due process, such a holding may be inferred from its reasoning. n3

n3  As  the  dissent  points  out,   later  in  the Bradley  opinion,  we  did  expressly  reserve  deci- sion on whether Bradley was entitled to a pre-or post-suspension hearing, noting that Bradley was not provided any hearing whatsoever. The discus- sion as written in Bradley does suggest that,  had Bradley been provided a post-suspension hearing, the court envisioned that it might have found a post- suspension  hearing  was  adequate  under  Mallen. However, we did not consider the question in any detail.  Had  we  done  so,  we  would  have  realized that  a  conclusion  that  a  post-suspension  hearing was sufficient would be inconsistent with our ear- lier conclusion that the Loudermill exception could not apply because Bradley was suspended without pay.

**18

Today we clearly enunciate that HN7  a governmen- tal employer may not suspend an employee without pay unless that suspension is preceded by some kind of pre- suspension hearing, providing the employee with notice and  an  opportunity  to  be  heard.  We  think  that  such  a holding  is  not  only  consistent  with,  and  suggested  by, Loudermill, but it is also eminently sensible. It is imper- ative that employers be provided with adequate flexibil- ity  to  allow  them  to  protect  the  public  and  respond  to emergency  situations  expediently.  Suspension  with  pay addresses these important concerns while simultaneously protecting the fundamental rights of an employee to due process  prior  to  being  deprived  of  his  or  her  property interest in employment and its

89 F.3d 1009, *1017; 1995 U.S. App. LEXIS 41027, **18;

12 I.E.R. Cas. (BNA) 1368

Page 9

*1017   accompanying salary. n4 Furthermore, this con- clusion seems consistent with the Supreme Court's hold- ing in Zimmerman Brush that, in determining the timing and nature of an appropriate hearing, courts should assess the competing interests involved and arrive at an appro- priate accommodation.   Zimmerman Brush, 455 U.S. at

434. n5

n4  The  dissent  questions  the  purpose  a  pre- deprivation hearing would have served in Homar's case,  given  that  he  had  been  arrested,  admitted as  much,  and  even  anticipated  being  suspended. Dissent, typescript at 2 & n.1, 7-8. We think, how- ever,  that a pre-suspension hearing may have al- lowed Homar an important opportunity to present his side of the story,  and deny any wrong-doing. While we anticipate that ESU probably would have decided to suspend Homar pending further explo- ration of the charges against him, had Homar had an opportunity to present his story, ESU may have decided to limit the scope of the suspension by, for example,  not suspending his pay pending the in- vestigation. Thus, although Homar may have been well aware of the reasons for his suspension, when ESU deprived him of a pre-deprivation hearing, he nonetheless was denied a meaningful opportunity to respond to the charges.

**19

n5  The  dissent  properly  places  much  empha- sis on the importance of courts balancing compet- ing interests and considering the particular circum- stances of each case in determining the procedural due process requirements  See Dissent,  typescript at 6. However, the dissent does not explain why, in order to maintain public confidence in the police department and to protect public safety, it is nec- essary that a ESU not only suspend Homar from acting as a police officer, but also deprive him of his salary. As noted above, we think that the sub- stantial  governmental  interests  implicated  in  this case are protected by allowing ESU to immediately suspend Homar without a pre-deprivation hearing, but with pay.

As noted above, the district court treated Homar's sus- pension as a suspension with pay:

That Homar was originally suspended with- out  pay  does  not  warrant  a  finding  that  he was  deprived  of  property  without  due  pro- cess. At most, he was denied use of his salary for a very brief period of time. To recognize

a cause of action for denial of due process under these circumstances would clearly el- evate **20   form over substance.

* * *

Since he clearly could be suspended with pay without  implicating  due  process  concerns, and within one month after being suspended he was awarded full pay for the period of sus- pension, any injury resulting from the failure to provide an opportunity to be heard before the suspension was imposed is surely de min- imis.

D. Ct. Op., typescript at 13-14.

We  fundamentally  disagree  with  the  district  court's conclusion.  First,  our  decision  in  Bradley  clearly  indi- cates that the subsequent awarding of backpay does not remedy a due process violation:

HN8

The right to procedural due process cannot be so ephemeral that it evaporates because an individual suspended without pay happened to obtain paid leave thereafter. . . . That may affect the damages ultimately awarded,  but if there was a violation of due process, the employee  is entitled to have that right vin- dicated.

Bradley, 913 F.2d at 1077.

Second,  Homar's suspension without pay cannot be viewed as de minimis. At the time that Homar was sus- pended, he was told that he was "to be suspended without pay, effective immediately on 8/26/92, from his  position as a police **21  officer at East Stroudsburg University." App. at 197. For a period of approximately one month, Homar's  very  livelihood  was  threatened  because  he  re- ceived no salary. As far as Homar knew at the time of his suspension, he had no prospects whatsoever of receiving any wages for the indefinite duration of his suspension. It  was  not  until  he  received  his  letter  of  demotion  on September 24, 1992 --  nearly a month after he was sus- pended -- that he learned he would be receiving backpay at the rate of a groundskeeper. While it is true that Homar eventually received backpay at the wage rate he earned as a police officer to cover the period of his suspension, we note that according to Defendant's Statement of Material Fact accompanying their Motion for Summary Judgment, Levanowitz did not authorize Homar's backpay at the rate of  a  police  officer  until  February  16,  1993.  Thus,  for nearly six months, Homar was deprived of a salary that was rightfully his. Furthermore,

89 F.3d 1009, *1018; 1995 U.S. App. LEXIS 41027, **21;

12 I.E.R. Cas. (BNA) 1368

Page 10

*1018  there is evidence to suggest that ESU only agreed to pay this rate upon pressure from Homar's union repre- sentative. n6

n6 That ESU ultimately provided Homar back- pay  at  the  rate  of  a  police  officer  for  this  period of  his  suspension  is  an  indication  that  ESU  was aware that it had erroneously deprived Homar of his salary.

**22

Accordingly, we find that Homar was entitled to notice and at least some kind of hearing prior to being suspended without pay. n7 It is undisputed that Homar received no hearing prior to his suspension, and we conclude that the district court erred in granting summary judgment in favor of defendants on this issue.

n7 The dissent contends that our reasoning is flawed because a public employer may suspend an employee  for  cause,  with  pay,  without  implicat- ing any constitutionally protected property interest. Dissent, typescript at 8. While the Tenth Circuit has squarely held suspension with pay does not impli- cate due process concerns, see Hicks, 942 F.2d at

746 n.4, we are less sure that such is the case. While a salary is probably the most obvious property inter- est in employment, we think there are clearly other interests involved. In Homar's case they would in- clude his interest in participating in the daily affairs of the ESU community as a police officer,  along with his interest in the honor and respect that ac- companies the post. Cf.   Mallen, 486 U.S. at 240

(noting that a bank president's interest in the right

"to continue to serve as president of the bank and to participate in the conduct of its affairs is a prop- erty right protected by the Fifth Amendment Due Process Clause") (emphasis added).

**23

B.

Homar further alleges that he was deprived of mean- ingful pre-termination due process in the course of his demotion to the position of groundskeeper.

As outlined above, Loudermill requires that HN9  a public employee with a property interest in his or her em- ployment be granted a meaningful pre-termination hear-

ing.  Loudermill, 470 U.S. at 545-46. We reiterate that it is of paramount importance that this hearing take place prior to the deprivation. As explained above, absent com- pelling government interests justifying postponement of a hearing, the hearing must take place before the depriva- tion, see Boddie, 401 U.S. at 379; Loudermill, 470 U.S. at

542; Bell, 402 U.S. at 542, because "the only meaningful opportunity to invoke the discretion of the decisionmaker is likely to be before the termination takes effect." Id.; see also, Board of Regents v. Roth, 408 U.S. 564, 570 n.7, 33

L. Ed. 2d 548, 92 S. Ct. 2701 (1972). Indeed, this right to pre-deprivation due process is so fundamental that it remains "even if extensive post-deprivation remedies are afforded." Gniotek, 808 F.2d at 243; see also Morton, 822

F.2d at 368.

HN10   This  pre-deprivation  hearing  need  not  be elaborate. As explained **24    by the Supreme Court,

"'something less' than a full evidentiary hearing is suffi- cient prior to adverse administrative action." Loudermill,

470 U.S. at 545 (citations omitted). Nonetheless, the hear- ing must be sufficient to inform the employee of the evi- dence against him or her and to respond to the evidence. See Fraternal Order of Police Lodge No. 5 v. Tucker, 868

F.2d  74,  80  (3d  Cir.  1989).  " A   sina   sic   qua  non  of a  meaningful  hearing  is  a  sufficient  explanation  of  the employer's evidence  to  permit  a  meaningful  response." Id.

Under   the   circumstances   presented   here,   where Homar was suspended from his position pending further investigation into his activities, it is clear that there was no compelling government issue at stake that would require ESU to immediately deprive Homar of his employment. Any concerns about preserving public safety or the in- tegrity of the police force were met by Homar's suspen- sion. The university thus was afforded the time it would need adequately to provide Homar a pre-deprivation hear- ing. The question for us to answer, then, is whether the university provided him such a hearing.

The  district  court  concluded  that  the  "administra- tive   **25     hearing"  which  took  place  on  September

18 did not meet the due process requirements of a pre- deprivation hearing because it "did not allow Homar  to make a meaningful response to the damaging information found in the supplemental report." D. Ct. Op., typescript at 15. We agree.

89 F.3d 1009, *1019; 1995 U.S. App. LEXIS 41027, **25;

12 I.E.R. Cas. (BNA) 1368

Page 11

*1019   During the September 18 meeting, Levanowitz only told Homar that the State Police had given him some

"evidence very serious in nature." App. at 164. While it safely can be presumed that Homar knew that ESU's con- cerns about his employment arose from his arrest on drug charges,  Homar was not aware of the allegations made against  him  by  the  troopers  that  were  presented  in  the Supplemental Report, namely that he allegedly confessed to knowing that Crompton and Habhab were drug dealers and to receiving marijuana from Habhab during his em- ployment as a police officer. More to the point, Homar was completely unaware that Levanowitz had received a copy of the Supplemental Report containing these allegations. Under these circumstances it is very clear that Homar's right to a meaningful pre-deprivation hearing was denied. See Tucker, 868 F.2d at 80 (holding that suspended police officers who were not told anything **26   specific about drug use allegations or the evidence regarding the allega- tions were deprived of their due process rights because they had no opportunity to explain or rebut evidence).

In spite of its conclusion regarding the insufficiency of the September 18 "administrative hearing," the district court entered summary judgment in favor of defendants because it concluded that Homar's September 24,  1995 meeting with President Gilbert, prior to which Homar had received and read the Supplemental Report, was a mean- ingful pre-termination hearing. D. Ct. Op., typescript at

16.  Given  that  Homar  was  afforded  an  opportunity  to review  the  Supplemental  Report  and  offer  meaningful responses  to  the  allegations,  we  find  that  this  meeting afforded  Homar  with  sufficient  procedural  due  process protections assuming it took place prior to his demotion becoming effective. HN11  While true that an employee is  not  entitled  to  a  pre-decision  hearing,  see  Chung  v. Park, 514 F.2d 382, 387 (3d Cir.), cert. denied, 423 U.S.

948, 46 L. Ed. 2d 282, 96 S. Ct. 364 (1975), only if this hearing took place before his demotion took effect can we conclude that he was afforded meaningful due process. The district court held as a matter **27   of law that Homar's dismissal from his position as a police officer

took effect only after this meeting with President Gilbert. D. Ct. Op., typescript at 16. The district court found that the meeting,  which took place at 2 p.m. on September

24, 1992, "occurred before Homar would have started his evening shift as police officer should Gilbert have decided to reinstate him to that position," id., and thus concluded that  "Gilbert's  decision  that  Homar  could  not  return  to ESU as a police officer is properly viewed as the point in time when Homar was deprived of his position as an ESU police officer." Id.

We disagree with the district court that the point in time at which Homar's demotion became effective is clear. There is substantial evidence in the record to support a conclusion  that  Homar's  demotion  took  effect  prior  to this meeting. Homar's meeting with Gilbert took place on September 24 at 2:00 p.m. The letter which Levanowitz sent to Homar apprising him that he had been demoted to Groundskeeper was dated on September 23, 1992. In that letter, Levanowitz informed Homar that he was "to be demoted from his  position as a Police Officer I in the  Campus  Police  Department   **28    to  the  position of Groundskeeper, a position he  formerly held." App. at 208 (emphasis added). The letter further required that Homar "report to work at 7:00 A.M. on September 24,

1992,"  to  start  his  job  as  groundskeeper,  and  informed

Homar that this "action is effective retroactive to August

26,  1992."  App.  at  208  (emphasis  added).  Homar  tes- tified  during  a  deposition  that  he  was  already  working as  a  groundskeeper  at  the  time  of  his  September  24th,

2:00 p.m. meeting with Gilbert. There is thus evidence suggesting  that  Homar  had  already  been  demoted  to groundskeeper  by  the  time  this  meeting  took  place.  If this  is  true,  then  Homar  was  deprived  of  a  meaningful pre-deprivation hearing.

The district court based its contrary conclusion on two grounds. First, the court determined that "the significance of the meeting was that Gilbert held ultimate decision- making authority regarding whether Homar would remain employed by ESU as a

89 F.3d 1009, *1020; 1995 U.S. App. LEXIS 41027, **28;

12 I.E.R. Cas. (BNA) 1368

Page 12

*1020     police  officer."  D.  Ct.  Op.,  typescript  at  15. However,  this  meeting  with  Gilbert  never  would  have occurred had Homar's union representative not sought to arrange for the meeting with Gilbert. App. at 225. This fact seems to suggest that Levanowitz's **29   demotion of Homar would have become effective without Gilbert's approval, which would render Levanowitz's letter the fi- nal demotion. Levanowitz's authoritative tone in the letter similarly supports this conclusion.

The district court also concluded that the meeting with Gilbert  had  taken place  prior  to  Homar's  demotion  be- cause it occurred before 4 p.m., the time at which Homar would normally begin his shift as a police officer. Id. at

16. We disagree that the timing of the demotion is so clear. We think there is certainly an issue of material fact as to whether Homar's demotion became effective on August

26, as stated in the letter; at 7:00 a.m. on September 24, the date he was told to report to work as a groundskeeper; or at 4:00 p.m. on September 24, the time at which Homar would normally report to work as a police officer. Unless defendants expected Homar to act as both groundskeeper and police officer on September 24, the facts appear to support the conclusion that Homar's demotion was effec- tive at the latest by 7 a.m. on the morning of September

24th, seven hours prior to his meeting with Gilbert.

We thus conclude that there is a genuine issue of ma- terial fact regarding **30    the date and time at which Homar's demotion became effective, and that the district court's grant of summary judgment was therefore inappro- priate. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986) (holding summary judgment is inappropriate if there is evidence

"such that a reasonable jury could return a verdict for the nonmoving party."). Accordingly, we reverse the district court's  entry  of  summary  judgment  regarding  Homar's meaningful pre-deprivation hearing.

IV.

Homar also contends that there is an issue of material fact as to whether his substantive due process rights were violated.  Relying  on  this  court's  precedent  in  Parkway Garage, Inc. v. City of Philadelphia, 5 F.3d 685, 692 (3d

Cir. 1993) in which we stated that HN12  " a  violation of substantive due process rights is proven:  . . . 'if the government's actions in a particular case were in fact mo- tivated  by  bias,  bad  faith  or  improper  motive.  .  .,'"  id.

(quoting Midnight Sessions, Ltd. v. City of Philadelphia,

945 F.2d 667 at 683 (3d Cir. 1991), cert. denied, 503 U.S.

984, 118 L. Ed. 2d 389, 112 S. Ct. 1668 (1992)), Homar points to several facts that he argues demonstrate that his suspension  and  demotion  were  motivated  by  bias,  bad faith **31   or improper motive.

The district court granted summary judgment in favor of defendants on this claim on the ground that there was no genuine issue of material fact as to whether Levanowitz, Gilbert or any other ESU official was motivated by bias, bad faith or improper motive.

While we agree with the district court that the evidence in this case does not support a conclusion that Levanowitz or any other ESU official was motivated by an improper motive in suspending and then demoting Homar, for there is, indeed, "nothing improper about conducting an inves- tigation of a law enforcement officer who has been ar- rested, even if the charges are ultimately dismissed," D. Ct. Op., typescript at 23, we think that there is a ques- tion of material fact as to whether ESU officials acted in bad faith. Several events leading up to Homar's demotion suggest that Levanowitz did not engage in a good faith effort to accord Homar appropriate due process protec- tion  throughout  his  ordeal.  Levanowitz  never  informed Homar that he had received and read the Supplemental Report prior to their September 18 meeting; Levanowitz ordered that a poll be taken among police officers regard- ing whether Homar should be **32   allowed to return to the force, which is certainly a very strange proceeding out- side the realm of traditional due process proceedings; and Levanowitz issued the September 23 letter of demotion prior to the meeting with President Gilbert --  a meeting which occurred only after Homar's union representative requested it take place. Such events might lead a reason- able fact-finder to conclude that Homar's demotion was pre-determined and to view the entire demotion process as rigged to produce this result.

89 F.3d 1009, *1021; 1995 U.S. App. LEXIS 41027, **32;

12 I.E.R. Cas. (BNA) 1368

Page 13

*1021   Our conclusion that there is a genuine issue of material fact as to whether ESU officials were motivated by bad faith,  however,  does not lead us to remand this matter simply for a factual finding. A more fundamental legal question must first be addressed,  namely whether Homar's property interest in his state-created job is an in- terest worthy of protection under substantive due process. DeBlasio v. Zoning Bd. of Adjustment, 53 F.3d 592, 598,

600  (3d  Cir.  1993)  (holding  that  before  addressing  the sufficiency of the evidence of improper motive, a court addressing  a  substantive  due  process  claim  should  first consider whether the plaintiff possesses a property inter- est worthy of substantive **33   due process protection). Although Homar has succeeded in making a procedural due process claim, under the law of this circuit HN13

"not all property interests worthy of procedural due pro- cess protections are protected by the concept of substan- tive due process." Reich v. Beharry,  883 F.2d 239,  244

(3d Cir. 1989). In order to state a substantive due process claim, "a plaintiff must have been deprived of a certain quality of property interest." DeBlasio, 53 F.3d at 600.

The parties did not address before the district court the question of whether a state-created property interest in employment is the "certain quality" of property inter- est worthy of protection under the substantive due process clause, nor did the district court consider it. HN14  While courts of appeals do have discretion to consider and re- solve certain issues for the first time on appeal, such as where the proper resolution is not in doubt or where "'in- justice might otherwise result,'" Singleton v. Wulff,  428

U.S. 106, 121, 49 L. Ed. 2d 826, 96 S. Ct. 2868 (1976)

(quoting Hormel v. Helvering, 312 U.S. 552, 557, 85 L. Ed. 1037, 61 S. Ct. 719 (1941)); see also Nelson v. County of Allegheny, 60 F.3d 1010, 1013 n.3 (3d Cir. 1995), it is a general rule that federal appellate **34   courts do not consider an issue not passed upon below.  Singleton, 428

U.S. at 120.

In the instant case, we think it appropriate to remand this issue for consideration in the first instance by the dis- trict court. Certainly this is not a situation where the proper

resolution is clear. Rather, the case law of this circuit and the  Supreme  Court  provides  very  little  guidance  as  to what constitutes this "certain quality" of property interest worthy of protection under the substantive due process clause. We have held that "ownership is a property inter- est worthy of substantive due process protection," id., but we have found that neither interest in prompt receipt of payment for professional services provided to the state, Reich, 883 F.2d at 244-45, nor state law entitlement to water and sewer services, Ransom v. Marrazzo, 848 F.2d

398,  411-12 (3d Cir. 1988) are the "certain quality" of property interest worthy of substantive due process pro- tection. We also have strongly suggested in dictum that a  student's  right  to  continued  enrollment  in  a  graduate program does not rise to such a level on the ground that such an interest bears "'little resemblance to the funda- mental interests **35   that previously had been viewed as  implicitly  protected  by  the  Constitution.'"  Mauriello v. U. of Med. & Dentistry of N.J.,  781 F.2d 46,  50 (3d Cir. 1986) (quoting Regents of University of Michigan v. Ewing, 474 U.S. 214, 229-30, 88 L. Ed. 2d 523, 106 S. Ct.  507  (Powell,  J.,  concurring).  None  of  the  property interests formerly considered are especially analogous to the property interest in state-created employment. Given the complexity of this issue,  we think it appropriate to allow the district court the first opportunity to consider it. Should this issue return to us on appeal, we will benefit from the district court's analysis. Furthermore, we have already determined to remand this matter on the procedu- ral due process ground as well, eliminating any concern about the injustice of delaying the final conclusion of this case. Accordingly, we remand this question to the district court for consideration there.

V.

Additionally,  Homar  contends  that  a  genuine  issue of  material  fact  exists  as  to  whether  Homar's  due  pro- cess rights were violated because defendants made public statements about his suspension that stigmatized Homar and damaged his reputation. Specifically, Homar alleges that ESU violated his protected **36

89 F.3d 1009, *1022; 1995 U.S. App. LEXIS 41027, **36;

12 I.E.R. Cas. (BNA) 1368

Page 14

*1022   liberty interest in two ways. First, he alleges that ESU  seriously  damaged  his  good  name  and  reputation by publicly disclosing the charges against him. Second, Homar  alleges  that  ESU  imposed  a  stigma  or  disabil- ity on him, foreclosing his freedom to take advantage of other employment opportunities. We will address these two claims in turn.

A.

The Supreme Court has held that HN15  a person has a liberty interest in employment actions which require due process "where a person's good name, reputation, honor or integrity is at stake because of what the government is doing to him." Roth, 408 U.S. at 573. Homar claims that this liberty interest was implicated in the instant case be- cause ESU's demotion of him "'damaged his standing and associations in the community.'" Appellant's Brief at 28

(citing Roth, 408 U.S. at 573). Homar may only prevail on this claim if he can demonstrate that the government "cre- ated and disseminated a false and defamatory impression about him  in connection with his termination." Codd v. Velger, 429 U.S. 624, 628, 51 L. Ed. 2d 92, 97 S. Ct. 882

(1977) (per curiam). See also Bishop v. Wood, 426 U.S.

341, 348-49, 48 L. Ed. 2d 684, 96 S. Ct. 2074 (1976). Homar contends that ESU's disclosure of its investi- gation  into   **37    his  activities  in  a  small  article  that appeared in the Pocono Record newspaper,  n8 coupled with his subsequent demotion, implicated his liberty in- terest. We disagree. The article in the newspaper did not disclose any specifics regarding the nature of ESU's con- cern, nor did it disclose information about the disciplinary action  ESU  contemplated.  Furthermore,  the  article  ap- peared  prior  to  his  demotion,  and  there  is  no  evidence to indicate that ESU publicly disclosed the outcome of its  investigation  or  the  fact  that  it  demoted  Homar  to groundskeeper. We accordingly find that Homar has no liberty interest claim. See Tucker, 868 F.2d at 82 (holding that no liberty interest was implicated when press release

about discharge of police officers was not misleading).

n8 The text of the article, which appeared on the September 3, 1992 edition of the paper, reads as follows:

East         Stroudsberg           University should  decide  by  next  week  whether to   reinstate   suspended   ESU   police officer Richard J. Homar.

Charges   were   dropped   Tuesday against   Homar,    26,    after   District Justice  Charles  Eyer  ruled  their sic

wasn't  enough  evidence  to  hold  him for trial. Homar had been charged with possession and delivery of marijuana and criminal conspiracy.

Jerry  Levanowitz,  ESU's  director of Human Resources, said the univer- sity is still conducting its investigation.

"The dropping of the charges has been noted," he said.

Once   the   investigation   is   com- pleted  a  due  process  hearing  will  be held for Homar and a decision will be rendered, Levanowitz said.

Last  week,  state  police  arrested Homar,  an ESU officer for about six months,  and  two  other  men  for  al- legedly conspiring to sell marijuana.

App. at 213.

**38

B.

Homar further alleges that ESU violated his liberty interest because it imposed "a stigma . . . that foreclosed his freedom to take advantage of other employment op- portunities." Roth, 408 U.S. at 573. Yet Homar has prof- fered no evidence to suggest that the disciplinary actions taken by the university had in any way foreclosed other employment  opportunities.  n9  Indeed,  Homar  testified at  his  deposition  that  he  had  not  sought  out  a  position with any other employer since his demotion. App. at 50. Furthermore, as noted above, Homar makes no allegations that any information in the newspaper article was untrue; the university never even publicly disclosed that Homar was terminated from his job as police officer. Under such circumstances, we cannot find that Homar's liberty inter- est was implicated. Tucker, 868 F.2d at 83.

n9 Homar testified during his deposition that, prior to his arrest he had applied for two part-time jobs for which he was not hired. App. at 97, 102. No  evidence  was  proffered,  however,  to  indicate that his arrest was the reason he was not offered these jobs.

**39

Accordingly, we affirm the district court's issuance of summary judgment as to this issue.

89 F.3d 1009, *1023; 1995 U.S. App. LEXIS 41027, **39;

12 I.E.R. Cas. (BNA) 1368

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*1023   VI.

For the foregoing reasons, we affirm in part, reverse in part and remand for further proceedings consistent with this opinion.

CONCURBY: ALITO (In Part)

DISSENTBY: ALITO (In Part)

DISSENT: ALITO, Circuit Judge, concurring in part and dissenting in part.

I write separately for two reasons. First, I would hold, based on the undisputed facts of this case, that the uni- versity's suspension of Homar without pay and without a hearing did not violate the principles of procedural due process as interpreted by the Supreme Court. I thus dis- sent from section III.A of the majority's opinion. Second, although I do not disagree with the majority's decision to remand the substantive due process question to the district court, I wish to set forth my own views on that issue.

I.

A.  Due  process  does  not  always  require  a  pre- suspension hearing. See, e.g., FDIC v. Mallen, 486 U.S.

230, 240-41, 108 S. Ct. 1780, 100 L. Ed. 2d 265 (1988); Barry v. Barchi, 443 U.S. 55, 63-66, 61 L. Ed. 2d 365,

99  S.  Ct.  2642  (1979).  In  Mallen,  the  Supreme  Court observed that "an important government interest, accom- panied by a substantial assurance that the deprivation is not baseless **40   or unwarranted, may in limited cases demanding prompt action justify postponing the opportu- nity to be heard until after the initial deprivation." 486 U.S. at 240 (citations omitted); see also Logan v. Zimmerman Brush Co.,  455 U.S. 422,  71 L. Ed. 2d 265,  102 S. Ct.

1148  (1982)  ("The  timing  and  nature  of  the  required hearing  'will  depend  on  appropriate  accommodation  of the competing interests involved. These include the im- portance of the private interest and the length or finality of the deprivation, the likelihood of governmental error, and the magnitude of the governmental interests involved.")

(citations and footnote omitted). In my view, this excep- tion should apply here. See, e.g., Ambus v. Granite Bd. of Educ., 975 F.2d 1555, 1562 (10th Cir. 1992), aff'd as modified on other ground, 995 F.2d 992 (10th Cir. 1993)

(en banc).

Under the particular circumstances of this case, a pre- suspension hearing was not, in my view, essential. Within a few hours of the August 26, 1992, drug raid that resulted in Homar's arrest, the university learned that Homar had been charged with possession of marijuana,  possession with intent to deliver marijuana, and criminal conspiracy. Homar did not report to work on August **41   26 for his 4:00 p.m. to 12:00 p.m. shift. The next day, Homar called his police chief to say that he had been arrested and to ask whether he was suspended. Homar was informed that he was suspended, and this was confirmed by letter delivered the same day. n10

n10 As I discuss further, infra, given Homar's immediate admission of his arrest,  I am at a loss as to what purpose a pre-suspension hearing would have served in this case. See generally Mathews v. Eldridge, 424 U.S. 319, 335, 47 L. Ed. 2d 18, 96

S. Ct. 893 (1976) (one factor to consider in deter- mining what due process requires is the probable value, if any, of additional procedural safeguards).

I do not think that the university violated Homar's right to procedural due process when it suspended him from his position as a campus police officer after learning that he had been arrested and charged with drug violations. There was probable cause to support the criminal charges and hence a substantial assurance that the deprivation was not baseless or unwarranted. The university was **42   cer- tainly entitled to take the position that Homar could not be permitted to work as a campus police officer with such charges  outstanding,  and  there  was thus,  as  the  major- ity concedes, a compelling government interest present. And the university needed to act promptly. The majority admits all of this but finds that the university had to sus- pend Homar with pay. I find no requirement that in such circumstances a public employer must pay its suspended employees.

B. In reaching its conclusion to the contrary, the ma- jority  declares  that  "a  governmental  employer may  not suspend an employee without pay unless that suspension is  preceded  by  some  kind  of  pre-suspension  hearing." Majority Opinion, Typescript at 14. The majority essen- tially  announces  a  blanket  rule  that  a  public  employer that

89 F.3d 1009, *1024; 1995 U.S. App. LEXIS 41027, **42;

12 I.E.R. Cas. (BNA) 1368

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*1024   wishes to suspend an employee -- even an em- ployee in a public-safety position who has been charged with  multiple  felonies  --  must  either  provide  a  pre- suspension  hearing  or  suspend  the  employee  with  pay. This  holding  is  based  on  one  sentence  of  dictum  from Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 544-

45, 84 L. Ed. 2d 494, 105 S. Ct. 1487 (1985), the Eleventh

Circuit's reliance on that dictum in Everett v. Napper, 833

**43   F.2d 1507, 1512 (11th Cir. 1987), and this court's opinion in Bradley v. Pittsburgh Bd. of Educ., 913 F.2d

1064  (3d  Cir.  1990).  These  bases  do  not,  in  my  view, withstand scrutiny.

With regard to Loudermill,  I note that the Supreme Court  there  expressly  recognized  that  "there  are,   of course, some situations in which a postdeprivation hear- ing will satisfy due process requirements." Loudermill,

470  U.S.  at  542  n.7  (citations  omitted).  It  is  of  course true, as the Court later notes, that an employer can avoid any due process problems associated with keeping a dan- gerous employee on the job by suspending the employee with  pay,  id.  at  544-45,  "for  then  there  is  not  a  depri- vation."  Bailey  v.  Board  of  County  Commissioners  of Alachua County,  956 F.2d 1112,  1124 n.13 (11th Cir.), cert. denied, 506 U.S. 832, 121 L. Ed. 2d 58, 113 S. Ct.

98 (1992). But as the Federal Circuit has explained, this

"is merely descriptive,  not normative. We agree that in the instant case,  the government could have suspended with  pay.  Nevertheless,  we  cannot  read  Loudermill  as holding that the government must suspend him with pay." Engdahl  v.  Department  of  Navy,  900  F.2d  1572,  1578

(Fed. Cir. 1990). I agree.

The  Eleventh   **44    Circuit's  decision  in  Everett, which  was  issued  before  the  Supreme  Court's  deci- sion  in  Mallen,  simply  relies  on  the  Loudermill  dic- tum. Numerous courts of appeals have reached a contrary conclusion  regarding  the  import  of  Loudermill,  partic- ularly after Mallen. See Jones v. City of Gary,  57 F.3d

1435, 1441-45 (7th Cir. 1995) (no pre-suspension hear- ing required where firefighter was suspended without pay; plaintiff's property interests were adequately protected by post-deprivation hearing); id. at 1445-46 (Ripple, J., con-

curring) ("there are circumstances in which the need for swift  action  on  the  part  of  those  who  exercise  govern- mental authority and responsibility for the safety and se- curity of others can justify the elimination or truncation of even the bare-bones pretermination hearing required by Loudermill") (citations omitted); Chaney v. Suburban Bus Div. of the Regional Transp. Auth., 52 F.3d 623, 628 (7th Cir.  1995)  (plaintiff  bus  driver  suspended  without  pay after bus hit and injured pedestrian;  no pre-suspension hearing  necessary  as  employer's  interests  "clearly  out- weighed"  those  of  plaintiff);  Ambus  v.  Granite  Bd.  of Educ.,  975  F.2d  1555,   **45    1562  (10th  Cir.  1992)

(court discussed Loudermill but applied the Mallen ex- ception where a teacher was suspended without pay and without a hearing after the school learned that the teacher had been arrested on drug charges; court stated that "the substantiated knowledge that a teacher had been arrested for  drug  sales  raised  a  substantial  government  interest justifying immediate suspension without pay"),  aff'd as modified on other ground, 995 F.2d 992 (10th Cir. 1993)

(en banc); Strong v. Board of Educ. of Uniondale Union Free School  Dist.,  902  F.2d  208,  212  (2d  Cir.)   (citing Loudermill and Mallen, court concluded that, on balance, no pre-termination hearing required; court stressed that probable  value  of  hearing  was  not  very  great  because parties were well aware of each other's assertions), cert. denied, 498 U.S. 897, 112 L. Ed. 2d 208, 111 S. Ct. 250

(1990); see also Richardson v. U.S. Customs Service, 47

F.3d 415, 418-19 (Fed. Cir. 1995) (discussing 5 U.S.C. §

7513(b)(1)) ("An indictment for a crime for which a sen- tence of imprisonment may be imposed will, as a general rule, provide reasonable cause for an agency to believe that the employee has committed such a crime, and, when the **46   nature of the crime alleged relates to the em- ployee's ability to perform his or her duties,  an agency may summarily suspend the employee, without pay, pend- ing the outcome of the criminal proceedings.") (citations omitted);  Bailey  v.  Board  of  County  Commissioners  of Alachua County, 956 F.2d 1112, 1123-24 & n.13 (11th Cir.)   (qualified immunity) (stressing flexibility of stan- dard regarding necessity of pre-deprivation hearing where prison guard was suspended

89 F.3d 1009, *1025; 1995 U.S. App. LEXIS 41027, **46;

12 I.E.R. Cas. (BNA) 1368

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*1025    without pay upon his arrest), cert. denied, 506

U.S. 832, 121 L. Ed. 2d 58, 113 S. Ct. 98 (1992); Gamble v.  Webb,  806  F.2d  1258,  1261  (5th  Cir.  1986)  (relying upon Loudermill's statement that "'there are,  of course, some situations in which a post-deprivation hearing will satisfy due process,'" and concluding, under Logan bal- ancing  test,  that  "the  present  one  is  such  a  situation")

(quoting Loudermill, 470 U.S. at 542 n.7) (brackets omit- ted). All of these decisions --  like the Supreme Court's procedural  due process cases in general  and unlike the majority's blanket rule --  reflect a balancing of interests based on the particular circumstances of each case.

I also believe that the majority has misinterpreted our opinion in Bradley.   **47   Citing Bradley, 913 F.2d at

1077, the majority states that Bradley implies that suspen- sion without pay and without a pre-suspension hearing al- ways violates due process. Majority Opinion, Typescript at 13-14. However, on the next page of the Bradley opin- ion, the panel clearly stated:

We  need  not  decide  in  this  case  whether Bradley  was  entitled  to  a  pre-suspension hearing,   as   he   contends,   or   whether   a post-suspension  hearing  sufficed.  Compare Loudermill,  470 U.S. at 544,  105 S. Ct. at

1494 (because government's interest in im- mediate  termination  of  security  guard  who had lied when seeking employment did not outweigh  employee's  interest  in  retaining employment,  pre-termination  hearing  was required) with FDIC v. Mallen, 486 U.S. 230,

108 S. Ct.1780, 1787-88, 100 L. Ed. 2d 265

(1988)  (because  government  had  substan- tial interest in suspending indicted bank of- ficial to protect bank and depositors, a post- suspension hearing within a reasonable time was sufficient).

Bradley received no hearing,  either be- fore or after the suspension, and hence if he was  suspended,  as  the  record  suggests,  he was deprived of due process.

913 F.2d at 1078. In my view, far from **48   implying anything, the Bradley panel expressly reserved decision on the issue presented in this case. n11

n11 The majority also defends its reliance on

Bradley  by  characterizing  the  Loudermill  dictum

and  the  Mallen  exception  as  one  and  the  same. See Majority Opinion, Typescript at 14 & n.3. I do not agree with this assessment. Loudermill states that an employer may satisfy due process by sus- pending an employee with pay. That was not done in Bradley,  and so the district court's reliance on the Loudermill dictum was rightly held to be im- proper.  But  defendants  in  Bradley --  like  defen- dants  in  this  case  --  argued  separately  that  they came within the independent Mallen exception -- pursuant to which pay is not required -- and that a pre-suspension hearing thus was not necessary. We did not decide whether Mallen excused the need for a pre-suspension hearing because Bradley did not receive even a post-suspension hearing. I see noth- ing "inconsistent" in Bradley, nor do I read Bradley as "necessarily  rejecting" the possible adequacy of a post-suspension hearing in circumstances like those here.

**49

I would resolve that issue in this case by following the great weight of federal appellate authority cited above and holding that whether a pre-suspension hearing was required  in  this  particular  case  requires  a  balancing  of the  relevant  factors.  For  the  reasons  already  expressed above,  I  would  hold  that  in  the  circumstances  of  this case, a pre-suspension hearing was not required and that a post-suspension hearing within a reasonable time after the suspension was sufficient. It may be that the univer- sity failed to conduct a sufficiently prompt or adequate post-suspension hearing after the criminal charges were dismissed on September 1, 1992, but that is a different question. Moreover,  as in Strong,  I am not sure how a pre-suspension hearing on August 26, 1992, would have made any difference. The only fact important to the uni- versity's decision was whether Homar had been arrested and charged. Homar did not dispute this, and in fact con- firmed it the next day; Homar was well aware of the rea- sons for his suspension. As in Strong, the hearing required by the majority would have been "an empty formality." See Strong, 902 F.2d at 212.

C. I have one final problem with the section **50  of the majority opinion dealing with the need for a pre- suspension hearing. The majority assumes that an impor- tant government interest requiring prompt action is what permits an employer to suspend an employee without a pre-suspension hearing but with pay. I think that this is inaccurate. It is my

89 F.3d 1009, *1026; 1995 U.S. App. LEXIS 41027, **50;

12 I.E.R. Cas. (BNA) 1368

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*1026   understanding that a public employer may gen- erally suspend a public employee for cause, with pay, and without a hearing-- even absent an emergency situation-- because such a suspension does not ordinarily implicate any constitutionally protected property interest. See, e.g., Hicks v. City of Watonga, 942 F.2d 737, 746 n.4 (10th Cir.

1991) ("No property interest was infringed at Mr. Hicks' first round of hearings when he was suspended and then reprimanded. Mr. Hicks suffered no loss in pay because of the pre-hearing suspension. Suspension with pay does not raise due process concerns.") (citations omitted); Pitts v. Board of Educ. of U.S.D. 305, Salina, Kansas, 869 F.2d

555,  556  (10th  Cir.  1989)  (same);  see  also  Hardiman v.  Jefferson  County  Bd.  of  Educ.,  709  F.2d  635,  637-

38 & n.2 (11th Cir. 1983) (not deciding but questioning whether suspension with pay could ever constitute **51  deprivation of property interest, and opining that "bad- faith" suspension with pay might infringe liberty inter- est); Koelsch v. Town of Amesbury, 851 F. Supp. 497, 500

(D. Mass. 1994) ("A public employee's suspension with pay does not implicate a constitutionally protected prop- erty interest.") (citations omitted). Under the majority's reasoning,  the  important  government  interest  requiring prompt action is rendered a nullity because it simply al- lows the employer to do what it could do in a typical non- emergency, for-cause suspension situation, i.e., suspend the employee with pay.

II.

Although I do not disagree with the majority's deter- mination that a remand is in order on Homar's substantive due process claim, I write separately to set forth my views on the viability of that claim. I do not think that a plaintiff has a substantive due process claim for a non-legislative deprivation of a state-created property right by a public employer. Moreover, if Homar has a substantive due pro- cess claim in this context,  it seems to me that he must show that the employer's actions were not rationally re- lated to a legitimate government interest; mere allegations of bad faith cannot suffice.   **52

A. Neither the Supreme Court nor this court has pre- viously held that a plaintiff has a substantive due process

claim for a non-legislative deprivation of a state-created property  interest  by  a  public  employer.  The  Eleventh Circuit recently overruled a decade of its own decisions recognizing such claims.  McKinney v. Pate, 20 F.3d 1550

(11th Cir. 1994) (en banc), cert. denied, 130 L. Ed. 2d 783,

115 S. Ct. 898 (1995); see also Rivkin v. Dover Twp. Rent Leveling  Bd.,  143  N.J.  352,  671  A.2d  567  (N.J.  1996). Essentially for the reasons stated in McKinney, which I find persuasive,  I believe that Homar's allegations state only procedural due process claims.

In   McKinney,      the   Eleventh   Circuit   considered the  following  issue:             "whether,  under  the  Fourteenth Amendment, a government employee possessing a state- created property interest in his employment states a sub- stantive due process claim, rather than a procedural due process claim, when he alleges that he was deprived of the employment interest by an arbitrary and capricious non- legislative government action." 20 F.3d at 1553. Sitting en banc, a unanimous Eleventh Circuit answered "no," and in an effort to bring its cases back into line with Supreme Court **53  precedent, overruled a decade of its prior de- cisions. n12 The court held that "in non-legislative cases, only procedural due process claims are available to pre- textually  terminated  employees."  Id.  at  1560;  see  also Rivkin, 671 A.2d at 577 (plaintiffs' purported substantive due  process  claim  "is  much  closer  to  a  procedural  due process claim" in that it "amounts to an allegation that the  State  failed  to  furnish  an  impartial  tribunal,  which

'is a matter of procedural, not substantive, due process'")

(citations omitted).

n12 Those prior cases, like the test advocated by Homar, essentially required that a public employee show the deprivation of a property right in public employment for improper, pretextual, or arbitrary and capricious reasons.

Two  aspects  of  the  Eleventh  Circuit's  opinion  in McKinney bear emphasis here. First, the court concluded that allegations of arbitrary and capricious action by gov- ernmental  employers  affecting  an  individual's  property interest in public employment "will not make **54

89 F.3d 1009, *1027; 1995 U.S. App. LEXIS 41027, **54;

12 I.E.R. Cas. (BNA) 1368

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*1027    out a substantive due process claim under the jurisprudence of the Supreme Court . . . because only pro- cedural issues are implicated." 20 F.3d at 1559 (emphasis in  original);  see  also  id.  at  1561  ("McKinney's  allega- tion is procedural:  the County failed to provide one of the  elements  of  procedural  due  process --  an  unbiased decisionmaker."). n13 I agree, as I discuss further below.

n13  I  note  that  the  Supreme  Court  has  never held that a public employee has a substantive due process right to be free from arbitrary or capricious conduct adversely affecting the employee's prop- erty interest in that employment.

Second,  crucial  to  the  court's  decision  was  the  dis- tinction  between  legislative  acts  and  non-legislative  or executive acts. Executive acts, such as employment deci- sions, typically apply to one person or to a limited num- ber of persons, while legislative acts, generally laws and broad executive regulations, apply to large segments of society.   Id.  at  1557  n.9.  The  court  criticized  its  prior decision   **55     in  Hearn  v.  City  of  Gainesville,  688

F.2d 1328 (11th Cir. 1982) --  its first case to apply sub- stantive due process analysis to an arbitrary termination claim --  because "in that case,  where a terminated em- ployee challenged an executive act, we cited Nebbia v. New York,  291 U.S. 502,  78 L. Ed. 940,  54 S. Ct. 505

(1934) , where a legislative act (to wit, a law) was at is- sue." 20 F.3d at 1558 n.14. The court added that "it is imperative that a stricter segregation of these two distinct case-categories be maintained." Id. The court indicated that rational basis review under the substantive compo- nent of the Due Process Clause is appropriate only in the context of challenges to legislative action.   Id. at 1557-

58 & nn. 9 & 14; see also TRM, Inc. v. United States,

52 F.3d 941, 945 & n.17 (11th Cir. 1995) (applying ra- tional basis review to substantive due process challenge to regulation under Food Stamp Act and noting that "this standard  is  not  affected  by  our  decision  in  McKinney" because "the holding of that case was specifically limited to substantive due process challenges to non-legislative acts") (citations omitted); Sullivan Properties, Inc. v. City of Winter Springs, 899 F. Supp. 587, 594-96 **56  (M.D. Fla. 1995) (considering the impact of McKinney on sub- stantive due process challenges in the area of zoning and the granting of building permits; concluding that there is a

"substantive due process cause of action for arbitrary and unreasonable zoning ordinances" but not for "substantive due process claims challenging  executive acts granting or denying a particular building permit application"). n14

I again agree.

n14  See  also  Kauth  v.  Hartford  Ins.  Co.  of

Illinois,  852  F.2d  951,  956-58  (7th  Cir.  1988)

(plaintiff alleged not that statute or regulation was unconstitutional but that sheriff arbitrarily ignored law in seizing property; court found that "in cases where the plaintiff complains that he has been un- reasonably deprived of a state-created property in- terest,  without alleging a violation of some other substantive constitutional right or that the available state remedies are inadequate, the plaintiff has not stated a substantive due process claim") (citations omitted).

Like  the   **57    prior  decisions  in  the  Eleventh Circuit, a decision allowing Homar to maintain a substan- tive due process claim based on an allegation of bad faith would elevate Homar's procedural challenges to substan- tive due process status. Assuming that there is a factual issue  regarding  whether  defendants  acted  in  bad  faith, I question the wisdom of recognizing a substantive due process  claim  where  a  university  fails  to  provide  ade- quate procedural due process and where the way in which procedural  due  process  is  denied  could  give  rise  to  an inference  of  bad  faith.  This  sort  of  "substantive  proce- dural due process claim" is precisely what troubled both the Eleventh Circuit in McKinney and a unanimous New Jersey Supreme Court in Rivkin, and I would not recog- nize such a claim. It seems to me that Homar's claim is clearly procedural and should be recognized as such.

Further,  the  cases  upon  which  Homar  relies  essen- tially derive --  as is discussed more fully below --  from Pace Resources,  Inc. v. Shrewsbury Tp.,  808 F.2d 1023

(3d Cir.), cert. denied, 482 U.S. 906, 96 L. Ed. 2d 375,

107 S. Ct. 2482 (1987), and Rogin v. Bensalem Tp., 616

F.2d 680, 689 (3d Cir. 1980), cert. denied, 450 U.S. 1029,

68 L. Ed. 2d 223, 101 S. Ct. 1737 (1981), both of which

**58   involve challenges to zoning ordinances and thus challenges to legislative acts. The cases that have applied Pace Resources and Rogin in

89 F.3d 1009, *1028; 1995 U.S. App. LEXIS 41027, **58;

12 I.E.R. Cas. (BNA) 1368

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*1028    challenges to non-legislative acts have, in my view, fallen into the trap identified by the Eleventh Circuit in McKinney. I would not extend them into the public em- ployment setting.

B. Assuming for the sake of argument that there is a substantive due process claim for arbitrary and capri- cious non-legislative actions by public employers and that Homar's interest in his position as a campus police offi- cer constituted a "property" interest for substantive due process purposes, n15 I nonetheless conclude that Homar seeks application of the wrong standard in evaluating his claim.  Under  true  rational  basis  review --  which  is  the most that Homar is entitled to where he is asserting the violation  of  a  non-fundamental,  state-created  property interest-I think that Homar failed to create a fact issue as to whether the university violated his substantive due process rights.

n15  But  see,  e.g.,  Regents  of  the  Univ.  of

Michigan v. Ewing, 474 U.S. 214, 229, 88 L. Ed. 2d

523, 106 S. Ct. 507 (1985) (Powell, J., concurring)

("As  the  Court  correctly  points  out,  respondent's claim to a property right is dubious at best. Even if  one  assumes  the  existence  of  a  property  right, however, not every such right is entitled to the pro- tection of substantive due process. While property interests are protected by procedural due process even though the interest is derived from state law rather than the Constitution,  substantive due pro- cess rights are created only by the Constitution."); DeBlasio v. Zoning Bd. of Adjustment, 53 F.3d 592,

598-601 (3d Cir.)  ("to state a substantive due pro- cess claim, a plaintiff must have been deprived of a particular quality of property interest"), cert. de- nied,  133  L.  Ed.  2d  247,  116  S.  Ct.  352  (1995); Reich  v.  Beharry,  883  F.2d  239,  243-44  (3d  Cir.

1989) ("While,  as we have discussed above,  it is well  settled  that  state-created  property  interests, including some contract rights, implicate the pro- tection of the procedural aspect of the due process clause, the issue of whether and when state-created property  interests  invoke  substantive  due  process concerns  has  not  been  decided  by  the  Supreme Court and is subject to varying analyses and conclu- sions by the lower courts. . . . We have  acknowl- edged that what constitutes a property interest in the procedural due process context might not constitute one in that of substantive due process. . . . In this circuit, at least, not all property interests worthy of procedural due process protection are protected by

the concept of substantive due process.") (citations omitted); Ransom v. Marrazzo, 848 F.2d 398, 411-

12 (3d Cir. 1988) ("Substantive due process refers to and protects federal rights. The provision of wa- ter and sewer services, whether by a municipality or by a private utility company, is not, however, a federally protected right. The legal fact that, once a municipality (or, for that matter, a private utility company) establishes a utility for its citizens, a cit- izen's expectation of receiving that service rises to the level of a property interest cognizable under the Due Process Clause, merely brings that expectation within the compass of the Fourteenth Amendment's procedural protections . . . . It does not transform that expectation into a substantive guarantee against the state in any circumstance.") (citations omitted).

**59

The  appropriateness  of  summary  judgment  as  to Homar's substantive due process claim requires consider- ation of what Homar must show to establish a substantive due process violation. Homar argues that our cases hold that  a  plaintiff  can  establish  a  substantive  due  process violation by proving that the government's actions were motivated by bias, bad faith, or improper motive. Homar contends that a public employee who suffers an adverse employment decision may maintain a substantive due pro- cess claim against the public employer by showing (1) that the employer's actions were not rationally related to a le- gitimate  government  interest  or  (2)  that  the  employer's actions were motivated by (a) bias, (b) bad faith, or (c) improper motive. I do not agree.

First,  as  I  alluded  to  above,  we  have  never  applied this test in the public employment context, and I would not extend this test to this context, whatever its appropri- ateness in other contexts. Further, it seems to me that the statements in our opinions regarding the nature of rational basis review in substantive due process cases have evolved in a strange and, I think, unintended way. Beginning with unobjectionable descriptions of classical **60   rational basis review,  our opinions eventually reached the point of suggesting that a plaintiff can state a substantive due process claim merely by alleging that an individual deci- sion resulting in the deprivation of a property right was taken in bad faith. The Supreme Court has never sanc- tioned such a broad proposition, and I am confident that this cannot be the law. If a plaintiff like Homar has a sub- stantive due process claim in this context, it seems to me that he must show that the employer's actions were not rationally related to a legitimate government interest

89 F.3d 1009, *1029; 1995 U.S. App. LEXIS 41027, **60;

12 I.E.R. Cas. (BNA) 1368

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*1029    and  that  mere  allegations  of  bad  faith  cannot suffice.

In Pace Resources, Inc. v. Shrewsbury Tp., 808 F.2d

1023  (3d  Cir.),  cert.  denied,  482  U.S.  906,  96  L.  Ed.

2d  375,  107  S.  Ct.  2482  (1987),  plaintiff  challenged  a municipality's  land  use  restrictions  on  substantive  due process grounds. In describing the "narrow review" over zoning ordinances, we quoted our prior decision in Rogin v. Bensalem Tp., 616 F.2d 680, 689 (3d Cir. 1980), cert. denied, 450 U.S. 1029, 68 L. Ed. 2d 223, 101 S. Ct. 1737

(1981):

"The test for determining whether a law com- ports with substantive due process is whether the law is  rationally  related to  a legitimate state interest. 'The law need **61    not be in every respect logically consistent with its aims  to  be  constitutional.  It  is  enough  that there  is  an  evil  at  hand  for  correction,  and that  it  might  be  thought  that  the  particular legislative measure was a rational way to cor- rect it.'"

808 F.2d at 1034 (quoting Rogin, 616 F.2d at 689) (quot- ing Williamson v. Lee Optical, 348 U.S. 483, 487-88, 99

L.  Ed.  563,  75  S.  Ct.  461  (1955))  (brackets  in  Rogin). We explained that " a  plaintiff making a substantive due process claim in federal court has the burden of showing that the regulation is arbitrary or irrational. Thus to state a claim, Pace's complaint would have to allege facts that would support a finding of arbitrary or irrational legisla- tive action by the Township." 808 F.2d at 1035 (citations omitted). After concluding that "Pace's complaint fails to make  any  factual  allegations  that  indicate  irrationality" and that "Pace does not present a case involving actions aimed at this developer for reasons unrelated to land use planning," we concluded that "because it appears on the face of the amended complaint that the Township deci- sionmakers could have had rational reasons for the deci- sions contested here and because that complaint alleges

**62   no facts suggesting arbitrariness, it fails to state a substantive due process claim upon which relief can be granted." 808 F.2d at 1035-36 (citation omitted).

In Bello v. Walker, we noted the rational basis review articulated in Pace Resources, but we focused on the lan-

guage from Pace stating that the plaintiff there did not allege "actions aimed at this developer for reasons unre- lated to land use planning." Bello v. Walker, 840 F.2d 1124,

1129 (3d Cir.)  (citation omitted), cert. denied, 488 U.S.

851, 102 L. Ed. 2d 107, 109 S. Ct. 134 (1988). We thus distinguished Pace Resources and announced as follows:

We  need  not  define,  at  this  juncture, the outer limits of the showing necessary to demonstrate that a governmental action was arbitrary,  irrational,  or  tainted  by  improper motive. The plaintiffs in this case presented evidence from which a fact finder could rea- sonably conclude that certain council mem- bers,  acting  in  their  capacity  as  officers  of the municipality improperly interfered with the process by which the municipality issued building  permits,  and  that  they  did  so  for partisan  political  or  personal  reasons  unre- lated to the merits of the application for the permits. These actions **63    can have no relationship to any legitimate governmental objective, and if proven, are sufficient to es- tablish  a  substantive  due  process  violation actionable under section 1983.

840 F.2d at 1129-30 (footnote omitted).

Next,  the  panel  in  Midnight  Sessions  paraphrased Bello and stated that "a plaintiff may maintain a claim of substantive due process violation upon allegations that the government deliberately and arbitrarily abused its power." Midnight Sessions, Ltd. v. City of Phil., 945 F.2d 667, 683

(3d Cir. 1991) (citation omitted), cert. denied, 503 U.S.

984, 118 L. Ed. 2d 389, 112 S. Ct. 1668 (1992). "Thus, allegations that the government's actions in a particular case were motivated by bias, bad faith, or improper mo- tive . . . may support a finding of substantive due process violation." Id. (citing Bello and Pace Resources).

In Parkway Garage, Inc. v. City of Phil., 5 F.3d 685,

692 (3d Cir. 1993), we explained that "substantive due process protects citizens from arbitrary and irrational acts of government." Id. at 692 (citing Rogin v. Bensalem Tp.,

616 F.2d 680, 689 (3d Cir. 1980), cert. denied, 450 U.S.

1029, 101 S. Ct. 1737, 68

89 F.3d 1009, *30; 1995 U.S. App. LEXIS 41027, **63;

12 I.E.R. Cas. (BNA) 1368

Page 22

*30    L.  Ed.  2d  223  (1981)).  n16  We  then  stated  the following  test  (which   **64    is  the  test  quoted  by  the parties in this case): "A violation of substantive due pro- cess rights is proven: (1) if the government's actions were not  rationally  related  to  a  legitimate  interest;  or  (2)  'if the government's actions in a particular case were in fact motivated by bias, bad faith or improper motive.'" Id. (ci- tation omitted); see also Blanche Road Corp. v. Bensalem Tp., 57 F.3d 253, 263 (3d Cir.), cert. denied, 133 L. Ed.

2d 208, 116 S. Ct. 303 (1995).

n16  Rogin  presents,  in  my  view,  the  proper scope of substantive due process review. There, we found that the township "has a legitimate interest in controlling population growth and density and the zoning amendments are a rational and reasonable means to accomplish that purpose. Therefore, the zoning amendments were not arbitrary or irrational

.  .  .  ."  Id.  I  find  nothing  in  Rogin  to  support  the broad proposition that substantive due process pro- tects citizens in general from arbitrary and irrational acts of government.

From Rogin to Parkway   **65         Garage, then, we have  moved  from  inquiring  merely  whether  a  legisla- tive act survived pure rational basis review to inquiring whether actions by specific defendants vis-a--vis a spe- cific  plaintiff  were  somehow  improper.  It  seems  to  me that  our  cases  began  looking  to  governmental  conduct that might prove a lack of rational basis, but we have now set forth an entirely separate test for evaluating substan- tive due process claims that is independent of standard rational basis review. See also Rivkin, 671 A.2d at 576-

77 (declining to follow DeBlasio and Bello and stating that "it is a mistake . . . to equate the concept of 'arbitrary and irrational' governmental land use decisions with the substantive component of the Due Process Clause of the Fourteenth Amendment"). In my view, the court should take the next available opportunity to clarify that the ap- propriate test is true rational basis review. n17

n17 I note that some district court opinions in this circuit have recognized the mixed signals sent by this court. For example,  in Ersek v. Township of Springfield, 822 F. Supp. 218 (E.D. Pa. 1993), a  public  employment  case,  the  court  opined  that Bello and Pace Resources do not apply outside of the building and zoning permit contexts.  Id. at 221

(dicta).

**66

If we are to recognize substantive due process claims in the public employment context --  which, for the rea- sons discussed above, I think would be a mistake -- then, in my view, we should ask merely whether the plaintiff can show that the employer's actions were not rationally related to a legitimate government interest. It should not be enough to allege bad faith by a single governmental actor;  the overall conduct complained of must be unre- lated to any legitimate governmental interest. If this mode of analysis is applied to this case, I think that it is clear that the university's actions were rationally related to its legitimate interests, and, indeed, Homar does not contend otherwise.

C. In sum, substantive due process applies where there is a fundamental right at stake or legislation is challenged as having no rational relationship to any legitimate gov- ernment interest. Here, plaintiff suggests no fundamental right  within  the  meaning  of  the  substantive  component of  the Due  Process  Clause;  nor is plaintiff challenging a legislative act on rational-basis grounds. In my view, then, plaintiff has no substantive due process claim on the undisputed facts presented. n18

n18 I also note the Supreme Court's consistent instruction that the substantive component  of the Due Process Clause be narrowly construed. E.g., Collins  v.  City  of  Harker Heights,  503  U.S.  115,

125,  117  L.  Ed.  2d  261,  112  S.  Ct.  1061  (1992)

("As a general matter, the Court has always been reluctant to expand the concept of substantive due process because the guideposts for responsible de- cisionmaking in this unchartered area are scarce and open-ended. The doctrine of judicial self-restraint requires us to exercise the utmost care whenever we are asked to break new ground in this field.") (ci- tation omitted); see also Fagan v. City of Vineland,

22 F.3d 1296,  1306 n.6 (3d Cir. 1994) (en banc)

("We cannot ignore the Supreme Court's repeated warnings against an overly generous interpretation of the substantive component of the Due Process Clause.").

**67

III.

For the foregoing reasons, I respectfully dissent from the majority's conclusion, set forth in section III.A, that Homar had a right to a hearing prior to his suspension.

89 F.3d 1009, *1031; 1995 U.S. App. LEXIS 41027, **67;

12 I.E.R. Cas. (BNA) 1368

Page 23

*1031   Although I join in section IV of the opinion re- manding the substantive due process issue to the district court, I do not believe that Homar's substantive due pro-

cess claim should survive a motion for summary judgment on remand.

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