                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-14-2003

United Artists v. Warrington
Precedential or Non-Precedential: Precedential

Docket 01-3533




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PRECEDENTIAL

       Filed January 14, 2003

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 01-3533

UNITED ARTISTS THEATRE CIRCUIT, INC.

v.

THE TOWNSHIP OF WARRINGTON, PA; GERALD B.
ANDERSON; JOSEPH E. LAVIN; DOUGLAS E. SKINNER;
WAYNE S. BULLOCK; KATHERINE M. WATSON

Gerald B. Anderson; Joseph E. Lavin; Douglas E. Skinner;
Wayne S. Bullock; Katherine M. Watson,

       Appellants

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF PENNSYLVANIA

(Dist. Court No. 98-cv-05556)
District Court Judge: Norma L. Shapiro

Argued on May 10, 2002

Before: ALITO, COWEN, and LOURIE,*   Circuit Judges.

(Opinion Filed: January 14, 2003)
_________________________________________________________________

* The Honorable Alan D. Lourie, Circuit Judge for the United States
Court of Appeals for the Federal Circuit, sitting by designation.


       ARTHUR W. LEFCO (Argued)
       Marshall, Dennehey, Warner,
        Coleman & Goggin
       1845 Walnut Street
       16th Floor
       Philadelphia, PA 19103

       Counsel for Appellants

       JOHN F. SCHULTZ (Argued)
       JAMES EISEMAN, JR.
       Drinker, Biddle & Reath
       18th & Cherry Streets
       One Logan Square
       Philadelphia, PA 19103

       Counsel for Appellee

OPINION OF THE COURT
ALITO, Circuit Judge:

United Artists Theatre Circuit, Inc. ("United Artists"), an
owner and operator of movie theaters, sought land
development approval from Warrington Township
Pennsylvania, ("Township"), to construct and operate a
multiplex theater on land that United Artists owned. United
Artists claims that Warrington Township and its Board of
Supervisors (the "Board") complicated and delayed approval
of United Artists’ development plan, and thereby allowed a
competitor to beat United Artists in a race to build a movie
theater in the Township, which is too small to support two
theaters. United Artists alleges that the Township and
individual members of the Board engaged in this conduct
because they wanted the Township to receive an improper
"impact fee" from the competing developer. In this appeal,
the defendant Supervisors contest the District Court’s
denial of their qualified-immunity-based motion for
summary judgment. We vacate and remand.

As a threshold issue, we conclude that the law-of-the-
case doctrine does not preclude us from considering
whether, as a result of the Supreme Court’s decision in

                                2


County of Sacramento v. Lewis, 523 U.S. 833 (1998), United
Artists was required to show that the Supervisors’ conduct
"shocked the conscience." On the merits, we hold that
Lewis has superceded prior decisions of our Court holding
that a plaintiff asserting that a municipal land-use decision
violated substantive due process need only show that the
municipal officials acted with an "improper motive." Thus,
Bello v. Walker, 840 F.2d 1124 (3d Cir. 1988), and its
progeny are no longer good law.

I.

A.

The dispute underlying this case arises out of a
development race between United Artists’ proposed
multiplex and a competing multiplex theater development
proposed by Regal Cinema and developer Bruce Goodman.
The record shows that the two companies were competing
to obtain approval of their plans by the Township because
the market could support only one of the theaters.
Goodman agreed to pay the Township an annual "impact fee"2
of $100,000, but United Artists refused the Township’s
repeated requests for such a payment. United Artists
asserts that, because of Goodman’s promise to pay this fee,
the Township allowed his project to "sail through the land
development process," while United Artists’ proposal was
repeatedly stalled.

The Board of Supervisors’ review process consisted of two
phases, preliminary approval and final approval. In
January 1996, United Artists submitted a preliminary plan
for its theater to the Township Planning Commission, an
independent body of local officials that makes
recommendations regarding land-use plans to the Board of
Supervisors. Along with the preliminary plan, United Artists
_________________________________________________________________

2. Under Pennsylvania law, there are circumstances in which a
municipality may require the payment of an "impact fee" for "offsite
public transportation capital improvements." 53 Pa. Cons. Stat. Ann.
S 10503-A. The Supervisors do not contend that their actions were taken
pursuant to this authority.

                                3


submitted a traffic impact study, which led the Township to
require, as a precondition to the issuance of an occupancy
permit, the installation of a separate left-turn lane into the
theater. United Artists failed to acquire the property
necessary to make this improvement and expressed its
intention to request a waiver of the condition or to sue for
relief. United Artists claims that its failure to construct the
road improvement was a mere pretext for the Township’s
refusal to support its theater proposal and that this refusal
was actually motivated by the Township’s desire to obtain
an impact fee from Goodman and Regency Cinema.

After granting preliminary approval of United Artists’
proposal, the Township attempted to change the terms of
that approval by requiring United Artists to obtain an
easement for the road improvement and to complete the
installation of signals before construction could begin,
rather than before the time of occupancy, as was originally
provided in the preliminary approval. United Artists then
brought suit against the Township in the Court of Common
Pleas of Bucks County, and that court found the change in
conditions to be unlawful under the Pennsylvania
Municipalities Planning Code. On appeal, the
Commonwealth Court agreed. After succeeding in this state
court litigation and eliminating the building permit
condition, United Artists began this action against the
Township and the Supervisors in federal court.

In the meantime, the Board granted preliminary approval
of the Goodman proposal on February 4, 1997 -- one
month after the initial application was submitted-- and
final approval was granted on May 21, 1997. By contrast,
United Artists, did not receive preliminary approval until
March 18, 1997, 14 months after submitting its initial
application. The Board then tabled its vote on United
Artists’ application for final approval on three occasions,
each time asking if United Artists would pay an impact fee.
The Board granted final approval of the United Artists
proposal on September 16, 1997. The Goodman/Regal
Cinema multiplex was completed in 1999; United Artists
never built a theater in Warrington.

                                4


B.
United Artists’ complaint in this case asserted procedural
and substantive due process claims under 42 U.S.C.
S 1983, as well as supplementary state law claims. As
defendants, the complaint named the Township and the
members of the Board of Supervisors--Gerald Anderson,
Joseph Lavin, Douglas Skinner, Wayne Bullock, and
Katherine Watson ("Supervisors")--in both their official and
individual capacities. Asserting the defense of qualified
immunity, the Supervisors moved for summary judgment,
and in December 1999, the District Court denied the
Supervisors’ motion with respect to the substantive due
process claim, while granting that motion with respect to
the procedural due process claim.

On appeal, a prior panel of our Court, in an unpublished
opinion, vacated the order of the District Court and
remanded for further proceedings. The panel held that the
District Court had erred in failing to analyze each
Supervisor’s qualified immunity claim individually, and the
panel instructed the District Court to make such an
analysis on remand. United Artists Theatre Circuit, Inc. v.
Twp. Of Warrington, No. 00-1064 (3d Cir., filed Nov. 29,
2000) ("United Artists I"), in App. at 112a-118a. In the text
of its opinion, the panel stated that the District Court had
"properly analyzed the supervisors’ request for qualified
immunity on summary judgment, having found that United
Artists at this stage sufficiently alleged a violation of a
clearly established constitutional right." Id . at 4, in App. at
117a. However, in an accompanying footnote the panel
stated that it "express[ed] no opinion" at that time as to
whether, in the wake of the Supreme Court’s decision in
County of Sacramento v. Lewis, 523 U.S. 833 (1998), it was
necessary for United Artists to show that the Supervisors’
conduct "shocked the conscience." Id. at 4 n.2, in App. at
117a.

On remand, the District Court considered the
Supervisors’ claims individually and again denied their
motion for summary judgment on qualified immunity
grounds. Aug. 15, 2001, Order, in App. at 3a-26a. The
District Court held that United Artists had provided
evidence permitting a factfinder to conclude the Board

                                5


intentionally delayed approval of plaintiff ’s project because
it wished to receive the impact fee offered by Goodman. If
proved, the court believes the monetary motivation of the
Board was improper and would constitute a violation of
substantive due process." Id. at 14, in App. at 16a
(emphasis added). The District Court also held that there
was sufficient evidence to conclude that each individual
supervisor had subjected United Artists’ proposal to
heightened scrutiny and had purposefully delayed approval
because of the impact fee offered by the competitor. Id. at
19, in App. at 21a. Addressing the panel’s reference to the
shocks-the-conscience test, the District Court opined that
the "shocks the conscience" and "improper motive" tests are
essentially the same and that, in any event, a post-Lewis
opinion issued by our Court [Woodwind Estates Ltd. v.
Gretkowski, 205 F.3d 118 (3d Cir. 2000)] suggested that
Lewis had not altered prior circuit precedent. Id. at 9 n.5,
in App. at 11a. The Supervisors then took the present appeal.3

II.

As a preliminary matter, United Artists argues that this
panel’s authority in this case is severely limited by the law-
of-the-case doctrine. Under this doctrine, "one panel of an
appellate court generally will not reconsider questions that
another panel has decided on a prior appeal in the same
case." In re City of Philadelphia Litigation , 158 F.3d 711,
717 (3d Cir. 1998).4 United Artists argues that the panel
that heard the prior appeal in this case implicitly rejected
the proposition that United Artists’ substantive due process
_________________________________________________________________

3. We exercise plenary review over a district court’s denial of a motion for
summary judgment on the basis of qualified immunity. Eddy v. Virgin
Islands Water and Power Authority, 256 F.3d 204, 208 (3d Cir. 2001).
Moreover, as with any appeal from the denial of summary judgment, we
consider all facts in the light most favorable to the non-moving party.
See, e.g., Hoard v. Sizemore, 198 F.3d 205, 218 (6th Cir. 1999).

4. The doctrine does not apply to dicta and does allow for reconsideration
of previously decided issues "in extraordinary circumstances such as
where: (1) new evidence is available; (2) a supervening new law has been
announced; or (3) the earlier decision was clearly erroneous and would
create manifest injustice." In re City of Philadelphia Litigation, 158 F.3d
at 718.

                                6


claim requires proof of conduct that shocks the conscience.
We disagree.

The prior panel made two statements that are relevant for
present purposes. First, as noted, the prior panel stated:
"[W]e believe the District Court properly analyzed the
supervisors’ request for qualified immunity on summary
judgment, having found that United Artists at this stage
sufficiently alleged a violation of a clearly established
constitutional right." United Artists I at 4, in App. at 1172a.
United Artists claims that this statement "constitutes a
conclusive determination that may not be disturbed under
the law of the case doctrine." Br. of Appellee at 18.

If the prior panel had said nothing more than the
statement quoted above, we might be inclined to agree with
United Artists, but the prior panel made an additional
important statement. In footnote 2 of its opinion, the Court
observed that it had raised two issues sua sponte at oral
argument and that one of these was "whether the‘shocks
the conscience’ standard announced by the Supreme Court
in County of Sacramento v. Lewis, 523 U.S. 833 (1998), is
applicable to substantive due process claims like the one at
issue here." United Artists I at 4 n.2, in App. at 1172a. The
panel continued: "At this time, we express no opinion
whether these matters are appropriate in determining the
merits of the substantive due process claim." Id. at 4 n.2, in
App. at 1172a (emphasis added).

We interpret this last statement to mean that the panel
left open the question whether the "shocks the conscience"
standard announced in Lewis is applicable to United
Artists’ substantive due process claim. In other words,
while the panel, as stated in the main text of its opinion,
had concluded that United Artists was entitled to survive
summary judgment under our Court’s "existing case law,"
United Artists I at 4, in App. at 117a, the panel did not
decide whether that prior circuit case law had been
superceded by Lewis. Presumably because the issue was
raised by the panel on its own at argument and was not
briefed by the parties, the panel left this issue for
consideration in the first instance by the District Court and
then, if necessary, by a subsequent panel.

                                7


While we believe, as noted, that this is the best
interpretation of the prior panel’s decision, our conclusion
that the law-of-the-case doctrine does not foreclose our
consideration of this issue is not dependent on this
interpretation. At the very least, footnote 2 of the prior
panel opinion creates considerable ambiguity as to whether
the prior panel held that conduct that "shocks the
conscience" is needed in the present context."Courts apply
the law of the case doctrine when their prior decisions in an
ongoing case either expressly resolved an issue or
necessarily resolved it by implication." Aramony v. United
Way of America, 254 F.3d 403, 410 (2d Cir. 2001)
(emphasis added) (citing 18 Charles Alan Wright & Arthur
R. Miller, Federal Practice and ProcedureS 4478, at 789
(1981)). Here, the prior panel did not "expressly" or by
necessary implication decide the "shocks the conscience"
issue. The law-of-the-case doctrine relieves a court of the
obligation of considering an issue twice, but we must be
careful to prevent the doctrine from being used to prevent
a properly raised argument from being considered even
once. Where there is substantial doubt as to whether a
prior panel actually decided an issue, the later panel
should not be foreclosed from considering the issue.
Accordingly, we conclude that the law-of-the-case doctrine
does not apply and that the prior panel opinion does not
foreclose our review of the applicable standard governing
United Artists’ substantive due process claim.

Our dissenting colleague disagrees with this conclusion
because he believes that the prior panel’s first statement
represents the panel’s holding and that the second
statement is "mere dicta." Dissent at 19. The dissent,
however, does not explain why the second statement should
be regarded as dictum, and we must respectfully disagree
with his position.

To reiterate, the prior panel at oral argument sua sponte
raised the issue "whether the ‘shocks the conscience’
standard announced by the Supreme Court in County of
Sacramento v. Lewis, 523 U.S. 833 (1998), is applicable to
substantive due process claims like the one at issue here."
The panel then wrote:

                                8


       At this time, we express no opinion whether these
       matters [including the applicability of Lewis ’s "shocks
       the conscience" standard] are appropriate in
       determining the merits of the substantive due process
       claim.

United Artists I at 4 n.2, in App. at 117a (emphasis added).

This language strongly suggests that the prior panel was
not speaking in the abstract about the application of Lewis
to a similar substantive due process claim in some future
case. (Such a statement would be "mere dicta.") Rather, the
prior panel was addressing "the substantive due process
claim" in this case, and what the panel said about that
claim was that the panel was not expressing an opinion
about the application of Lewis "[a]t this time" -- which
implied that our Court might express an opinion about that
claim at some future time. Thus, because we believe that
the prior panel left this issue open (and certainly did not
clearly resolve the issue,) we regard the issue as open and
we therefore turn to the merits of the Supervisors’
argument.

III.

A.

As noted, the Supervisors moved for summary judgment
on qualified immunity grounds. Qualified immunity
generally protects government officials performing
discretionary functions from civil damages. Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity
applies so long as the officials’ "conduct [did] not violate
clearly established statutory or constitutional rights of
which a reasonable person would have known." Id. In
determining whether qualified immunity applies, we ask: (1)
whether the plaintiff has alleged the deprivation of an
actual constitutional right, and if so, (2) whether the right
was clearly established at the time of the alleged violation.
Saucier v. Katz, 533 U.S. 194, 200 (2001); Eddy v. Virgin
Islands Water and Power Authority, 256 F.3d 204, 208 (3d
Cir. 2001). A right is clearly established if "its outlines are
sufficiently clear that a reasonable officer would understand

                                9


that his actions violate the right." Sterling v. Borough of
Minersville, 232 F.3d 190, 193 (3d Cir. 2000). Therefore,
our task is " ‘to determine first whether the plaintiff has
alleged a deprivation of a constitutional right at all,’ before
reaching the question of whether the right was clearly
established at the time." Johnson v. Newburgh Enlarged
School District, 239 F.3d 246, 251 (2d Cir. 2001) (quoting
Lewis, 523 U.S. at 841 n.5); see also Nicholas v.
Pennsylvania State University, 227 F.3d 133, 139-40 (3d
Cir. 2000) ("To prevail on a non-legislative substantive due
process claim, ‘a plaintiff must establish as a threshold
matter that he has a protected property interest to which
the Fourteenth Amendment’s due process protection
applies.’ " (quoting Woodwind Estates, Ltd. v. Gretkowski,
205 F.3d 118, 123 (3d Cir. 2000)). To answer this question,
we must determine the appropriate legal standard to apply
to substantive due process claims.

B.

In County of Sacramento v. Lewis, 523 U.S. 833 (1998),
the Supreme Court explained the standard that applies
when a plaintiff alleges that an action taken by an
executive branch official violated substantive due process.
The Court observed that "the core of the concept" of due
process is "protection against arbitrary action" and that
"only the most egregious official conduct can be said to be
‘arbitrary in the constitutional sense.’ " Id. at 845-46
(citation omitted). After noting its long history of speaking
of "the cognizable level of executive abuse of power as that
which shocks the conscience," id. at 846 (citing Rochin v.
California, 342 U.S. 165 (1952)), the Court continued:

       Most recently, in Collins v. Harker Heights,[503 U.S.
       115, 128 (1992)], we said again that the substantive
       component of the Due Process Clause is violated by
       executive action only when it "can properly be
       characterized as arbitrary, or conscience shocking, in a
       constitutional sense."

Lewis, 523 U.S. at 847 (emphasis added). See also Fagan
v. City of Vineland, 22 F.3d 1296, 1303 (3d Cir. 1994) (en
banc) ("[T]he substantive component of the Due Process

                                10


Clause can only be violated by governmental employees
when their conduct amounts to an abuse of official power
that ‘shocks the conscience.’ "). At the same time, however,
the Lewis Court acknowledged that "the measure of what is
conscience-shocking is no calibrated yard stick," Lewis,
523 U.S. at 847, and that "[d]eliberate indifference that
shocks in one environment may not be so patently
egregious in another." Id. at 850.5

Our Court has echoed these comments. Since Lewis , our
cases have repeatedly acknowledged that executive action
violates substantive due process only when it shocks the
conscience but that the meaning of this standard varies
depending on the factual context. See, e.g., Leamer v.
Fauver, 288 F.3d 532, 546 (3d Cir. 2002); Boyanowski v.
Capital Area Intermediate Unit, 215 F.3d 396, 400 (3d Cir.
2000); Nicini v. Morra, 212 F.3d 798, 809 (3d Cir. 2000) (en
banc); Miller v. City of Philadelphia, 174 F.3d 368, 375 (3d
Cir. 1999).

Despite Lewis and the post-Lewis Third Circuit cases
cited above, United Artists maintains that this case is not
governed by the "shocks the conscience" standard, but by
the less demanding "improper motive" test that originated
with Bello v. Walker, 840 F.2d 1124 (3d Cir. 1988), and was
subsequently applied by our court in a line of land-use
cases. In these cases, we held that a municipal land use
decision violates substantive due process if it was made for
any reason "unrelated to the merits," Herr v. Pequea
Township, 274 F.3d 109, 111 (3d Cir. 2001) (citing cases),
or with any "improper motive." See, e.g., Woodwind Estates,
Ltd. v. Gretkowski, 205 F.3d 118 (3d Cir. 2000); Blanche
Road Corp. v. Bensalem Township, 57 F.3d 253 (3d Cir.
_________________________________________________________________

5. The dissent seems to suggest that several recent court of appeals
opinions, including one from our court, have taken the position that
"Lewis did not lay down a blanket ‘shocks the conscience’ rule that
controls absolutely any and all substantive due process constitutional
tests." Dissent at 22 (citing Fuentes v. Wagner, 206 F.3d 335, 340 (3d
Cir.), cert. denied, 531 U.S. 821 (2000); Khan v. Gallitano, 180 F.3d 829,
836 (7th Cir. 1999); Moreland v. Las Vegas Metro Police Dept., 159 F.3d
365, 372 (9th Cir. 1998). However, these opinions are best understood
as saying only that the nature of the conduct that is sufficiently
egregious to shock the conscience varies depending on the context.

                                11


1995); DeBlasio v. Zoning Board of Adjustment , 53 F.3d 592
(3d Cir. 1995); Parkway Garage, Inc. v. City of Philadelphia,
5 F.3d 685 (3d Cir. 1993); Midnight Sessions, Ltd. v. City of
Philadelphia, 945 F.2d 667 (3d Cir. 1991).

These cases, however, cannot be reconciled with Lewis’s
explanation of substantive due process analysis. Instead of
demanding conscience-shocking conduct, the Bello line of
cases endorses a much less demanding "improper motive"
test for governmental behavior. Although the District Court
opined that there are "few differences between the [shocks
the conscience] standard and improper motive standard,"
we must respectfully disagree. Aug. 15, 2001 order at 9
n.5, in App. at 11a. The "shocks the conscience" standard
encompasses "only the most egregious official conduct."
Lewis, 523 U.S. at 846. In ordinary parlance, the term
"improper" sweeps much more broadly, and neither Bello
nor the cases that it spawned ever suggested that conduct
could be "improper" only if it shocked the conscience. We
thus agree with the Supervisors that the Bello line of cases
is in direct conflict with Lewis.

We also reject the District Court’s suggestion that the
application of the Bello "improper motive" test in Woodwind
Estates, Ltd. v. Gretkowski, 205 F.3d 118 (3d Cir. 2000),
which came after Lewis, means that our Court has sub
silentio held that Lewis did not alter prior circuit law. The
opinion in Woodwind Estates makes no mention of Lewis,
and Lewis was not even cited in the Woodwind Estates
briefs. Under these circumstances, Woodwind Estates
clearly does not preclude us from considering whether Bello
and its progeny remain good law. As the Supreme Court
commented in Texas v. Cobb, 532 U.S. 162, 169 (2001),
when it was argued that one of its prior decisions had
decided a question that the parties had not argued and the
Court had not addressed: "Constitutional rights are not
defined by inferences from opinions which did not address
the question at issue."6
_________________________________________________________________

6. The dissent contends that several other post-Lewis decisions of our
Court also show that the Bello improper motive cases survived Lewis.
However, these decisions, like Woodwind Estates , did not discuss Lewis.
In addition, these decisions, unlike Woodwind Estates, did not even
apply the Bello line of cases.

                                12


The dissent, however, asserts: "Unlike the Majority, I am
fully comfortable assuming that this Court in Woodwind
. . . (as in any other case it decides) was completely aware
of the content of all published Supreme Court case law that
may bear on the case at hand, especially in such a
fundamental area as Due Process." Dissent at 22. This
image of the omniscient circuit judge -- who has every
potentially pertinent precedent in mind at all times and
never fails to grasp their possible implications-- is
flattering but perhaps not entirely accurate. And in any
event, the dissent’s assumption about what the Woodwind
Estates panel was "aware of " is beside the point. The
_________________________________________________________________

The dissent first cites the following statement in Nicholas v.
Pennsylvania State University, 227 F.3d 133, 139 (3d Cir. 2000):

       [W]e have held that a property interest that falls within the ambit of
       substantive due process may not be taken away by the state for
       reasons that are "arbitrary, irrational, or tainted by improper
       motive," Woodwind Estates, Ltd. v. Gretkowski , 205 F.3d 118, 123
       (3d Cir. 2000) (quoting Bello v. Walker, 840 F.2d 1124, 1129 (3d Cir.
       1988)) . . . .

Not only is this statement dictum (it was not necessary to the decision
on the substantive due process claim in that case, which we rejected on
the ground that the plaintiff did not have the requisite property interest,)
but the statement does not endorse the Bello"improper motive" test.
Rather, it simply states the indisputable fact that"we ha[d] held" that an
improper motive sufficed.

The dissent next points to the following statement in Khodara
Environmental, Inc. v. Beckman, 237 F.3d 186, 197 (3d Cir. 2001):

       Eagle’s briefs do not argue that the Airport Authority denied its
       application for a reason that is "tainted by improper motives."
       Nicholas v. Pennsylvania State University, 227 F.3d 133, 139 (3d
       Cir. 2000) . . . .
This statement, like the statement in Nicholas , did not endorse the
"improper motive" test but simply pointed out that a party’s briefs did
not advance an "improper motive" argument.

Finally, the dissent cites Herr v. Pequea Township, 274 F.3d 109, 111
(3d Cir. 2001), in which the Court noted the Bello line of cases but held
that they did not apply under the particular circumstances. Thus, the
statements in Herr were plainly dicta.

                                13


pertinent question is not whether the members of the
Woodwind Estates panel had read and recalled Lewis or
even whether its possible implications for the Bello line of
cases crossed their minds. Rather, the pertinent question is
whether the Woodwind Estates panel, without providing so
much as a hint in their opinion that they were doing so,
decided that Lewis did not undermine the Bello line of
cases and thereby foreclosed this panel or any other panel
from considering that question. The answer to that
question is too obvious to need stating. It is not an
accepted practice of any appellate court to decide important
questions without revealing that it has done so.

In sum, we see no reason why the present case should be
exempted from the Lewis shocks-the-conscience test simply
because the case concerns a land use dispute. Such a
holding would be inconsistent with the plain statements in
Lewis and our own post-Lewis cases that we have already
noted. Since Lewis, our court has applied the "shocks the
conscience" standard in a variety of contexts. See, e.g.,
Boyanowski v. Capital Area Intermediate Unit, 215 F.3d 396
(3d Cir. 2000) (applying the "shocks the conscience" test to
a claim of civil conspiracy); Fuentes v. Wagner , 206 F.3d
335 (3d Cir. 2000) (finding the "shocks the conscience"
standard appropriate in an excessive force claim in the
context of a prison disturbance); Miller v. City of
Philadelphia, 174 F.3d 368 (3d Cir. 1999) (applying the
"shocks the conscience" standard in the child custody
context). There is no reason why land use cases should be
treated differently. We thus hold that, in light of Lewis,
Bello and its progeny are no longer good law. 8

We note that our holding today brings our Court into line
with several other Courts of Appeals that have ruled on
substantive due process claims in land-use disputes. See,
e.g., Chesterfield Development Corp. v. City of Chesterfield,
963 F.2d 1102, 1104-05 (8th Cir. 1992) (holding that
allegations that the city arbitrarily applied a zoning
_________________________________________________________________

8. The dissent complains that the "shocks the conscience" test is
"nebulous and highly subjective." Dissent at 23. But whatever else may
be said of this test, it is surely no less "nebulous" or "subjective" than
the "improper motives" test.

                                14
ordinance were insufficient to state a substantive due
process claim, and stating in dicta that the "decision would
be the same even if the City had knowingly enforced the
invalid zoning ordinance in bad faith . . . . A bad-faith
violation of state law remains only a violation of state law.");
PFZ Properties, Inc. v. Rodriguez, 928 F.2d 28, 32 (1st Cir.
1991) ("Even assuming that ARPE engaged in delaying
tactics and refused to issue permits for the Vacia Talega
project based on considerations outside the scope of its
jurisdiction under Puerto Rico law, such practices, without
more, do not rise to the level of violations of the federal
constitution under a substantive due process label.").

Application of the "shocks the conscience" standard in
this context also prevents us from being cast in the role of
a "zoning board of appeals." Creative Environments, Inc. v.
Estabrook, 680 F.2d 822, 833 (1st Cir. 1982) (quoting
Village of Belle Terre v. Boraas, 416 U.S. 1, 13 (1974)
(Marshall, J., dissenting)); see also Nestor Colon Medina &
Sucesores, Inc. v. Custodio, 964 F.2d 32, 45-46 (1st Cir.
1992) (disagreeing with Bello and stating that "we have
consistently held that the due process clause may not
ordinarily be used to involve federal courts in the rights and
wrongs of local planning disputes"). The First Circuit in
Estabrook observed that every appeal by a disappointed
developer from an adverse ruling of the local planning
board involves some claim of abuse of legal authority, but
"[i]t is not enough simply to give these state law claims
constitutional labels such as ‘due process’ or‘equal
protection’ in order to raise a substantial federal question
under section 1983." Estabrook, 680 F.2d at 833. Land-use
decisions are matters of local concern and such disputes
should not be transformed into substantive due process
claims based only on allegations that government officials
acted with "improper" motives.

IV.

Having found that the District Court applied the wrong
standard for evaluating United Artists’ substantive due
process claim, we do not reach the second qualified
immunity inquiry as to whether the constitutional right was
clearly established at the time of the violation. We vacate

                                15


the District Court’s denial of the Supervisors’ summary
judgment motion and remand the case for further
proceedings to determine whether United Artists can
survive the Supervisors’ summary judgment motion in light
of Lewis.

                                16


COWEN, Circuit Judge, dissenting:

I.
The issue presented to the previous panel was whether
the plaintiff had alleged a violation of a clearly established
constitutional right that was sufficiently clear to a
reasonable government official, specifically a township
supervisor. In deciding that issue, this Court expressly
affirmed the District Court’s use of the "improper motive"
standard when it held that "we believe the [D]istrict [C]ourt
properly analyzed the supervisors’ request for qualified
immunity on summary judgment" and found the only error
in that analysis to be the District Court’s failure to examine
each supervisor’s request on an individual basis. At the
very least, it was inherent in this Court’s holding that it
was proper for the District Court to apply the "improper
motive" standard to its substantive due process analysis in
a municipal land use case. Because the previous panel
already decided this issue, we are bound by this Court’s
prior affimance of the District Court’s application of the
"improper motive" standard under law of the case doctrine,
not to mention Internal Operating Procedure of the United
States Court of Appeals for the Third Circuit 9.1. Therefore,
I respectfully dissent with the majority’s holding that law of
the case doctrine does not control this appeal.

Under the law of the case doctrine, a panel of an
appellate court generally will not reconsider a question that
another panel has decided on a prior appeal in the same
case. The doctrine is designed to protect traditional ideals
such as finality, judicial economy and jurisprudential
integrity. Christianson v. Colt Indus. Operating Corp., 486
U.S. 800, 816 (1988); Arizona v. California, 460 U.S. 605,
618-19 (1983). The law of the case doctrine acts to preclude
review of only those legal issues that the court in a prior
appeal decided, either expressly or by implication; it does
not apply to dicta. Coca-Cola Bottling Co. of Shreveport, Inc.
v. Coca-Cola Co., 988 F.2d 414, 429 (3d Cir. 1993).

The law of the case doctrine does not restrict a court’s
power, but rather governs its exercise of discretion. Public
Interest Research Group of New Jersey, Inc. v. Magnesium

                                17


Elektron, Inc., 123 F.3d 111, 116 (3d Cir. 1997).
Accordingly, we have recognized that the doctrine does not
preclude our reconsideration of previously decided issues in
extraordinary circumstances such as where: (1) new
evidence is available; (2) a supervening new law has been
announced; or (3) the earlier decision was clearly erroneous
and would create manifest injustice. Id. at 116-17.

The previous panel expressly approved the District
Court’s use of the "improper motive" standard in its
holding:

       Under existing case law, we believe the District Court
       properly analyzed the supervisors’ request for qualified
       immunity on summary judgment, having found that
       United Artists at this stage sufficiently alleged a
       violation of a clearly established constitutional right.
       Nonetheless, we believe the District   Court should have
       considered each supervisor’s request   for qualified
       immunity individually rather than as   a group. On
       remand, we direct the District Court   to address each
       supervisor’s request for immunity on   an individual
       basis or explain why the supervisors   should be
       considered collectively.

November 29, 2000 Order, at 4-5 (emphasis added)
(citations omitted).

The law of the case doctrine unquestionably governs this
appeal. The previous panel’s statement that "United Artists
at this stage sufficiently alleged a violation of a clearly
established constitutional right" constitutes a holding. In
the prior appeal, this Court expressly affirmed the District
Court’s qualified immunity analysis of the supervisors as a
whole, and found the only error to be the District Court’s
failure to apply that same analysis to the supervisors
individually. The panel did not direct the District Court to
alter or reconsider its qualified immunity analysis, but only
to address each of the supervisors individually under that
same analysis.1
_________________________________________________________________

1. The District Court likewise interpreted the previous panel’s opinion as
"[holding] that ‘the [D]istrict [C]ourt properly analyzed each supervisors’
request for qualified immunity on summary judgment.’ " Record at 7A
(August 15, 2001 District Court Order) (emphasis added).

                                18


Moreover, there are no exceptional circumstances here
that make it appropriate to reconsider the prior panel’s
decision. See Public Interest Research Group of New Jersey,
Inc., 123 F.3d at 116. Under both the law of the case
doctrine and our own internal operating procedures, the
majority is wrong to revisit an issue that has already been
decided. See 3d Cir. I.O.P. 9.1.2

The majority takes issue with the previous panel’s
statement made in a footnote:

        At oral argument this Court, sua sponte, raised two
       issues: . . . (2) whether the "shocks the conscience"
       standard announced by the Supreme Court in County
       of Sacramento v. Lewis, 523 U.S. 833 (1998), is
       applicable to substantive due process claims like the
       one at issue here. At this time, we express no opinion
       whether these matters are appropriate in determining
       the merits of the substantive due process claim.

November 29, 2000 Order, at 4 n.2. The majority argues
that this footnote raises "substantial doubt as to whether a
prior panel actually decided . . . the applicable standard
governing United Artists’ substantive due process claim."
Majority at 8. Given the holding of the prior panel
contained in the body of the opinion, this footnote is mere
dicta. The holding of the case and instructions to the
District Court were to apply the same "improper motive"
standard to the supervisors individually. Even if one were
not to accept the express holding of the prior panel in light
of this footnote, it is quite clear that the "improper motive"
issue was decided by "necessary implication" and therefore
also subject to the law of the case doctrine.

In AL Tech Specialty Steel Corp. v. Allegheny Int’l Credit
Corp., we held that the law of the case doctrine applies to
_________________________________________________________________

2.   9.1 Policy of Avoiding Intra-circuit Conflict of Precedent.
        It is the tradition of this court that the holding of a panel in a
        precedential opinion is binding on subsequent panels. Thus,
        no subsequent panel overrules the holding in a precedential
        opinion of a previous panel. Court en banc consideration is
        required to do so.

3d Cir. I.O.P. 9.1 (July 2002).

                                  19


decisions rendered even by a judgment order because the
doctrine also applies to issues that are decided by
necessary implication. 104 F.3d 601, 605 (3d Cir. 1997). In
that case, Allegheny International argued that 11 U.S.C.
S 502(e)(1)(B)3 of the Bankruptcy Code barred AL Tech’s
claim. The Bankruptcy Court agreed. On appeal to the
District Court, the District Court held that S 502(e)(1)(B)
barred only contingent claims under these conditions. It
allowed AL Tech’s claim to the extent that it was a direct
claim against Allegheny International under the
Comprehensive Environmental Response, Compensation,
and Liability Act, 42 U.S.C. SS 9601 et seq. AL Tech
Specialty Steep Corp., 104 F.3d at 605. This Court affirmed
the District Court by judgment order. When appealed a
second time to this Court, Allegheny International urged
the second panel to examine the question whether AL
Tech’s claim was barred under S 502(e)(1)(B). In an opinion
written by Judge Alito, we held that "In this case, the panel
that heard the prior appeal necessarily decided that AL
Tech’s claim was not barred by S 502(e)(1)(B). The law of the
case doctrine applies to this decision even though it was
rendered by judgment order because that doctrine‘applies
both to issues expressly decided by a court in prior rulings
and to issues decided by necessary implication .’ " Id. (citing
Bolden v. SEPTA, 21 F.3d 29, 31 (3d Cir. 1994)) (emphasis
added).

This appeal presently before us presents an even stronger
reason for the application of the doctrine of law of the case
and I.O.P. 9.1, given the prior panel issued a written
opinion holding that the "improper motive" was the correct
rule of law to apply. The prior panel was required to
determine whether the actions of the supervisors, as alleged
_________________________________________________________________

3. The section provides:
       (e)(1) . . . [T]he court shall disallow any claim for reimbursement or
       contribution of an entity that is liable with the debtor on or has
       secured, the claim of a creditor, to the extent that--

       (B) such claim for reimbursement or contribution is contingent
       as of the time of allowance or disallowance of such claim for
       reimbursement or contribution.

       11 U.S.C. SS 502(e)(1), (e)(1)(B).

                                20


by plaintiff, violated a clearly established constitutional
right that was sufficiently clear to a reasonable government
official. Inherent in this inquiry is the determination of
whether the supervisors’ actions rose to a level of a
substantive due process violation; if the alleged actions
were insufficient to amount to a violation, the supervisors’
actions could not violate a clearly established constitutional
right. Resolution of the question of the correct standard to
apply in the context of a municipal land use case based
upon the summary judgment record was integral to the
Court’s analysis in affirming the District Court’s denial of
summary judgment on the question of qualified immunity.
Despite footnote 2 of the prior panel’s opinion, we are
bound under law of the case doctrine and I.O.P. 9.1 by this
Court’s prior approval of the District Court’s application of
the "improper motive" standard.

II.

In addition to my belief that law of the case doctrine
controls in this matter, I further disagree with the
proposition that only "shocks the conscience" language may
be used to analyze municipal land-use context substantive
Due Process cases.

First, the Majority’s reliance on Lewis is misguided.
Lewis was a high speed police chase case where the
resulting injury was death. That scenario is extremely far
afield from the factual setting we have here. The Lewis
Court was not presented with a choice between "improper
motive" or "shocks the conscience" in the unique arena of
Fourteenth Amendment-protected property rights as they
relate to local land use decisions. Rather, the Supreme
Court reviewed the case for a carefully delineated reason
and described the issue for review narrowly. More
specifically, the Court "granted certiorari . . . to resolve a
conflict among the Circuits over the standard of culpability
on the part of a law enforcement officer for violating
substantive due process in a pursuit case." Lewis, 523 U.S.
at 839; see also id. at 836 ("The issue in this case is
whether a police officer violates the Fourteenth
Amendment’s guarantee of substantive due process by
causing death through deliberate or reckless indifference to

                                21
life in a high-speed automobile chase aimed at
apprehending a suspected offender."). Although finding that
the "shocks the conscience" standard is "not inappropriate
to an excessive force claim in the context of a prison
disturbance," we acknowledged in Fuentes v. Wagner, 206
F.3d 335 (3d Cir. 2000), cert. denied, 531 U.S. 821 (2000),
that "our recent decisions suggest that the [‘shocks the
conscience’] standard may only apply to police pursuit
cases," id. at 348 (citations omitted).

Second, the Majority opinion gives far too little weight to
the fact that this Circuit has a well-established
jurisprudence employing the improper motive test in the
substantive Due Process land-use context. The cases are
legion. See Bello v. Walker, 840 F.2d 1124 (3d Cir. 1988)
(seminal case); DeBlasio v. Zoning Board of Adjustment, 53
F.3d 592 (3d Cir. 1995); Blanche Road Corp. v. Bensalem
Township, 57 F.3d 253 (3d Cir. 1995); Sameric Corp. Del.,
Inc. v. City of Philadelphia, 142 F.3d 582 (3d Cir. 1998);
Woodwind Estates, Ltd. v. Gretkowski, 205 F.3d 118 (3d
Cir. 2000); Herr v. Pequea Township, 274 F.3d 109 (3d Cir.
2001); see also Parkway Garage, Inc. v. City of Philadelphia,
5 F.3d 685 (3d Cir. 1993). Moreover, and perhaps most
importantly, this Court has continued to apply and cite to
the "improper motive" test even after the decision in Lewis
was handed down. See Doby v. DeCrescenzo, 171 F.3d 858
(3d Cir. 1999); Woodwind, 205 F.3d 118; Nicholas v.
Pennsylvania State University, 227 F.3d 133 (3d Cir. 2000);
Khodara Envtl., Inc. v. Beckman, 237 F.3d 186 (3d Cir.
2001); Omnipoint Communications Enters., L.P. v. Zoning
Hearing Bd., 248 F.3d 101 (3d Cir. 2001); Herr, 274 F.3d
109.

Unlike the Majority, I am fully comfortable assuming that
this Court in Woodwind and Nicholas (as in any other case
it decides) was completely aware of the content of all
published Supreme Court case law that may bear on the
case at hand, especially in such a fundamental area as Due
Process. Had the Woodwind or Nicholas Courts felt that
Lewis precluded the use of the improper motive standard of
constitutionally tortious conduct, they surely would have
expressed that point. They did not do so. The Majority relies
on the fact that the Woodwind Court never mentioned

                                22


Lewis. True enough. But the Majority overlooks the fact
that other Third Circuit cases do mention Lewis. In fact,
when Judge Alito’s opinion in Nicholas is read, it answers
the question addressed by him today, with the opposite
result. The Nicholas Court, citing approvingly to Bello and
Woodwind, affirmatively states that "improper motive" is an
appropriate substantive Due Process test. It references
Lewis in saying that "shocks the conscience" is also an
appropriate test. As United Artists points out, the standard
is clearly stated in the disjunctive:

       [W]e have held that a property interest that falls within
       the ambit of substantive due process may not be taken
       away by the state for reasons that are "arbitrary,
       irrational, or tainted by improper motive," Woodwind
       Estates, Ltd. v. Gretkowski, 205 F.3d 118, 123 (3d Cir.
       2000) (quoting Bello v. Walker, 840 F.2d 1124, 1129
       (3d Cir. 1988)), or by means of government conduct so
       egregious that it "shocks the conscience," Boyanowski
       [v. Capital Area Intermediate Unit, 215 F.3d 396 (3d
       Cir. 2000)] (quoting County of Sacramento v. Lewis,
       523 U.S. 833, 846, 140 L. Ed. 2d 1043, 118 S. Ct.
       1708 (1998)).

Nicholas, 227 F.3d at 139 (emphasis added).

Judge Alito’s explanation of post-Lewis Third Circuit
jurisprudence in Nicholas was not an isolated summary of
the extant law. One year later, in Khodara, he cited
authoritatively to his opinion in Nicholas for the proposition
that a substantive Due Process claim is made out with
"improper motive." The Khodara Court was certainly aware
of the existence of Lewis because, like the Nicholas Court,
it actually cites Lewis in the same paragraph where it
recognizes "improper motive" as a valid Due Process
standard. See Khodara, 237 F.3d at 197.

Whether or not our post-Lewis statements are dicta need
not detain us. These are affirmations by our Court stating
or alluding to the law being that it is a violation of
substantive due process for public officials to act
intentionally with an improper motive.

Third, tossing every substantive Due Process egg into the
nebulous and highly subjective "shocks the conscious"

                                23


basket is unwise.4 It leaves the door ajar for intentional and
flagrant abuses of authority by those who hold the sacred
trust of local public office to go unchecked. "Shocks the
conscience" is a useful standard in high speed police
misconduct cases which tend to stir our emotions and yield
immediate reaction. But it is less appropriate, and does not
translate well, to the more mundane world of local land use
decisions, where lifeless property interests (as opposed to
bodily invasions) are involved.5 In this regard, it appears
rather difficult to analogize the intentional and illegal denial
of a building permit to the forced pumping of the human
stomach, the infamous fact pattern that begat "shocks the
conscience" as a term of constitutional significance. See
Rochin v. California, 342 U.S. 165, 172-73 (1952). It is the
jurisprudential equivalent of a square peg in a round hole.
Yet, under the Majority opinion, it is with this awkward
analogy that our district courts will now struggle. The
confusion and potential for disparate results across the
districts will haunt us for years to come. It is our manifest
responsibility as an appellate tribunal to prevent that
quagmire by providing a clear standard for the bench and
bar. Our "improper motive" line of land use cases serves
that purpose and, even after Lewis, this Court has not
impugned its vitality. I see no legitimate reason to abandon
it now.

I agree with the Majority that land use decisions are
generally issues of "local concern." But those very same
decisions necessarily assume constitutional dimension
when the calculated, intentional and deliberate abuse of
government power is at hand. See Lewis, 523 U.S. at 846
("the Due Process Clause was intended to prevent
_________________________________________________________________

4. Not long ago, this Court, sitting en banc , described the shocks the
conscience test as "amorphous" and "imprecise." Fagan v. City of
Vineland, 22 F.3d 1296, 1308 (3d Cir. 1994) (en banc). The improper
motive test, however, has been applied numerous times in this Circuit,
appears to work well, and the Supreme Court has never indicated that
such a standard is inappropriate in the land use context.

5. I have never seen a movie or television show devoted to the workaday
world of zoning and planning. Visual entertainment based on high speed
police pursuit, and the riveting events of criminal law and procedure,
however, is commonplace.

                                24


government officials from abusing [their] power . . . .")
(citations omitted); Id. at 848-49 (intentional conduct by
government official falls at the polar end of Tort law’s
"culpability spectrum" in substantive Due Process cases);
Daniels v. Williams, 474 U.S. 327, 331 (1986) ("Historically,
[the] guarantee of due process has been applied to
deliberate decisions of government officials to deprive a
person of life, liberty or property") (emphasis in original)
(citations omitted); Wolff v. McDonnell, 418 U.S. 539, 558
(1974) ("The touchstone of due process is protection of the
individual against arbitrary action of government")
(citations omitted). The concern that the federal Judiciary
will become a local zoning board takes a permanent back
seat to the federal Judiciary’s obligation to protect the core
constitutional freedoms of the American public from
deliberate and intentional governmental deprivation.

In sum, I would hold fast to the scheme that is already
firmly entrenched in this Circuit: In land use constitutional
tort cases, the government’s conduct may be judged under
an "improper motive" framework. The evisceration of this
standard by the Majority today is a most unfortunate step
backwards in the evolution of S 1983 as the legislative
guardian of bedrock constitutional rights. I am deeply
concerned that there will be consequences.

III.

Even if "shocks the conscience" is the language we must
employ to the exclusion of any other (which it is not), the
alleged behavior in this case resolutely shocks the
conscience. Public officials, sworn to uphold the law,
deliberately extracted money, knowing that it was improper
for them to do so. In contemporary America, under
compelling norms of basic human decency, it would be
shocking that such officials improperly and illegally
obtained money in matters that come before them. There is
little if any distinction between the taking of money for the
purposes alleged in this case, and money taken to line the
officials’ individual pockets. For all of the foregoing reasons,
I must dissent.

                                25


A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                                26
