                                                           NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                              ______________

                                      No. 19-1180
                                    ______________

                                   NELSON OCASIO

                                           v.

              MAYOR MICHAEL CIACH; COUNCIL PRESIDENT
             CHRISTINE PETERSON; THE BOROUGH OF UPLAND

             Mayor Michael Ciach, Council President Christine Peterson,

                                                           Appellants
                                    ______________

                   On Appeal from the United States District Court
                      for the Eastern District of Pennsylvania
                           (D.C. Civ. No. 2-17-cv-00755)
                     Honorable J. Curtis Joyner, District Judge
                                 ______________

                              Argued February 5, 2020

           BEFORE: SHWARTZ, SCIRICA, and COWEN, Circuit Judges

                                 (Filed: March 10, 2020)
                                    ______________

Joseph S. Oxman (argued)
Oxman Goodstadt Kuritz
1015 Chestnut Street
Suite 1500
Philadelphia, PA 19107

  Attorney for Appellee

Robert P. DiDomenicis (argued)
Mark A. Raith
Holsten & Associates
One Olive Street
Media, PA 19063

   Attorneys for Appellants
                                     ______________

                                        OPINION ∗
                                     ______________

COWEN, Circuit Judge.

       Defendants Michael Ciach and Christine Peterson (“Appellants”) appeal from the

order of the United States District Court for the Eastern District of Pennsylvania denying

Defendants’ motion for summary judgment as to the procedural due process and related

conspiracy claims against Appellants. Because we conclude that they are entitled to

qualified immunity, we will vacate the District Court’s order to the extent that it denied

the motion for summary judgment as to the claims against Appellants and will remand

with instructions for the District Court to grant the summary judgment motion as to those

claims (without prejudice to any rights or remedies Ocasio may possess under state law).

Because this opinion resolves all pending claims, we further instruct the District Court to

dismiss the complaint.

                                             I.

       This case arises out of Plaintiff Nelson Ocasio’s termination as Police Chief of

Upland Borough, Pennsylvania (“Upland”). At the time of his termination, Ciach was

Mayor of Upland, and Peterson served as both a member of Upland’s Borough Council

       ∗
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
                                             2
and an Upland Police Department Administrative Assistant. Ocasio alleged, inter alia,

that Appellants and Upland (“Defendants”) violated his pre-deprivation procedural due

process rights under the Fourteenth Amendment and Cleveland Board of Education v.

Loudermill, 470 U.S. 532 (1985).

       The District Court denied Defendants’ motion for summary judgment as to

Ocasio’s procedural due process claim against Appellants in their individual capacities.

Specifically, the District Court observed that Ocasio did not attend the Loudermill

hearing conducted by the Borough Public Safety Committee on February 23, 2016

(although a Fraternal Order of Police attorney evidently did attend the hearing on his

behalf). 1 He also did not attend either a second Loudermill hearing held on November 2,

2016 or the Borough Council’s vote on November 16, 2016 terminating his

employment. 2 According to the District Court, Ocasio argued that the process he was

afforded was biased against him. However, the District Court held that “case law shows

that where a plaintiff fails to take advantage of the hearings he was provided, his pre-

deprivation due process claim will not survive summary judgment on the bare allegation

that bias infected one stage of his hearings.” Ocasio v. Ciach, No. 17-cv-755, 2019 WL

158280, at *5 (E.D. Pa. Jan. 10, 2019). The District Court also held that it had to “assess

the content of the notice provided to Plaintiff in order to determine whether his

opportunity to be heard was ‘meaningful’ under Loudermill.” Id. The District Court


       1
         According to Ocasio’s deposition testimony, his attorney told him that he did not
have to attend the hearing because he was suspended.
       2
         Peterson abstained from voting, and, as Mayor, Ciach could only vote if there
were a tie.
                                             3
acknowledged that the letters notifying Ocasio that Ciach would be recommending to the

Borough Council his termination explained in detail the evidence against him. 3


       3
          Specifically, the February 17, 2016 letter from Ciach recommended Ocasio’s
reassignment to Deputy Chief because of the following issues: (1) “Missing Camera
System;” (2) “Dan Smith” (the Fire Chief who allegedly resigned from the Borough
Council as a result of duress by Ocasio); (3) “Over Budget Payroll,” (4)
“Unexplainable Administrative Pay;” (5) “Questionable Personnel
Recommendations to Council;” (6) an allegedly unauthorized “Department
Evaluation Report;” and (7) “Collection of Funds to provide Christmas Gifts to a
Juvenile Crime Victim” (for which no accounting was allegedly provided) (A34-A36).
See also Ocasio, 2019 WL 158280, at *5 (“Defendant Ciach also testified that he typed
this letter, summarizing his concerns with Plaintiff Ocasio’s 2015 performance, on
February 9, 2016 (the date located on the second page of the letter) then updated the letter
on February 17th.” (citing A31)). In a February 22, 2016 letter, Ciach immediately
suspended Ocasio until the next Borough Council meeting:

       As a direct result of you [sic] willful disrespect and disobedience of a direct
       request and order to answer questions regarding your authority to order our
       vendor (Logan Technology, Tom Willard) to lockout Members of Council,
       Detective Irey and myself from the police department, and your threatening
       response to the same by stating “Mike, you have 5 seconds to get away
       from me” as witnessed by Officers VanHorn, DeLuise, Dougherty & Irey;
       you are immediately suspended until the next Council meeting by my
       authority under the Borough Code as Mayor.

(A38.) An addendum letter dated February 23, 2016 purported to summarize what had
occurred since February 18 and set forth additional charges for “FAILURE TO OBEY A
DIRECT ORDER/THREATENING SUPERIOR” and “REMOVAL OF BOROUGH
PROPERTY.” (A40.) According to Ciach, “I am amending my February 17th
recommendation to a recommendation to Council that you be suspended with the intent
to terminate pending the outcome of investigation.” (Id. (“I will recommend that the
suspension with intent to terminate be without pay.”).) “[T]he Borough Public Safety
Committee will hold a Loudermill meeting to receive my recommendations and provide
you an opportunity to respond to them on FEBRUARY 23rd at 4:30 p.m. in the Borough
Hall.” (A41.)

       A November 1, 2016 letter from the Chair of the Public Safety Committee notified
Ocasio that another Loudermill hearing would be conducted on November 2, 2016 at
4:00 p.m. “The Public Safety Committee will base its final disciplinary recommendation
on the conclusions set forth in the attached summary of the Buchanan Ingersoll
                                              4
However, Ocasio essentially challenged “the validity” of the accusations. Id. (internal

quotation mark omitted) (quoting Pl. Opp. at 10). In response to this contention, the

District Court found, as a matter of law, that “the content of the notice plaintiff received

before his pre-termination Loudermill hearings took place—its veracity and its

specificity—is material to whether Mr. Ocasio was provided sufficient due process.” Id.

at *6. Having reached this legal conclusion, the District Court ultimately rejected

Appellants’ argument that they are entitled to qualified immunity, reasoning that “where

it is in dispute whether Defendants Ciach and Peterson violated Plaintiff’s right to pre-

deprivation procedural due process – including notice – ‘has been clearly established for

many years,’ we find that Defendants are not entitled to qualified immunity.” 4 Id. at *7

(citation omitted) (quoting Yelland v. Abington Heights Sch. Dist., No. 3:16-cv-2080,

2018 WL 3217643, at *9 (M.D. Pa. Jul. 2, 2018)).

                                             II.

       It is well established that the qualified immunity doctrine “is guided by two

questions: (1) did the government actor violate a constitutional right? and (2) was that

investigation report” (A50). See also Ocasio, 2019 WL 158280, at *3 (noting that Ocasio
called into question investigation’s independence on grounds of Ciach’s relationship with
head investigator).
        4
          The District Court also denied Defendants’ motion for summary judgment as to
Ocasio’s individual-capacity claim that Ciach and Peterson conspired to deprive him of
procedural due process. It did grant the summary judgment motion as to the remaining
due process claim against Upland. We further note that the District Court previously
granted Defendants’ motion to dismiss all official-capacity claims, the First Amendment
retaliation and Pennsylvania Whistleblower Act claims, and claims of conspiracy to
violate the First Amendment and the Whistleblower Act. The only claims at issue on
appeal are the individual-capacity procedural due process count against Appellants as
well as the individual-capacity claim against them for conspiracy to violate Ocasio’s
procedural due process rights.
                                              5
right ‘clearly established’ at the time of the challenged conduct?” Baloga v. Pittston Area

Sch. Dist., 927 F.3d 742, 762 (3d Cir. 2019) (citing Dougherty v. Sch. Dist. of Phila., 772

F.3d 979, 986 (3d Cir. 2014)). Ocasio challenges our jurisdiction over this appeal. 5

However, we have appellate jurisdiction over a denial of qualified immunity that rests on

an issue of law as opposed to a factual dispute. See, e.g., Mammaro v. N.J. Div. of Child

Protection & Permanency, 814 F.3d 164, 168 (3d Cir. 2016). Accordingly, “we lack

jurisdiction to consider whether the district court correctly identified the set of facts that

the summary judgment record is sufficient to prove.” Ziccardi v. City of Phila., 288 F.3d

57, 61 (3d Cir. 2002) (footnote omitted) (citing Eddy v. V.I. Water & Power Auth., 256

F.3d 204, 208 (3d Cir. 2001)). “[B]ut we possess jurisdiction to review whether the set of

facts identified by the district court is sufficient to establish a violation of a clearly

established constitutional right.” Id. (footnote omitted) (citing Eddy, 256 F.3d at 208).

       This appeal implicates the fundamental legal question of whether the District

Court identified the correct legal principles. We accept for purposes of this appeal that

the District Court correctly set forth the “facts that the summary judgment record is

sufficient to prove.” The District Court held that “[h]ere, although the letters notifying

Defendant Ciach would be recommending to the council that he be terminated as Police

Chief explained in detail the evidence against plaintiff,” there was no basis for Ciach’s

claims against Ocasio (specifically his claims that Ocasio was “Over Budget with

Payroll,” and had “Unexplainable Administrative Pay”), and “‘Ciach admitted that the


       5
        The District Court had subject matter jurisdiction over this 42 U.S.C. § 1983
action pursuant to 28 U.S.C. § 1331.
                                                6
2015 Department Evaluation Report which he claimed was wrongfully authorized by

plaintiff . . . was a total untruth.’” Ocasio, 2019 WL 158280, at *5 (quoting Pl. Opp. at

10). According to the District Court, “the content of the notice was ‘fraudulent’ and mere

pretext for Defendants Ciach’s and Peterson’s retaliatory and discriminatory motives to

terminate him.” Id. We ask whether the District Court “erred when it applied [to this set

of facts] the wrong [legal] standard by adding an element to the due process analysis that

neither the U.S. Supreme Court nor the Court of Appeals for the Third Circuit has ever

required.” (Appellants’ Reply Brief at 1 (citing Ocasio, 2019 WL 158280, at *5-*6).)

We answer this question in the affirmative, concluding that the District Court committed

an error of law by (1) adopting a “veracity/validity” requirement in assessing whether the

content of the letters denied Ocasio a meaningful opportunity to be heard under

Loudermill and (2) holding that this element was clearly established when Ocasio’s pre-

termination process took place. See, e.g., Ziccardi, 288 F.3d at 63 (stating that Court had

appellate jurisdiction to consider argument that plaintiff is required to show defendants

acted with subjective deliberate indifference and that district court did not apply correct

standard).

                                             III.

       It is undisputed that 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.” Loudermill, 470 U.S. at 546 (citing Arnett

v. Kennedy, 416 U.S. 134, 170-71 (1974) (opinion of Powell, J.); id. at 195-96 (opinion

of White, J.)). “[A] sina [sic] qua non of a meaningful hearing is a sufficient explanation

                                              7
of the employer’s evidence to permit a meaningful response.” Fraternal Order of Police

Lodge No. 5 v. Tucker, 868 F.2d 74, 80 (3d Cir. 1989). In Tucker, the district court

found that the plaintiff police officers, before they were discharged for failing to obey an

order to undergo drug testing, were informed that there was a complaint of drug use

involving police officers but were not told anything specific about the drug use

allegations being investigated or the evidence regarding the allegations. Id. “Without

this information plaintiffs and their attorneys, even assuming they were afforded the

opportunity to tell plaintiffs’ side of the story, had no opportunity to explain or rebut the

evidence giving rise to the ‘reasonable suspicion’ of on-duty drug use.” Id. We

accordingly held that “the failure to afford plaintiffs such an opportunity prior to the

deprivation of their property interests in their jobs constituted a denial of their right to

procedural due process.” Id.

       Echoing the District Court, Ocasio acknowledges that “the letters notifying

Appellee that Defendant Ciach would be recommending to the council that Ocasio be

terminated as Police Chief explained in detail the evidence against plaintiff.” (Appellee’s

Brief at 9.) Purporting to apply the Loudermill framework, the District Court and Ocasio

nevertheless go too far by indicating that the veracity or validity of the pre-termination

notice’s description of the employer’s evidence should be considered in deciding whether

the notice’s content provides the employee with a meaningful opportunity to present his

or her side of the story. They do not cite to any case law establishing that the notice must

satisfy some sort of veracity or validity requirement—or any requirement that the notice

must set forth exculpatory evidence or present the employee’s side of the story. On the

                                               8
contrary, the police officers in Tucker were not told “‘anything specific’” about the drug

use allegations or the evidence regarding those allegations. Tucker, 868 F.2d at 80.

       In Jennings-Fowler v. City of Scranton, we likewise determined that the charges

failed to describe the nature of the evidence supporting termination. 680 F. App’x 112,

116 (3d Cir. 2017) (“Here, the second and third charges did not provide the requisite

description: both used boilerplate language to accuse Jennings-Fowler of ‘[t]heft, willful

destruction, willful defacement or willful misuse of City Property[,]’ and ‘intentionally

falsifying or altering any City Record or report[.]’” (alterations in original)). While this

non-precedential decision did refer to defendants’ “explicit lie,” their lie denied the

existence of evidence supporting termination, thereby hindering the plaintiff’s

opportunity to respond to the evidence against him. Id. (“Further, Jennings-Fowler

specifically asked whether any video or photographic evidence existed to support these

charges and was falsely told that it did not.”). Similarly, in Yelland, the district judge

explained that “charges that do not contain the requisite description and that simply use

boilerplate language are not sufficient.” Yelland, 2018 WL 3217643, at *8 (citing

Jennings-Fowler, 680 F. App’x at 116) (further observing that notice was particularly

important given absence of any negative evaluations or incidents in past). The Yelland

court identified genuine issues of material fact as to whether “the plaintiff had notice of

all of the specific grounds and evidence regarding his suspension with pay and, as a

result, whether he was given a chance to tell his full side of the story as to each specific

charge.” Id.

       In the end, the veracity or validity of the charges and evidence against Ocasio

                                              9
could have been considered at the Loudermill hearings themselves. “[The pre-

termination hearing] should be an initial check against mistaken decisions—essentially, a

determination of whether there are reasonable grounds to believe that the charges against

the employee are true and support the proposed action.” Loudermill, 470 U.S. at 545-46

(citing Bell v. Burson, 402 U.S. 535, 540 (1971)). In this case, the letters Ocasio

received did not deprive Ocasio of a meaningful opportunity to present his side of the

story at two subsequent hearings. For instance, he could have then explained how there

was no basis for Ciach’s allegations against him regarding the budget or how Ciach and

Peterson were really motivated by racism. However, Ocasio did not attend the

Loudermill hearings (and he also did not attend the subsequent Borough Council session

that voted to terminate his employment). “‘In order to state a claim for failure to provide

due process, a plaintiff must have taken advantage of the processes that are available to

him or her, unless those processes are unavailable or patently inadequate.’” Ocasio, 2019

WL 158280, at *4 (quoting Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000)). Because

Ocasio “fail[ed] to take advantage of the hearings he was provided, his pre-deprivation

due process claim will not survive summary judgment on the bare allegation that bias

infected one stage of his hearings.” Id. at *5.

       Accordingly, we conclude that the District Court was wrong as a matter of law to

adopt a “veracity/validity” requirement in “assess[ing] the content of the notice provided

to Plaintiff in order to determine whether his opportunity to be heard was ‘meaningful’

under Loudermill,” id. In any event, any such requirement was not clearly established at

the time that the pre-termination process occurred in this case (in fact, both Jennings-

                                             10
Fowler and Yelland were decided after Ocasio was terminated, Jennings-Fowler is a non-

precedential disposition, and Yelland is a district court opinion). 6 See, e.g., Mammaro,

814 F.3d at 170 n.2.

                                            IV.

       For the foregoing reasons, we will vacate the District Court’s order to the extent

that it denied Defendants’ motion for summary judgment as to the procedural due process

and related conspiracy claims against Appellants. We will remand with instructions for

the District Court to grant the summary judgment motion as to those claims—without

prejudice to any rights or remedies Ocasio may possess under state law.




       6
         We also agree with Appellants that Ocasio did not have a valid conspiracy claim
relating to the deprivation of his due process rights because they did not infringe such
rights. Based on our ruling, and that of the District Court when ruling on the motion to
dismiss, no claims remain pending in his case.
                                            11
