          United States Court of Appeals
                      For the First Circuit

No. 09-2566

               SAN GERÓNIMO CARIBE PROJECT, INC.,

                      Plaintiff, Appellant,

                                v.

    HON. ANÍBAL ACEVEDO-VILÁ, in his individual and personal
    capacity; HON. ROBERTO SÁNCHEZ-RAMOS, in his individual
    and personal capacity; LUIS A. VÉLEZ-ROCHE, P.E., in his
      individual and personal capacity; JOHN DOE; JANE DOE,

                      Defendants, Appellees.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

         [Hon. Daniel R. Domínguez, U.S. District Judge]


                              Before

                       Lynch, Chief Judge,
       Boudin, Lipez, Howard and Thompson, Circuit Judges.


     Richard H. Fallon, Jr., with whom John M. García, García &
Fernandez, and Orlando Fernández were on brief, for appellant.
     Susana I. Peñagarícano-Brown, Assistant Solicitor General,
Department of Justice, with whom Luis R. Román-Negrón, Solicitor
General, was on brief, for appellees.
     Sookyoung Shin, Assistant Attorney General, with whom Martha
Coakley, Attorney General of Massachusetts, William J. Schneider,
Attorney General of Maine, and Michael A. Delaney, Attorney General
of New Hampshire, were on brief, for the Commonwealth of
Massachusetts and the States of Maine and New Hampshire, amici
curiae.
July 24, 2012


   En Banc
              LYNCH, Chief Judge.           This en banc opinion addresses

whether the mistaken invocation by state officials of emergency

powers granted by state law to stay a major construction project

gives rise to a federal claim of denial of procedural due process

under the Parratt-Hudson doctrine, as developed in Parratt v.

Taylor, 451 U.S. 527 (1981), Hudson v. Palmer, 468 U.S. 517 (1984),

and Zinermon v. Burch, 494 U.S. 113 (1990).                We hold that the

Parratt-Hudson doctrine applies, so no federal procedural due

process claim is stated.

              The San Gerónimo Caribe Project, Inc. (SGCP) appeals from

the dismissal of its federal procedural due process claims.                    On

December 27, 2007, the Regulations and Permits Administration

(ARPE), a Puerto Rico agency, acting under a statute authorizing

summary process in emergency situations presenting an imminent

danger   to    the    public    health,   safety,   and   welfare,    issued   a

temporary emergency stay of SGCP's ongoing multi-million dollar

construction project.          A state intermediate appellate court upheld

the exercise of emergency powers.              The stay lasted sixty-three

days, until the Puerto Rico Supreme Court vacated it.                That court

issued an opinion on July 31, 2008, disagreeing that there had been

any   imminent       danger    warranting    invocation   of   the    emergency

procedure statute and concluding that the stay was issued in error

and in violation of Puerto Rico law.




                                       -3-
            On October 24, 2008, SGCP filed a federal suit against

the   Governor   of   Puerto    Rico,     the   Secretary     of    Justice,   and

individual members of ARPE asserting, among other claims, that ARPE

violated the Due Process Clause of the Fourteenth Amendment by

failing   to   hold   a     predeprivation      hearing    before    temporarily

suspending the construction permits.             SGCP sought $38 million in

compensatory damages, as well as other relief.              The district court

rejected SGCP's claims at the motion to dismiss stage, holding that

no predeprivation process was required under the Parratt-Hudson

doctrine.   San Gerónimo Caribe Project, Inc. v. Vila, 663 F. Supp.

2d 54, 65 (D.P.R. 2009).

            A panel of this court held that there was a due process

violation but still affirmed the judgment of the district court, on

only qualified immunity grounds. San Gerónimo Caribe Project, Inc.

v. Acevedo-Vilá, 650 F.3d 826 (1st Cir. 2011). The panel held that

under   Zinermon,     494   U.S.   113,   ARPE    was     required   to   provide

predeprivation process before suspending SGCP's permits and the

Parratt-Hudson doctrine was inapplicable.               San Gerónimo, 650 F.3d

at 836-38. However, the panel also found that some of this court's

past precedent on the matter could have reasonably supported ARPE's

determination and affirmed dismissal on the grounds that the

defendants were entitled to qualified immunity.               Id. at 838-39.




                                     -4-
           A majority of active judges of this court voted to grant

rehearing en banc and issued an order vacating the panel opinion.1

San Geronimo Caribe Project, Inc. v. Acevedo Vila, 665 F.3d 350

(1st Cir. 2011).

           We conclude that the mistake made by ARPE (as found by

the   Puerto   Rico   Supreme      Court)        fits   within   the   "random   and

unauthorized"     prong    of    the   Parratt-Hudson       doctrine,     and    that

Zinermon   does   not     apply.       As    a    result,   plaintiff's    federal

procedural due process claim was properly dismissed. The defendant

state officials were also entitled to qualified immunity, also

warranting dismissal.

                                        I.

           We assume as true the plaintiff's "well-pleaded factual

allegations" contained in the complaint. Ashcroft v. Iqbal, 129 S.

Ct. 1937, 1950 (2009).          We draw all reasonable inferences in favor


      1
        In the order granting rehearing en banc,                       this     court
requested that the parties address three questions:

      1. How do the principles of the Parratt-Hudson doctrine,
      including its development in Zinermon v. Burch, 494 U.S.
      113 (1990), apply in the circumstances of this case?

      2. Is First Circuit law inconsistent with this governing
      Supreme Court law?    If so, is that circuit precedent
      relevant to the 'clearly established law' analysis for
      purposes of the qualified immunity inquiry?

      3. Assuming a due process violation occurred in the
      present case, does qualified immunity apply?

San Geronimo Caribe Project, Inc. v. Acevedo Vila, 665 F.3d 350,
351 (1st Cir. 2011).

                                        -5-
of the plaintiff.   Hill v. Gozani, 638 F.3d 40, 55 (1st Cir. 2011).

However, we "are not bound to accept as true a legal conclusion

couched as a factual allegation," Iqbal, 129 S. Ct. at 1950

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007))

(internal quotation marks omitted), nor do we consider "naked

assertion[s] devoid of further factual enhancement," id. at 1949

(alteration   in   original)   (quoting   Twombly,   550   U.S.   at   557)

(internal quotation marks omitted).          See also Soto-Torres v.

Fraticelli, 654 F.3d 153, 156 (1st Cir. 2011).         We also consider

the various state decisions of public record giving rise to this

claim.2   The facts are not in dispute; the legal conclusions from

the facts are.




     2
        See Parker v. Hurley, 514 F.3d 87, 90 n.1 (1st Cir. 2008)
(allowing consideration of "documents the authenticity of which are
not disputed by the parties; for official records; for documents
central to plaintiffs' claim; or for documents sufficiently
referred to in the complaint" (quoting Watterson v. Page, 987 F.2d
1, 3 (1st Cir. 1993)) (internal quotation mark omitted)); see also
Giragosian v. Ryan, 547 F.3d 59, 66 (1st Cir. 2008) ("A court may
consider matters of public record in resolving a Rule 12(b)(6)
motion to dismiss. Matters of public record ordinarily include
'documents from prior state court adjudications.'" (citation
omitted) (quoting Boateng v. InterAmerican Univ., Inc., 210 F.3d
56, 60 (1st Cir. 2000))).

                                  -6-
A.          Factual Background

            In January 2000, the Planning Board of Puerto Rico3

approved the development of a mixed residential, commercial, and

tourism project, known as the Paseo Caribe Project, to be developed

under the auspices of SGCP, a privately held corporation.

            Upon approval of the project, SGCP acquired several

parcels of land for the project from Hilton International of Puerto

Rico, Inc.    Hilton, in turn, had acquired these parcels from the

Hotel Development Corporation, a subsidiary of the Tourism Company

of Puerto Rico, in 1998.    These parcels of land are located near

the Fortín San Gerónimo del Boquerón, the San Gerónimo Fortress, a

historic structure built in the late 16th century, which is listed

on the National Register of Historic Places.

            As to the legality of the sale of some of the lands to

SGCP, in 2002 the Puerto Rico Department of Justice (PRDOJ) issued

an opinion concluding that, while some of the lands within the

boundaries of the Paseo Caribe Project had emerged from the sea,

they were nevertheless not part of the public domain and could be

sold, as they were, without legislative action.   This opinion was

consistent with a previous opinion of the Justice Department from

1970.


        3
        The Planning Board is "attached to the Governor's Office."
P.R. Laws Ann. tit. 23, § 62a. It is charged with "guiding the
integral development of Puerto Rico," id. § 62c, and possesses a
variety of powers relating to development, including the power to
adopt zoning regulations, id. §§ 62j, 62o.

                                 -7-
            Beginning in December 2000, ARPE4 issued all of the

permits    necessary     for   SGCP's      development   of     the   project.

Construction, to be conducted in several stages, began in August

2002.     Starting in 2002, SGCP and the Puerto Rico Institute of

Culture entered into unsuccessful negotiations over public access

to the Fortín San Gerónimo, which had been adversely affected by

the construction.        Public controversy had developed over this

access issue, and by 2006 active public protests, requiring police

intercession, had begun to occur at the site.                 The Puerto Rico

Senate in June 2006 authorized a Senate Commission to conduct an

investigation.5     In    February      2007,   the   PRDOJ   began   its   own

investigation and developed concerns not only about public access




     4
        At all times relevant to this litigation, ARPE had the
following characteristics. It was "attached to the Puerto Rico
Planning Board." P.R. Laws Ann. tit. 23, § 71a (2008). A primary
purpose of ARPE was to "exercise the functions, duties and
responsibilities which the Planning Board may delegate to the
Administration." Id. § 71d(q). The Puerto Rico Supreme Court has
described ARPE as the "operational arm" of the Planning Board.
Administración de Reglamentos y Permisos v. Rivera Morales, 159
P.R. Dec. 429, 438 (2003) (quoted in San Gerónimo Caribe Project,
Inc. v. Administración de Reglamentos y Permisos, KLRA200800010,
2008 WL 1744564 (P.R. Cir. Feb. 6, 2008) (certified translation
provided by the parties)).
        In 2009, Puerto Rico passed the Permit Process Reform Act,
which effected substantial changes to ARPE and the permit process.
See P.R. Laws Ann. tit. 23, §§ 9011 et seq. These changes do not
concern us here.
     5
        Counsel for the defendants informed us that the Senate was
at that time under the control of a political party different from
that which controlled the executive branch.

                                     -8-
to the Fortín, but also about the ownership of some of the land on

which SGCP's construction had been taking place.

             During that investigation, on December 11, 2007, the

PRDOJ Secretary issued an advisory opinion which concluded that

SGCP was not the rightful owner of certain portions of the land on

which the project had been built, because that land was gained from

the sea and no appropriate legislation transferring ownership to a

private party had ever been passed. The opinion found that the two

previous PRDOJ opinions were erroneous and should be disregarded.

             The opinion "recommend[ed] that the concerned executive

governmental entities reevaluate all the administrative decisions

already taken" in light of the new opinion, which was "the official

interpretation of the Executive Branch of the Commonwealth of

Puerto Rico."      The opinion noted that it was only "advisory" and

did not constitute a final determination of the ownership of the

land in question, as only the courts had the authority to pronounce

such a judgment.       The opinion characterized itself as "in the

public interest," given "that controversies related with the Paseo

Caribe   Project    have   captured    the   attention   of   our   people,"

resulting in "public outcry."     The opinion also made clear that it

did not pass judgment on "whether a permit . . . was either correct

or wrong."

             The opinion "recommend[ed]" that other agencies "perform

an exhaustive reevaluation of all the permits . . . and other


                                      -9-
determinations" regarding the project, and made clear that it did

not   "dictate      the   precise    method   through   which    the    different

governmental        entities    concerned     should    proceed     with    their

reevaluation and with any possible stay of the construction still

ongoing."       It stressed that the agencies should act pursuant to

applicable laws and "safeguard[] any procedural and substantive law

or rights the affected parties may have," including ensuring that

all proceedings comported with "due process of law." It noted that

ARPE "has ample power to set aside permits," quoting the relevant

regulations.        This included the power to revoke permits that were

"granted by fraud or error."          No specific mention was made of the

"[e]mergency adjudicatory procedure" of P.R. Laws Ann. tit. 3,

§ 2167.6

               The next day, December 12, 2007, the Governor publicly

ordered all administrative agencies to suspend all permits for the

project and freeze all construction for an initial period of sixty

days.       This appears to have been an unusual step.

               On   December   14,   2007,    the   Planning    Board   issued   a

resolution which, among other things, (1) requested SGCP's comments



        6
        The opinion also noted that the legislature might
ultimately need to determine what should be done about the Paseo
Caribe project, explaining that, at one extreme, total demolition
of the part of the project built on public land might take place,
that at the other extreme, total legalization of the project might
occur, or that there might be some compromise involving the
modification of the project or compensation paid by SGCP for the
public lands.

                                       -10-
on the Secretary of Justice's opinion and (2) ordered ARPE to take

measures it deemed necessary to implement the recommendations of

the   opinion,   "including,   but   not   limited,   to    hold[ing]   an

administrative hearing where the parties' right to due process be

guaranteed."

           That same day the ARPE administrator issued an order to

show cause, requesting that SGCP demonstrate why the permits issued

by ARPE should not be suspended and construction halted for sixty

days, based on the Secretary's opinion, and it scheduled a hearing

for six days later, December 20, 2007. The order invoked P.R. Laws

Ann. tit. 3, § 2167, which is entitled "[e]mergency adjudicatory

procedure."    This provision allows for administrative agencies to

"use emergency adjudicatory procedures in any situation in which

there is imminent danger to the public health, safety and welfare

or which requires immediate action by the agency." Id. § 2167(a).

The statute requires that "[a]fter an order or resolution is issued

according to this section, the agency shall promptly proceed to

complete any procedure that has been required, unless there is

imminent danger."   Id. § 2167(e).

           Absent an emergency, different procedures are to be

followed with full formal hearings.         These procedures require

notice, the right to introduce evidence, an impartial adjudication,

and a decision based on the record in the case.            See id. § 2151

(outlining the rights that "shall be safeguarded in any formal


                                 -11-
adjudicatory procedure before an agency"); id. § 2163 (outlining

the procedure for an adjudicatory hearing).

           ARPE stated two justifications for its invocation of the

emergency procedure statute in its order to show cause.               First,

ARPE found that the Secretary of Justice's conclusion that some of

the land was in the public domain "evidenced the existence of great

public interest in the reevaluation" of the permits ARPE had

granted and emergency procedures were needed "in order to safeguard

the rights of both the proponents and the developers and the

resources of the People of Puerto Rico."         Second, ARPE found that

"[t]here have also been several incidents that could affect the

safety of the employees working on this project, and of the

citizens who have been holding demonstrations near said land."

           On December 19, 2007, before the ARPE hearing, SGCP filed

a complaint to quiet title in the local court of first instance,

seeking a declaratory judgment that SGCP held lawful title to the

disputed   portions   of   the   land   that   were   the   subject   of   the

Secretary's opinion.

           The ARPE hearing on the order to show cause took place

before two examiners on December 20th. At the outset, one examiner

explained that the hearing was "not adversarial," and instead would

be focused on "gather[ing] information" so that ARPE could "make a

determination regarding the Stay Order of the construction[]" at




                                   -12-
the project.     In addition, the examiner made clear that there was

no issue as to the validity of SCGP's permits of themselves.

            SGCP submitted a motion to dismiss, which argued that

ARPE had no jurisdiction because only the Puerto Rico courts could

adjudicate who held valid title to the land and that the ARPE

proceeding was unnecessary as there was no issue regarding the

validity    of   SGCP's    permits      or   SGCP's     compliance     with   those

permits.7

            This motion to dismiss was denied at the hearing.                   One

examiner    explained     that   ARPE    was      not   adjudicating    the   title

question, but rather that because there was "doubt" over whether

SGCP properly owned some of the land, and because ARPE could only

issue permits to those who had rightful title, ARPE was proposing

"to take cautious measures."            The examiner made clear that this

"cautious    measure[]"     consisted        of     a   "provisional    stay"    of

construction,     pending    resolution        of   the   litigation     over   the

question of title in the Puerto Rico courts, and that the permits

were not being revoked.

            SGCP also argued that the hearing was an adjudicative

hearing, and the hearing offended its due process rights because

the notice was too vague and it had unreasonably short notice to

prepare for the hearing.         ARPE noted the objection for the record.


     7
        There is no indication that SGCP argued that the emergency
adjudicative procedures were not properly invoked because there was
no "imminent danger."

                                        -13-
SGCP apparently did not argue that the hearing had to be a full

adjudicative hearing.          Rather, its main position was that the

agency should hold no hearing at all, or should have given it more

notice and time.

             A week later, on December 27, 2007, ARPE issued a

Resolution    and     Order   suspending       SGCP's    permits   and    halting

construction for a period of sixty days, with the ability to extend

the term if necessary "in the public interest."                The order first

noted that the Secretary of Justice's opinion "casts substantial

doubt on the ownership of the land."                    ARPE found a stay of

construction justified given this substantial doubt, in order to

protect the public interest; namely to avoid any harm to SGCP, the

public, or the land while the issue of title was resolved.                  ARPE

explained that it had the authority to revoke permits if they were

obtained by error or fraud, which includes circumstances where the

permittee lacks title, but that it would not revoke the permits at

this time, and instead would wait for the courts to decide the

title issue.     ARPE also rejected SGCP's due process notice and

timing argument, saying that while it would leave the title

determination    to    the    courts,    there   was    a   substantial   public

interest in whether the land was public domain which warranted the

use of § 2167 to shorten the fifteen-day time typically required

between notice and the holding of a hearing, P.R. Laws Ann. tit. 3,

§ 2159. ARPE stated a second ground for prompt action and issuance


                                        -14-
of the stay, concluding that these circumstances, including "the

public demonstrations and aggression by different society groups,"

were "a matter of enough urgency" to call for immediate action and

to warrant invoking the emergency procedure statute.           ARPE then

suspended the permits and ordered a stay of construction for sixty

days.   ARPE did not schedule another hearing, perhaps concluding,

correctly as it turned out, that SGCP would promptly obtain review

by the Puerto Rico courts of both the title question and of ARPE's

own actions. Indeed, ARPE's order noted that it "may be subject to

review by the Court of Appeals."

            SGCP complied with the permit suspension; part of the

project was then nearing completion of its final stages.        SGCP had

invested approximately $200 million in the project.

            SGCP promptly appealed ARPE's order to the Puerto Rico

Court of Appeals, which issued an opinion on February 6, 2008. San

Gerónimo Caribe Project, Inc. v. Administración de Reglamentos y

Permisos, KLRA200800010, 2008 WL 1744564 (P.R. Cir. Feb. 6, 2008)

(certified translation provided by the parties).       The court upheld

ARPE's stay order and the exercise of its emergency power. It also

directed that ARPE, having properly issued the stay, should hold a

full adjudicative hearing on the permit suspension question as soon

as possible. The court also held that, under Puerto Rico law, ARPE

had   the   authority   to   investigate   whether   permits   had   been

erroneously granted, and to order a stay of construction, without


                                  -15-
needing to commence a judicial proceeding.              As to the due process

claim, the court, applying Puerto Rico Supreme Court precedent,

found that ARPE did not err in invoking the emergency adjudication

procedures.      The court also found that there was no error in ARPE

ordering   the    stay,   as   the    Secretary    of   Justice    opinion    was

"binding" on agencies of the executive branch.

            The court also held that ARPE had erred in failing to

promptly schedule a full adjudicative hearing for SGCP after it had

ordered the stay, and that this failure (but not ARPE's issuance of

the stay under the emergency procedure) was in violation of SGCP's

due process rights.       The court ordered that an evidentiary hearing

be held "as soon as possible -- with all the guarantees of the due

process of law," after which ARPE must reevaluate its initial

order.     This hearing never took place in light of further and

prompt actions by the Puerto Rico courts.               SGCP filed a petition

for certiorari from the appeals court decision with the Puerto Rico

Supreme Court on February 15, 2008, nine days after the appeals

court's decision.

            On February 8, 2008, in the separate court proceeding

brought by SGCP to quiet title, the court of first instance entered

judgment    finding   that     SGCP   was    the   valid   owner   of   all   the

properties underlying the Paseo Caribe Project. The court rejected

the arguments contained in the Secretary's opinion as to why the




                                      -16-
land was part of the public domain.              This was appealed to the

Puerto Rico Supreme Court.

              On   February   25,   2008,   with   the   initial    sixty-day

suspension soon to expire and the petition for certiorari as to the

court of appeals's decision pending before the Supreme Court, ARPE

entered a second order extending the suspension of SGCP's permits

for another sixty-day period.          ARPE reasoned that "the factual

situation" regarding the project remained the same, and it was

extending the stay in light of the "absence of a final ruling on

whether the land reclaimed from the sea in this case is public

property."     The order also noted that SGCP could "request a formal

administrative hearing," which would be scheduled "as soon as

possible" after any such request.              SGCP does not contend it

requested such a hearing, nor is there any evidence in the record

that such a hearing was requested.

              Acting quickly, on February 28, 2008, the Puerto Rico

Supreme Court granted SGCP's petition for a writ of certiorari and

issued   an    opinion.       San   Gerónimo    Caribe   Project,   Inc.   v.

Administración de Reglamentos y Permisos, 173 P.R. Dec. 241 (2008)

(certified translation provided by the parties). The court granted

SGCP's motion for a stay of the (extended) suspension ordered by

ARPE and allowed SGCP to resume construction, which SGCP did

shortly after the stay was granted.            The court found that ARPE's

February 25 order extending the suspension contravened the judgment


                                     -17-
of the Puerto Rico court of first instance that SGCP possessed

valid title to the disputed parcels. The total period of time from

the initial suspension order to the Supreme Court's vacating of the

suspension was sixty-three days.         At a later date, the court also

granted a petition for certiorari with respect to the separate

appeal taken from the court of first instance judgment holding that

SGCP had valid title to the land.

           On July 31, 2008, the Puerto Rico Supreme Court issued

two opinions on the merits of the two cases.         In a lengthy opinion

it affirmed the decision of the court of first instance, over one

dissent,   holding   that   SGCP   had    rightful   title   to   the   lands

underlying the Paseo Caribe project.        San Gerónimo Caribe Project,

Inc. v. Estado Libre Asociado de P.R., 174 P.R. Dec. 518 (2008)

(certified translation provided by the parties). This opinion also

stressed that the Fortín San Gerónimo "is a public domain good

property of the People of Puerto Rico," that public access to the

Fort was necessary "for the use and enjoyment by the general

public," and that nothing prevented SGCP from granting a deed of

access, which it apparently had not done.8


     8
        Thereafter, the Commonwealth sought reconsideration of the
Supreme Court opinion holding that title belonged to SGCP. The
court denied reconsideration on August 20, 2008.      San Gerónimo
Caribe Project, Inc. v. Estado Libre Asociado de P.R., 174 P.R.
Dec. 766 (2008) (certified translation provided by the parties).
In its denial, the court made clear that its decision was limited
to "the controversy on the juridic classification of the land
reclaimed from the sea" in two parcels of land, did not address
independent concerns arising out of an investigation of the project

                                   -18-
          Second, the court issued an opinion holding, in a 3-2

decision, that ARPE had violated SGCP's due process rights under

Commonwealth law by suspending the permits without an adjudicatory

predeprivation hearing.    San Gerónimo Caribe Project, Inc. v.

Administración de Reglamentos y Permisos, 174 P.R. Dec. 640 (2008)

(certified translation provided by the parties).        As factual

background, the court stated that groups opposed to the project had

engaged in demonstrations there, claiming that the construction

work had impeded the public access to the Fortín, and this had led

the Federal and Consumer Affairs Commission of the Puerto Rico

Senate to start an investigation on June 22, 2006.   The Department

of Justice had then started its own investigation, including of the

permit-granting process for the project and adjoining lands.

          Recognizing that SGCP had a property interest in the

permit, the court noted that where the "Government must act quickly

to guarantee order, safety or health of its citizens" or in other

"extraordinary" situations that "require immediate action," the

government may use summary procedures.   The court explained that

"the guiding criteria must be whether the delay that entails



by the Commonwealth, and did not preclude any other judicial or
administrative action arising from the investigation.           The
concurring opinion of Chief Justice Hernández Denton made clear
that the decision "in no way should be interpreted as granting
legality and impunity in favor of the multiple juridic transaction
that occurred regarding said land in the 1990's," including the
legality of those transactions or the "correction of the boundaries
reclaimed from the sea."

                               -19-
starting   an    ordinary   procedure     would    al[l]ow    the    happening,

precisely, of what the summary action intends to avoid."

           The court found, disagreeing with both the appeals court

and ARPE, that this standard was not satisfied.                 The court did

recognize that a "public interest" existed with respect to the

ownership question, but said that the justification provided by

ARPE for invoking the emergency procedures was "very far from the

extraordinary     circumstances    that    would    allow    the    use   of   the

immediate action procedure contemplated" in the statute. The court

rejected the argument that the public protests over the project

themselves justified the use of summary procedures, finding that

"the degree of unrest . . . would not equal the instances where the

compliance with the imminent danger to public health, safety and

welfare have been acknowledged," and emphasizing that protests can

be controlled without harming general safety.              It said "ARPE made

a mistake" in invoking the emergency procedure statute, because

"the particular circumstances of this case do not present an

imminent danger to the public health, safety and well being."

           The    court   then   found    that    ARPE's    justification      for

suspending the permits was insufficient, holding that "substantial

doubt" about the validity of SGCP's title was not a sufficient

basis under the relevant statutes and regulations to suspend the

permits.   The court entered judgment permanently revoking ARPE's




                                    -20-
permit suspension order, and ordered ARPE to permanently halt its

permit revocation proceedings.

           Two justices dissented.      One found that the majority did

not "provide an objective balance between the affected individual's

interest   and   the   protected     governmental"     interests,   and

specifically failed to "take into consideration the legitimate

interest that the State has in preventing the imminent construction

of a permanent building over possible public property."

B.         Federal Case Procedural History

           SGCP filed this suit on October 24, 2008, naming as

defendants the Governor of Puerto Rico, the Secretary of Justice,

the head of ARPE, and other unnamed individuals.         The complaint

raised four claims: (1) violation of federal procedural due process

rights, (2) violation of federal substantive due process rights,

(3) violation of the Equal Protection Clause of the Fourteenth

Amendment, and (4) violation of 42 U.S.C. § 1983, based on the

preceding three claims, in addition to pendent state-law claims.

As to relief, the complaint requested a declaratory judgment that

the defendants each violated SGCP's rights, and an award of $38

million in compensatory damages, as well as punitive damages and

attorneys' fees and costs.   The defendants moved to dismiss under

Federal Rule of Civil Procedure 12(b)(6).         They argued that the

complaint failed to state a claim of a procedural due process




                                 -21-
violation or other violations and, even if it did, the defendants

were entitled to qualified immunity.

             The district court referred the motion to a magistrate

judge. On August 3, 2009, the magistrate judge issued a report and

recommendation, recommending that the motion to dismiss be granted.

SGCP filed objections to the report and recommendation.

             On September 30, 2009, the district court adopted the

magistrate    judge's    report   and   recommendation   and   granted   the

defendants' motion to dismiss. San Gerónimo Caribe Project, 663 F.

Supp. 2d at 69.     The district court found that the Parratt-Hudson

doctrine barred plaintiff's procedural due process claims.          Id. at

64-65.   The court also found that qualified immunity would apply.

Id. at 66-68. The district court rejected SGCP's remaining federal

claims and declined to exercise supplemental jurisdiction over the

state-law claims.       Id. at 68-69.

             SGCP's appeal raises only an objection to the dismissal

of its federal procedural due process claim and to the grant of

immunity.

                                    II.

             We review de novo the grant of a motion to dismiss under

Rule 12(b)(6).     Feliciano-Hernández v. Pereira-Castillo, 663 F.3d

527, 532 (1st Cir. 2011), cert. denied, 80 U.S.L.W. 3678 (U.S.

2012).




                                    -22-
          SGCP does not raise any challenge to the emergency

procedure statute, P.R. Laws Ann. tit. 3, § 2167, itself. There is

no claim that any "established state procedure" deprived it of

property without due process.    Logan v. Zimmerman Brush Co., 455

U.S. 422, 436 (1982).   As to the claim it does make, all agree that

SGCP has a protected property interest and the defendants acted

under color of state law.     See id. at 428 (explaining that the

procedural due process inquiry is "whether [plaintiff] was deprived

of a protected interest, and, if so, what process was his due");

González-Droz v. González-Colón, 660 F.3d 1, 13 (1st Cir. 2011)

(stating the elements of a procedural due process claim).

          The issue is whether on these facts SGCP has raised a

viable claim of deprivation of its federal procedural due process

rights as those rights have been articulated in the Parratt-Hudson

doctrine and in Zinermon, 494 U.S. 113.9   SGCP's primary theory is

that the "circumstances of this case" -- ARPE's impropriety in

invoking the emergency procedure statute to issue a stay -- "are

governed by Zinermon" and not the Parratt-Hudson doctrine.10     We



     9
        We appreciate the assistance provided by amici curiae the
Commonwealth of Massachusetts and the States of Maine and New
Hampshire.
     10
         To be clear, in this federal suit, the defendants do not
challenge the Puerto Rico Supreme Court's determination that the
hearing did not comply with Puerto Rico law and did not comply with
due process. Instead they argue that even so, no cause of action
for a remedy for a procedural due process claim is stated under the
federal constitution.

                                -23-
outline the Parratt-Hudson doctrine before turning to SGCP's claim

that Zinermon requires finding Parratt-Hudson inapplicable on these

facts.

A.        The Parratt-Hudson Doctrine

          In Parratt v. Taylor, 451 U.S. 527 (1981), the Court held

that no predeprivation process was required where a state prison

guard negligently destroyed a prisoner's property, so long as

adequate postdeprivation remedies were available.11      The Court

explained that "either the necessity of quick action by the State

or the impracticability of providing any meaningful predeprivation

process, when coupled with the availability of some meaningful

means by which to assess the propriety of the State's action at

some time after the initial taking, can satisfy the requirements of

procedural due process."   Id. at 539.   The Court concluded that

"the loss is not a result of some established state procedure and

the State cannot predict precisely when the loss will occur. It is

difficult to conceive of how the State could provide a meaningful

hearing before the deprivation takes place."   Id. at 541.




     11
        The Court also held that there was no "express requirement
of a particular state of mind" for a procedural due process claim
to be maintained under 42 U.S.C. § 1983. Parratt v. Taylor, 451
U.S. 527, 535 (1981).       That portion of Parratt was later
"overrule[d] . . . to the extent that it states that mere lack of
due care by a state official may 'deprive' an individual of life,
liberty, or property under the Fourteenth Amendment." Daniels v.
Williams, 474 U.S. 327, 330-31 (1986).

                               -24-
           In Hudson v. Palmer, 468 U.S. 517 (1984), the Court

extended Parratt to intentional destruction of property by a state

prison guard, explaining that "when deprivations of property are

effected   through     random   and      unauthorized      conduct    of   a   state

employee, predeprivation procedures are simply 'impracticable'

since the state cannot know when such deprivations will occur."

Id. at 533.     Whether the state employee knew in advance of the

deprivation was irrelevant; instead "[t]he controlling inquiry is

solely   whether     the   state    is    in    a   position     to   provide    for

predeprivation process."        Id. at 534.

           In Zinermon v. Burch, 494 U.S. 113 (1990), the Court

found that Parratt-Hudson did not apply to an improper voluntary

admission of a patient to a mental health facility under a Florida

statute.      There,   Burch    arrived        at   a   mental   health    facility

hallucinating, confused, psychotic, and believing he was in heaven.

Id. at 118.    He was provided with forms to sign giving his consent

to admission and treatment, and did so, resulting in his admission

under Florida's statutory provisions for "voluntary" admission.

Id. at 118, 122.     These allowed for a patient to be admitted if the

patient gave express and informed consent, which was defined as

requiring the patient to "make a knowing and willful decision."

Id. at 123.     A post-release investigation and examination found

that Burch was probably not competent to sign the form and he then

brought his federal suit.          Id. at 120.


                                      -25-
            Florida   did    have   other    methods    of   admission.       The

consequences of the use of the voluntary procedure rather than

other procedures were considerable.            Depending on which type of

admission   was   involved,     the   procedures       and   the   duration   of

admission changed.12        The substantive standard for the different

forms of admission differed as well.          For example, a patient could

only be involuntarily admitted if likely "to injure himself or

others," or if a lack of care or treatment would result in "neglect

or refusal to care for himself" that amounted to a "real and

present threat of substantial harm to his well-being." Id. at 122.

By contrast, voluntary admission simply required "express and

informed consent." Id. at 123. Burch alleged that he was deprived

of procedural due process because he was admitted under the


     12
         One method allowed a short term emergency admission, which
could last only forty-eight hours and required a judge, mental
health professional, or law enforcement officer to admit the person
only on a finding the person was mentally ill, and likely to injure
himself or others, or was in need of care and lacked capacity to
make a responsible application.     Zinermon, 494 U.S. at 122.    A
different procedure allowed only a five-day commitment and required
a court order before admission, which had to make certain findings
about likelihood of injury to the patient or others, or find that
a lack of care would result in a "real and present threat of
substantial harm" to the patient. Id. There was another process
for involuntary admission which required the facility administrator
and two mental health professionals to recommend involuntary
placement, and then required a judicial hearing with notice,
appointed counsel, and access to medical records, as well as an
independent examination, to determine whether the patient was
competent to consent to treatment and, if not, the appointment of
a guardian advocate to make treatment decisions. Id. at 122-23.
Involuntary placement could last for up to six months, after which
time the facility must either release the patient or seek a court
order for continuing placement. Id. at 123.

                                      -26-
voluntary consent procedures, even though it should have been clear

that he was not of sufficiently sound state of mind at the time he

was admitted to be able to voluntarily consent to admission.    Id.

at 115, 123.

          The Court, in a 5-4 decision, agreed with Burch that his

complaint stated a claim. The Court found that the Florida statute

provided "little guidance" on which procedure to use when admitting

patients, id. at 135, and instead provided "broadly delegated,

uncircumscribed power" to officials admitting patients, id. at 136.

The Court explained that Florida delegated "a broad power to admit

patients" to the facility, and that "[b]ecause [the hospital

officials] had state authority to deprive persons of liberty, the

Constitution imposed on them the State's concomitant duty to see

that no deprivation occur without adequate procedural protections."

Id. at 135. Important to the Court's analysis was that the statute

could easily have contained additional safeguards, such as a

requirement that admissions staff "determine whether a person is

competent to give consent" before allowing voluntary admission.

Id.

          The Court also advanced "three basic reasons" for finding

Parratt-Hudson inapplicable.     Id. at 136.    First, the risk of

deprivation of liberty was predictable and was so as to the

particular point in the admission process when the deprivation

would occur.   Id.   The Court found that "the very nature of mental


                                 -27-
illness makes it foreseeable that a person needing mental health

care will be unable to" provide informed consent, and so there was

a clear and easily foreseeable risk that some individuals would be

wrongly placed into treatment if allowed to sign in voluntarily

without some threshold determination of competency.                    Id. at 133,

136.

            Second,    since   Florida       already   had    an       established

procedure    for     involuntary      placement,     "we   cannot       say     that

predeprivation process was impossible here." Id. at 136. This was

in contrast to Parratt in which it would have made no sense for a

state to tell its employees not to make a mistake as to losing mail

and it would be absurd to hold a hearing on whether employees

should make a mistake.       Id. at 137.       A state could not anticipate

or control in Parratt and in Hudson when such mistakes would be

made, whether the mistakes were negligent or intentional.

            Third,    the   conduct    of    the   state   officials      was    not

"unauthorized" in the sense used in Parratt and Hudson, for two

reasons.    Id. at 138.     First, in those cases the defendant guards

did not have broad authority from the state to commit the negligent

and intentional deprivations that they did.                Id.     Second, the

Zinermon Court stressed that the defendants were dealing with

persons "unable to protect their own interests."                 Id.

            The Supreme Court has not addressed the Parratt-Hudson

doctrine since.      Still, Justices Kennedy and Thomas, concurring in


                                      -28-
Albright v. Oliver, 510 U.S. 266 (1994), set forth their views that

the Parratt-Hudson doctrine stands for the proposition that "[i]n

the ordinary case where an injury has been caused not by a state

law, policy, or procedure, but by a random and unauthorized act

that can be remedied by state law, there is no basis for [federal

court] intervention under § 1983," in a suit alleging only a

procedural due process claim.   Id. at 285 (Kennedy, J., concurring

in the judgment).    This "commonsense teaching" is designed to

"respect[] the delicate balance between state and federal courts,"

and to ensure that the Due Process Clause of the Fourteenth

Amendment does not turn into "a font of tort law to be superimposed

upon whatever systems may already be administered by the States."

Id. at 284 (quoting Parratt, 451 U.S. at 544) (internal quotation

mark omitted).

B.        Application of Parratt-Hudson

          SGCP contends that "not all conduct by state officials

that violates state law falls within the 'random and unauthorized'

doctrine."   It argues that the conduct here does not fall within

Parratt-Hudson for three reasons.      First, like Zinermon, these

officials had authority to effect the deprivation complained of.

Second, like Zinermon, it is predictable that where government

officials have to choose one or another of two or more protocols,

there will be mistakes which will result in denials of due process.

Third, "and most important, . . . the state could have done more to


                                -29-
guide its officials' choice between available procedural protocols

under circumstances in which a correct choice would have satisfied

the Constitution but an incorrect choice did not."                 For this last

proposition     it     relies    on    the     Puerto   Rico   Supreme       Court's

acknowledgment       that      the    statute    itself   "does     not      provide

definitions nor guidelines to precisely state what situations or

circumstances justify an agency [to deviate] from the ordinary

adjudicative process to invoke" the emergency procedure.                       These

three arguments are derived directly from the Zinermon Court's

"three basic reasons" for finding the Parratt-Hudson doctrine

inapplicable.    494 U.S. at 136.         We disagree on each point and find

the Parratt-Hudson doctrine applies here.

            We outline the emergency procedure statute at issue here

before turning to SGCP's arguments.                 The statute is entitled

"[e]mergency adjudicatory procedure," and allows agencies to "use

emergency adjudicatory procedures in any situation in which there

is imminent danger to the public health, safety and welfare or

which requires immediate action by the agency."                   P.R. Laws Ann.

tit. 3, § 2167(a).          Agencies "may only take such action as it is

necessary     within     the    circumstances      described      in   the     above

subsection (a) which justifies the use of emergency adjudicatory

procedures."     Id. § 2167(b).          Before emergency procedures under

subsection (a) may be used, the agency must "issue an order or

resolution that shall include a concise determination of the


                                        -30-
findings of fact, conclusions of law, and the reasons of public

policy that justify the agency's decision to take specific action."

Id. § 2167(c).        When the emergency procedures are invoked, the

agency must give notice "to those persons who are required to

comply with the order or resolution," which order or resolution

becomes    "effective    upon    being    issued."      Id.   §   2167(d).

Furthermore, unlike under the Florida statute at issue in Zinermon,

after invoking the emergency procedure statute the agency must

"promptly proceed to complete any procedure that has been required,

unless there is imminent danger."            Id. § 2167(e).

           The emergency procedure statute at issue, on its own

language, is explicitly an exception to the general rule requiring

full predeprivation process, and it requires a finding that a

triggering condition -- an emergency rising to certain levels -- in

subsection (a) is satisfied.          Section 2167 is a limited exception

to the general requirement that procedural due process protections

be   provided   "in    any   formal   adjudicatory    procedure   before     an

agency."    Id. § 2151.13       Moreover, § 2167 requires the agency

invoking emergency procedures to issue an order justifying its use

of such procedures.      Id. § 2167(c).

           These differences alone cast doubt on whether Zinermon

could apply here, even if the triggering conditions themselves



      13
        That it is an exception                is   further   reinforced     by
subsections (b) and (e) of § 2167.

                                      -31-
require some exercise in judgment by agencies in determining when

to invoke them.          Zinermon did not involve a use of statutory

emergency    procedures.          Further,         Zinermon      did   not   involve    a

triggering requirement that there be a finding that an individual

was competent before admitting an individual under the voluntary

admission procedure.            Indeed, that was exactly the flaw in the

procedure.      See Zinermon, 494 U.S. at 135 (noting that the Florida

law   "do[es]     not    direct    any      member   of    the    facility    staff    to

determine whether a person is competent to give consent, nor to

initiate the involuntary placement procedure for every incompetent

patient").      Moreover, in Zinermon, no guidance at all was provided

as to when to use voluntary as opposed to involuntary procedures.

See id.     These distinctions alone are important.

             1.         Discretion Provided by the Statute

             SGCP's     first     claim      is    that   the    statutory     language

defining     what     qualifies        as    emergency      conditions       justifying

invocation of the emergency procedure statute does not sufficiently

cabin the discretion of administrative agencies and so this case

falls within Zinermon.

             We   reject    SGCP's          argument.     The    scope of discretion

conferred    on     agencies      in   determining        when    to   use   emergency

procedures under § 2167 is not equivalent to the completely

uncircumscribed discretion to use voluntary admission procedures

that existed in Zinermon.


                                            -32-
           There can be no serious argument that the required

triggering finding of "imminent danger to the public health, safety

and welfare" grants excessive discretion.         Emergency procedure

statutes similar to the one at issue here are widespread in this

country.   Puerto Rico's emergency procedure statute is modeled on

a section of the 1981 Model State Administrative Procedure Act.

Subsection (a) of that section provides that "[a]n agency may use

emergency adjudicative proceedings in a situation involving an

immediate danger to the public health, safety, or welfare requiring

immediate agency action."     1981 Model State Admin. P. Act, § 4-

501(a).    A number of states have enacted centralized emergency

procedure provisions similar to that of the model act and the

Puerto Rico law.   See, e.g., Cal. Gov't Code § 11460.30(a); Idaho

Code Ann. § 67-5247(1); Iowa Code Ann. § 17A.18A(1); Kan. Stat.

Ann. § 77-536(a); N.D. Cent. Code Ann. § 28-32-32; Wash. Rev. Code

Ann. § 34.05.479(1). It cannot be, as the logic of SGCP's argument

would have it, that these statutes vest so much discretion in state

officials that they would be vulnerable to suit under Zinermon for

mistaken applications.

           Indeed, the Supreme Court upheld a similar, but not

identical,   emergency   procedure   statute   against   a   due   process

challenge in Hodel v. Virginia Surface Mining & Reclamation Ass'n,

452 U.S. 264 (1981).     The Court upheld provisions of the Surface

Mining Control and Reclamation Act that allowed the Secretary of


                                 -33-
the Interior to order immediate cessation of activities with no

predeprivation process if two criteria were met.            Id. at 298.

First, the mining operation must violate the Act or a permit

condition required by the Act.        Id.   Second, the secretary must

determine that the operation "creates an immediate danger to the

health or safety of the public, or is causing, or can reasonably be

expected to cause significant, imminent environmental harm to land,

air or water resources."    Id.    The Act defined "imminent danger to

the health and safety of the public" as the existence of a

condition or practice that could "[r]easonably be expected to cause

substantial physical harm to persons outside the permit area before

such condition, practice, or violation can be abated."            Id. at 301

(alteration in original).        The Court found that these standards

were easily "specific enough to control governmental action and

reduce the risk of erroneous deprivation," id. at 301, and that

"[i]f anything, these standards are more specific than the criteria

in other statutes authorizing summary administrative action that

have been upheld against due process challenges," id. at 302.

             Given Hodel, at oral argument before the en banc court

SGCP argued for the first time that its claim that the emergency

statute at issue here conferred too much discretion was largely

based   on   other   statutory   language   --   the   language    allowing

emergency procedures to be invoked in any situation "which requires

immediate action by the agency," which follows after the language


                                   -34-
requiring that there be "imminent danger to the public health,

safety and welfare."    P.R. Laws Ann. tit. 3, § 2167(a).       SGCP

claimed the "or which requires immediate action" clause is to be

read as having an independent meaning from the "imminent danger to

the public health, safety and welfare" clause and does not provide

any guidance to state officials.     SGCP did not make this argument

to the district court or in its appeal to the panel.      It did not

brief this issue even before the en banc court.     We have found no

support for this anywhere in Puerto Rico law, and the argument is

contrary to Puerto Rico law.   SGCP further argued that the Puerto

Rico Supreme Court had not, before its decision in this case,

adopted sufficient limiting principles to cure this deficiency.

This is also not so.

          There is no deficiency resulting from the "or which

requires immediate action" clause.    SGCP's new argument14 fails for

many reasons, beyond waiver.    It is not supported by rules of

statutory construction, it is contrary to judicial interpretation,

and in fact that reading of the statute was not the basis for the

decision here.   No Puerto Rico case has interpreted the clause as

independent and unrelated to the imminent danger clause.       It is


     14
        SGCP also made a new argument about the term welfare. The
term "welfare" in the phrase "public health, safety and welfare" is
not so vague as to confer too much discretion so as to fall within
Zinermon. Indeed, the word "welfare" is used in the conjunctive
here; the statute requires a danger to public health, safety, and
welfare before emergency procedures can be invoked, P.R. Laws Ann.
tit. 3, § 2167(a).

                               -35-
clear that this portion of the statute, when interpreted in light

of the statute as a whole, earlier Puerto Rico court decisions, and

the circumstances of this case, did not amount to the type of grant

of broad and standardless discretion in Zinermon.

             First, the construction of the statute itself does not

support SGCP's argument.     As SGCP conceded at oral argument, this

portion of the statute must be construed in light of the preceding

portion, which allows for emergency procedures to be used only

where there is an "imminent danger to the public health, safety and

welfare."    P.R. Laws Ann. tit. 3, § 2167(a).      This is particularly

so   given   that   this   language   is   within   a   statute   entitled

"[e]mergency adjudicatory procedure" and outlines when "emergency

adjudicatory procedures" can be used. Id. (emphasis added). Other

portions of the statute make clear that the emergency procedures of

subsection (a) are to be used only in narrow circumstances.15           As


      15
         Subsection (b) of the statute provides that "[t]he agency
may only take such action as it is necessary within the
circumstances described in the above subsection (a) which justifies
the use of emergency adjudicatory procedures." P.R. Laws Ann. tit.
3, § 2167(b). Summary procedures are only justified to the extent
that they are necessary in light of the conditions specified in
subsection (a), supporting a narrow interpretation of emergency
authority outlined in subsection (a).     The Puerto Rico Supreme
Court referenced this section in explaining that "the emergency
adjudicative procedure started by the agency must be limited to
what is necessary, under the light of what the dangerous or
extraordinary situation would require[]."     San Gerónimo Caribe
Project, Inc. v. Administración de Reglamentos y Permisos, 174 P.R.
Dec. 640 (2008) (certified translation provided by the parties)
        Moreover, subsection (e) of the statute provides that
"[a]fter an order or resolution is issued according to this
section, the agency shall promptly proceed to complete any

                                  -36-
a result, an official considering the clause after the word "or"

would   construe     it    to     reach    only    circumstances   of    comparable

gravity.    Cf. Reiter v. Sonotone Corp., 442 U.S. 330, 339 (1979)

("Canons of construction ordinarily suggest that terms connected by

a disjunctive be given separate meanings, unless the context

dictates otherwise . . . ." (emphasis added)); Mizrahi v. Gonzales,

492 F.3d 156, 164 (2d Cir. 2007) ("It is a standard canon of

statutory construction that words separated by the disjunctive are

intended to convey different meanings unless the context indicates

otherwise."); see also Lawson v. FMR LLC, 670 F.3d 61, 68 (1st Cir.

2012) (courts consider "the broader statutory framework, including

particularly the nearby language, and the title and caption" in

construing terms of a statute (citations omitted)).

            Judicial       construction       of    the statute also precludes

SGCP's broad reading of the "or" clause as well as its attack on

the imminent danger clause.               The emergency procedure statute was

enacted, in 1988, against a backdrop of Puerto Rico Supreme Court

precedent    which        reads    in     limiting    principles    to    statutes

authorizing summary action in order to ensure that those statutes



procedure that has been required, unless there is imminent danger."
P.R. Laws Ann. tit. 3, § 2167(e). Subsection (e) limits the use of
emergency procedures after they have been invoked to situations of
"imminent danger," and applies to the triggering conditions of
subsection (a). Situations that require "immediate action by the
agency" are most reasonably read as limited to situations of
"imminent danger" equivalent in kind to "imminent danger to the
public health, safety and welfare."

                                          -37-
comply   with    both   Puerto   Rico's    due    process   clause   and   the

Fourteenth Amendment's Due Process Clause.             Other cases decided

after the statute's enactment similarly emphasize that summary

action is justified only in narrow circumstances.

            The Puerto Rico Supreme Court opinion in this case does

explain, as SGCP argues, that the statutory language of § 2167 does

not "precisely state what situations or circumstances justify"

summary procedures, but it also says "[n]evertheless, on prior

occasions we have had the opportunity to precisely measure the

scope of the 'emergency' concept." The court relied on, and quoted

liberally from, this precedent in explaining that § 2167 only

justifies    the    use     of   summary    procedures      if    there    are

"extraordinary" circumstances that would "imply the existence of

a[n] imminent danger for public health, safety and welfare," and

that "the guiding criteria must be whether the delay that entails

starting    an   ordinary   procedure     would   al[l]ow   the   happening,

precisely, of what the summary action intends to avoid."                   The

Supreme Court relied on and did not overrule any precedent in

reaching this conclusion.

            A number of Puerto Rico Court of Appeals decisions also

construed § 2167 narrowly well before ARPE invoked the statute

here.    Most notably, a 2001 opinion explained that "[e]xcept in

situations of a true emergency, the agency is obligated to hold a

hearing with all the rights" outlined by P.R. Laws Ann. tit. 3,


                                    -38-
§ 2151, and held that because "[i]n the case at hand, such an

emergency situation did not exist," the agency's issuance of an

order under § 2167 violated due process of law.                  El Comandante

Mgmt. Co. v. Confederación Hípica de P.R., No. JH-01-47, 2001 WL

1850793 (P.R. Cir. Dec. 17, 2001) (emphasis added) (translation

provided by U.S. District of Puerto Rico interpreters).                   Several

other     appellate   decisions   also   explained    that   §     2167    is   an

exception to be used only in emergency situations.16

             Contrary to SGCP's argument, even before the Puerto Rico

Supreme Court's decision in this case, Puerto Rico had provided

judicial    and   statutory   guidance     in   construing   the    "immediate


     16
        See Perez Perdomo v. Respi-Care of P.R., Inc., No.
KLRA050224, 2005 WL 2481385 (P.R. Cir. Aug. 11, 2005) (noting that
§ 2167 is an "exception" to the normal requirement of a
predeprivation hearing, quoting a treatise explaining that the use
of § 2167 "is legitimized by the existence of a clear and imminent
danger to the health, safety and wellbeing of the public which
requires immediate action from the agency," and upholding a
Department of Health regulation allowing summary procedures under
§ 2167 because "[i]t is clear that it only proceeds in emergency
situations or when faced with the existence of imminent danger to
the health and wellbeing of the citizens" (translation provided by
U.S. District of Puerto Rico interpreters)); Torres Álamo v.
Tribunal Examinador de Médicos, No. TEM-Q-2003-01, 2004 WL 2419420
(P.R. Cir. Sept. 30, 2004) (quoting the same language from the same
treatise in a discussion of § 2167 (translation provided by U.S.
District of Puerto Rico interpreters)); Triple C, Inc. v. Oficina
del Procurador del Paciente Beneficiario de la Reforma de Salud,
No. I03-01, 2003 WL 21369138 (P.R. Cir. Feb. 18, 2003) (finding an
agency's action authorized under § 2167 where there was "an
imminent danger to the health, life, and wellbeing" of certain
patients, and explaining the Puerto Rico Supreme Court's due
process precedent as authorizing action "without first providing
the right to be heard when it is necessary to guarantee the order,
safety and security of the people" (translation provided by U.S.
District of Puerto Rico interpreters)).

                                    -39-
action"   portion   of    §   2167   as   limited    to   emergency    or   other

extraordinary situations of similar urgency.17

           Moreover, the actions taken here were not in fact based

on SGCP's hypothetical reading of the "or which requires immediate

action" clause.         Neither the ARPE, the Puerto Rico Court of

Appeals, nor the Puerto Rico Supreme Court treated the "immediate

action" portion of the statute as separate from the "health, safety

and welfare" portion of the statute or reviewed ARPE's action as

based on only the "immediate action" clause. ARPE's stated reasons

relied on the imminent danger to health, safety, and welfare

portion -- including the fact of ongoing public demonstrations,

which required police intervention.          Both ARPE and the Puerto Rico

courts cited to subsection (a) of the emergency statute as a whole.

           As a result, we reject the argument that the emergency

statute allowed such unfettered discretion as to remove this case

from the reach of Parratt-Hudson.             ARPE was not provided with

"broad    power   and    little      guidance,"     or    "broadly    delegated,




     17
         SGCP contends that in suspending SGCP's permits ARPE cited
and relied on for its emergency powers the statement in A.R.P.E. v.
Ozores Perez, 16 P.R. Offic. Trans. 1005 (1986) (per curiam), that
"it was the lawmaker's intent to grant broad policy-making
discretion to [ARPE] in the formulation and maintenance of permit-
processing proceedings." Id. Not so. ARPE did not cite that case
in justifying its decision to use summary procedures; the case was
cited to support that it did have jurisdiction and substantive
authority to suspend the permits after they had already been
granted.

                                      -40-
uncircumscribed power."18    Zinermon, 494 U.S. at 135-36; see also

Lolling v. Patterson, 966 F.2d 230, 234 n.6 (7th Cir. 1992)

(Zinermon   does   not   apply   even    where   an   official   exercises

"discretion and authority," so long as "that discretion was not

'uncircumscribed' or otherwise unregulated"); Charbonnet v. Lee,

951 F.2d 638, 644 (5th Cir. 1992) ("[T]he Zinermon majority found

that the state actions before it were not 'unauthorized' only

because the state had actually delegated its officials with the

broad authority to carry out the deprivation alleged by Mr.

Burch."); Easter House v. Felder, 910 F.2d 1387, 1400-01 (7th Cir.

1990) (en banc) (explaining that "the extent to which the state

official's discretion is 'uncircumscribed' . . . appears to have

been a decisive factor permitting the majority in Zinermon to rule

that Parratt would not" apply, and holding that "exercis[ing] a

certain amount of discretion and authority" does not mean that such

discretion was uncircumscribed).        Sufficient guidance was provided



     18
        Our one decision to hold that a statute's delegation of
authority was so broad and standardless as not to fall within
Parratt-Hudson is Chmielinski v. Massachusetts, 513 F.3d 309 (1st
Cir. 2008), and that case did not involve emergency procedures.
There, we assessed a statute which required only that a termination
hearing be "informal" in nature and provided no guidance at all on
the procedures to be used.     Id. at 315.    We held that because
"[n]either the statute nor the regulations set out any procedural
requirements, providing only that the hearing be 'informal,'" the
hearing that the plaintiff received "cannot be characterized as a
deviation from the state law."       Id. (emphasis added).      The
emergency statute at issue here provides far more guidance than
that at issue in Chmielinski and here there was a deviation from
state law. SGCP is wrong that Chmielinski supports its cause.

                                  -41-
to ARPE, and ARPE's discretion was so limited, such that this case

does not fall within Zinermon.

          Moreover, the view of this court has long been that

Zinermon is best viewed as a case where the state statutory scheme

conferred so much discretion on state officials so as to authorize

the state officials' actions in deprivation of procedural rights.

See Herwins v. City of Revere, 163 F.3d 15, 19 (1st Cir. 1998) (in

Zinermon "the procedure was itself authorized by state law"); see

also Mard v. Town of Amherst, 350 F.3d 184, 194 n.4 (1st Cir. 2003)

(same); O'Neill v. Baker, 210 F.3d 41, 50 (1st Cir. 2000) ("In

Herwins, we viewed Zinermon as a case in which state law did

authorize the procedure followed (albeit unconstitutionally), so

that the act of the officials could not be described as 'random and

unauthorized' . . . .").     We therefore reject SGCP's opening

premise that Zinermon involved a case of violation of state law.

Here, the state statutory scheme did not authorize ARPE's actions,

and a mere mistake by officials in exceeding the limits of their

defined authority is not the stuff of a federal due process claim.

          2.     Foreseeability of a Deprivation

          SGCP's second claim is that the deprivation at issue here

was "foreseeable" as opposed to "random" because, like Zinermon, it

is predictable that where government officials have to choose one

or another of two or more protocols, there will be mistakes which

will result in denials of due process.


                                 -42-
          We reject SGCP's claim that all it needs to do to fit

under Zinermon is show that it was foreseeable that officials could

make mistakes and as a result of those mistakes, there would be

deprivations   of   due      process.   SGCP's   argument   fundamentally

misapprehends the foreseeability and predictability aspect of

Zinermon's distinguishing of Parratt-Hudson.           Zinermon cannot be

reduced to the proposition that whenever there is risk of error,

the protections afforded by Parratt-Hudson do not apply.                As

Alexander Pope wrote, "to err is human."              The Zinermon Court

likewise did not rule that every time an agency must make a choice

between sets of procedures Parratt-Hudson does not apply.

          In Zinermon, the risk of an erroneous non-emergency

commitment of an individual who had not been shown to be a danger

to himself or others was different in kind than the risk present

here.   There, it was perfectly obvious that some individuals

seeking non-emergency admission at a mental health facility would

not be competent to give consent to admission.          Zinermon, 494 U.S.

at 133 ("Indeed, the very nature of mental illness makes it

foreseeable that a person needing mental health care . . . will be

unable 'to make a knowing and willful decision' whether to consent

to admission.").       Given this clear risk, it was predictable that

individuals    would    be   admitted   under   the   voluntary   admission

procedure, even though they were not competent to give consent,

because the statute did not require a threshold determination of


                                    -43-
competency.    Id. at 135 ("[T]he statutes do not direct any member

of the facility staff to determine whether a person is competent to

give consent, nor to initiate the involuntary placement procedure

for every incompetent patient.").       That was why the Zinermon Court

explained     that   the   risk   of   an   erroneous   deprivation   was

"predictable."       Id. at 136 ("It is hardly unforeseeable that a

person requesting treatment for mental illness might be incapable

of informed consent, and that state officials with the power to

admit patients might take their apparent willingness to be admitted

at face value and not initiate involuntary placement procedures.").

There was nothing comparable here to the Zinermon foreseeability

that the statute created a substantial risk of erroneous admissions

by failing to first require a determination that someone visibly

mentally ill was competent to voluntarily admit himself.

            Our conclusion is consistent with that of other circuits.

See Caine v. Hardy, 943 F.2d 1406, 1413 (5th Cir. 1991) (en banc)

(explaining Zinermon applies only where, among other conditions,

"the particular pre-deprivation administrative procedure presents

a high risk of erroneous deprivation"); Easter House, 910 F.2d at

1401 ("The Court's concern in Zinermon focused on the broadly

delegated authority which the state statute gave the doctors to

effect the deprivation at issue and the subsequent failure of that

same statute to provide for effective pre-deprivation safeguards.

It was in view of this statutory oversight that the Court concluded


                                   -44-
that the deprivation which occurred was 'predictable' and, as such,

not 'random.'").

           3.       Additional Predeprivation Safeguards

           We also note that Zinermon does not govern here because,

unlike    in    Zinermon,   there    is    no   practicable   additional

predeprivation process that could be implemented.         See Zinermon,

494 U.S. at 132-33 ("To determine whether . . . the Parratt rule

[applies] . . . we must ask whether predeprivation procedural

safeguards could address the risk of deprivations of the kind Burch

alleges.").     In Zinermon there existed a straightforward cure for

the statutory failing: the state could have easily imposed a

requirement that a threshold determination of competency take

place, so that involuntary commitment procedures would be used for

patients who, though willing to give consent, were in fact unable

to give valid consent due to their mental health condition. Id. at

136-37.   This determination was critical to the court's holding.

See id. at 137 (explaining that "[t]he problem is only to ensure

that [the involuntary placement] procedure is afforded to all

patients who cannot be admitted voluntarily").

           That is not true here.          In a situation involving a

potential emergency, as here, to require additional predeprivation

safeguards would defeat the very purpose of the emergency statute.

The Supreme Court made this point in Hodel: "The Court has often

acknowledged, however, that summary administrative action may be


                                    -45-
justified in emergency situations."         452 U.S. at 299-300.      In such

circumstances, summary procedures are justified because "swift

action is necessary to protect the public health and safety."              Id.

at 301.    As we recently noted in a case holding it would be

impractical to require a predeprivation hearing: "[T]he variety of

. . . circumstances within which the exception [to the general

requirement   of    predeprivation       process]   has   been     recognized

demonstrates that the exception is a flexible one," and "the

Supreme Court's case-by-case approach to impracticality reflects

the   flexibility    of   due-process      jurisprudence."         Elena    v.

Municipality of San Juan, 677 F.3d 1, 6 (1st Cir. 2012).

          Here,     the   very   point     of   Puerto    Rico's    emergency

procedures is to permit public officials to act promptly where

there is an emergency.      It would make no sense to require there

first be a notice and hearing to determine whether the state may

even invoke the emergency power.         If a predeprivation hearing had

to be held in these circumstances, "an official charged with

discretion would be in the anomalous position of almost being

forced to hold a hearing to determine whether or not an emergency

exists, so as to then determine whether a predeprivation hearing is

constitutionally required.       This cannot be the proper result."

Catanzaro v. Weiden, 188 F.3d 56, 63 (2d Cir. 1999); see also

Harris v. City of Akron, 20 F.3d 1396, 1404 (6th Cir. 1994)

(explaining that under Zinermon, the hospital admission "could have


                                   -46-
been accomplished under either the voluntary or the involuntary

admission procedure," but that under an emergency statute, "[i]f an

emergency existed, the only available course of action for removing

the threat to public health and safety was to" use emergency

procedures     "forthwith,"   and     noting        that     "[a]n   erroneous

determination that no emergency existed would have resulted in the

very threat to the public that the [summary procedure] was intended

to prevent").    For these reasons, Zinermon does not control here.

             The Supreme Court's jurisprudence regarding emergency

procedures    recognizes   that   even     though    those    procedures   may

sometimes be invoked in error, such procedures nevertheless satisfy

due process:

             The possibility of administrative error
             inheres in any regulatory program; statutory
             programs authorizing emergency administrative
             action prior to a hearing are no exception.
             . . . "Discretion of any official action may
             be abused. Yet it is not a requirement of due
             process that there be judicial inquiry before
             discretion   can  be   exercised.     It   is
             sufficient, where only property rights are
             concerned, that there is at some stage an
             opportunity for a hearing and a judicial
             determination."

Hodel, 452 U.S. at 302-03 (quoting Ewing v. Mytinger & Casselberry,

Inc., 339 U.S. 594, 599 (1950)).19


     19
        The Hodel Court noted that "[a] different case might be
presented if a pattern of abuse and arbitrary action were
discernable from review of an agency's administration of a summary
procedure," but a showing there that three summary orders had been
overturned was "far from sufficient" to demonstrate such a pattern.
Hodel v. Va. Surface Mining & Reclamation Ass'n, 452 U.S. 264, 302

                                    -47-
             4.     Herwins

             Our conclusion that Parratt-Hudson, not Zinermon, governs

this case is reinforced by Herwins, 163 F.3d 15, a case which SGCP

agrees was correctly decided.        Herwins addressed the exercise of

emergency powers by government officials.            There, a summary order

requiring that a building be vacated was issued on the basis of a

regulation allowing summary action where a building is "unfit for

human habitation and must be vacated forthwith."              163 F.3d at 17

(internal quotation marks omitted).           Herwins, the building owner,

brought a federal suit, alleging a procedural due process violation

on the basis that closure of the building required prior notice and

a hearing.        Id. at 16-17.      He introduced evidence that the

inspector had falsely or recklessly reported violations of the

building   code    and   so   exercise   of   the   summary   power   was   not

justified.     Id. at 17.

             Relying on Parratt-Hudson, we rejected Herwins's federal

procedural due process claim.            As in this case, but for the

official's mistake in declaring an emergency, the plaintiff there

would have been provided a fuller hearing; nonetheless, we held

that the plaintiff was not entitled to such a hearing before the

declaration of an emergency.       Id. at 19.       And, as here, there were




n.46 (1981). SGCP does not argue that this is a case of a pattern
of abuse, and the facts do not support such an argument.

                                    -48-
adequate means of post-deprivation redress.             Id. at 19-20.      We

explained that but for the Parratt-Hudson limitation:

             federal suits might be brought for countless
             local mistakes by officials in administering
             the endless array of state laws and local
             ordinances.    Often these errors have a
             procedural dimension -- e.g., a tax lien
             imposed after a misaddressed notice of taxes
             due -- and inflict temporary harm or
             inconvenience.    Assuming that the state
             remedies are themselves adequate, it has
             seemed sufficient to leave such random and
             individual errors to be corrected by state
             courts and agencies.

Id. at 19.

             We   rejected   Herwins's   attempt   to   rely   on   Zinermon,

explaining that:

             [w]hile state law led [the building inspector]
             to invoke summary closure, his "authorized"
             use of the summary power would not violate the
             Constitution, and [his] improper use is
             exactly the kind of "random and unauthorized"
             conduct that the local government had no duty
             (and indeed no practical way) to forestall
             through   a   predeprivation   hearing  --   a
             procedure itself inconsistent with true
             emergency conditions.

Id.

             The same is true here. We also noted that "Massachusetts

does provide for an opportunity to object before a building is shut

down except in emergencies."       Id.     Again, the same is true here.

             We noted that in Zinermon, the "[c]onfinement of patients

not competent to consent was easily foreseeable and pre-deprivation

screening could feasibly be provided in non-emergency cases." Id.


                                    -49-
By contrast, neither condition obtained in Herwins; the same is

true in this case.      We concluded that "[w]here an official errs in

declaring an emergency, the only feasible procedure is a post-

deprivation remedy."        Id.

            SGCP's   only    attempt     to   distinguish    Herwins   is    the

argument that the Puerto Rico statutory emergency scheme at issue

here confers more discretion than the statute at issue in Herwins.

We doubt that is so, and we have already rejected the argument that

§ 2167 confers such uncircumscribed discretion so as to fall within

Zinermon.

            In   sum,    none     of    the    grounds   SGCP    offers      for

distinguishing Parratt-Hudson has merit. The erroneous judgment by

ARPE was exactly the type of "random and unauthorized conduct"

encompassed by Parratt-Hudson.            The Puerto Rico Supreme Court

stated that ARPE simply "made a mistake" in invoking the emergency

provisions.      That court did find that the ARPE's judgment was

wrong, but that does not remove the case from Parratt-Hudson; it

instead establishes that this case fits firmly within Parratt-

Hudson. That is the very kind of unanticipated mistake that is due

to individual error, not induced by the statute.

            There is no viable argument here that there were not

adequate    postdeprivation       processes     or   remedies,    which     were

utilized, to address predeprivation mistakes.               In fact, SGCP did

receive prompt postdeprivation process, when the Supreme Court of


                                       -50-
Puerto Rico in related actions both confirmed its title and said

ARPE had been mistaken in concluding there was an emergency

warranting the stay.              The case moved very rapidly throughout the

relevant time period, leading to a stay of the permit suspension by

the Puerto Rico Supreme Court after sixty-three days.

                  We    clarify   that    we    do   not   hold   that     whenever   an

official's conduct violates state law the Parratt-Hudson doctrine

necessarily            applies.     Under      Zinermon,     there   may    be   certain

circumstances warranting the conclusion that such violations do not

fall within the Paratt-Hudson doctrine.                    See Zinermon, 494 U.S. at

138 n.20 ("Contrary to the dissent's view of Parratt and Hudson,

those cases do not stand for the proposition that in every case

where a deprivation is caused by an 'unauthorized . . . departure

from established practices,' state officials can escape § 1983

liability         simply    because      the   State   provides      tort   remedies."

(omission in original) (citation omitted)).                       To the extent that

dicta        in   our     precedent      suggests    otherwise,20    that    dicta    is

overruled.




        20
        See PFZ Props., Inc. v. Rodriguez, 928 F.2d 28, 31 (1st
Cir. 1991) (noting that "[w]hen a deprivation of property results
from conduct of state officials violative of state law, the Supreme
Court has held that failure to provide pre-deprivation process does
not violate the Due Process Clause"); see also SFW Arecibo, Ltd. v.
Rodríguez, 415 F.3d 135, 139-40 (1st Cir. 2005) (quoting PFZ
Properties on this issue).

                                            -51-
                               III.

          Our reasoning as to the failure of the procedural due

process claim extends beyond the members of ARPE to the defendant

Governor and Secretary of Justice.    These claims necessarily fail

on the same reasoning the claims against the other defendant fail.

The claims also independently fail for other reasons.

A.        The Secretary of Justice

          As to the Secretary of Justice, SGCP failed to provide

any argument before the district court or on appeal as to why his

actions amounted to a procedural due process violation, so this

claim is waived. Moreover, the opinion issued by the Secretary and

relied on by SGCP belies any assertion that he ordered ARPE to

violate SGCP's right to due process.    The opinion made clear that

it did not "dictate the precise method through which the different

governmental   entities   concerned    should   proceed   with   their

reevaluation and with any possible stay of the construction still

ongoing," and stressed that the agencies should act pursuant to

applicable laws and "safeguard[] any procedural and substantive law

or rights the affected parties may have," including ensuring that

all proceedings comported with "due process of law."      As a result,

and because the opinion is the sole basis for the due process claim

against the Secretary, the due process claim against the Secretary

necessarily fails.




                               -52-
B.          The Governor

            SGCP's   claim   against    the   Governor       rests   upon   the

complaint's allegation that "the Governor publicly ordered all

administrative agencies to suspend all permits for the Paseo Caribe

Project and to freeze all permits for the Paseo Caribe Project and

to freeze all construction for an initial period of sixty (60)

days."    SGCP briefly argues, for the first time on appeal, that

this allegation suffices to state a procedural due process claim

and is viable even if the actions of the other defendants are

"random and unauthorized," because the Governor is exempted from

Puerto Rico's administrative procedure act.             See P.R. Laws Ann.

tit. 3, § 2102(a)(3) (excluding from the definition of "agency" the

"Office of the Governor and all its attached offices excepting

those where the application of the provisions of this chapter have

been literally expressed").     This argument fails.

            At the outset, the complaint itself demonstrates that the

Governor's actions fall within the scope of the Parratt-Hudson

doctrine.     SGCP's   complaint,      in   one   of   the    only   sentences

discussing the actions of the Governor,21 also pleads that "the


     21
         It is also doubtful whether the complaint pleads sufficient
facts as to the Governor's involvement to establish such a
connection. The complaint simply asserts that the Governor ordered
all agencies to suspend all permits. The Governor's alleged order
is not quoted from or cited to in the complaint, and no such order,
if it even existed, is mentioned in the Secretary of Justice's
opinion, ARPE's orders, or any of the Puerto Rico judicial opinions
in this case. Even that statement in the complaint does not assert
that the permits were ordered to be suspended without regard to due

                                  -53-
Governor does not have the legal authority to suspend construction

permits by decree."         This allegation is held against SGCP in

assessing   whether   the    Parratt-Hudson   doctrine   applies   to   the

Governor.   See 5 Wright & Miller, Federal Practice and Procedure

§ 1226, at 302-03, 304 (3d ed. 2004) ("The pleader must be careful

not to allege facts that constitute a defense to his claim for

relief . . . .   A complaint containing a built-in defense usually

is vulnerable under Rule 12(b)(6) to a motion to dismiss for

failure to state a claim upon which relief can be granted.").           The

complaint alone thus supports application of the Parratt-Hudson

doctrine to the claim against the Governor.



process.   If the Governor did in fact issue such a "public[]
order[]," it should have been straightforward for SGCP to provide
more detail, quotations from the order, or a copy of it attached to
the complaint.
        Moreover, the undisputed facts lay out a clear chain of
events that led to the permit suspension, with no involvement of
the Governor mentioned. ARPE acted in response to a Planning Board
Resolution directing it to take "the preventative measures it deems
necessary to implement the recommendations of the Secretary of
Justice," "including the holding of an administrative hearing, with
the guarantees of due process of law."        The Planning Board's
Resolution, in turn, was based on the Secretary of Justice's
opinion, which likewise stressed that the agencies should act
pursuant to applicable laws and "safeguard[] any procedural and
substantive law or rights the affected parties may have," including
ensuring that all proceedings comported with "due process of law."
        Given this background, and the dearth of facts pled as to
the contents of the Governor's order, there is a fair question
about whether the claim against the Governor meets Iqbal's "facial
plausibility" requirement, which requires the complaint to "plead[]
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged."
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Even if it did,
it fails for the reasons stated in the text.

                                   -54-
            SGCP has also failed to develop any argument as to why

its claim against the Governor is not barred by the Parratt-Hudson

doctrine. Indeed, in its opposition to the motion to dismiss, SGCP

argued that "the Governor lacks any valid legal authority to

suspend construction permits by decree."       SGCP did not raise the

argument that the Governor should be treated differently until its

objection to the magistrate judge's report and recommendation, and

even then did not raise the same argument it makes on appeal.

Instead it asserted in two sentences without citation to any

authority    that   the   non-ARPE   defendants   should   be   treated

differently because "the UAPA does not apply in this case to

officials who are not engaged in adjudication." SGCP's argument on

this point before the panel also consisted of two sentences, and

even its argument before the en banc court was brief, consisting of

two paragraphs which cited as authority only the definition in

§ 2102 and Chmielinski.     Basic issues necessary to assess SGCP's

due process claim against the Governor, such as the Governor's

authority to direct administrative agencies under Puerto Rico law,

have not been addressed at all.      SGCP's claim against the Governor

is accordingly waived. See P.R. Tel. Co. v. T-Mobile P.R. LLC, 678

F.3d 49, 58 n.5 (1st Cir. 2012).

            Apart from these independent reasons why SGCP's argument

fails, it also fails on its own terms. The Governor's actions fall

squarely within the Parratt-Hudson doctrine. The complaint's claim


                                 -55-
of SGCP's injury was the suspension of its permits, which was

directly ordered by ARPE, and not by the Governor, who lacked the

power to do so.        The statute authorizing the suspension of permits

invoked    in   this    case    delegated      that   power     to    ARPE,   not   the

Governor.       See    P.R.    Laws    Ann.    tit.   23,   §   71x    (2008)   ("The

Administration22 may issue orders to do or not to do, and to cease

and desist so that the necessary preventative or control measures

be taken to achieve the purposes of this chapter . . . ." (emphasis

added)).     Likewise, the Puerto Rico Supreme Court has stated that

"[t]he order to stay or order to cease and desist is one of the

remedies which may be delegated to the administrative agencies,"

and   that      "[u]pon    reviewing      the     organic       acts     of   several

administrative agencies of the Commonwealth of Puerto Rico we

expressly found such faculty delegated.               For example, this occurs

with . . . the Regulations and Permits Administrations Act, 23

L.P.R.A. sec. 71x."            Consejo Para la Protección del Patrimonio

Arqueológico      Terrestre       de    P.R.     v.    Gobierno        Municipal    de

Barceloneta, 168 P.R. Dec. 215, 225 (2006) (emphasis added) (quoted

in San Gerónimo Caribe Project, Inc., 2008 WL 1744564 (certified

translation provided by the parties)).

             Further, ARPE was overseen not by the Governor, but by

the Planning Board, another agency.               See P.R. Laws Ann. tit. 23,


      22
        The statute defines "Administration" as "The Regulations
and Permits Administration," which goes by the acronym ARPE. P.R.
Laws Ann. tit. 23, § 71b(a) (2008).

                                        -56-
§ 71a (2008) ("The Regulations and Permits Administration is hereby

created,   attached   to   the   Puerto   Rico   Planning   Board.").    The

Governor does not appoint the ARPE administrator.              Id. § 71c

(providing that ARPE "shall be under the direction of a Regulations

and Permits Administrator," who is "appointed by a majority of the

members of the Planning Board, with the approval of the Governor").

The ARPE administrator does not report to the Governor, but instead

"answer[s] directly to the [planning] board in the performance of

his/her functions and shall hold office at its volition."               Id.

While the Planning Board's seven members were appointed by the

Governor with the advice and consent of the Senate, id. § 62d, they

were appointed "for the duration of the quadrennium in which they

were appointed,"23 and could "only be dismissed for just cause," id.

§ 62e. The Act establishing the Planning Board contains no general

provision granting the Governor authority to direct its operations

-- its decisions are made through majority vote of the Planning

Board members.   Id. § 62i.

           SGCP develops no argument that the Governor has authority

to direct the operations of either the Planning Board or ARPE.



     23
        The statute itself does not make clear whether these four-
year terms are staggered. Puerto Rico amended the Planning Board
statute in 2001 to provide for an increase in the number of board
members from three to seven, and to increase the number of
"alternate members" who are to substitute for members in the case
of vacancies from one to three, but the statute does not itself
state whether the terms of the members were staggered. See P.R.
Laws Ann. tit. 23, § 62d & note (2008).

                                   -57-
SGCP also does not claim that if the Governor had such authority,

it could be used to direct ARPE to violate Puerto Rico law in

suspending SGCP's permits.   It is clear that the Governor lacks

authority under Puerto Rico law to alter or exceed the authority

conferred by duly enacted statutes.   See, e.g., Díaz de Llovet v.

Office of the Governor, 12 P.R. Offic. Trans. 941 (1982) (holding

that legislation governing classification of employees in the

Governor's Office did not confer certain authority on the Governor

and "[l]acking this power, the Governor could not change the

Legislative will through a set of regulations").

           Indeed, it would be illogical for a governor's order to

a subordinate agency to violate statutory constraints on the agency

to be "authorized" within the meaning of Parratt-Hudson.    If the

governor did issue an order to ARPE, his actions were random and

unauthorized.

           SGCP also makes no argument that the Parratt-Hudson

doctrine should apply differently simply because the Governor is a

high-ranking official. If that is the intended argument, we reject

it.   Nothing in Parratt, Hudson, Zinermon, or this circuit's case

law states that there is an exception for high-ranking state

officials to the usual method of determining whether an action is

random or unauthorized.   In this, we join the views of two other

circuits on the matter.   See Johnson v. La. Dep't of Agric., 18

F.3d 318, 322 (5th Cir. 1994) ("Simply because Odom is a high state


                               -58-
official   does    not   mean   that   his   actions     are    automatically

considered established state procedure that would take the case

outside of the Parratt/Hudson doctrine."); Easter House, 910 F.2d

at 1400 ("The question of whether a state official ranks 'high' or

'low' in the state hierarchy, while possibly relevant as indica of

the discretion which that official exercises, cannot by itself be

dispositive of this determination.").

           To the extent the Second Circuit has adopted such a

distinction, we decline to follow it.             See Rivera-Powell v. N.Y.

City Bd. of Elections, 470 F.3d 458, 465 (2d Cir. 2006) ("This

court has since relied on Zinermon to hold that the acts of

high-ranking officials who are 'ultimate decision-maker[s]' and

have 'final authority over significant matters,' even if those acts

are   contrary    to   law,   should   not   be    considered    'random   and

unauthorized' conduct for purposes of a procedural due process

analysis." (alteration in original) (quoting Velez v. Levy, 401

F.3d 75, 91-92 & nn.14 & 15 (2d Cir. 2005))).          Nor is it clear that

the Second Circuit would apply its doctrine here because the

Governor, both as a matter of fact and of law, was not the ultimate

decision-maker nor did he have the final authority to suspend

permits.   Simply because an official is high-ranking does not mean

that the official's actions are automatically placed outside the

scope of Parratt-Hudson, so long as those officials are bound by

statutory limits on their authority under state law.             As a result,


                                   -59-
the Parratt-Hudson doctrine applies to bar SGCP's claim against the

Governor, and the procedural due process claim against the Governor

was properly dismissed.

                               IV.

          The dismissal of the plaintiff's complaint is affirmed.

Costs are awarded to defendants-appellees.



                  - Concurring Opinion Follows –




                               -60-
            LIPEZ, Circuit Judge, concurring.          This case highlights

two   important   facets   of    the    Parratt-Hudson     doctrine   not   yet

addressed by the Supreme Court: application of the "random and

unauthorized" jurisprudence to a state's highest ranking official

and the availability of qualified immunity to state actors whose

disregard of state law provides the basis for a procedural due

process claim.     Although I agree with my colleagues' conclusion

that the San Gerónimo Caribe Project, Inc. ("SGCP") has not alleged

a viable due process claim against any of the defendants, I do not

share their willingness to apply the "random and unauthorized"

standard to the alleged conduct of the Governor.              The outrageous

behavior of the Commonwealth's chief executive, as alleged, should

not   be   analyzed   in   the    same    way   as   the   unauthorized     and

unpredictable acts of the prison employees whose conduct was at

issue in Parratt and Hudson.           See Parratt v. Taylor, 451 U.S. 527

(1981); Hudson v. Palmer, 468 U.S. 517 (1984).                 I also write

separately to express my view that the Supreme Court's Parratt-

Hudson jurisprudence, as elaborated in Zinermon v. Burch, 494 U.S.

113 (1990), cannot sensibly be applied in the qualified immunity

context.   My hope is that the Court will soon provide much-needed

clarification, ending the decades of uncertainty surrounding the

Parratt-Hudson doctrine.




                                       -61-
                                       I.

              I accept and join the majority's analysis of the claims

against the ARPE and the Secretary of Justice. With respect to the

Governor, however, it is unnecessary in this case to undertake the

usual Parratt-Hudson inquiry into the defendant's authority and

discretion and, as I shall explain, I believe it is inappropriate

to do so.     In my view, the claim against the Governor fails because

the allegations do not plausibly allege a causal link between the

Governor's order and the harm to SGCP.                 The complaint baldly

asserts     that   the    Governor,   through    his   directive   to   agency

officials to halt construction,24 "willfully caused subsequent

actions by those officials." Compl. ¶ 30. The complaint, however,

does    not    describe    any   relationship     between   the    Governor's

pronouncement and subsequent events.            Both the Planning Board and

the ARPE administrator cited the previously issued Secretary of

Justice's opinion, not the Governor's order, as the impetus for

initiating the proceedings that led to the suspension of SGCP's

project.25     Thus, in effect, the complaint depicts the Governor's


       24
        The complaint does not quote the Governor directly, but
alleges that "the Governor publicly ordered the various agencies
that had issued permits for the Project to withdraw or suspend
those permits and thereby force a halt to construction." Compl.,
at 3. See also id. ¶ 29 (alleging that the Governor "publicly
ordered all administrative agencies to suspend all permits for the
Paseo Caribe Project and to freeze all construction for an initial
period of sixty (60) days").
       25
        The complaint alleges that "all subsequent actions by
governmental agencies suspending permits for the Paseo Caribe

                                      -62-
order as merely an outrageous political statement without any

impact on appellant's property rights.

           The Governor's alleged involvement in the controversy is

troubling, however.    Some five years after construction on the

project had begun, with one part nearing completion and more than

$200 million already invested by SGCP, the Governor issued the

order to suspend all permits and freeze construction for sixty

days.   There was no emergency involving public health, safety or

welfare.   Instead, there was a vocal group of protesters with a

significant   political   constituency.   Yet,   according   to   the

complaint, the Governor issued an edict that did not contemplate

any opportunity for San Gerónimo to defend its permits at a hearing

before they were suspended.

           The Governor's unique role as the chief executive of the

Commonwealth raises the question of whether a defendant's high

status in the state hierarchy should be a factor in the Parratt-

Hudson inquiry.    Under the majority's reasoning, even if the

Governor's directive had instigated the subsequent events, SGCP

would be without a constitutional remedy for the harm caused. Yet,

the Supreme Court surely did not have in mind the conduct of a

state's chief executive, acting in his official capacity, when it

rejected the claims in Parratt and Hudson to avoid "turning every


Project have been undertaken either at the Secretary's direction or
with his knowledge and assistance or that of his subordinates at
the Department of Justice." Compl. ¶ 28.

                                -63-
alleged injury which may have been inflicted by a state official

acting under 'color of law' into a violation of the Fourteenth

Amendment cognizable under § 1983."           Parratt, 451 U.S. at 544.

             The suspension of permits by gubernatorial fiat does not

resemble the low-level misconduct at issue in Parratt and Hudson,

and allowing a procedural due process claim based on the Governor's

involvement in the permit suspension would not make a federal case

out of an ordinary tort.          To the contrary, such a claim would be

consistent with longstanding precedent holding that § 1983 is

available as a remedy for injuries inflicted by the abuse of state

power, as well as by state law itself.                  See Monroe v. Pape, 365

U.S. 167, 175-76 (1961) (explaining that § 1983 was created, in

part, as a remedy "against those who representing a State in some

capacity were unable or unwilling to enforce a state law"); id. at

183 ("It is no answer that the State has a law which if enforced

would give relief."); see also Zinermon, 494 U.S. at 124 (noting

that   Monroe   "rejected    the    view    that    §    1983   applies    only    to

violations of constitutional rights that are authorized by state

law,   and   does   not   reach    abuses    of    state    authority     that    are

forbidden by the State's statutes or Constitution or are torts

under the State's common law"); id. at 125 ("[I]n many cases there

is 'no quarrel with the state laws on the books'; instead, the

problem is the way those laws are or are not implemented by state

officials." (quoting Monroe, 365 U.S. at 176) (citation omitted)).


                                      -64-
              Of   course,        tension     among    the    principles      of    Monroe,

Parratt-Hudson, and Zinermon has long been noted by courts and

scholars, traceable to an apparent disagreement within the Court

about    when      the    unlawful        acts   of    a     state   actor     should     be

attributable to the state and thus provide the basis for a finding

of a constitutional violation.                 See, e.g., Bogart v. Chapell, 396

F.3d 548, 564-65 (4th Cir. 2005) (Williams, J., dissenting); Easter

House    v.     Felder,       910    F.2d      1387,   1408-09       (7th    Cir.     1990)

(Easterbrook, J., concurring); Jose R. Juarez, Jr., The Supreme

Court as the Cheshire Cat: Escaping the Section 1983 Wonderland, 25

St. Mary's L.J. 1, 5-7 (1993) ("Cheshire Cat"); Larry Alexander,

Constitutional           Torts,     the     Supreme     Court,       and    the    Law    of

Noncontradiction: An Essay on Zinermon v. Burch, 87 Nw. U. L. Rev.

576, 580-83 (1993) ("Law of Noncontradiction").                            Indeed, Judge

Easterbrook has observed that the Parratt-Hudson-Zinermon line of

cases "resembl[es] the path of a drunken sailor."                           Easter House,

910 F.2d at 1409 (Easterbrook, J., concurring); see also id. at

1408 (noting that Parratt-Hudson and Zinermon "cannot coexist,

except   perhaps         by   drawing     a    distinction      between      liberty     and

property, or between important and modest deprivations, neither of

which the majority in Zinermon adopted").

              Scholars have identified "two competing visions of § 1983

liability," labeled the "Governmental" model and the "Legalist"

model.   Bogart, 396 F.3d at 564 (Williams, J., dissenting).                          Under


                                              -65-
the former, reflected in the Court's decision in Monroe, liability

may be imposed under § 1983 "for all constitutional violations

committed by governmental actors in the scope of their employment

-- even if the actor violates state law when committing the

violation."   Id.   Under the latter, reflected in Parratt and

Hudson, section 1983 "imposes liability only if state lawmakers

endorse a constitutional violation."   Id.26

          Allusions to both models appear in the majority opinion

in Zinermon, and that inconsistency has left lower courts debating

whether the Supreme Court intended a narrow (more Legalist) or

broad (more Governmental) reading of the case -- and, in turn, a



     26
          Crediting Professors Larry Alexander and Paul Horton for
developing the concept, Professor Juarez describes the two models
as follows:

     The Legalist Model asks whether state laws are
     constitutionally adequate. If there is an adequate state
     law, then the plaintiff cannot bring a Section 1983
     claim, and must instead rely on state-law claims heard,
     in most cases, in state court. . . . The Governmental
     Model imposes duties on more than state and local
     lawmakers; it imposes duties on all government officials
     and agents. Under the Governmental model, it doesn't
     matter whether the state and local lawmakers have
     forbidden the infringement of constitutional rights, or
     have   attempted   to   provide   a  remedy   for   such
     infringements.    What matters is whether any state
     official has infringed the plaintiff's constitutionally
     protected interests.    . . . [U]nder the Governmental
     Model, plaintiffs may . . . sue under Section 1983 in
     either state or federal court, even when the state's
     lawmakers have sought to prevent the violation of
     constitutional rights.

Cheshire Cat, 25 St. Mary's L.J. at 8, 10 (footnotes omitted).

                              -66-
narrow (more Governmental) or broad (more Legalist) reading of the

Parratt-Hudson doctrine.        See, e.g., Bogart, 396 F.3d at 565

(Williams, J., dissenting); Cheshire Cat, 25 St. Mary's L.J. at 27-

37   (describing    confusion        in    the      lower   courts);       Law   of

Noncontradiction,   87   Nw.    U.    L.     Rev.   at   596   ("It   is   not   an

overstatement to describe the Supreme Court's constitutional torts

jurisprudence as a welter of confusion, leaving litigants and lower

courts completely at sea.").27             Professor Juarez has proposed

simplifying the procedural due process inquiry by returning it to

pre-Parratt standards, i.e., permitting "[s]ection 1983 procedural

due process claims challenging deprivations without predeprivation

hearings except when there is a need for quick action or when it is

impractical to provide the predeprivation hearing."               Cheshire Cat,

25 St. Mary's L.J. at 65. He maintains that, with the quick-action

and impracticality limitations on § 1983 claims, "there should be

no danger of transforming Section 1983 into the 'font of tort law'

feared by so many courts."      Id. at 65-66.28


     27
       Some of the confusion may be attributable to the fact that
the issue in Parratt and Hudson was not the denial of a hearing.
See Law of Noncontradiction, 87 Nw. U. L. Rev. at 589 ("The bone of
contention in both cases was the deprivation, not the process that
led up to it.").
     28
        The Supreme Court first warned against turning the
Fourteenth Amendment into "a font of tort law" in Paul v. Davis,
424 U.S. 693, 701 (1976), and the phrase has been used frequently
since then, including in Parratt. See 451 U.S. at 544 (quoting
Paul). See also, e.g., Town of Castle Rock, Colo. v. Gonzales, 545
U.S. 748, 768 (2005) (noting the Court's "continuing reluctance to
treat the Fourteenth Amendment as '"a font of tort law,"'" and

                                      -67-
          Even under a broad construction of the principle espoused

in Parratt and Hudson, however, actions undertaken by a governor in

his or her official capacity should be attributed to the State.

The Supreme Court in Hudson described the inquiry as "whether the

state is in a position to provide for predeprivation process."

Hudson, 468 U.S. at 534 (emphasis added).   It is one thing to say

that an errant prison guard is an actor whose actions, in certain

instances, cannot be the basis for a procedural due process

violation because they are not the acts of "the State."     It is

another thing to insulate a State from responsibility for the

Governor's conduct.29    Moreover, low-level employees routinely

interact with private individuals on small matters, and it is

impossible to implement procedures to prevent some "tort-like"

harms from occurring.   The higher you go up in the hierarchy, the

more formal the interactions with the public will be, and it


quoting Parratt and Paul); College Sav. Bank v. Fla. Prepaid
Postsecondary Educ. Expense Bd., 527 U.S. 666, 674 (1999) (noting
"our frequent admonition that the Due Process Clause is not merely
a 'font of tort law,'" and quoting Paul). Our precedent reflects
the same sentiment. See Herwins v. City of Revere, 163 F.3d 15, 19
(1st Cir. 1998) (noting that, but for the limitation on procedural
due process claims where "the state provides an adequate means of
redress," "federal suits might be brought for countless local
mistakes by officials in administering the endless array of state
laws and local ordinances").
     29
        The Eleventh Amendment, of course, protects states from
damages liability. I refer to the State's "responsibility" only in
the sense that identifying a procedural due process violation under
the Parratt-Hudson doctrine requires an examination of whether the
State could have, and thus should have, prevented the denial of
predeprivation process effected by state employees.

                               -68-
becomes less plausible to say that the actor's conduct was distinct

from the State's for the purpose of the due process inquiry. Where

the per se "state actor" line in the context of Parratt and Hudson

should be drawn is a worthy subject of discussion.   There can be no

debate, however, about where the Governor stands in relation to

that line.30

          As the majority points out, at least two circuits have

rejected a defendant's status as a determinative factor.        See

Johnson v. La. Dep't of Agric., 18 F.3d 318, 322 (5th Cir. 1994);

Easter House, 910 F.2d at 1399-1400 (en banc). The Second Circuit,

however, has emphasized the significance of status: "Since the

'state acts through its high-level officials,' the decisions of

these officials more closely resemble established state procedures

than the haphazard acts of individual state actors . . . ."   Velez

v. Levy, 401 F.3d 75, 92 (2d Cir. 2005); see also Rivera-Powell v.

N.Y. City Bd. of Elections, 470 F.3d 458, 465 (2d Cir. 2006).   The

court in Velez noted that the defendant, the Chancellor of the City


     30
       I am not suggesting that only the conduct of policymaking
officials should be attributable to the State for purposes of a
procedural due process claim. At a minimum, under Zinermon, the
State also acts through "any person to whom is delegated the
responsibility of giving predeprivation process." Easter House,
910 F.2d at 1411 (Cudahy, J., dissenting); see also Zinermon, 494
U.S. at 138 (explaining that, where a state "delegate[s] to
[defendants] the power and authority to effect the very deprivation
complained of . . . , and also delegate[s] to them the concomitant
duty to initiate the procedural safeguards set up by state law to
guard against unlawful [deprivations]," conduct abusing that
authority is not "'unauthorized' in the sense the term is used in
Parratt and Hudson").

                               -69-
School District of New York, had "the duty . . . to follow the

governing New York statutes and regulations," and it held that

"'any abuse of that authority that rose to the level of a due

process violation cannot be considered "random and unauthorized."'"

401 F.3d at 92 (quoting DiBlasio v. Novello, 344 F.3d 292, 303 (2d

Cir. 2003)).

             The circuit conflict is unsurprising in light of the

inconsistency and confusion in the precedent described above.   See

Cheshire Cat, 25 St. Mary's L.J. at 24-25 ("If we are confused

today, it is because the Supreme Court itself seems to be confused

about what it is doing in these Section 1983 cases." (footnote

omitted)).     With respect to the Governor, however, I think it is

plainly unacceptable to say that his conduct, albeit improper under

Commonwealth law, was "unauthorized" in the Parratt-Hudson sense,

regardless of whether one prefers the Legalist or Governmental

model.     The Governor is the chief of state and, as such, his

official acts are always those of "the State."       At a minimum,

Monroe must mean that a viable section 1983 procedural due process

claim will arise if the Governor sets in motion the denial of

procedural protections to an individual entitled to predeprivation

process.    See Zinermon, 494 U.S. at 138 ("The deprivation here is

'unauthorized' only in the sense that it was not an act sanctioned

by state law, but, instead, was a 'depriv[ation] of constitutional




                                 -70-
rights . . . by an official's abuse of his position.'" (quoting

Monroe, 365 U.S. at 172) (alteration in original)).

            More   than   two    decades      ago   in    Easter    House,   Judge

Easterbrook observed that the Supreme Court's inconsistent Parratt-

Hudson jurisprudence had left "judges of the inferior federal

courts in a difficult position, because any effort to reconcile and

apply the cases will be met with a convincing demonstration . . .

that there is a fly in the ointment."                 910 F.2d at 1409.         His

concurrence in Easter House was flanked by just such a debate

between majority and dissenting opinions.                The debate is ongoing,

and there is plainly a need for clarification and guidance from the

Supreme Court.

                                       II.

            Qualified immunity protects government officials from

personal    liability     for    damages      arising     from     violations   of

constitutional rights that were not "clearly established" when the

challenged conduct occurred.             Feliciano-Hernández         v. Pereira-

Castillo,   663    F.3d   527,   532   (1st    Cir.      2011).     The   doctrine

"'balances two important interests -- the need to hold public

officials accountable when they exercise power irresponsibly and

the need to shield officials from harassment, distraction, and

liability when they perform their duties reasonably.'" Glik v.

Cunniffe, 655 F.3d 78, 81 (1st Cir. 2011) (quoting Pearson v.

Callahan, 555 U.S. 223, 231 (2009)). To decide whether a defendant


                                       -71-
is entitled to qualified immunity, we must determine, inter alia,

the clarity of the law establishing the constitutional right at

issue and "whether, given the facts of the particular case, a

reasonable    defendant   would   have   understood   that    his   conduct

violated the plaintiff['s] constitutional rights." Id. (alteration

in original) (internal quotation mark omitted).                The key to

qualified immunity is "the objective legal reasonableness of an

official's acts." Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982)).

             As the discussion in Section I demonstrates, a court

would be hard-pressed to say that the law surrounding the Parratt-

Hudson doctrine is clearly established. Indeed, the original panel

in this case concluded that our own case law contains statements

that reasonably could be read to adopt an erroneous interpretation

of Parratt and Hudson.        We thus held that, even though the

defendants had committed a procedural due process violation, they

were entitled to qualified immunity.          See San Gerónimo Caribe

Project, Inc. v. Acevedo-Vilá, 650 F.3d 826, 838-39 (1st Cir.),

vacated and opinion withdrawn, 665 F.3d 350 (1st Cir. 2011) (en

banc).

             I now realize, however, that we reached that conclusion

by focusing on the clarity of the wrong law.                 The qualified

immunity inquiry in the context of a procedural due process claim

cannot turn on whether it was clear that the circumstances fit the

mold of Zinermon rather than Parratt-Hudson.          The constitutional


                                  -72-
violation at issue is the denial of predeprivation process, and to

assess the reasonableness of the defendant's conduct, we logically

must focus on the clarity of the law concerning the plaintiff's

entitlement to a hearing. It has been clearly established for more

than a half-century that "a deprivation of life, liberty, or

property [ordinarily must] 'be preceded by notice and opportunity

for hearing appropriate to the nature of the case.'" Cleveland Bd.

of Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (quoting Mullane

v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950)); see

also Mathews v. Eldridge, 424 U.S. 319, 334-35 (1976) (describing

the balancing of interests necessary to determine "due process").

            Hence, if we had determined that any of the defendants in

this case had violated SGCP's due process rights by failing to hold

a meaningful hearing before suspending their permits, the only

basis for qualified immunity should be the defendant's reasonable

uncertainty     about     whether    the     circumstances     presented    an

"extraordinary situation[]" in which a valid governmental interest

justified postponing the hearing until after the challenged action.

United States v. James Daniel Good Real Prop., 510 U.S. 43, 53

(1993).    Uncertainty about the applicability of Parratt-Hudson is

irrelevant to the qualified immunity analysis because the Parratt-

Hudson    has   nothing   to   do   with    the   rationale   for   protecting

officials from damages liability: to eliminate the risk that, in

areas where the law is not clearly established, officials will


                                     -73-
refrain from independently acting in the public interest for fear

of being sued.    See Harlow, 457 U.S. at 814.

            Indeed, as SGCP points out, the "peculiarity" of the

Parratt-Hudson doctrine is that it does not focus on what a

reasonable official should have known or done in light of clearly

established law.    Rather, the Parratt-Hudson-Zinermon question is

whether the official's alleged misconduct is attributable to the

State -- and thus remediable as a constitutional violation.          When

Zinermon is found to apply, and the plaintiff succeeds in showing

that   clearly   established   law   entitled   him   to   predeprivation

process, the defendant state official should not be able to avoid

personal liability by raising a qualified immunity defense based on

Parratt-Hudson.    Granting immunity based on the lack of clarity as

to whether the State bears responsibility would turn the qualified

immunity doctrine on its head.       The official would in effect be

seeking immunity based on a "reasonable" belief that his conduct

was so wrong -- i.e., it was "random and unauthorized" -- that it

could not provide the basis for a procedural due process claim.

Such an immunity would provide an unacceptable "license to lawless

conduct."    See Harlow, 457 U.S. at 819.

            It is disturbing enough that bad-acting officials escape

liability for a constitutional injury when the Parratt-Hudson

doctrine applies and the wrongful denial of predeprivation process




                                 -74-
is not a due process violation.31      It would be a greater injustice,

and undermine the objective of the qualified immunity doctrine, for

a court to find a due process violation but provide no remedy to

the plaintiff because the defendant could have thought that the

Parratt-Hudson doctrine would let him (along with the State) off

the hook for his violation of clearly established due process law.

            In sum, the qualified immunity doctrine in the procedural

due process context must be applied consistently with its purpose

to shield well-meaning and reasonable public officials from the

burden of damages while holding accountable those officials who

"exercise power irresponsibly," Glik, 655 F.3d at 81. The Parratt-

Hudson doctrine itself denies a federal remedy to individuals

harmed by the random and unauthorized conduct of state actors; the

uncertainty surrounding the doctrine's scope should not be used to

further extend the immunity of rogue state officials.




     31
          As we observed in Herwins,

     the law might have developed so as to hold the official
     liable under the Fourteenth Amendment for his own mistake
     even if the state had done all it could. . . . But the
     Supreme Court has ruled that in such cases there is no
     denial of procedural due process, even by the official,
     so long as the state provides an adequate means of
     redress.

163 F.3d at 19. Oddly, this approach seems to give officials an
incentive to behave as outrageously as possible in certain
circumstances because the further the departure from "clearly
established law," the more likely Parratt-Hudson will apply. Of
course, the risk of state remedies would remain.

                                 -75-
                                   III.

           The confusion surrounding the parameters of the Parratt-

Hudson doctrine is not merely an academic puzzle. The Constitution

demands that we attempt to insure "justice in the individual case."

Laura Oren, Signing into Heaven: Zinermon v. Burch, Federal Rights,

and State Remedies Thirty Years After Monroe v. Pape, 40 Emory L.J.

1, 70 (1991).     At best, the Parratt-Hudson doctrine has been an

unreliable way to advance that objective because of the mixed

messages   from   the   Supreme   Court   concerning    its   scope.     The

doctrine's rote application to high-ranking government officials is

particularly troubling, and it creates a stark conflict with long

established precedent holding that the State bears responsibility

for the abuse of governmental authority by state officials.              The

conflict and confusion concerning the Parratt-Hudson              doctrine

should not, however, provide a basis for immunizing government

officials who have acted in blatant disregard of the law from

personal liability for their wrongdoing.        Under standard qualified

immunity   principles,     the    only    pertinent    question   when    an

unconstitutional denial of predeprivation process has occurred is

whether the defendant should have known that the Constitution

required such predeprivation process.

           Additional guidance from the Supreme Court on these

issues is both necessary and inevitable.        Until such time as that

Court speaks, lower courts attempting to provide "justice in the


                                   -76-
individual case" should be wary of unnecessarily extending its

procedural    due   process   precedents   beyond   their   narrowest

boundaries.




                                 -77-
