                                                                                                                           Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-18-1996

Homar v. Gilbert
Precedential or Non-Precedential:

Docket 95-7218




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              UNITED STATES COURT OF APPEALS
                  FOR THE THIRD CIRCUIT



                        No. 95-7218


                    RICHARD J. HOMAR,
                               Appellant

                            v.

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



       Appeal from the United States District Court
         for the Middle District of Pennsylvania
               (D.C. Civil No. 93-cv-0852)



        Submitted Under Third Circuit LAR 34.1(a)
                Thursday, November 2, 1995



   Before:   NYGAARD, ALITO, and SAROKIN, Circuit Judges

                  (Filed July 18, 1995)


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

                                 Attorney for Appellant


                                 Gwendolyn T. Mosley
                                 Office of Attorney General
                                     15th Floor, Strawberry Square
                                     Harrisburg, PA 17120

                                     Attorneys for Appellees




                          OPINION OF THE COURT



SAROKIN, Circuit Judge.

     Plaintiff Richard Homar was suspended without pay from his
position as a police officer at East Stroudsburg University after
his arrest on drug-related charges. The criminal charges against
Homar were eventually dismissed, but Homar was nonetheless
subsequently demoted to the position of groundskeeper. Homar filed
suit in federal district court seeking reinstatement, backpay and
damages for violations of his due process rights. The district
court entered summary judgment in favor of defendants. Plaintiff
appeals.
     Although we conclude that these circumstances warranted and
justified an immediate suspension of employment without a hearing,
the added suspension of pay necessitated a hearing. Furthermore,
the subsequent restoration of that pay cannot serve to cure the due
process violation. It may serve to reduce the damages to which the
employee may be entitled, but the deprivation must be viewed at the
time of its occurrence, not as belatedly corrected by later action;
otherwise employers could violate the due process rights of their
employees and simply cure those violations through the means of
retroactive pay.
     We also hold that once suspended, an employee is entitled to
a hearing before any further action is taken to demote, terminate,
or extend his suspension. At such a hearing, the employee is
entitled to know the evidence against him and be afforded the
opportunity for a meaningful response. We conclude that there is
a genuine issue of material fact as to whether such a hearing was
afforded here, and we thus reverse the order of summary judgment.

                                I.
     Plaintiff Richard Homar was employed as a police officer at
East Stroudsburg University ("ESU"). On August 26, 1992, Homar was
arrested when a drug raid took place at the home of his friend,
James Crompton, whom he was visiting. That same day, the
Pennsylvania State Police filed a criminal complaint against Homar
charging him with possession of marijuana, possession with intent
to deliver and criminal conspiracy.
     The state police called David Marazas, ESU's police chief and
Homar's supervisor, to inform him of Homar's arrest and the charges
against him. Marazas then informed Gerald Levanowitz, ESU's
Director of Human Resources, to whom ESU President James Gilbert
had delegated authority to discipline and suspend ESU employees.
Levanowitz decided immediately to suspend Homar without pay. No
pre-suspension hearing was held.
     On August 27, Homar received a letter from Levanowitz advising
him that he was suspended without pay pending further investigation
and disposition of the criminal charges. The letter advised Homar
that any administrative action taken by the University against him
"[did] not have to coincide with the disposition of those charges
through the legal process." Appendix ("App.") at 197.
     District Justice Charles P. Eyer dismissed all criminal
charges against Homar on September 1, 1992. Levanowitz still
refused to lift Homar's suspension.
     On September 11, 1992, Levanowitz, along with two ESU police
sergeants who were assigned to conduct an investigation on Homar,
met with two state troopers and a Corporal to discuss Homar's
situation. App. at 143. One of the troopers was the state trooper
who signed the criminal complaint against Homar. At this meeting,
Levanowitz was provided with a copy of a page from the Pennsylvania
State Police investigative file regarding Homar, called the
"Supplemental Report." This report includes statements attributed
to Homar that he allegedly made to the Pennsylvania State Police
when he was interviewed shortly after his arrest. According to the
Supplemental Report, Homar admitted his knowledge of drug dealing
by Crompton and another man named Habhab, and Homar further
admitted that he had received marijuana from Habhab for his own use
while he was employed as an ESU police officer. Homar contests
that he ever made these statements.
     On September 15, 1992, Levanowitz called Homar and arranged
for a meeting three days later. Levanowitz explained that this
meeting would be an "administrative hearing," and that accordingly
Homar had a right to have his union representative present but that
he did not have a right to legal counsel.
     Homar attended this meeting on September 18, 1992, along with
his union representative. Besides Levanowitz, Marazas was also
present, as well as Levanowitz's secretary. At the start of the
meeting, Homar's union representative requested that Homar's
attorney be present. Levanowitz responded that if Homar so chose,
they would have to postpone the meeting until a later time. Homar
opted to proceed with the meeting unrepresented. According to the
notes taken by Levanowitz's secretary, Levanowitz made the
following statement to Homar:
     The purpose of this meeting today is to give you an
     opportunity to provide any information on your own behalf
     that would assist us in making a determination concerning
     the action that would end your suspension and any
     information that would be of help to you in presenting
     your case.
App. at 205.
     Levanowitz maintained at a deposition held later that he had
told Homar that "the State Police had given [him] some evidence
very serious in nature," App. at 164, and that he offered Homar the
opportunity to present his side of the story. Levanowitz never
informed Homar that he had received the Supplemental Report from
the state police containing his alleged confession.
     On September 23, 1992, Levanowitz wrote a letter to Homar
advising him that he was being demoted from the position of police
officer to the position of groundskeeper. The text of the letter
reads, in pertinent part, as follows:
          This is to inform you that you are to be demoted
     from your position as a Police Officer I in the Campus
     Police Department to the position of Groundskeeper. . .
     . The action is effective retroactive to August 26, 1992,
     and you are to be given back pay to that date at the rate
     of pay for a Groundskeeper. You are to report to work at
     7:00 A.M. on September 24, 1992 at the Facilities
     Management Office. Your new rate of pay as Groundskeeper
     will be $552.80 bi-weekly.

          This action is being taken as a result of admissions
     made by yourself to the Pennsylvania State Police on
     August 26, 1992 that you maintained association with
     individuals whom you knew were dealing in large
     quantities of marijuana and you obtained marijuana from
     one of those individuals for your own use. Your actions
     constitute a clear and flagrant violation of Sections 200
     and 200.2 of the East Stroudsburg University Police
     Department Manual.
App. at 208 (footnote added).
     After this letter was issued, the president of the union
representing Homar requested that Homar have an opportunity to meet
with President Gilbert regarding the letter. The meeting occurred
on September 24, 1992 at 2:00 p.m. By this time, Homar had
received and read a copy of the Supplemental Report. Gilbert
provided Homar with an opportunity to respond to the charges and to
Levanowitz's decision. Gilbert nonetheless sustained the
suspension.
     After failing to obtain relief through his union grievance
procedure, Homar filed a complaint in the district court for the
Middle District of Pennsylvania against Gilbert, Levanowitz and
Marazas. His complaint alleges that the procedures by which he was
suspended and then demoted lacked required due process, that
defendants' actions deprived him of liberty and property, and that
his substantive due process rights were also violated. The
district court entered summary judgment in favor of the defendants
on March 17, 1995. Homar then appealed to this court.

                               II.
     The district court had jurisdiction over this action pursuant
to 28 U.S.C.    1331 and 1343 and 42 U.S.C.   1983. This court has
jurisdiction over the appeal of the district court's final decision
under 28 U.S.C.   1291.
     Our review of the district court's order for summary judgment
is plenary, and we thus apply the same standards that were
applicable in the district court. J.F. Feeser, Inc. v. Serv-A-
Portion, Inc., 909 F.2d 1524, 1530 (3d Cir., 1990), cert. denied,
499 U.S. 921 (1991). Summary judgment is appropriately granted
when "there is no genuine issue as to any material fact and the
moving party is entitled to a judgment as a matter of law." Fed.
R. Civ. P. 56(c). If, however, "the evidence is such that a
reasonable jury could return a verdict for the nonmoving party,"
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), summary
judgment shall not be granted. Homar, as the nonmoving party, is
entitled to have all reasonable inferences drawn in his favor. SeeJ.F.
Feeser, 909 F.2d at 1531.

                               III.
     Homar's first claim is that ESU failed to provide him a
meaningful pre-deprivation hearing prior to his suspension without
pay and his subsequent demotion from police officer to
groundskeeper.
     In Cleveland Bd. of Education v. Loudermill, 470 U.S. 532
(1985), the United States Supreme Court held that when a public
employee has a property interest in his or her employment he or she
is entitled to a meaningful pre-termination hearing. Such a
hearing need not be elaborate, but rather "an initial check against
mistaken decision -- essentially, a determination of whether there
are reasonable grounds to believe that the charges against the
employee are true and support the proposed action." Id. at 545-46.
Loudermill specifically requires that prior to termination:
     [a] tenured public employee is entitled to oral or
     written notice of the charges against him, an explanation
     of the employer's evidence, and an opportunity to present
     his side of the story.
Id. at 546.
     The Supreme Court has made it eminently clear that due process
entitles a party to such a hearing "before he [or she] is deprived
of any significant property interest, except for extraordinary
situations where some valid governmental interest is at stake that
justifies postponing the hearing until after the event." Boddie v.
Connecticut, 401 U.S. 371, 379 (1971); see also Loudermill, 470
U.S. at 542; Bell v. Burson, 402 U.S. 535, 542 (1971). This
fundamental right to a pre-deprivation hearing is not abridged by
the availability of extensive post-deprivations remedies. SeeMorton v.
Beyer, 822 F.2d 364, 368 (3d Cir. 1987) (holding that
"the availability of extensive post-termination procedures does not
eliminate the essential requirement of due process that a hearing
be provided before discharge"); Gniotek v. City of Philadelphia,
808 F.2d 241, 243 (3d Cir. 1986) (noting that "[t]he predeprivation
hearing need not be elaborate, but it is necessary, even if
extensive post-deprivation remedies are afforded."), cert. denied,
481 U.S. 1050 (1987).
     While we recognize that Homar was not completely terminated
from his employment with ESU, he was terminated from his position
as a police officer and received a reduction in his pay.
Accordingly, we find the requirements of Loudermill to be
applicable in this instance. Indeed, there is no dispute among the
parties that Homar had a property interest in his employment as
police officer. Rather, the dispute concerns the degree of due
process to which Homar was entitled prior to his suspension without
pay and prior to his demotion from his position as police officer
to groundskeeper.
                                A.
     We will first address Homar's contention that he was entitled
to notice and an opportunity to be heard prior to his suspension
without pay from his position as an ESU police officer.
     It is undisputed that Homar was not afforded any kind of
hearing prior to his suspension without pay immediately following
his arrest on drug charges. ESU nonetheless argues that Homar's
due process rights were not violated because, while Homar's
interest in remaining in his job is "an important one," ESU had a
compelling interest in "taking prompt action to maintain public
confidence in its police force." Appellee's Brief at 15. Indeed,
the Supreme Court has explained that
     [a]n important government interest, accompanied by a
     substantial assurance that the deprivation is not
     baseless or unwarranted, may in limited cases demanding
     prompt action justify postponing the opportunity to be
     heard until after the initial deprivation.
FDIC v. Mallen, 486 U.S. 230, 240 (1988); see also Boddie, 401 U.S.
at 379 (noting that there can be "extraordinary situations where
some valid governmental interest is at stake that justifies
postponing the hearing until after the event").
     The district court agreed with ESU, finding that it was
permissible for the university to suspend Homar without pay and
without a hearing. The court first noted that "[b]oth the timing
and the nature of requisite process depends upon an 'appropriate
accommodation of the competing interests involved.'" Homar v.
Gilbert, No. CV-93-0853, typescript at 11 (M.D. Pa., March 17,
1995) (hereinafter "D. Ct. Op.") (citing Goss v. Lopez, 419 U.S.
565, 579 (1975)). It then applied the analysis prescribed by Logan
v. Zimmerman Brush Co., assessing the competing interests involved,
including "the importance of the private interest, and the length
and finality of the deprivation, . . . the likelihood of
governmental error, . . . and the magnitude of the governmental
interests involved." Id., typescript at 11 (quoting Logan v.
Zimmerman Brush Co., 455 U.S. 422, 434 (1982)). While the district
court recognized that Homar's "private interest was strong," it
found that "the deprivation incident to a suspension was only
temporary and of a relatively brief duration (approximately one
month)." Id., typescript at 11. The district court concluded that
Homar's interest in avoiding such a "temporary" and "brief"
deprivation was not as compelling as "the governmental interest in
preserving public confidence in law enforcement." Id., typescript
at 12. The court found its conclusion bolstered by the fact that
Homar was eventually awarded full pay and benefits for the period
of suspension, noting that "'[s]uspension with pay does not raise
due process concerns.'" Id., typescript at 13 (quoting Hicks v.
City of Watonga, Okl., 942 F.2d 737, 746 n.4 (10th Cir. 1991).
     We agree with the district court that there was a compelling
governmental interest which supports ESU's decision to suspend
Homar immediately and without a hearing pending further
investigation. The university has a substantial interest in
maintaining public confidence in the ESU police force, and Homar's
arrest on drug charges certainly suffices to ensure that the
university's concerns were not baseless or unwarranted, as required
by the Supreme Court. See Mallen, 486 U.S. at 240. In
circumstances where public safety is implicated, "[n]ot even an
informal hearing . . . must precede a deprivation." Caine v.
Hardy, 943 F.2d 1406, 1412 (5th Cir. 1991) (en banc), cert. denied,
503 U.S. 936 (1992).
     Nonetheless, we find that Homar's due process rights were
violated because he was suspended without pay. The Supreme Court's
decision in Loudermill strongly suggests that suspension without
pay must be preceded by notice and an opportunity to be heard in
all instances. Initially, the Court noted that it had "frequently
recognized the severity of depriving a person of the means of
livelihood." Loudermill, 470 U.S. at 543. Then the Court
explained that, while it recognized that there were some limited
instances in which a strong governmental interest might warrant
immediately removing a person from a position without a hearing,
"in those situations where the employer perceives a significant
hazard in keeping the employee on the job, it can avoid the problem
by suspending with pay." Id. at 544-45 (emphasis added).
     Other circuits which have examined this language in Loudermillhave
disagreed with regard to its precise mandate. At least one
court of appeals has read Loudermill to require that an employee be
provided an opportunity to be heard prior to suspension without
pay. See Everett v. Napper, 833 F.2d 1507, 1512 (11th Cir. 1987)
(holding that, under Loudermill a suspended firefighter was
entitled to a hearing prior to suspension because he was not paid
during his suspension). The Federal Circuit, by contrast, noted
that Loudermill's prescription of suspension with pay in situations
where significant hazards would result from continued employment
was only dicta: "We agree that in the instant case, the government
could have suspended with pay. Nevertheless, we cannot read
Loudermill as holding the government must suspend . . . with pay."
Engdahl v. Dept. of Navy, 900 F.2d 1572, 1578 (Fed. Cir. 1990).
Other circuits, while not explicitly addressing Loudermill, have on
occasion allowed suspension without pay to stand even in the
absence of a pre-deprivation hearing. See, e.g., Jones v. City of
Gary, Ind., 57 F.3d 1435, 1436 (7th Cir. 1995); Ambus v. Granite
Bd. of Educ., 975 F.2d 1555, 1558, 1562 (10th Cir. 1992), modified
on rehearing by, 995 F.2d 992 (10th Cir. 1993) (en banc).
     This court has not precisely addressed this issue in the past.
However, our decision in Bradley v. Pittsburgh Bd. of Educ., 913
F.2d 1064 (3d Cir. 1990), may be read to imply that, under
Loudermill, suspension without a pre-deprivation hearing is only
constitutional if the suspension is one with pay. In Bradley, we
were called upon to decide, among other issues, whether a teacher
who had been effectively suspended without pay and without a
hearing for one year prior to being officially terminated, had been
deprived of his procedural due process rights. The employer in
Bradley ultimately provided Bradley full sabbatical pay for the
year in question. The district court had relied upon Loudermill to
conclude that the employer was entitled to suspend Bradley without
a pre-suspension hearing because he eventually had been provided
payment for the period of suspension. Id. at 1077. In reviewing
this decision, we first acknowledged that under Loudermill, in
circumstances where a governmental employer perceives substantial
hazards in keeping an employee on the job, it may suspend the
employee with pay until such time that a hearing may be held. Id.(citing
Loudermill, 470 U.S. at 544-45). We concluded, however,
that "Loudermill [did] not govern [that] case because Bradley was
suspended without pay." Id. We thus implicitly, but necessarily,
rejected the idea that a government employer could cite to the
substantial hazards of keeping an employee on the job and thereby
suspend him without a pre-suspension hearing without pay. Had we
determined that Bradley had been suspended with pay, we presumably
would have found that the Loudermill exception -- essentially the
Mallen exception -- applied. Thus, while Bradley does not
explicitly declare that suspension without pay and without a pre-
suspension hearing always violates due process, such a holding may
be inferred from its reasoning.
     Today we clearly enunciate that a governmental employer may
not suspend an employee without pay unless that suspension is
preceded by some kind of pre-suspension hearing, providing the
employee with notice and an opportunity to be heard. We think that
such a holding is not only consistent with, and suggested by,
Loudermill, but it is also eminently sensible. It is imperative
that employers be provided with adequate flexibility to allow them
to protect the public and respond to emergency situations
expediently. Suspension with pay addresses these important
concerns while simultaneously protecting the fundamental rights of
an employee to due process prior to being deprived of his or her
property interest in employment and its accompanying salary.
Furthermore, this conclusion seems consistent with the Supreme
Court's holding in Zimmerman Brush that, in determining the timing
and nature of an appropriate hearing, courts should assess the
competing interests involved and arrive at an appropriate
accommodation. Zimmerman Brush, 455 U.S. at 434.
     As noted above, the district court treated Homar's suspension
as a suspension with pay:
     That Homar was originally suspended without pay does not
     warrant a finding that he was deprived of property
     without due process. At most, he was denied use of his
     salary for a very brief period of time. To recognize a
     cause of action for denial of due process under these
     circumstances would clearly elevate form over substance.

                       *     *     *

     Since he clearly could be suspended with pay without
     implicating due process concerns, and within one month
     after being suspended he was awarded full pay for the
     period of suspension, any injury resulting from the
     failure to provide an opportunity to be heard before the
     suspension was imposed is surely de minimis.
D. Ct. Op., typescript at 13-14.
     We fundamentally disagree with the district court's
conclusion. First, our decision in Bradley clearly indicates that
the subsequent awarding of backpay does not remedy a due process
violation:
     The right to procedural due process cannot be so
     ephemeral that it evaporates because an individual
     suspended without pay happened to obtain paid leave
     thereafter. . . . That may affect the damages ultimately
     awarded, but if there was a violation of due process,
     [the employee] is entitled to have that right vindicated.
Bradley, 913 F.2d at 1077.
     Second, Homar's suspension without pay cannot be viewed as deminimis.
At the time that Homar was suspended, he was told that
he was "to be suspended without pay, effective immediately on
8/26/92, from [his] position as a police officer at East
Stroudsburg University." App. at 197. For a period of
approximately one month, Homar's very livelihood was threatened
because he received no salary. As far as Homar knew at the time of
his suspension, he had no prospects whatsoever of receiving any
wages for the indefinite duration of his suspension. It was not
until he received his letter of demotion on September 24, 1992 --
nearly a month after he was suspended -- that he learned he would
be receiving backpay at the rate of a groundskeeper. While it is
true that Homar eventually received backpay at the wage rate he
earned as a police officer to cover the period of his suspension,
we note that according to Defendant's Statement of Material Fact
accompanying their Motion for Summary Judgment, Levanowitz did not
authorize Homar's backpay at the rate of a police officer until
February 16, 1993. Thus, for nearly six months, Homar was deprived
of a salary that was rightfully his. Furthermore, there is
evidence to suggest that ESU only agreed to pay this rate upon
pressure from Homar's union representative.
       Accordingly, we find that Homar was entitled to notice and
at least some kind of hearing prior to being suspended without
pay. It is undisputed that Homar received no hearing prior to his
suspension, and we conclude that the district court erred in
granting summary judgment in favor of defendants on this issue.

                                B.
     Homar further alleges that he was deprived of meaningful pre-
termination due process in the course of his demotion to the
position of groundskeeper.
     As outlined above, Loudermill requires that a public employee
with a property interest in his or her employment be granted a
meaningful pre-termination hearing. Loudermill, 470 U.S. at 545-
46. We reiterate that it is of paramount importance that this
hearing take place prior to the deprivation. As explained above,
absent compelling government interests justifying postponement of
a hearing, the hearing must take place before the deprivation, seeBoddie,
401 U.S. at 379; Loudermill, 470 U.S. at 542; Bell, 402
U.S. at 542, because "the only meaningful opportunity to invoke the
discretion of the decisionmaker is likely to be before the
termination takes effect." Id.; see also, Board of Regents v.
Roth, 408 U.S. 564, 570 n.7 (1972). Indeed, this right to pre-
deprivation due process is so fundamental that it remains "even if
extensive post-deprivation remedies are afforded." Gniotek, 808
F.2d at 243; see also Morton, 822 F.2d at 368.
     This pre-deprivation hearing need not be elaborate. As
explained by the Supreme Court, "'something less' than a full
evidentiary hearing is sufficient prior to adverse administrative
action." Loudermill, 470 U.S. at 545 (citations omitted).
Nonetheless, the hearing must be sufficient to inform the employee
of the evidence against him or her and to respond to the evidence.
See Fraternal Order of Police Lodge No. 5 v. Tucker, 868 F.2d 74,
80 (3d Cir. 1989). "[A] sina [sic] qua non of a meaningful hearing
is a sufficient explanation of the employer's evidence to permit a
meaningful response." Id.
     Under the circumstances presented here, where Homar was
suspended from his position pending further investigation into his
activities, it is clear that there was no compelling government
issue at stake that would require ESU to immediately deprive Homar
of his employment. Any concerns about preserving public safety or
the integrity of the police force were met by Homar's suspension.
The university thus was afforded the time it would need adequately
to provide Homar a pre-deprivation hearing. The question for us to
answer, then, is whether the university provided him such a
hearing.
     The district court concluded that the "administrative hearing"
which took place on September 18 did not meet the due process
requirements of a pre-deprivation hearing because it "did not allow
[Homar] to make a meaningful response to the damaging information
found in the supplemental report." D. Ct. Op., typescript at 15.
We agree.
     During the September 18 meeting, Levanowitz only told Homar
that the State Police had given him some "evidence very serious in
nature." App. at 164. While it safely can be presumed that Homar
knew that ESU's concerns about his employment arose from his arrest
on drug charges, Homar was not aware of the allegations made
against him by the troopers that were presented in the Supplemental
Report, namely that he allegedly confessed to knowing that Crompton
and Habhab were drug dealers and to receiving marijuana from Habhab
during his employment as a police officer. More to the point,
Homar was completely unaware that Levanowitz had received a copy of
the Supplemental Report containing these allegations. Under these
circumstances it is very clear that Homar's right to a meaningful
pre-deprivation hearing was denied. See Tucker, 868 F.2d at 80
(holding that suspended police officers who were not told anything
specific about drug use allegations or the evidence regarding the
allegations were deprived of their due process rights because they
had no opportunity to explain or rebut evidence).
     In spite of its conclusion regarding the insufficiency of the
September 18 "administrative hearing," the district court entered
summary judgment in favor of defendants because it concluded that
Homar's September 24, 1995 meeting with President Gilbert, prior to
which Homar had received and read the Supplemental Report, was a
meaningful pre-termination hearing. D. Ct. Op., typescript at 16.
Given that Homar was afforded an opportunity to review the
Supplemental Report and offer meaningful responses to the
allegations, we find that this meeting afforded Homar with
sufficient procedural due process protections assuming it took
place prior to his demotion becoming effective. While true that an
employee is not entitled to a pre-decision hearing, see Chung v.
Park, 514 F.2d 382, 387 (3d Cir.), cert. denied, 423 U.S. 948
(1975), only if this hearing took place before his demotion tookeffect can
we conclude that he was afforded meaningful due process.
      The district court held as a matter of law that Homar's
dismissal from his position as a police officer took effect only
after this meeting with President Gilbert. D. Ct. Op., typescript
at 16. The district court found that the meeting, which took place
at 2 p.m. on September 24, 1992, "occurred before Homar would have
started his evening shift as police officer should Gilbert have
decided to reinstate him to that position," id., and thus concluded
that "Gilbert's decision that Homar could not return to ESU as a
police officer is properly viewed as the point in time when Homar
was deprived of his position as an ESU police officer." Id.
     We disagree with the district court that the point in time at
which Homar's demotion became effective is clear. There is
substantial evidence in the record to support a conclusion that
Homar's demotion took effect prior to this meeting. Homar's
meeting with Gilbert took place on September 24 at 2:00 p.m. The
letter which Levanowitz sent to Homar apprising him that he had
been demoted to Groundskeeper was dated on September 23, 1992. In
that letter, Levanowitz informed Homar that he was "to be demoted
from [his] position as a Police Officer I in the Campus Police
Department to the position of Groundskeeper, a position [he]
formerly held." App. at 208 (emphasis added). The letter further
required that Homar "report to work at 7:00 A.M. on September 24,
1992," to start his job as groundskeeper, and informed Homar that
this "action is effective retroactive to August 26, 1992." App. at
208 (emphasis added). Homar testified during a deposition that he
was already working as a groundskeeper at the time of his September
24th, 2:00 p.m. meeting with Gilbert. There is thus evidence
suggesting that Homar had already been demoted to groundskeeper by
the time this meeting took place. If this is true, then Homar was
deprived of a meaningful pre-deprivation hearing.
     The district court based its contrary conclusion on two
grounds. First, the court determined that "[t]he significance of
the meeting was that Gilbert held ultimate decision-making
authority regarding whether Homar would remain employed by ESU as
a police officer." D. Ct. Op., typescript at 15. However, this
meeting with Gilbert never would have occurred had Homar's union
representative not sought to arrange for the meeting with Gilbert.
App. at 225. This fact seems to suggest that Levanowitz's demotion
of Homar would have become effective without Gilbert's approval,
which would render Levanowitz's letter the final demotion.
Levanowitz's authoritative tone in the letter similarly supports
this conclusion.
     The district court also concluded that the meeting with
Gilbert had taken place prior to Homar's demotion because it
occurred before 4 p.m., the time at which Homar would normally
begin his shift as a police officer. Id. at 16. We disagree that
the timing of the demotion is so clear. We think there is
certainly an issue of material fact as to whether Homar's demotion
became effective on August 26, as stated in the letter; at 7:00
a.m. on September 24, the date he was told to report to work as a
groundskeeper; or at 4:00 p.m. on September 24, the time at which
Homar would normally report to work as a police officer. Unless
defendants expected Homar to act as both groundskeeper and police
officer on September 24, the facts appear to support the conclusion
that Homar's demotion was effective at the latest by 7 a.m. on the
morning of September 24th, seven hours prior to his meeting with
Gilbert.
     We thus conclude that there is a genuine issue of material
fact regarding the date and time at which Homar's demotion became
effective, and that the district court's grant of summary judgment
was therefore inappropriate. See Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986) (holding summary judgment is inappropriate
if there is evidence "such that a reasonable jury could return a
verdict for the nonmoving party."). Accordingly, we reverse the
district court's entry of summary judgment regarding Homar's
meaningful pre-deprivation hearing.

                               IV.
     Homar also contends that there is an issue of material fact as
to whether his substantive due process rights were violated.
Relying on this court's precedent in Parkway Garage, Inc. v. City
of Philadelphia, 5 F.3d 685, 692 (3d Cir. 1993) in which we stated
that "[a] violation of substantive due process rights is proven: .
. . 'if the government's actions in a particular case were in fact
motivated by bias, bad faith or improper motive. . . ,'" id.(quoting
Midnight Sessions, Ltd. v. City of Philadelphia, 945 F.2d
683 (3d Cir. 1991), cert. denied, 503 U.S. 984 (1992)), Homar
points to several facts that he argues demonstrate that his
suspension and demotion were motivated by bias, bad faith or
improper motive.
     The district court granted summary judgment in favor of
defendants on this claim on the ground that there was no genuine
issue of material fact as to whether Levanowitz, Gilbert or any
other ESU official was motivated by bias, bad faith or improper
motive.
     While we agree with the district court that the evidence in
this case does not support a conclusion that Levanowitz or any
other ESU official was motivated by an improper motive in
suspending and then demoting Homar, for there is, indeed, "nothing
improper about conducting an investigation of a law enforcement
officer who has been arrested, even if the charges are ultimately
dismissed," D. Ct. Op., typescript at 23, we think that there is
a question of material fact as to whether ESU officials acted in
bad faith. Several events leading up to Homar's demotion suggest
that Levanowitz did not engage in a good faith effort to accord
Homar appropriate due process protection throughout his ordeal.
Levanowitz never informed Homar that he had received and read the
Supplemental Report prior to their September 18 meeting; Levanowitz
ordered that a poll be taken among police officers regarding
whether Homar should be allowed to return to the force, which is
certainly a very strange proceeding outside the realm of
traditional due process proceedings; and Levanowitz issued the
September 23 letter of demotion prior to the meeting with President
Gilbert -- a meeting which occurred only after Homar's union
representative requested it take place. Such events might lead a
reasonable fact-finder to conclude that Homar's demotion was pre-
determined and to view the entire demotion process as rigged to
produce this result.
     Our conclusion that there is a genuine issue of material fact
as to whether ESU officials were motivated by bad faith, however,
does not lead us to remand this matter simply for a factual
finding. A more fundamental legal question must first be
addressed, namely whether Homar's property interest in his state-
created job is an interest worthy of protection under substantive
due process. DeBlasio v. Zoning Bd. of Adjustment, 53 F.3d 592,
598, 600 (3d Cir. 1993) (holding that before addressing the
sufficiency of the evidence of improper motive, a court addressing
a substantive due process claim should first consider whether the
plaintiff possesses a property interest worthy of substantive due
process protection). Although Homar has succeeded in making a
procedural due process claim, under the law of this circuit "not
all property interests worthy of procedural due process protections
are protected by the concept of substantive due process." Reich v.
Beharry, 883 F.2d 239, 244 (3d Cir. 1989). In order to state a
substantive due process claim, "a plaintiff must have been deprived
of a certain quality of property interest." DeBlasio, 53 F.3d at
600.
     The parties did not address before the district court the
question of whether a state-created property interest in employment
is the "certain quality" of property interest worthy of protection
under the substantive due process clause, nor did the district
court consider it. While courts of appeals do have discretion to
consider and resolve certain issues for the first time on appeal,
such as where the proper resolution is not in doubt or where
"'injustice might otherwise result,'" Singleton v. Wulff, 428 U.S.
106, 121 (1976) (quoting Hormel v. Helvering, 312 U.S. 552, 557
(1941)); see also Nelson v. County of Allegheny, 60 F.3d 1010, 1013
n.3 (3d Cir. 1995), it is a general rule that federal appellate
courts do not consider an issue not passed upon below. Singleton,
428 U.S. at 120.
     In the instant case, we think it appropriate to remand this
issue for consideration in the first instance by the district
court. Certainly this is not a situation where the proper
resolution is clear. Rather, the case law of this circuit and the
Supreme Court provides very little guidance as to what constitutes
this "certain quality" of property interest worthy of protection
under the substantive due process clause. We have held that
"ownership is a property interest worthy of substantive due process
protection," id., but we have found that neither interest in prompt
receipt of payment for professional services provided to the state,
Reich, 883 F.2d at 244-45, nor state law entitlement to water and
sewer services, Ransom v. Marrazzo, 848 F.2d 398, 411-12 (3d Cir.
1988) are the "certain quality" of property interest worthy of
substantive due process protection. We also have strongly
suggested in dictum that a student's right to continued enrollment
in a graduate program does not rise to such a level on the ground
that such an interest bears "'little resemblance to the fundamental
interests that previously had been viewed as implicitly protected
by the Constitution.'" Mauriello v. U. of Med. & Dentistry of
N.J., 781 F.2d 46, 40 (3d Cir. 1986) (quoting Regents of University
of Michigan v. Ewing, 474 U.S. 214, 229-30 (Powell, J.,
concurring).   None of the property interests formerly considered
are especially analogous to the property interest in state-created
employment. Given the complexity of this issue, we think it
appropriate to allow the district court the first opportunity to
consider it. Should this issue return to us on appeal, we will
benefit from the district court's analysis. Furthermore, we have
already determined to remand this matter on the procedural due
process ground as well, eliminating any concern about the injustice
of delaying the final conclusion of this case. Accordingly, we
remand this question to the district court for consideration there.
                                V.
     Additionally, Homar contends that a genuine issue of material
fact exists as to whether Homar's due process rights were violated
because defendants made public statements about his suspension that
stigmatized Homar and damaged his reputation. Specifically, Homar
alleges that ESU violated his protected liberty interest in two
ways. First, he alleges that ESU seriously damaged his good name
and reputation by publicly disclosing the charges against him.
Second, Homar alleges that ESU imposed a stigma or disability on
him, foreclosing his freedom to take advantage of other employment
opportunities. We will address these two claims in turn.
                                A.
     The Supreme Court has held that a person has a liberty
interest in employment actions which require due process "where a
person's good name, reputation, honor or integrity is at stake
because of what the government is doing to him." Roth, 408 U.S. at
573. Homar claims that this liberty interest was implicated in the
instant case because ESU's demotion of him "'damage[d] his standing
and associations in the community.'" Appellant's Brief at 28
(citing Roth, 408 U.S. at 573). Homar may only prevail on this
claim if he can demonstrate that the government "create[d] and
disseminate[d] a false and defamatory impression about [him] in
connection with his termination." Codd v. Velger, 429 U.S. 624,
628 (1977) (per curiam). See also Bishop v. Wood, 426 U.S. 341,
348-39 (1976).
     Homar contends that ESU's disclosure of its investigation into
his activities in a small article that appeared in the Pocono
Record newspaper, coupled with his subsequent demotion, implicated
his liberty interest. We disagree. The article in the newspaper
did not disclose any specifics regarding the nature of ESU's
concern, nor did it disclose information about the disciplinary
action ESU contemplated. Furthermore, the article appeared prior
to his demotion, and there is no evidence to indicate that ESU
publicly disclosed the outcome of its investigation or the fact
that it demoted Homar to groundskeeper. We accordingly find that
Homar has no liberty interest claim. See Tucker, 868 F.2d at 82
(holding that no liberty interest was implicated when press release
about discharge of police officers was not misleading).
                                B.
        Homar further alleges that ESU violated his liberty
interest because it imposed "a stigma . . . that foreclosed his
freedom to take advantage of other employment opportunities."
Roth, 408 U.S. at 573. Yet Homar has proffered no evidence to
suggest that the disciplinary actions taken by the university had
in any way foreclosed other employment opportunities. Indeed,
Homar testified at his deposition that he had not sought out a
position with any other employer since his demotion. App. at 50.
Furthermore, as noted above, Homar makes no allegations that any
information in the newspaper article was untrue; the university
never even publicly disclosed that Homar was terminated from his
job as police officer. Under such circumstances, we cannot find
that Homar's liberty interest was implicated. Tucker, 868 F.2d at
83.
     Accordingly, we affirm the district court's issuance of
summary judgment as to this issue.
                               VI.
     For the foregoing reasons, we affirm in part, reverse in part
and remand for further proceedings consistent with this opinion.

Homar v. Gilbert
No. 95-7218.
ALITO, Circuit Judge, concurring in part and dissenting in part.

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

                                I.
     A. Due process does not always require a pre-suspension
hearing. See, e.g., FDIC v. Mallen, 486 U.S. 230, 240-41 (1988);
Barry v. Barchi, 443 U.S. 55, 63-66 (1979). In Mallen, the Supreme
Court observed that "[a]n important government interest,
accompanied by a substantial assurance that the deprivation is not
baseless or unwarranted, may in limited cases demanding prompt
action justify postponing the opportunity to be heard until after
the initial deprivation." Id. at 240 (citations omitted); see alsoLogan
v. Zimmerman Brush Co., 455 U.S. 422 (1982) ("[T]he timing
and nature of the required hearing `will depend on appropriate
accommodation of the competing interests involved. These include
the importance of the private interest and the length or finality
of the deprivation, the likelihood of governmental error, and the
magnitude of the governmental interests involved.") (citations and
footnote omitted). In my view, this exception should apply here.
See, e.g., Ambus v. Granite Bd. of Educ., 975 F.2d 1555, 1562 (10th
Cir. 1992), aff'd as modified on other ground, 995 F.2d 992 (10th
Cir. 1993) (en banc).
     Under the particular circumstances of this case, a pre-
suspension hearing was not, in my view, essential. Within a few
hours of the August 26, 1992, drug raid that resulted in Homar's
arrest, the university learned that Homar had been charged with
possession of marijuana, possession with intent to deliver
marijuana, and criminal conspiracy. Homar did not report to work
on August 26 for his 4:00 p.m. to 12:00 p.m. shift. The next day,
Homar called his police chief to say that he had been arrested and
to ask whether he was suspended. Homar was informed that he was
suspended, and this was confirmed by letter delivered the same
day.
     I do not think that the university violated Homar's right to
procedural due process when it suspended him from his position as
a campus police officer after learning that he had been arrested
and charged with drug violations. There was probable cause to
support the criminal charges and hence a substantial assurance that
the deprivation was not baseless or unwarranted. The university
was certainly entitled to take the position that Homar could not be
permitted to work as a campus police officer with such charges
outstanding, and there was thus, as the majority concedes, a
compelling government interest present. And the university needed
to act promptly. The majority admits all of this but finds that
the university had to suspend Homar with pay. I find no
requirement that in such circumstances a public employer must pay
its suspended employees.
     B. In reaching its conclusion to the contrary, the majority
declares that "a governmental employer may not suspend an employee
without pay unless that suspension is preceded by some kind of pre-
suspension hearing." Majority Opinion, Typescript at 14. The
majority essentially announces a blanket rule that a public
employer that wishes to suspend an employee -- even an employee in
a public-safety position who has been charged with multiple
felonies -- must either provide a pre-suspension hearing or suspend
the employee with pay. This holding is based on one sentence of
dictum from Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532,
544-45 (1985), the Eleventh Circuit's reliance on that dictum in
Everett v. Napper, 833 F.2d 1507, 1512 (11th Cir. 1987), and this
court's opinion in Bradley v. Pittsburgh Bd. of Educ., 913 F.2d
1064 (3d Cir. 1990). These bases do not, in my view, withstand
scrutiny.
     With regard to Loudermill, I note that the Supreme Court there
expressly recognized that "[t]here are, of course, some situations
in which a postdeprivation hearing will satisfy due process
requirements." Loudermill, 470 U.S. at 542 n.7 (citations
omitted). It is of course true, as the Court later notes, that an
employer can avoid any due process problems associated with keeping
a dangerous employee on the job by suspending the employee with
pay, id. at 544-45, "for then there is not a deprivation." Bailey
v. Board of County Commissioners of Alachua County, 956 F.2d 1112,
1124 n.13 (11th Cir.), cert. denied, 506 U.S. 832 (1992). But as
the Federal Circuit has explained, this "is merely descriptive, not
normative. We agree that in the instant case, the government could
have suspended with pay. Nevertheless, we cannot read Loudermillas
holding that the government must suspend him with pay." Engdahl
v. Department of Navy, 900 F.2d 1572, 1578 (Fed. Cir. 1990). I
agree.
     The Eleventh Circuit's decision in Everett, which was issued
before the Supreme Court's decision in Mallen, simply relies on the
Loudermill dictum. Numerous courts of appeals have reached a
contrary conclusion regarding the import of Loudermill,
particularly after Mallen. See Jones v. City of Gary, 57 F.3d
1435, 1441-45 (7th Cir. 1995) (no pre-suspension hearing required
where firefighter was suspended without pay; plaintiff's property
interests were adequately protected by post-deprivation hearing);
id. at 1445-46 (Ripple, J., concurring) ("there are circumstances
in which the need for swift action on the part of those who
exercise governmental authority and responsibility for the safety
and security of others can justify the elimination or truncation of
even the bare-bones pretermination hearing required by Loudermill")
(citations omitted); Chaney v. Suburban Bus Div. of the Regional
Transp. Auth., 52 F.3d 623, 628 (7th Cir. 1995) (plaintiff bus
driver suspended without pay after bus hit and injured pedestrian;
no pre-suspension hearing necessary as employer's interests
"clearly outweigh[ed]" those of plaintiff); Ambus v. Granite Bd. of
Educ., 975 F.2d 1555, 1562 (10th Cir. 1992) (court discussed
Loudermill but applied the Mallen exception where a teacher was
suspended without pay and without a hearing after the school
learned that the teacher had been arrested on drug charges; court
stated that "the substantiated knowledge that a teacher had been
arrested for drug sales raised a substantial government interest
justifying immediate suspension without pay"), aff'd as modified onother
ground, 995 F.2d 992 (10th Cir. 1993) (en banc); Strong v.
Board of Educ. of Uniondale Union Free School Dist., 902 F.2d 208,
212 (2d Cir.) (citing Loudermill and Mallen, court concluded that,
on balance, no pre-termination hearing required; court stressed
that probable value of hearing was not very great because parties
were well aware of each other's assertions), cert. denied, 498 U.S.
897 (1990); see also Richardson v. U.S. Customs Service, 47 F.3d
415, 418-19 (Fed. Cir. 1995) (discussing 5 U.S.C.    7513(b)(1))
("[A]n indictment for a crime for which a sentence of imprisonment
may be imposed will, as a general rule, provide reasonable cause
for an agency to believe that the employee has committed such a
crime, and, when the nature of the crime alleged relates to the
employee's ability to perform his or her duties, an agency may
summarily suspend the employee, without pay, pending the outcome of
the criminal proceedings.") (citations omitted); Bailey v. Board of
County Commissioners of Alachua County, 956 F.2d 1112, 1123-24 &
n.13 (11th Cir.) (qualified immunity) (stressing flexibility of
standard regarding necessity of pre-deprivation hearing where
prison guard was suspended without pay upon his arrest), cert.denied, 506
U.S. 832 (1992); Gamble v. Webb, 806 F.2d 1258, 1261
(5th Cir. 1986) (relying upon Loudermill's statement that "`there
are, of course, some situations in which a post-deprivation hearing
will satisfy due process,'" and concluding, under Logan balancing
test, that "the present one is such a situation") (quoting
Loudermill, 470 U.S. at 542 n.7) (brackets omitted). All of these
decisions -- like the Supreme Court's procedural due process cases
in general and unlike the majority's blanket rule -- reflect a
balancing of interests based on the particular circumstances of
each case.
     I also believe that the majority has misinterpreted our
opinion in Bradley. Citing Bradley, 913 F.2d at 1077, the majority
states that Bradley implies that suspension without pay and without
a pre-suspension hearing always violates due process. Majority
Opinion, Typescript at 13-14. However, on the next page of the
Bradley opinion, the panel clearly stated:
     We need not decide in this case whether Bradley was
     entitled to a pre-suspension hearing, as he contends, or
     whether a post-suspension hearing sufficed. CompareLoudermill, 470
U.S. at 544, 105 S.Ct. at 1494 (because
     government's interest in immediate termination of
     security guard who had lied when seeking employment did
     not outweigh employee's interest in retaining employment,
     pre-termination hearing was required) with FDIC v.
     Mallen, 486 U.S. 230, 108 S.Ct.1780, 1787-88, 100 L.Ed.2d
     265 (1988) (because government had substantial interest
     in suspending indicted bank official to protect bank and
     depositors, a post-suspension hearing within a reasonable
     time was sufficient).

           Bradley received no hearing, either before or after
     the suspension, and hence if he was suspended, as the
     record suggests, he was deprived of due process.
913 F.2d at 1078. In my view, far from implying anything, the
Bradley panel expressly reserved decision on the issue presented in
this case.
     I would resolve that issue in this case by following the great
weight of federal appellate authority cited above and holding that
whether a pre-suspension hearing was required in this particular
case requires a balancing of the relevant factors. For the reasons
already expressed above, I would hold that in the circumstances of
this case, a pre-suspension hearing was not required and that a
post-suspension hearing within a reasonable time after the
suspension was sufficient. It may be that the university failed to
conduct a sufficiently prompt or adequate post-suspension hearing
after the criminal charges were dismissed on September 1, 1992, but
that is a different question. Moreover, as in Strong, I am not
sure how a pre-suspension hearing on August 26, 1992, would have
made any difference. The only fact important to the university's
decision was whether Homar had been arrested and charged. Homar
did not dispute this, and in fact confirmed it the next day; Homar
was well aware of the reasons for his suspension. As in Strong,
the hearing required by the majority would have been "an empty
formality." See Strong, 902 F.2d at 212.
     C. I have one final problem with the section of the majority
opinion dealing with the need for a pre-suspension hearing. The
majority assumes that an important government interest requiring
prompt action is what permits an employer to suspend an employee
without a pre-suspension hearing but with pay. I think that this
is inaccurate. It is my understanding that a public employer may
generally suspend a public employee for cause, with pay, and
without a hearing -- even absent an emergency situation -- because
such a suspension does not ordinarily implicate any
constitutionally protected property interest. See, e.g., Hicks v.
City of Watonga, 942 F.2d 737, 746 n.4 (10th Cir. 1991) ("[N]o
property interest was infringed at Mr. Hicks' first round of
hearings when he was suspended and then reprimanded. Mr. Hicks
suffered no loss in pay because of the pre-hearing suspension.
Suspension with pay does not raise due process concerns.")
(citations omitted); Pitts v. Board of Educ. of U.S.D. 305, Salina,
Kansas, 869 F.2d 555, 556 (10th Cir. 1989) (same); see alsoHardiman v.
Jefferson County Bd. of Educ., 709 F.2d 635, 637-38 &
n.2 (11th Cir. 1983) (not deciding but questioning whether
suspension with pay could ever constitute deprivation of property
interest, and opining that "bad-faith" suspension with pay might
infringe liberty interest); Koelsch v. Town of Amesbury, 851 F.
Supp. 497, 500 (D. Mass. 1994) ("A public employee's suspension
with pay does not implicate a constitutionally protected property
interest.") (citations omitted). Under the majority's reasoning,
the important government interest requiring prompt action is
rendered a nullity because it simply allows the employer to do what
it could do in a typical non-emergency, for-cause suspension
situation, i.e., suspend the employee with pay.

                               II.
     Although I do not disagree with the majority's determination
that a remand is in order on Homar's substantive due process claim,
I write separately to set forth my views on the viability of that
claim. I do not think that a plaintiff has a substantive due
process claim for a non-legislative deprivation of a state-created
property right by a public employer. Moreover, if Homar has a
substantive due process claim in this context, it seems to me that
he must show that the employer's actions were not rationally
related to a legitimate government interest; mere allegations of
bad faith cannot suffice.
     A. Neither the Supreme Court nor this court has previously
held that a plaintiff has a substantive due process claim for a
non-legislative deprivation of a state-created property interest by
a public employer. The Eleventh Circuit recently overruled a
decade of its own decisions recognizing such claims. McKinney v.
Pate, 20 F.3d 1550 (11th Cir. 1994) (en banc), cert. denied, 115 S.
Ct. 898 (1995); see also Rivkin v. Dover Twp. Rent Leveling Bd.,
671 A.2d 567 (N.J. 1996). Essentially for the reasons stated in
McKinney, which I find persuasive, I believe that Homar's
allegations state only procedural due process claims.
     In McKinney, the Eleventh Circuit considered the following
issue: "whether, under the Fourteenth Amendment, a government
employee possessing a state-created property interest in his
employment states a substantive due process claim, rather than a
procedural due process claim, when he alleges that he was deprived
of the employment interest by an arbitrary and capricious non-
legislative government action." Id. at 1553. Sitting en banc, a
unanimous Eleventh Circuit answered "no," and in an effort to bring
its cases back into line with Supreme Court precedent, overruled a
decade of its prior decisions. The court held that "in non-
legislative cases, only procedural due process claims are available
to pretextually terminated employees." Id. at 1560; see alsoRivkin, 671
A.2d at 577 (plaintiffs' purported substantive due
process claim "is much closer to a procedural due process claim" in
that it "amounts to an allegation that the State failed to furnish
an impartial tribunal, which `is a matter of procedural, not
substantive, due process'") (citations omitted).
     Two aspects of the Eleventh Circuit's opinion in McKinney bear
emphasis here. First, the court concluded that allegations of
arbitrary and capricious action by governmental employers affecting
an individual's property interest in public employment "will not
make out a substantive due process claim under the jurisprudence of
the Supreme Court . . . because only procedural issues are
implicated." Id. at 1559 (emphasis in original); see also id. at
1561 ("McKinney's allegation is procedural: the County failed to
provide one of the elements of procedural due process -- an
unbiased decisionmaker."). I agree, as I discuss further below.
     Second, crucial to the court's decision was the distinction
between legislative acts and non-legislative or executive acts.
Executive acts, such as employment decisions, typically apply to
one person or to a limited number of persons, while legislative
acts, generally laws and broad executive regulations, apply to
large segments of society. Id. at 1557 n.9. The court criticized
its prior decision in Hearn v. City of Gainesville, 688 F.2d 1328
(11th Cir. 1982) -- its first case to apply substantive due process
analysis to an arbitrary termination claim -- because "[i]n that
case, where a terminated employee challenged an executive act, we
cited Nebbia [v. New York, 291 U.S. 502 (1934)], where a
legislative act (to wit, a law) was at issue." Id. at 1558 n.14.
The court added that "[i]t is imperative that a stricter
segregation of these two distinct case-categories be maintained."
Id. The court indicated that rational basis review under the
substantive component of the Due Process Clause is appropriate only
in the context of challenges to legislative action. Id. at 1557-58
& nn. 9 & 14; see also TRM, Inc. v. United States, 52 F.3d 941, 945
& n.17 (11th Cir. 1995) (applying rational basis review to
substantive due process challenge to regulation under Food Stamp
Act and noting that "[t]his standard is not affected by our
decision in McKinney" because "[t]he holding of that case was
specifically limited to substantive due process challenges to non-
legislative acts") (citations omitted); Sullivan Properties, Inc.
v. City of Winter Springs, 899 F. Supp. 587, 594-96 (M.D. Fla.
1995) (considering the impact of McKinney on substantive due
process challenges in the area of zoning and the granting of
building permits; concluding that there is a "substantive due
process cause of action for arbitrary and unreasonable zoning
ordinances" but not for "substantive due process claims
[challenging] executive acts granting or denying a particular
building permit application"). I again agree.
     Like the prior decisions in the Eleventh Circuit, a decision
allowing Homar to maintain a substantive due process claim based on
an allegation of bad faith would elevate Homar's procedural
challenges to substantive due process status. Assuming that there
is a factual issue regarding whether defendants acted in bad faith,
I question the wisdom of recognizing a substantive due process
claim where a university fails to provide adequate procedural due
process and where the way in which procedural due process is denied
could give rise to an inference of bad faith. This sort of
"substantive procedural due process claim" is precisely what
troubled both the Eleventh Circuit in McKinney and a unanimous New
Jersey Supreme Court in Rivkin, and I would not recognize such a
claim. It seems to me that Homar's claim is clearly procedural and
should be recognized as such.
     Further, the cases upon which Homar relies essentially derive
-- as is discussed more fully below -- from Pace Resources, Inc. v.
Shrewsbury Tp., 808 F.2d 1023 (3d Cir.), cert. denied, 482 U.S. 906
(1987), and Rogin v. Bensalem Tp., 616 F.2d 680, 689 (3d Cir.
1980), cert. denied, 450 U.S. 1029 (1981), both of which involve
challenges to zoning ordinances and thus challenges to legislative
acts. The cases that have applied Pace Resources and Rogin in
challenges to non-legislative acts have, in my view, fallen into
the trap identified by the Eleventh Circuit in McKinney. I would
not extend them into the public employment setting.
     B. Assuming for the sake of argument that there is a
substantive due process claim for arbitrary and capricious non-
legislative actions by public employers and that Homar's interest
in his position as a campus police officer constituted a "property"
interest for substantive due process purposes, I nonetheless
conclude that Homar seeks application of the wrong standard in
evaluating his claim. Under true rational basis review -- which is
the most that Homar is entitled to where he is asserting the
violation of a non-fundamental, state-created property interest --
I think that Homar failed to create a fact issue as to whether the
university violated his substantive due process rights.
     The appropriateness of summary judgment as to Homar's
substantive due process claim requires consideration of what Homar
must show to establish a substantive due process violation. Homar
argues that our cases hold that a plaintiff can establish a
substantive due process violation by proving that the government's
actions were motivated by bias, bad faith, or improper motive.
Homar contends that a public employee who suffers an adverse
employment decision may maintain a substantive due process claim
against the public employer by showing (1) that the employer's
actions were not rationally related to a legitimate government
interest or (2) that the employer's actions were motivated by (a)
bias, (b) bad faith, or (c) improper motive. I do not agree.
     First, as I alluded to above, we have never applied this test
in the public employment context, and I would not extend this test
to this context, whatever its appropriateness in other contexts.
Further, it seems to me that the statements in our opinions
regarding the nature of rational basis review in substantive due
process cases have evolved in a strange and, I think, unintended
way. Beginning with unobjectionable descriptions of classical
rational basis review, our opinions eventually reached the point of
suggesting that a plaintiff can state a substantive due process
claim merely by alleging that an individual decision resulting in
the deprivation of a property right was taken in bad faith. The
Supreme Court has never sanctioned such a broad proposition, and I
am confident that this cannot be the law. If a plaintiff like
Homar has a substantive due process claim in this context, it seems
to me that he must show that the employer's actions were not
rationally related to a legitimate government interest and that
mere allegations of bad faith cannot suffice.
     In Pace Resources, Inc. v. Shrewsbury Tp., 808 F.2d 1023 (3d
Cir.), cert. denied, 482 U.S. 906 (1987), plaintiff challenged a
municipality's land use restrictions on substantive due process
grounds. In describing the "narrow review" over zoning ordinances,
we quoted our prior decision in Rogin v. Bensalem Tp., 616 F.2d
680, 689 (3d Cir. 1980), cert. denied, 450 U.S. 1029 (1981):
     "The test for determining whether a law comports with
     substantive due process is whether the law is rationally
     related to a legitimate state interest. `[T]he law need
     not be in every respect logically consistent with its
     aims to be constitutional. It is enough that there is an
     evil at hand for correction, and that it might be thought
     that the particular legislative measure was a rational
     way to correct it.'"
808 F.2d at 1034 (quoting Rogin, 616 F.2d at 689) (quoting
Williamson v. Lee Optical, 348 U.S. 483, 487-88 (1955)) (brackets
in Rogin). We explained that "[a] plaintiff making a substantive
due process claim in federal court has the burden of showing that
the regulation is arbitrary or irrational. Thus to state a claim,
Pace's complaint would have to allege facts that would support a
finding of arbitrary or irrational legislative action by the
Township." Id. at 1035 (citations omitted). After concluding that
"Pace's complaint fails to make any factual allegations that
indicate irrationality" and that "Pace does not present a case
involving actions aimed at this developer for reasons unrelated to
land use planning," we concluded that "[b]ecause it appears on the
face of the amended complaint that the Township decisionmakers
could have had rational reasons for the decisions contested here
and because that complaint alleges no facts suggesting
arbitrariness, it fails to state a substantive due process claim
upon which relief can be granted." Id. at 1035-36 (citation
omitted).
     In Bello v. Walker, we noted the rational basis review
articulated in Pace Resources, but we focused on the language from
Pace stating that the plaintiff there did not allege "actions aimed
at this developer for reasons unrelated to land use planning."
Bello v. Walker, 840 F.2d 1124, 1129 (3d Cir.) (citation omitted),
cert. denied, 488 U.S. 851 (1988). We thus distinguished Pace
Resources and announced as follows:
          We need not define, at this juncture, the outer
     limits of the showing necessary to demonstrate that a
     governmental action was arbitrary, irrational, or tainted
     by improper motive. The plaintiffs in this case
     presented evidence from which a fact finder could
     reasonably conclude that certain council members, acting
     in their capacity as officers of the municipality
     improperly interfered with the process by which the
     municipality issued building permits, and that they did
     so for partisan political or personal reasons unrelated
     to the merits of the application for the permits. These
     actions can have no relationship to any legitimate
     governmental objective, and if proven, are sufficient to
     establish a substantive due process violation actionable
     under section 1983.
Id. at 1129-30 (footnote omitted).
     Next, the panel in Midnight Sessions paraphrased Bello and
stated that "a plaintiff may maintain a claim of substantive due
process violation upon allegations that the government deliberately
and arbitrarily abused its power." Midnight Sessions, Ltd. v. City
of Phil., 945 F.2d 667, 683 (3d Cir. 1991) (citation omitted),
cert. denied, 503 U.S. 984 (1992). "Thus, allegations that the
government's actions in a particular case were motivated by bias,
bad faith, or improper motive . . . may support a finding of
substantive due process violation." Id. (citing Bello and Pace
Resources).
     In Parkway Garage, Inc. v. City of Phil., 5 F.3d 685, 692 (3d
Cir. 1993), we explained that "[s]ubstantive due process protects
citizens from arbitrary and irrational acts of government." Id. at
692 (citing Rogin v. Bensalem Tp., 616 F.2d 680, 689 (3d Cir.
1980), cert. denied, 450 U.S. 1029 (1981)). We then stated the
following test (which is the test quoted by the parties in this
case): "A violation of substantive due process rights is proven:
(1) if the government's actions were not rationally related to a
legitimate interest; or (2) `if the government's actions in a
particular case were in fact motivated by bias, bad faith or
improper motive.'" Id. (citation omitted); see also Blanche Road
Corp. v. Bensalem Tp., 57 F.3d 253, 263 (3d Cir.), cert. denied,
116 S. Ct. 303 (1995).
     From Rogin to Parkway Garage, then, we have moved from
inquiring merely whether a legislative act survived pure rational
basis review to inquiring whether actions by specific defendants
vis-a-vis a specific plaintiff were somehow improper. It seems to
me that our cases began looking to governmental conduct that might
prove a lack of rational basis, but we have now set forth an
entirely separate test for evaluating substantive due process
claims that is independent of standard rational basis review. Seealso
Rivkin, 671 A.2d at 576-77 (declining to follow DeBlasio and
Bello and stating that "[i]t is a mistake . . . to equate the
concept of `arbitrary and irrational' governmental land use
decisions with the substantive component of the Due Process Clause
of the Fourteenth Amendment"). In my view, the court should take
the next available opportunity to clarify that the appropriate test
is true rational basis review.
     If we are to recognize substantive due process claims in the
public employment context -- which, for the reasons discussed
above, I think would be a mistake -- then, in my view, we should
ask merely whether the plaintiff can show that the employer's
actions were not rationally related to a legitimate government
interest. It should not be enough to allege bad faith by a single
governmental actor; the overall conduct complained of must be
unrelated to any legitimate governmental interest. If this mode of
analysis is applied to this case, I think that it is clear that the
university's actions were rationally related to its legitimate
interests, and, indeed, Homar does not contend otherwise.
     C. In sum, substantive due process applies where there is a
fundamental right at stake or legislation is challenged as having
no rational relationship to any legitimate government interest.
Here, plaintiff suggests no fundamental right within the meaning of
the substantive component of the Due Process Clause; nor is
plaintiff challenging a legislative act on rational-basis grounds.
In my view, then, plaintiff has no substantive due process claim on
the undisputed facts presented.

                               III.
     For the foregoing reasons, I respectfully dissent from the
majority's conclusion, set forth in section III.A, that Homar had
a right to a hearing prior to his suspension. Although I join in
section IV of the opinion remanding the substantive due process
issue to the district court, I do not believe that Homar's
substantive due process claim should survive a motion for summary
judgment on remand.
