                                        PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT
                 ___________

            Nos. 15-2823, 16-3837, 16-3959


                 ANGELA BORRELL,
                          Appellant in 16-3837

                           v.

            BLOOMSBURG UNIVERSITY


ARTHUR F. RICHER; GEISINGER MEDICAL CENTER,
                Appellants in 15-2823

                  MICHELLE FICCA,
                           Appellant in 16-3959

                      __________

     On Appeal from the United States District Court
         for the Middle District of Pennsylvania
                (D.C. No. 3-12-cv-02123)
      District Judge: Honorable A. Richard Caputo


               Argued May 24, 2017
Before: HARDIMAN, ROTH, and FISHER, Circuit Judges.
                    (Filed: August 30, 2017)

Barry H. Dyller [Argued]
Theron J. Solomon
Dyller Law Firm
88 North Franklin Street
Gettysburg House
Wilkes-Barre, PA 18701
       Attorneys for Plaintiff–Appellee–Cross-Appellant
       Borrell

Thomas S. Giotto
Jaime S. Tuite [Argued]
Tiffany A. Jenca, Esq.
Buchanan Ingersoll & Rooney
301 Grant Street
One Oxford Centre, 20th Floor
Pittsburgh, PA 15219
       Attorneys for Appellants Geisinger Medical Center
       and Arthur Richer

John G. Knorr, III [Argued]
Maryanne M. Lewis
Office of Attorney General of Pennsylvania
Strawberry Square
Harrisburg, PA 17120

Keli M. Neary
Pennsylvania State Police
Office of Chief Counsel
1800 Elmerton Avenue
Harrisburg, PA 17110




                               2
       Attorneys for Appellee Michelle Ficca

Seth A. Goldberg
Philip H. Lebowitz
Duane Morris
30 South 17th Street
United Plaza
Philadelphia, PA 19103
       Attorneys for Amicus Hospital & Healthsystem
       Association of Pennsylvania


                 OPINION OF THE COURT


HARDIMAN, Circuit Judge.

       This appeal—which raises questions involving the
state action doctrine and the Due Process Clause of the
Fourteenth Amendment—has important ramifications for
private hospitals that partner with public universities. Angela
Borrell, a student working at a private hospital through a
public university’s clinical program, was dismissed for
refusing to take a drug test in violation of hospital policy. She
sued under 42 U.S.C. § 1983, claiming she was deprived of
her property interest in the program without due process.
Contrary to the judgment of the District Court, we hold that
Defendants are entitled to judgment as a matter of law.

                                I

      In 2007, Geisinger Medical Center (Geisinger or
GMC) partnered with Bloomsburg University to establish the
Nurse Anesthetist Program (NAP or Program). A private



                               3
hospital, Geisinger runs the “Clinical Training portion of the
Program” for the aspiring nurse anesthetists while
Bloomsburg, a public university, teaches them in the
classroom. App. 1510. The Program operates subject to a
written collaboration agreement that provides, among other
things, that Geisinger and Bloomsburg will cooperate by:
establishing a joint admissions committee, staffing an
advisory committee, agreeing on how many students to admit,
approving guidelines for clinical training, and promoting and
marketing the Program. In other ways, Geisinger’s and
Bloomsburg’s principal roles in the Program remain distinct.
Geisinger provides certificates upon completion of its clinic
and Bloomsburg confers Master of Science degrees to
students who complete both the coursework and the clinical
component.

       NAP students in Geisinger’s clinic administer medical
care to patients under the supervision of Geisinger employees.
Accordingly, the collaboration agreement states that
Geisinger’s policies—including its drug and alcohol policy—
apply to NAP students while participating in the clinic. See
App. 1512. The agreement also provides that Geisinger has
sole authority to remove an enrollee from the clinical portion
of the NAP due to unsatisfactory performance or failure “to
comply with applicable policies and standards of Geisinger.”
App. 9. Likewise, Bloomsburg’s Student Handbook requires
students to “comply with the drug and alcohol policies and
drug testing procedures as required by agencies affiliated with
the Department of Nursing,” which includes Geisinger.




                              4
Borrell v. Bloomsburg Univ., 63 F. Supp. 3d 418, 425 (M.D.
Pa. 2014) (quoting policy). 1

        Geisinger’s drug and alcohol policy applies to all its
employees and contractors (including clinical students
working there). The policy states that drug tests “may be
administered upon reasonable suspicion of substance abuse,
(this may include [individual] situations . . . where HR is
made aware of alleged drug/alcohol use and deems it as
reasonable cause to test the employee).” App. 1529. Any
Geisinger worker “who refuses to cooperate in any aspect [of
the testing process] . . . shall be subject to disciplinary action,
including termination, for a first refusal or any subsequent
refusal.” App. 1527. The policy does not provide for any pre-
termination hearing or process.

        The Director of the NAP at all times relevant to this
case was a Geisinger nurse anesthetist named Arthur Richer.
In that capacity, Richer became a joint employee of Geisinger
and Bloomsburg, with Bloomsburg picking up a quarter of his
salary. Richer managed the clinical component of the NAP at
Geisinger while Michelle Ficca (Bloomsburg’s Chair of
Nursing) oversaw the Program’s academic component.

       1
         Bloomsburg’s Student Handbook “also sets forth a
‘review process’” for students suspected of violating its
terms. Borrell, 63 F. Supp. 3d at 426. The Student Nurse
Anesthetist Handbook in the collaboration agreement allows
students to “initiate a grievance” if they have a complaint
about a disciplinary action and commits “to being reasonable
in an attempt to correct [any] offense.” Id. The purported
violation in this case was of GMC’s drug and alcohol policy,
which provides no grievance process.




                                5
        In 2012, Richer terminated Angela Borrell for
violating Geisinger’s drug and alcohol policy by refusing to
take a drug test when asked. Borrell, who previously had been
a registered nurse at GMC, enrolled in the NAP in 2011 and
began her clinical work in 2012. In September 2012, another
nurse reported to Geisinger’s Assistant Director of the NAP
that Borrell used cocaine and “acted erratically” on a recent
trip to New York. Borrell, 63 F. Supp. 3d at 427. This claim
was relayed to Richer, who had previously “noticed that
Borrell appeared disheveled on a few occasions.” Id. Richer
discussed the allegation with three other GMC employees and
Ficca—his counterpart at Bloomsburg. Richer and a member
of Geisinger’s Human Resources Department then met with
Borrell and asked her to take a drug test. During this meeting,
which lasted about an hour, Borrell asked several questions
about the reason for the test and called her mother for advice.
Borrell eventually refused to take the drug test, stating she
“did not want her record to show that she submitted to a
drug/urine screen.” Id. at 428. Richer informed Borrell that
she would have “no option to test later” and claims he told
Borrell she might be terminated for refusing the test, but
Borrell responded that she was willing to “face the
consequences.” Geisinger Br. 10. Borrell claims she was
warned of “consequences” generally, but not termination.
Borrell, 63 F. Supp. 3d at 428.

       After consulting with Geisinger’s Human Resources
Department, Richer decided to dismiss Borrell from the
Program the next day. He claims he did so in his capacity as
Director of the clinical training portion of the NAP, and that
Bloomsburg and Ficca played no part in the decision—though
he informed them of it. In a September 25, 2012 letter, Richer
informed Borrell that she was terminated from the NAP for




                              6
her refusal to take a drug test. A draft of that letter was
circulated among Geisinger Human Resources, Ficca, and
Richer, who “all provided comments and suggestions as to
the contents of the letter.” Id. at 429. Richer then sent a final
copy to Human Resources and Ficca. The letter was printed
on joint GMC/Bloomsburg stationery and Richer and Ficca
signed it. Richer signed as the “Director of the NAP,” and
Ficca signed indicating that she “reviewed the above
information and agree[d] with the decision to terminate
Angela Borrell from the . . . Program.” Id. (first alteration in
original).

       After she received the letter terminating her from the
Program, Borrell tried to contact “Richer and others at both
Geisinger and Bloomsburg . . . to state her willingness to
submit to a drug test.” Id. That request was denied. Borrell
then requested, but did not receive, a formal hearing from
Bloomsburg to contest her termination from the Program.
Ficca replied that since Bloomsburg had to honor Geisinger’s
drug policy, disqualification from GMC’s clinic made her
ineligible to complete her coursework at Bloomsburg
necessary to complete the Program.

        Borrell then commenced a § 1983 action in the United
States District Court for the Middle District of Pennsylvania
against GMC, Richer, Bloomsburg, and Ficca for, among
other things, violation of her due process right to a pre-
deprivation hearing. The District Court granted Borrell’s
motion for summary judgment with respect to GMC, Richer,
and Ficca, holding them liable for denying Borrell due
process. Essential to its holding, the District Court found that
GMC and Richer were state actors and that Ficca was not
entitled to qualified immunity. The Court then concluded that
“because Defendants deprived Borrell of a property interest



                               7
while acting under color of state law when they dismissed her
from the NAP without due process, her motion for summary
judgment as to liability on the procedural due process
deprivation of property interest claim will be granted.” Id. at
423. The case was then tried to a jury on the issue of
damages. The jury awarded Borrell $415,000 in
compensatory damages and $1,100,000 in punitive damages.
Later granting the Defendants’ remittitur motions, the District
Court reduced Borrell’s compensatory damages to $250,000
and her punitive damages to $750,000.

      GMC, Richer, and Ficca timely appealed the adverse
summary judgment along with other issues from the
subsequent trial.

                              II

       The District Court had jurisdiction under 28 U.S.C.
§§ 1331 and 1343. We have jurisdiction under 28 U.S.C.
§ 1291. We exercise plenary review over both “orders entered
on motions for summary judgment,” Mancini v. Northampton
Cty., 836 F.3d 308, 313 (3d Cir. 2016), and decisions
regarding qualified immunity as pure legal issues, Sharp v.
Johnson, 669 F.3d 144, 159 (3d Cir. 2012).

      Summary judgment should be granted only “if the
movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). In considering a
summary judgment decision, “we view the underlying facts
and all reasonable inferences therefrom in the light most
favorable to the party opposing the motion.” Blunt v. Lower
Merion Sch. Dist., 767 F.3d 247, 265 (3d Cir. 2014) (citation
omitted).




                              8
                               III

       The primary issue on appeal is whether GMC, Richer,
or Ficca are liable for denying Borrell due process when she
was dismissed from the NAP. Because (A) GMC and Richer
are not state actors with respect to Richer’s decision to
dismiss Borrell and (B) Ficca is entitled to qualified immunity
for her involvement in Borrell’s termination, we hold that no
Defendant is liable to Borrell.

                               A

       First, we must determine whether the conduct of GMC
and Richer should be considered state action. “The Fourteenth
Amendment governs only state conduct, not that of private
citizens.” Kach v. Hose, 589 F.3d 626, 646 (3d Cir. 2009). So
Borrell’s claim is not cognizable unless she was harmed
“under color of law,” a standard identical to the Fourteenth
Amendment’s “state action” requirement. United States v.
Price, 383 U.S. 787, 794 n.7 (1966).

        In Kach, this Court summarized “three broad tests
generated by Supreme Court jurisprudence to determine
whether state action exists” in close cases and they are all
“fact-specific.” 589 F.3d at 646. Those tests are: “(1) whether
the private entity has exercised powers that are traditionally
the exclusive prerogative of the state; (2) whether the private
party has acted with the help of or in concert with state
officials; and (3) whether the state has so far insinuated itself
into a position of interdependence with the acting party that it
must be recognized as a joint participant in the challenged
activity.” Id. (alterations and citation omitted). Of seminal
importance to this appeal, we have clarified that the relevant
question is not whether the private actor and the state have a




                               9
close relationship generally, but whether there is “such a
close nexus between the State and the challenged action that
seemingly private behavior may be fairly treated as that of the
State itself.” Leshko v. Servis, 423 F.3d 337, 339 (3d Cir.
2005) (emphasis added) (citation omitted). In other words, the
government must be “responsible for the specific conduct of
which the plaintiff complains.” Blum v. Yaretsky, 457 U.S.
991, 1004 (1982) (emphasis omitted). And this is true even
when the actor is employed by the state. As we explained in
Mark v. Borough of Hatboro, “an otherwise private tort is not
committed under color of law simply because the tortfeasor is
an employee of the state.” 51 F.3d 1137, 1150 (3d Cir. 1995).
Contrary to Borrell’s argument, then, Richer’s joint
employment with Bloomsburg and GMC’s partnership with
Bloomsburg with respect to the Program do not “end the
inquiry” on the state actor question. Borrell Br. 33.

       Rather, the pertinent question is whether Richer was
wearing his Geisinger hat or his Bloomsburg hat when he
decided to terminate Borrell. Actions taken “in the ambit of
[non–state motivated] pursuits” are excluded from state
action. Screws v. United States, 325 U.S. 91, 111 (1945). The
record shows that Richer’s actions were authorized by
Geisinger to enforce its drug and alcohol policy, and not
pursued under any authority granted him by the state. Simply
put, Richer did not need permission from Bloomsburg to fire
a Geisinger worker who violated a hospital policy.

       In concluding that Geisinger acted under color of state
law, the District Court focused on the fact that it “was a
willful participant in joint activity, the NAP, with
Bloomsburg.” Borrell, 63 F. Supp. 3d at 436. But as we
noted, that should have been the beginning of the inquiry, not
the end of it. The government must have also been closely



                              10
involved with the decision to terminate Borrell for that action
to be “fairly attributable to the state.” Crissman v. Dover
Downs Entm’t Inc., 289 F.3d 231, 245 n.18 (3d Cir. 2002).

        The District Court found, and Borrell argues, that
Geisinger’s termination of Borrell is “fairly attributable to the
state” for two main reasons: (1) Richer, a joint employee of
GMC and Bloomsburg, terminated Borrell via a letter on
“joint Bloomsburg-Geinsinger station[e]ry”; and (2) Ficca, a
Bloomsburg employee, was involved in the termination
process by providing input to Richer regarding Borrell’s
termination letter and by signing it. Borrell, 63 F. Supp. 3d at
436. As discussed already, the fact that Richer was a joint
employee does not answer the question of whether his
decision to enforce GMC’s drug and alcohol policy by
terminating Borrell was “caused by the exercise of some right
or privilege created by the State or by a rule of conduct
imposed by . . . a person for whom the State is responsible.”
Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982).
Richer’s decision was to enforce the hospital’s preexisting
policy requiring employees to participate in drug tests when
asked, and GMC had already fired four other nurses for
violating the same policy. Neither Bloomsburg nor its
agreement with Geisinger played any part in creating the
policy enforced in this case; the agreement merely made clear
that Geisinger’s employee policies would govern the behavior
of clinical students while they were working at the hospital.

        In light of the controlling legal principles we have
articulated, the question boils down to which entity—the
hospital or the university—exercised the authority to
terminate Borrell for a violation of Geisinger policies. The
District Court concluded that because Ficca signed the
termination letter and was consulted regarding its contents,



                               11
“Bloomsburg and Geisinger jointly participated in
terminating Borrell from the NAP.” Borrell, 63 F. Supp. 3d at
436. The Court also stated that because Richer terminated
Borrell in his capacity as Director of the NAP, the decision
was made under the auspices of his employment by
Bloomsburg and therefore under the color of state law. Id. at
437.

        The agreement between Geisinger and Bloomsburg
indicates otherwise. It makes clear that Geisinger retained the
authority to unilaterally “exclude a Student from participation
in the Clinical Training” if the student doesn’t comply with a
GMC policy. App. 1514. And when Richer made the decision
to terminate Borrell for violating hospital policy, he acted in
his capacity as a GMC employee, claiming he sought to
maintain nursing standards at the hospital. And his capacity
was not altered merely because he discussed this decision
with—and received input on his letter from—Ficca and
another joint-NAP employee. “Action taken by private
entities with the mere approval or acquiescence of the State
is not state action.” Kach, 589 F.3d at 649 (citation omitted).
Ficca’s signature on the termination letter purports to do
nothing more than concur with Richer’s decision, which is
not enough for state action. Rather, the state must have
“exercised control over the particular conduct that gave rise to
the plaintiff’s alleged constitutional deprivation.” Id. Under
the collaboration agreement, Bloomsburg had no such
control.

       Notwithstanding his consultation with others, Richer
made the decision to fire someone working at GMC due to
her violation of a preexisting policy of the hospital, and he
had the authority to do so based on his position there. “[T]he
authority of state officials . . . was wholly unnecessary to



                              12
effectuate Borrell’s dismissal from the NAP.” GMC Third-
Step Br. 18. Accordingly, we must reverse the District
Court’s holding that GMC and Richer were state actors.

                               B

        Turning to the case against Ficca, we hold that she is
entitled to qualified immunity. We do so because it was not
clearly established that Ficca’s agreement with Richer’s
decision, which she reasonably believed to be within his
authority as an employee of GMC, violated Borrell’s
constitutional rights.

        Qualified immunity protects “all but the plainly
incompetent or those who knowingly violate the law.” Malley
v. Briggs, 475 U.S. 335, 341 (1986). If a government
official—in this case, Ficca—reasonably thinks her conduct
complies with the law, she is shielded from liability. See
Pearson v. Callahan, 555 U.S. 223, 244 (2009). Ficca is
entitled to qualified immunity as long as she does not violate
a “clearly established” constitutional or federal right. Sharp,
669 F.3d at 159 (quoting Saucier v. Katz, 533 U.S. 194, 201
(2001)). “A right is clearly established for qualified immunity
purposes where its contours are ‘sufficiently clear that a
reasonable official would understand that what [s]he is doing
violates that right.’” Id. (quoting Saucier, 533 U.S. at 202). In
other words, the application of the right to the issue at hand
must be “beyond debate.” Zaloga v. Borough of Moosic, 841
F.3d 170, 175 (3d Cir. 2016).

       The record indicates that it is hardly “beyond debate”
that Ficca violated Borrell’s due process rights. Although
many cases have concluded that graduate students at public
universities have property interests in continuing their




                               13
education, see Borrell, 63 F. Supp. 3d at 458 (citing cases),
those cases do not speak to the right of a clinical student at a
private hospital to a hearing or comparable process before
termination—even if the natural consequence of that
termination is an inability to complete an educational
program. The District Court pointed to no cases even
suggesting such a right and we are aware of no such case.
And the district court cases cited cannot clearly establish law
for qualified immunity purposes in any event. See Camreta v.
Greene, 563 U.S. 692, 709 n.7 (2011).

        Furthermore, there is no evidence of record to suggest
that Ficca could have done anything to stop Richer’s decision
to deny additional process to Borrell before terminating her
from the Program. The agreement between Geisinger and
Bloomsburg states that GMC “shall have sole authority and
control over all aspects of Clinical Training.” App. 1512. And
while the agreement requires Geisinger to notify Bloomsburg
before dismissing a student, Geisinger had the unilateral
authority to dismiss students from the clinical portion of the
Program, which would preclude them from obtaining the
certificate necessary to become a nurse anesthetist. And if
Ficca had no authority over Richer’s decision to terminate
Borrell, a reasonable official in Ficca’s position would not
have known that she owed Borrell any more process.

        As for Ficca’s concurrence with Richer’s decision to
terminate Borrell, agreement is insufficient to demonstrate
liability absent actual authority to make the decision. And
without actual decisionmaking authority, Ficca’s edits,
suggestions, and participation in the termination letter do not
amount to a constitutional violation. Cf. McLaughlin v.
Watson, 271 F.3d 566, 573 (3d Cir. 2001). Additionally, any
process provided by Ficca at Bloomsburg could not have



                              14
forced Geisinger or Richer to change the decision to terminate
Borrell from the clinical portion of the Program based on her
violation of hospital policy. As Ficca notes by way of
analogy, if she “had dismissed Borrell from the Program for .
. . failing grades or cheating on an examination . . . no one
would say that she was entitled to a hearing from Geisinger.”
See Ficca Br. 25. Likewise, it’s not clear that Borrell was
owed a hearing from Ficca before Geisinger dismissed her
from the Program.

       To support her claim that Ficca supervised Richer’s
termination decision, Borrell notes that Ficca responded
affirmatively when asked: “You are one person who Mr.
Richer would need to consult [before terminating a clinical
student], correct?” App. 329. But in context, Ficca had
claimed she did not know whether Richer was the final
decisionmaker on dismissals of clinical students and merely
asserted that Richer likely had to “discuss[]” any such
decision with other parties to make sure he was correctly
applying “policies that have been established.” App. 328–29.
Given the collaboration agreement’s requirement that
Bloomsburg had to receive notice of a termination decision,
this answer does not show that Ficca had authority to prevent
Richer’s decision. It shows only that she had to be notified of
it. 2


      2
        Borrell also claims that Ficca was “Richer’s direct
supervisor at [Bloomsburg],” and is thus liable because she
“did not take any steps to prevent her subordinate Richer
from sending the termination letter.” Borrell Br. 61 (citing
App. 553–54). But in the deposition to which Borrell refers,
Richer stated only that Ficca was “above” him “[i]n the
University hierarchy.” App. 554. While Ficca supervised



                              15
       In responding to Ficca’s qualified immunity argument,
Borrell seems to miss the relevant question—would a
reasonable official have known that her actions violated a
clearly established right? Even if, as Borrell claims, Ficca
should have known that Richer’s actions were disciplinary
and not academic, and Borrell was thus entitled to more
process from someone, this does not answer the question of
whether Ficca was that person. Given all the factors discussed
herein, and given her reasonable understanding that she could
not have provided process for the clinical dismissal even if
she thought it was necessary in the abstract, the District Court
should have granted qualified immunity to Ficca.

                              IV

      For the reasons stated, we will reverse the District
Court’s summary judgment and remand the case for entry of
judgment in favor of Geisinger, Richer, and Ficca.




Richer for university business, she did not supervise him in
his other capacities—such as his GMC-related supervisory
duties. Nothing in the NAP agreement gave Bloomsburg or
Ficca authority to control a decision by Geisinger or Richer to
remove a student from GMC’s clinic, and thus the Program.



                              16
           Borrell v. Bloomsburg University et al.
             Nos. 15-2823, 16-3837, 16-3959



Judge Roth, concurring in part and concurring in the
judgment:

        In regard to Part III.B, I would hold that Ficca and
Bloomsburg University’s participation in the dismissal of
Borrell from the program was academic, not disciplinary.
Although Borrell’s academic marks were satisfactory, once
she had been dismissed from the clinical portion of the NAP
program by Geisinger, she was no longer academically
qualified to complete the NAP. For that reason, she was not
being dismissed from the Bloomsburg University portion of
the program because she refused to take the drug test. She
was being dismissed because she was no longer academically
eligible to complete the program. Clearly, this action is
academic, rather than disciplinary.

       Moreover, because Ficca and Bloomsburg University’s
action in dismissing Borrell from the program was not
disciplinary, she in fact received all the due process to which
she was entitled. See, e.g., Board of Curators of the
University of Missouri v. Horowitz, 435 U.S. 78, 85 (1978).




                              1
