                                                             NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                     No. 12-2792
                                    _____________

                                  WILLIAM BRACE,
                                           Appellant

                                           v.

                           COUNTY OF LUZERNE;
         LUZERNE COUNTY EMPLOYEES’ RETIREMENT SYSTEM;
                LUZERNE COUNTY RETIREMENT BOARD;
                MARYANNE C. PETRILLA, Chairman/Trustee,
                    Individually and in her official capacity;
      THOMAS J. COONEY, Trustee, Individually and in his official capacity;
       STEPHEN A URBAN, Trustee, Individually and in his official capacity;
     WALTER I. GRIFFITH, JR, Trustee, Individually and in his official capacity.;
      MICHAEL MORREALE, Trustee, Individually and in his official capacity
                                   ________

                   On Appeal from the United States District Court
                       for the Middle District of Pennsylvania
                                 (No. 3:11-cv-02101)
                      District Judge: Hon. A. Richard Caputo

                                Argued: January 16, 2013

             Before: SMITH, CHAGARES, and BARRY, Circuit Judges.

                                (Filed: August 13, 2013)


Carl J. Poveromo [ARGUED]
Rinaldi & Poveromo
520 Spruce Street
P.O. Box 826
Scranton, PA 18501-0000
        Counsel for Appellant
Howard R. Flaxman [ARGUED]
Robert S. Tintner
Beth L. Weisser
Fox Rothschild
2000 Market Street
20th Floor
Philadelphia, PA 19103

Joel M. Wolff [ARGUED]
David Z. Lantz
Elliott Greenleaf & Dean
39 Public Square
Suite 1000
Wilkes-Barre, PA 18701

Donald G. Karpowich
Sean W. Logsdon
Kevin M. Walsh, Jr.
85 Drasher Road
Drums, PA 18222
      Counsel for Appellees

                                      ____________

                                        OPINION
                                      ____________

CHAGARES, Circuit Judge.

       William Brace appeals an order of the District Court for the Middle District of

Pennsylvania granting a motion to dismiss his lawsuit against the County of Luzerne, the

Luzerne County Employees’ Retirement System, the Luzerne County Retirement Board,

and several individuals (collectively, “the defendants”) for the alleged violation of

Brace’s constitutional rights in connection with the termination of his retirement benefits.

Because we hold that the defendants did not violate Brace’s substantive and procedural

due process rights, we will affirm the District Court’s order.

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                                              I.

       As we write solely for the benefit of the parties, we set out only the facts that

relate to our disposition. Brace was appointed Deputy Clerk of Courts with the Office of

the Clerk of Courts in and for Luzerne County, Pennsylvania on October 3, 2001. This

position required him to become a member of the Luzerne County Employees’

Retirement System and to contribute to the System’s fund. Brace served as Deputy Clerk

of Courts until April 2005, when he was appointed to the position of Deputy Chief Clerk

of the Board of Luzerne County Commissioners. He served as Deputy Chief Clerk until

he retired on November 4, 2008, and he then filed an application for retirement benefits

with the Retirement Board, which was approved.

       On January 6, 2010, Brace pleaded guilty in the District Court for the Middle

District of Pennsylvania to having violated 18 U.S.C. § 666(a)(1)(B), a federal statute

that criminalizes, among other things, “corruptly . . . accept[ing] or agree[ing] to accept,

anything of value from any person, intending to be influenced or rewarded in connection

with any business, transaction, or series of transactions of such organization, government,

or agency involving any thing of value of $5,000 or more.” The activity underlying the

conviction was Brace’s acceptance, while he was Deputy Chief Clerk, of a “tailor-made,

monogrammed suit, with an approximate value of less than $1,500.00.” Appendix

(“App.”) 14. Brace received the suit “as a reward for supporting the efforts of a

contractor who entered into a contract with Luzerne County.” Id.

       Brace received regular payment of his benefits after his retirement. However,

upon entry of his guilty plea in federal court on January 6, 2010, the Retirement Board

                                              3
terminated Brace’s benefits, pursuant to the Pennsylvania Public Employee Pension

Forfeiture Act (“PEPFA”), 43 Pa. Cons. Stat. § 1313(a). That statute mandates that

public employees guilty of a crime related to public employment forfeit their entitlement

to retirement benefits. Specifically, it provides that:

       Notwithstanding any other provision of law, no public official or
       public employee nor any beneficiary designated by such public
       official or public employee shall be entitled to receive any retirement
       or other benefit or payment of any kind except a return of the
       contribution paid into any pension fund without interest, if such
       public official or public employee is convicted or pleads guilty or no
       defense to any crime related to public office or public employment.

43 Pa. Cons. Stat. § 1313(a). The PEPFA explicitly lists Pennsylvania state crimes that

qualify as “crime[s] related to public office or public employment,” and it provides that it

“also includes all criminal offenses as set forth in Federal law substantially the same as

the crimes enumerated herein.” Id. § 1312. The Luzerne County Retirement Board held

that § 666(a)(1)(B), the federal crime to which Brace pleaded guilty, is “substantially the

same” as the Pennsylvania crime of “Bribery in Official and Political Matters,” which is

enumerated in § 1312 of the PEPFA. 18 Pa. Cons. Stat. § 4701; see also 43 Pa. Cons.

Stat. § 1312. Interpreting this provision, the Retirement Board held that Brace had

forfeited his right to retirement benefits, and terminated his retirement benefits.

       Brace sued Luzerne County, the Retirement Board, the Employees’

Retirement System, and assorted individuals and trustees, pursuant to 42 U.S.C. § 1983.

As is relevant to this appeal, he alleged violations of his substantive and procedural due

process rights under the Fourteenth Amendment to the United States Constitution. He

claims that 18 U.S.C. § 666(a)(1)(B) is not substantially the same as 18 Pa. Cons. Stat. §

                                              4
4701. Brace further argues that he has a fundamental property interest in his retirement

benefits, such that it was a violation of his right to substantive due process to strip him of

those benefits. Moreover, he claims that the fact that his benefits were terminated

without a hearing deprived him of his right to procedural due process.

       Finding that the Retirement Board correctly determined that 18 U.S.C. §

666(a)(1)(B) is substantially the same as 18 Pa. Cons. Stat. § 4701, the District Court

held that both of Brace’s due process claims were without merit at the motion-to-dismiss

stage. The District Court determined that Brace has no fundamental interest in retirement

benefits that would have invoked his substantive due process rights, and also held that,

even if such an interest existed, the termination of Brace’s benefits did not meet the high

“shocks the conscience” standard required for Brace’s substantive due process claim to

succeed. The District Court further held that Brace’s procedural due process rights were

not violated because Brace had no protected property interest in his retirement benefits.

                                              II.

       The District Court had jurisdiction over this matter under 28 U.S.C. §§ 1331,

1343, and 1367, because allegations in Brace’s complaint arise under the United States

Constitution and seek to recover damage for civil rights violations. This Court has

jurisdiction over the appeal pursuant to 28 U.S.C. § 1291.

       We exercise plenary review of the District Court’s grant of a motion to dismiss.

Santiago v. GMAC Mortg. Grp., Inc., 417 F.3d 384, 386 (3d Cir. 2005). “To survive a

motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to

state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678

                                              5
(2009) (quotation marks omitted). “A claim has facial plausibility when the plaintiff

pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Id.

       We note at the outset of our analysis that this matter is not before the Court for

review of the Retirement Board’s decision that Brace’s federal crime is substantially the

same as a state crime enumerated in the PEPFA. Rather, because Brace has brought a

lawsuit under § 1983, this Court is tasked only with examining whether the defendants, in

terminating Brace’s retirement benefits, violated his substantive and procedural due

process rights. Accordingly, although the District Court’s opinion reviews the

Retirement Board’s decision, and the parties have briefed this case as though such a

challenge is before us, we do not consider the merits of the Retirement Board’s decision

to terminate Brace’s retirement benefits in our review of the defendants’ conduct in

effecting that termination.

                                              A.

       In order to show a violation of his or her substantive due process rights, a plaintiff

must show, first, that “the particular interest at issue is protected by the substantive due

process clause,” and that “the government’s deprivation of that protected interest shocks

the conscience.” Chainey v. Street, 523 F.3d 200, 219 (3d Cir. 2008). Even if it were

possible for Brace to show that he had the necessary fundamental interest in his

retirement benefits, Nicholas v. Pa. State Univ., 227 F.3d 133, 139-40 (3d Cir. 2000)

(“To prevail on a non-legislative substantive due process claim, a plaintiff must establish

as a threshold matter that he has a protected property interest to which the Fourteenth

                                              6
Amendment’s due process protection applies,” which requires a showing that the interest

is of a “particular quality” that is “fundamental under the United States Constitution.”)

(quotation marks omitted), nevertheless the conduct of the defendants in terminating

those benefits does not shock the conscience. Conscience-shocking conduct requires

even more than alleged “improper motive” — and Brace has not even alleged that here.

Chainey, 523 F.3d at 220. “[O]nly the most egregious official conduct” is said to shock

the conscience, id. at 219, and this Court has acknowledged in the land-use context that

such a high standard “prevents us from being cast in the role of a zoning board of

appeals.” United Artists Theatre Cir., Inc. v. Twp. of Warrington, Pa., 316 F.3d 392, 402

(3d. Cir. 2003) (quotation marks omitted). Likewise, in reviewing Brace’s case,

application of the shocks-the-conscience standard prevents the Court from being cast as a

retirement board of appeals — and it lucidly shows that Brace’s substantive due process

rights have not been violated.

                                             B.

       We also hold that Brace’s procedural due process rights have not been violated by

the Retirement Board’s decision. “A procedural due process claim is subject to a two-

stage inquiry: (1) whether the plaintiff has a property interest protected by procedural

due process, and (2) what procedures constitute due process of law.” Schmidt v.

Creedon, 639 F.3d 587, 595 (3d Cir. 2011) (quotation marks omitted).

       Because our analysis of the second stage of this inquiry resolves the matter, we

need not consider whether Brace had a property interest in his pension for procedural due

process purposes. That is, we hold that Brace was not entitled to a hearing before the

                                             7
Retirement Board made its decision to terminate his benefits. Procedural due process

contemplates an individual’s right to a hearing where he or she is afforded the

opportunity to produce evidence that could “refute the charge” and “clear his name.”

Codd v. Velger, 429 U.S. 624, 627 (1977). In Brace’s case, such an evidentiary hearing

would have served no purpose since Brace does not dispute facts underlying the

Retirement Board’s decision to apply the PEPFA. See Mathews v. Eldridge, 424 U.S.

319, 335 (1976) (requiring the court to consider “the probable value, if any, of additional

or substitute procedural safeguards” when deciding whether a hearing is necessary before

a property right is given away). Brace concedes (as he must), that he pleaded guilty to a

violation of 18 U.S.C. § 666(a)(1)(B). Consequently, Brace claims that he was entitled to

a pre-termination hearing that concerned only the Retirement Board’s legal conclusion

that § 666(a)(1)(B) is substantially the same as an enumerated state crime. He cites no

authority for the proposition that procedural due process provides a right to a pre-

deprivation hearing on a purely legal issue. And as the Supreme Court has explained, “if

the hearing mandated by the Due Process Clause is to serve any useful purpose, there

must be some factual dispute between an employer and a discharged employee.” Codd,

429 U.S. at 627 (emphasis added); see also Alvin v. Suzuki, 227 F.3d 107, 121 (3d Cir.

2000) (“[T]here was simply no factual dispute that a pre-deprivation notice or hearing

could have addressed.”).

       It also appears that procedures through which Brace might have challenged the

Retirement Board’s decision were available after his benefits were terminated. As was

established at oral argument, Brace might have appealed the Retirement Board’s decision

                                             8
in Pennsylvania’s own courts, a course of action that would have afforded him review of

the merits of the Board’s decision.

                                            IV.

       For the foregoing reasons, we will affirm the District Court’s order dismissing the

case for failure to state a claim upon which relief can be granted.




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