                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                _______________

                                      No. 13-4579
                                    _______________

                                   JOHN LOSCOMBE,

                                                          Appellant

                                             v.

           CITY OF SCRANTON; CITY OF SCRANTON, FIRE PENSION
    COMMISSION; FIREMEN’S RELIEF AND PENSION FUND COMMISSION; CITY
    OF SCRANTON COMPOSITE PENSION BOARD; MAYOR CHRIS DOUGHERTY
                            _______________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                             (D.C. Civil No. 3-10-cv-01182)
                      District Judge: Honorable A. Richard Caputo
                                      ____________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  December 9, 2014

       BEFORE: VANASKIE, COWEN AND VAN ANTWERPEN, Circuit Judges

                                 (Filed: January 28, 2015)
                                    _______________

                                       OPINION*
                                    _______________

_______________

*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
COWEN, Circuit Judge.

       The plaintiff-appellant, John Loscombe (“Appellant”), appeals the District Court’s

orders dismissing several of his claims and granting summary judgment on his remaining

claims. We will affirm.

                                              I.

       Because we write solely for the parties, we will only set forth the facts necessary to

inform our analysis.

       Defendants-Appellees in this case fall into two categories. First, the City of

Scranton (the “City”) and Mayor Chris Doherty (together, the “City Defendants”) and

second, the City of Scranton Firemen’s Pension Commission, the Firemen’s Relief and

Pension Fund Commission, and the City of Scranton Composite Pension Board

(collectively, the “Pension Board Defendants” and together with the City Defendants

(“Appellees”)).

       Appellant was a Fire Captain for the City of Scranton (the “City”) until he was

forced to retire due to injuries he sustained in a work-related accident. For his service, he

received a disability retirement pension from the City’s Fire Department. Following his

retirement from the City’s Fire Department, Appellant accepted an offer to serve as a

member of the Scranton City Council. Because Appellant was serving as a City Council

member, the City Defendants directed the Pension Board Defendants to suspend his

pension, which they did. Although not explicit in Appellant’s third amended complaint,

all parties appear to agree that his pension was suspended pursuant to a city ordinance,


                                              2
Section 99-80 a/k/a Section 24 of File of Council No. 14 of 1964 (the “Ordinance”). The

Ordinance provides that:

       When any fireman is pensioned and thereafter enters the service of the City
       in any capacity with compensation the pension of such person shall be
       suspended during his term of service. Upon termination of such
       compensated service the pension payments shall be resumed on request of
       the pensioner.

Scranton, Pa., Code of the City of Scranton, ch. 99, art. V, § 99-80 (1997).

       Appellant raised a series of constitutional claims challenging the Ordinance and

the suspension of his pension benefits. In orders dated August 10, 2012 and May 20,

2013, the District Court dismissed several of these claims, while allowing others to

proceed. In a subsequent order of October 20, 2013, the District Court granted summary

judgment to Appellees on all of the remaining claims. Appellant now seeks review of

these orders.

                                               II.

       We have jurisdiction under 28 U.S.C. § 1291. “We review district court decisions

regarding both summary judgment and dismissal for failure to state a claim under the

same de novo standard of review.” Barefoot Architect, Inc. v. Bunge, 632 F.3d 822, 826

(3d Cir. 2011). “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 (2009) (internal quotation marks omitted). Summary

judgment is proper where, viewing the evidence in the light most favorable to the

nonmoving party and drawing all inferences in favor of that party, there is no genuine


                                                3
dispute as to any material fact and the moving party is entitled to judgment as a matter of

law. Fed. R. Civ. P. 56(a); Kaucher v. Cnty. of Bucks, 455 F.3d 418, 422–23 (3d Cir.

2006). We may affirm on any basis supported by the record. Fairview Twp. v. EPA, 773

F.2d 517, 525 n.15 (3d Cir. 1985).

       A.     Fourteenth Amendment Equal Protection Claim

       At the outset, we find Appellant’s argument that the Ordinance does not apply to

him to be wholly without merit. There is no exception in the Ordinance for individuals

who hold political positions. Nor is it relevant whether Appellant is an employee of the

City. The Ordinance merely requires that an individual be a “fireman [who] is

pensioned” and that he “thereafter enters the service of the City in any capacity.”

Scranton, Pa., Code of the City of Scranton, ch. 99, art. V, § 99-80 (1997). Neither fact

can seriously be disputed.

       Appellant argues that the Ordinance is nonetheless invalid under the Fourteenth

Amendment’s Equal Protection Clause. He claims that the Ordinance should be subject

to heightened scrutiny because it impermissibly interferes both with his right to run for

office and with the voters’ rights. However, “[t]he right to run for office has not been

deemed a fundamental right,” Biener v. Calio, 361 F.3d 206, 215 (3d Cir. 2004) (citing

Bullock v. Carter, 405 U.S. 134, 142-43 (1972)), and Appellant “cannot establish an

infringement on the fundamental right to vote, because voter’s rights are not infringed

where a candidate chooses not to run because he is unwilling to comply with reasonable

state requirements.” Id. (internal quotation marks and citation omitted).


                                             4
       Rather, economic legislation, such as the Ordinance, will be upheld it if bears a

rational relation to a legitimate state objective. Schweiker v. Wilson, 450 U.S. 221, 238

(1981). Here, the Ordinance furthers the legitimate public purpose of preventing “double

dipping” by suspending the pension benefits of retired City firemen who are also

receiving active employment benefits from the City. See Connolly v. McCall, 254 F.3d

36, 42-43 (2d Cir. 2001) (concluding that the disparity of treatment in New York State’s

pension law was a reflection of the state’s legitimate interest in protecting the public fisc

and “saving money by barring pension practices that have the character of ‘double-

dipping’” and therefore did not violate the equal protection clause). The Ordinance,

therefore, does not violate the Equal Protection Clause.

       B.     First Amendment Claims

       Appellant also asserts that the Ordinance violates his First Amendment rights. To

the extent Appellant’s argument is based on a fundamental right to run for office, we have

already rejected that premise. But Appellant additionally argues that by limiting his

ability to run for office, the Ordinance impermissibly infringes on his First Amendment

freedom of association.

       As an initial matter, the District Court properly concluded that the Ordinance is

content neutral. “When determining whether a statute is content neutral, a principal

consideration is whether the government has adopted a regulation of speech because of

disagreement with the message it conveys, or instead, adopted that regulation for some

other purpose collateral to the protected speech.” Free Speech Coal., Inc. v. Attorney


                                              5
Gen. of U.S., 677 F.3d 519, 533 (3d Cir. 2012) (internal quotation marks and citation

omitted). “In other words, the government’s purpose is the controlling consideration, and

a regulation that serves purposes unrelated to the content of expression is deemed neutral,

even if it has an incidental effect on some speakers or messages but not others.” Id.

(internal quotation marks and citation omitted). Notwithstanding Appellant’s arguments

to the contrary, as the District Court correctly noted, there is “no suggestion in the

Ordinance itself or in the [amended complaint] that this law was in any way crafted with

an eye towards suppressing speech or association.” Loscombe, 902 F. Supp. 2d at 544.

       Despite being content neutral, Appellant asserts that the Ordinance should be

found to violate his First Amendment rights. More specifically, he argues that the

Ordinance does not advance any significant state interest and that, even if it does, it is not

narrowly tailored to serve that interest. To be narrowly tailored, a regulation “‘need not

be the least restrictive or least intrusive means of’ furthering the identified interest.”

Johnson v. City and Cnty. of Phila., 665 F.3d 486, 491 (3d Cir. 2011) (quoting Ward v.

Rock Against Racism, 491 U.S. 781, 798 (1989)). Rather, it must simply “‘promote[ ] a

substantial government interest that would be achieved less effectively absent the

regulation.’” Id. (quoting Ward, 491 U.S. at 799).

       The Ordinance meets this standard. The Supreme Court has suggested that states

retain an important interest in protecting the public fisc. See Brock v. Pierce County., 476

U.S. 253, 262 (1986) (noting that state has an interest in protecting the public fisc and that

its “protection . . . is a matter that is of interest to every citizen”); see also C & A


                                                6
Carbone, Inc. v. Town of Clarkstown, N.Y., 511 U.S. 383, 429 (1994) (Souter, J.,

dissenting) (disagreeing with the majority’s invalidation of a state ordinance on the

grounds that it violated the Commerce Clause, in part, because “[p]rotection of the public

fisc is a legitimate local benefit directly advanced by the ordinance and quite unlike the

generalized advantage to local businesses that we have condemned as protectionist in the

past.”). And, as the District Court concluded, the aim of preventing “double dipping”

would be less effectively achieved in the absence of the Ordinance because individuals

like Appellant would be able to simultaneously collect a pension from the City as well as

a salary.

       Persevering, Appellant argues that the Ordinance is unconstitutionally

underinclusive and overinclusive. He argues that the Ordinance is underinclusive because

it singles out disabled public safety pensioners. But as Appellant concedes in discussing

why the Ordinance is overinclusive, the Ordinance does not distinguish between those

receiving disability benefits from those receiving any other kind of public pension.

       Nor is the Ordinance overinclusive. Appellant argues that the Ordinance is

constitutionally infirm because it does not distinguish between those receiving traditional

retirement benefits and those receiving disability benefits. But the statute’s aim of

guarding against double dipping is achieved by including all pensioned firemen,

regardless of the type of pension a particular fireman may be receiving. Cf. Doe v. Pa.

Bd. of Probation and Parole, 513 F.3d 95, 117-18 (3d Cir. 2008) (quoting Vance v.

Bradley, 440 U.S. 93, 108 (1979)) (“‘[E]ven if the classification involved . . . is to some


                                              7
extent both underinclusive and overinclusive, and hence the line drawn by [the

legislature] imperfect, it is nevertheless the rule that . . . perfection is by no means

required.’”) (all alterations but the first in original). The District Court’s orders will

therefore be affirmed in this regard.

       C.     Fourteenth Amendment Due Process Claims

        Appellant raises both substantive and procedural due process claims. Although,

as an initial matter, we will assume, arguendo, that Appellant has a property right in his

disability pension benefits, the District Court correctly dismissed both of these claims.

       As to the substantive due process claim, we note that different standards govern

depending on whether an individual challenges a legislative act or a non-legislative state

action. Compare Am. Express Travel Related Services, Inc. v. Sidamon-Eristoff, 669 F.3d

359, 366 (3d Cir. 2012) (“In a case challenging a legislative act . . . the act must withstand

rational basis review.”), with Evans v. Sec’y Pa. Dep’t of Corr., 645 F.3d 650, 660-62 (3d

Cir. 2011) (applying a “shock the contemporary conscience” test because the challenged

conduct was non-legislative action).

       In dismissing the claim, the District Court appropriately concluded that

Appellant’s claim involved non-legislative action and found it “not patently shocking that

a city would suspend a worker’s pension while they are receiving another stream of

income from that city.” Loscombe v. City of Scranton, 902 F. Supp. 2d 532, 542 (M.D.

Pa. 2012). Nonetheless, even if we were to assume that Appellant’s claim challenged a

legislative act, for the reason expressed by the District Court, it would likewise fail


                                               8
rational basis review.

       Nor can Appellant establish that his procedural due process rights have been

violated because he was not provided with a pre-suspension hearing. We have concluded

on prior occasions that “a pre-termination hearing was not required when there was no

underlying factual dispute to be hashed out in the hearing.” Alvin v. Suzuki, 227 F.3d

107, 121 (3d Cir. 2000) (citing Codd v. Velger, 429 U.S. 624, 627-28 (1977)). Given that

the suspension of Appellant’s pension was based on the Appellees’ statutory reading and

there was no factual dispute to resolve, Appellant cannot demonstrate a violation of his

procedural due process rights due to a lack of a hearing.1 Moreover, to the extent

Appellant argues that he was not afforded any post-suspension process, this claim is

belied by the record. (See App. 526-27 (noting that Appellant could have appeared before

the Composite Board to argue that there had been a substantial change or for

reconsideration of his suspension).) We accordingly conclude that the District Court

properly dismissed the due process claims.

       D.     Fifth Amendment Claims

       We are not persuaded by Appellant’s assertion that the Ordinance is

unconstitutionally vague. Although it does not define the term “service,” that term has a


1
 On appeal, Appellant attempts to raise factual issues regarding the applicability of the
Ordinance to him that he argues necessitated a hearing. However, Appellant’s own
opening brief more appropriately characterizes these “facts” as disagreements with the
City’s interpretation of the statute. Thus, the District Court, relying on Appellant’s
amended complaint, properly concluded that “additional factfinding was not needed to
determine that [Appellant] fell within [the Ordinance’s] purview.” Loscombe, 902 F. Supp.
2d at 543.
                                             9
“plain and ordinary meaning that does not need further technical explanation.” United

States v. Tykarsky, 446 F.3d 458, 473 (3d Cir. 2006). Moreover, the Ordinance specifies

that it is service to the City “in any capacity,” which we conclude provides a person of

ordinary intelligence with adequate notice of the conduct at issue. Accordingly, the

District Court correctly dismissed this claim.

       Appellant’s “takings claim” meets a similar fate. The Fifth Amendment Takings

Clause “proscribes the taking of private property for public use, without just

compensation.” U.S. Const. amend. V; see also Cowell v. Palmer Twp., 263 F.3d 286,

290 (3d Cir. 2001). However, notwithstanding that Appellant’s third amended complaint

alleged that Appellees seized his disability pension, used it for their own purposes, and

did so without just compensation, as the District Court noted, he adduced no evidence and

provided no substantive explanation for these allegations. We therefore conclude, as did

the District Court, that summary judgment on this claim was appropriate.

                                            III.

       In light of the foregoing, the orders of the District Court entered on August 10,

2012, May 20, 2013, and October 30, 2013, will be affirmed.




                                             10
