                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                      UNITED STATES COURT OF APPEALS                April 3, 2013
                                                                Elisabeth A. Shumaker
                                    TENTH CIRCUIT                   Clerk of Court



 JAMES EARL COLLVINS, JR.,

          Plaintiff - Appellant,
                                                        No. 12-4014
 v.                                             (D.C. No. 2:10-CV-00346-TC)
                                                          (D. Utah)
 PETE C. HACKFORD; RICK
 STURM,

          Defendants - Appellees.


                              ORDER AND JUDGMENT *


Before BRISCOE, Chief Judge, KELLY and LUCERO, Circuit Judges.


      Plaintiff-Appellee James Earl Collvins, Jr., a boiler inspector, filed a civil

rights complaint under 42 U.S.C. § 1983 against the division director of the Utah

Division of Boiler and Elevator Safety (“Division”) and the Division’s chief

boiler inspector. Mr. Collvins alleged, among other things, that the Division

suspended his certificate of competency (“certificate”) in violation of his

procedural due process rights. Mr. Collvins appeals from the district court’s

order holding that Defendants were entitled to qualified immunity. See Collvins


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
v. Hackford, 2011 WL 5508816, No. 2:10-CV-346 TC (D. Utah Nov. 9, 2011).

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.



                                    Background

       Mr. Collvins worked as a licensed boiler inspector for over thirty years.

App. 206. In order to work as a boiler inspector, Mr. Collvins was required to

have a certificate of competency issued by the state (Utah) which in turn requires

a commission issued by the National Board of Boiler and Pressure Vessel

Inspectors (“national board”). Id. at 210, 213. Utah law authorizes the Division

to issue certificates to boiler inspectors annually. Utah Code Ann. § 34A-7-103.

At all relevant times, Defendant-Appellee Pete Hackford was the division director

and Defendant-Appellee Rick Sturm was the chief boiler inspector. Id. at 209,

530.

       In the fall of 2007, Mr. Collvins was working as a boiler inspector for the

Hartford Steam Boiler Company (“Hartford”) and held a Utah certificate and a

national board commission. Id. at 619–20. In October, the Division learned that

Mr. Collvins issued certificates of inspection and permits for two pressure vessels

at Utah State University that had been removed from service years earlier. Id. at

535. During the course of Mr. Sturm’s investigation of these complaints, he

learned that in 2006 Mr. Collvins’ certificate had been temporarily suspended and

Hartford placed Mr. Collvins on a corrective action plan. Id. Mr. Sturm sent a

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letter to Hartford notifying it of the recent problem and seeking its assistance in a

similar corrective plan. Id. at 521–22, 536, 547, 893. The letter also warned that

further problems would result in the suspension of Mr. Collvins’ certificate. Id.

at 893.

      In November, the Davis County School District contacted the Division

complaining that the permits and invoices Mr. Collvins submitted to them applied

to vessels that no longer existed. Id. at 536. The Cache County School District

made a similar complaint, alleging that a boiler at one high school had not yet

been inspected that year. Id. at 537. During his investigation of these

complaints, Mr. Sturm also learned that Mr. Collvins had issued a permit for a

boiler in 2005 without properly inspecting it. Id.

      On November 26, Mr. Sturm sent a letter to Hartford and Mr. Collvins

suspending Mr. Collvins’ certificate. Id. at 538, 895–96. On November 28, Mr.

Collvins emailed the Division stating that he intended to appeal the suspension,

and he sent a written request to appeal the following day. Id. at 228, 230. Two

weeks later, however, Mr. Collvins went on disability while undergoing

chemotherapy treatments, and he has remained on disability ever since. Id. at

340, 417. In the meantime, Mr. Sturm notified the national board of the

suspension and requested a peer review. Id. at 220. The review was ultimately

cancelled after the national board became aware that Mr. Collvins was on

disability. Id. at 539.

                                         -3-
      Mr. Hackford was responsible for hearing Mr. Collvins’ appeal, but nothing

happened for months. Id. at 525–26. After learning that Mr. Collvins had been

inspecting boilers while under the influence of various medications, Mr. Hackford

recused himself. Id. at 526, 548. On May 19, 2008, the appeal was transferred to

the Adjudication Division of the Labor Commission. Id. at 548–49. The

Adjudication Division scheduled a pre-hearing conference in June, which was

continued until July at the request of Mr. Collvins. Id. at 508. The hearing was

finally held in October 2008. Id. at 506. In November, the ALJ decided the

suspension was improper. Id. at 506–15. Because neither Mr. Collvins nor

Hartford sought to renew his certificate for 2008, or reinstate his national

commission, no certificate issued. Id. at 552–53, 629.

      Mr. Collvins filed a complaint alleging that Mr. Hackford and Mr. Sturm

violated his due process rights both by suspending his certificate before holding a

hearing and by waiting too long to hold a post-suspension hearing. Id. at 9–19.

The district court rejected these claims. Collvins, 2011 WL 5508816, at *9. The

court determined that although Mr. Collvins had a property interest in his

certificate and was therefore entitled to due process, (1) due process permitted the

suspension without a pre-deprivation hearing due to legitimate safety concerns,

and (2) the law was not clearly established that the delay in reviewing Mr.

Collvin’s appeal of the suspension was unconstitutional. Id. at *4–8.




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                                      Discussion

      This court reviews the grant of summary judgment de novo, applying the

same standards as the district court. Salazar v. Butterball, LLC, 644 F.3d 1130,

1136 (10th Cir. 2011). Generally, summary judgment is appropriate where “there

is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a).

      To defeat a defense of qualified immunity on summary judgment, however,

the plaintiff carries the burden of establishing that the defendant violated a

constitutional right which was clearly established. Ashcroft v. al-Kidd, 131 S. Ct.

2074, 2080 (2011). In order “for a right to be clearly established, there must be a

Supreme Court or Tenth Circuit decision on point, or the clearly established

weight of authority from other courts must have found the law to be as the

plaintiff maintains.’” Price-Cornelison v. Brooks, 524 F.3d 1103, 1108 (10th Cir.

2008). General propositions of law are insufficient. al-Kidd, 131 S. Ct. at 2084.

This court may address the two-element analysis in either order and may affirm

on either or both qualified immunity elements presented in the record. Pearson v.

Callahan, 555 U.S. 223, 236 (2009).

A.    Absence of Pre-deprivation Hearing

      Assuming Mr. Collvins has a protected property interest in his license, 1 the

      1
        Although Defendants initially conceded that Mr. Collvins had a protected
property interest in his certificate, they no longer do. See, e.g., Aplee. Br. 18 n.3,
18; Oral Arg. at 16:09–17:08. We assume without deciding that Mr. Collvins has

                                         -5-
court first considers whether Defendants were justified in not holding a pre-

deprivation hearing. The district court concluded that the undisputed evidence

showed that legitimate safety concerns warranted the pre-hearing suspension of

Mr. Collvins’ certificate. We agree.

      Generally, the government may not deprive someone of a protected

property right without first conducting “some sort of hearing.” Camuglia v. City

of Albuquerque, 448 F.3d 1214, 1220 (10th Cir. 2006). Due process, however,

“is flexible and calls only for such procedural protections as the particular

situation demands.’” Id. (quoting Mathews v. Eldridge, 424 U.S. 319, 334

(1976)). For example, “[i]n matters of public health and safety, the Supreme

Court has long recognized that the government must act quickly.” Id. This court

has found public health and safety reasons justified the lack of a pre-deprivation

hearing where the government closed a restaurant for improper use of pesticides,

see id., suspended an employee for errors causing a substantial budget deficit,

Kirkland v. St. Vrain Valley Sch. Dist. No. Re-1J, 464 F.3d 1182, 1194 (10th Cir.

2006), quarantined animals suspected to have rabies, Clark v. City of Draper, 168

F.3d 1185, 1189–90 (10th Cir. 1999), and investigated a child care center for

claims of abuse, Ward v. Anderson, 494 F.3d 929, 937 (10th Cir. 2007). The

safety concerns expressed in this case are similarly sufficient to justify the pre-



a protected property interest for the purpose of this appeal.


                                         -6-
hearing deprivation of a property right.

      Mr. Collvins’ job was to inspect boilers in order to ensure public safety.

Mr. Sturm, Mr. Hackford, and the General Counsel for the Utah Labor

Commission, all provided sworn statements detailing safety concerns about his

performance. App. 535–38, 687–88, 692–95. A leader of one of the school

districts involved also expressed concern about the inspections. See Collvins,

2011 WL 5508816, at *1 n.3. Although unaware of Mr. Collvins’ health at the

time of the suspension, Defendants’ concerns were heightened when Mr. Collvins

later admitted that medical treatments he was receiving in the fall of 2007 left

him “in a fog,” “tired,” lacking “concentration,” and unable to tell where he was

going. App. 683–84. Considering the repeated errors despite retraining

opportunities, immediate suspension was warranted based upon public safety

concerns.

      Mr. Collvins suggests that issuing permits for scrapped boilers alone does

not raise safety concerns or safety hazards, Aplt. Br. 22–24; App. 650. He

attempts to show that Mr. Sturm viewed the mistakes as “paperwork error[s]” or

“data entry” errors, and points to other inspectors who were counseled rather than

suspended after making clerical errors. Aplt. Br. 25; App. 632–37, 649, 663.

These facts, however, do not create a genuine issue of material fact given the

objective and inherent safety concerns and evidence of Mr. Collvins’ impairment.

As the district court correctly noted, none of these facts preclude Mr. Sturm “from

                                           -7-
having safety concerns because Mr. Collvins’ inspections as a whole appeared to

be unreliable.” Collvins, 2011 WL 5508816, at *1 n.3 (emphasis added).

      Mr. Collvins also argues that the safety rationale is pretextual, created for

summary judgment purposes. Aplt. Br. 24 (citing App. 218–19). Although he

argues that Mr. Sturm’s suspension letter does not on its face raise any safety

issues, it would not take a clairvoyant to grasp the obvious concern contained in

the letter. Be that as it may, affidavits from the parties supporting the objective

safety rationale are properly considered on summary judgment. See Aplt. Reply

Br. 20; see also Fed. R. Civ. P. 56(c)(1)(A) (explaining that after-the-fact

declarations, witness statements, and deposition testimony are routinely

acceptable forms of evidence at summary judgment). Moreover, it does not

matter whether, in reality, Mr. Collvins’ actions actually jeopardized public

safety. “The process one is due is not dependent on whether the government was

right or wrong in the particular case but on whether, in general, constitutional

norms require particular procedures to balance private and public interests.”

Camuglia, 448 F.3d at 1222. It only matters that due process does not require a

pre-deprivation hearing when such issues are objectively at play. al-Kidd, 131 S.

Ct. at 2083.

      Mr. Collvins finally argues that “the mere possibility of danger is not

enough to justify a removal without appropriate process.” Gomes v. Wood, 451

F.3d 1122, 1128 (10th Cir. 2006) (quotations omitted). Contrary to Mr. Collvins’

                                         -8-
argument, however, the decision in this case does not make all errors made by

inspectors grounds for immediate suspension. The uncontroverted summary

judgment evidence is that Mr. Collvins made multiple errors of one kind or

another, he had received repeated opportunities for retraining, and the errors

continued. The Defendants’ course of action was objectively reasonable and

justifies the pre-hearing suspension of the certificate based upon safety concerns.

B.    Delay of Post-deprivation Hearing

      We next consider whether the 11-month delay between Mr. Collvins’

appeal and hearing resulted in inadequate post-deprivation review. The district

court held that because there is no clearly established law indicating that the

delay in Mr. Collvins’ hearing was unconstitutional, he was entitled to qualified

immunity. Again, we agree.

      “[E]ven when . . . a pre-hearing removal is justified, the state must act

promptly to provide a post-removal hearing.” Gomes, 451 F.3d at 1128. In

making the determination whether the state action provided due process, it is

appropriate to examine a number of factors. FDIC v. Mallen, 486 U.S. 230, 242

(1988). These include “[1] the importance of the private interest and the harm to

this interest occasioned by delay; [2] the justification offered by the Government

for delay and its relation to the underlying governmental interest; and [3] the

likelihood that the interim decision may have been mistaken.” Id.

      The district court examined the delay in light of these factors. Regarding

                                         -9-
the first factor, the court acknowledged that Mr. Collvins could not work as a

boiler inspector without his certificate, but concluded that because he went on

disability due to chemotherapy treatments just two weeks after the suspension, his

interest in his certificate was diminished. Mr. Collvins argues that his disability

status is irrelevant. Aplt. Br. 29–30. In particular, he claims that “he never

would have needed disability benefits if Mr. Sturm and Mr. Hackford had not

taken away his ability to earn a living.” Aplt. Reply Br. 11. We disagree. The

only legitimate reason Mr. Collvins could have gone on disability was if he was

unable to work, independent of the revocation of his license. Morever, because

neither he nor his employer reapplied for a 2008 certificate, the practical effect of

the delay was minimal.

      The second and third factors, however, seem to cut in favor of Mr.

Collvins. As to the second factor—the Division’s justification for the delay—Mr.

Collvins argues that the Division was simply toying with him. Aplt. Br. 30.

Although there is no evidence for such a strong inference, the testimony of the

Defendants does not sufficiently explain the delay. For example, Mr. Hackford

testified that the appeal took a long time because the Division “was just getting

all of our stuff together,” App. 194, and Mr. Sturm explained that the Division did

not have a policy or procedure in place for appeals, App. 202. Regarding the

third factor—the likelihood of mistake—Mr. Collvins argues that Mr. Sturm did

not adequately investigate the allegations and accurately cites the fact that the

                                        - 10 -
ALJ found as much. Aplt. Br. 31.

      Although the factors cut both ways, we need not decide whether a

constitutional violation occurred because no clearly established law put the

Defendants on notice that the delay may have been unconstitutional. As an initial

matter, case law from the Supreme Court and Tenth Circuit presents no bright-

line rules as to when a delay becomes unconstitutional. In fact in one case, the

Supreme Court held that a 9-month delay in holding a hearing is not per se

unconstitutional. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 547

(1985). Rather, the precedent indicates that the determination of the

constitutionality of a delay is a fact-intensive analysis based on the factors

described above. See, e.g., Mallen, 486 U.S. at 242. There is no precedent

sufficiently on point with this case that could have put Defendants on notice that

the delay was unconstitutional.

      The only authority to which Mr. Collvins cites to contradict this position is

Gomes’s holding that a post-deprivation hearing must be “prompt.” Aplt. Br. 31;

Oral Arg. at 10:14–11:05. This is insufficient. For one, Gomes dealt with the

removal of a child from a home based on allegations of abuse. 451 F.3d at 1128.

This presents very different considerations under the Mallen factors than the

current case. Although it does not have to be factually identical, Gomes sheds

absolutely no light on the context of this case.

      Qualified immunity is intended to give “government officials breathing

                                        - 11 -
room to make reasonable but mistaken judgments about open legal questions

[and] protect[] all but the plainly incompetent or those who knowingly violate the

law.” al-Kidd, 131 S. Ct. at 2085 (quotation omitted). Because neither the

Supreme Court nor the Tenth Circuit has any precedent that would have put

Defendants on notice that their actions may have been unconstitutional, they are

entitled to qualified immunity.

      AFFIRMED.

                                      Entered for the Court


                                      Paul J. Kelly, Jr.
                                      Circuit Judge




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