                                                               [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                       FOR THE ELEVENTH CIRCUIT COURT OF APPEALS
                                                U.S.
                        ________________________ ELEVENTH CIRCUIT
                                                                  April 19, 2005
                               No. 04-10823                    THOMAS K. KAHN
                         ________________________                   CLERK


                     D. C. Docket No. 02-02905CV-ODE-1

A.A.A. ALWAYS OPEN BAIL BONDS, INC.,
d.b.a. Always Open Bail Bonds,
CRAIG L. LADNER,

                                                     Plaintiffs-Appellees,
                                                     Cross-Appellants,
                                     versus

DEKALB COUNTY, GEORGIA,
a political subdivision of the State of Georgia,
THOMAS E. BROWN, individually, and in
his capacity as Sheriff of DeKalb County, Georgia,

                                                     Defendants-Appellants,
                                                     Cross-Appellees.

                         ________________________

                  Appeals from the United States District Court
                      for the Northern District of Georgia
                        _________________________

                                (April 19, 2005)
Before BLACK, WILSON and STAPLETON*, Circuit Judges.

PER CURIAM:

       Because we write only for the parties who are familiar with the facts, we do

not restate them below. On January 20, 2004, the United States District Court for

the Northern District of Georgia issued an order dismissing without prejudice all

of A.A.A.’s constitutional claims as not ripe,1 except for its claim of a procedural

due process violation. The Court held that A.A.A. had a constitutionally protected

property interest in its application for a certificate of authority sufficient to allege a

procedural due process claim, and denied Sheriff Brown qualified immunity with

regard to that claim. As a result, the Court granted in part A.A.A.’s motion for

injunctive relief and ordered Sheriff Brown to render a decision on A.A.A.’s

application within 45 days.

       DeKalb County and Sheriff Brown appeal the denial of their motion for

summary judgment based on qualified immunity as well as the grant of

preliminary injunctive relief. A.A.A. cross appeals from the dismissal of its other

claims. For the reasons set forth below, we reverse and remand.


       *
        Honorable Walter K. Stapleton, United States Circuit Judge for the Third Circuit, sitting
by designation.
       1
         The Court also dismissed with prejudice a claim for intentional infliction of economic
harm; this claim is not before us on appeal.

                                                2
                       I. The Procedural Due Process Claim

      We turn first to Appellants’ procedural due process claim.

      To establish a violation of procedural due process, a party must show that it

has been deprived of a constitutionally protected property interest; through state

action; and the procedure for doing so was constitutionally inadequate. Foxy

Lady, Inc. v. City of Atlanta, Georgia, 347 F.3d 1232, 1236 (11th Cir. 2003).

Appellants contend that the District Court improperly found a constitutionally

protected property right in A.A.A.’s application for a certificate of authority to

operate a bail bonding company. We agree.

      We first note that in order to establish a constitutionally protected property

interest, a person must have more than a “unilateral expectation of it;” instead, one

must have a “legitimate claim of entitlement to it.” Board of Regents v. Roth, 408

U.S. 564, 577 (1972). The U.S. Supreme Court has recognized that property

interests inure to already-acquired benefits. In Bell v. Burson, 402 U.S. 535, 539

(1971), the Court held that “once licenses are issued ... their continued possession

may become essential in the pursuit of a livelihood. Suspension of issued licenses

thus involves state action that adjudicates important interests of the licensees.”

      However, when addressing a plaintiff who is merely an applicant for a

license or benefit, as here, the critical inquiry becomes whether the state statute

                                          3
grants discretion to the decisionmaker who approves or denies the license.2 With

regard to determining who is an "acceptable surety" to write bonds in their

respective counties, Georgia sheriffs have a statutory mandate to exercise broad

discretion. The extensive discretion of sheriffs is plainly evident in Georgia

statutes:

               (a) “Code section shall not be construed to require a
               sheriff to accept a professional bonding company or
               bondsperson as a surety.” O.C.G.A. § 17-6-15(b)(2);

               (b) Sheriffs can create additional rules and regulations to
               determine “under what conditions sureties may be accepted.”
               O.C.G.A. § 17-6-15(b)(1);

               (c) “If the sheriff determines that a professional bonding
               company is an acceptable surety, the rules and regulations
               shall require, but shall not be limited to, the following [list of
               rules].” O.C.G.A. § 17-6-15(b)(1)(H); and

               (d) A professional bondman “must” be approved by the
               “sheriff in the county where the bonding business is
               conducted.” O.C.G.A. § 17-6-50(b), (b)(4).



       2
          See, e.g., Baldwin v. Daniels, 250 F.3d 943 (5th Cir. 2001) (“Discretionary statutes do
not give rise to constitutionally protectable interests.”); Shaner v. United States, 976 F.2d 990,
994-95 (6th Cir. 1992) (no property interest in application for emergency loan from the Farmers
Home Administration (FmHa) because the FmHa had “broad discretion in determining whether
to approve an application”); New York State Nat’l Org. For Women v. Pataki, 261 F.3d 156, 164
(2d Cir. 2001) (“Where, as here, a purported property interest is contingent on the exercise of
executive discretion, no legitimate claim of entitlement exists.”); Neuwirth v. Louisiana State Bd.
of Dentistry, 845 F.2d 553 (5th Cir. 1988) (plaintiff did not have a property interest in receiving a
reciprocal license to practice dentistry in another state because the Dentistry Board has broad
discretion in granting such licenses); see also Leis v. Flynt, 99 S. Ct. 698 (1979) (there was no
property interest in plaintiffs’ application to appear pro hac vice because under Ohio law, the trial
court has considerable discretion to approve or deny such an application).

                                                 4
Under these statutes, the sheriff has discretion to decide whether a candidate is

acceptable, and the statute "shall not" require a sheriff to accept any specific

applicant. Therefore, even if an applicant met the minimum requirements for a

certificate of authority prescribed by statute, it cannot claim any entitlement to that

certificate because the statute expressly provides for the sheriff to exercise

discretion to decide, generally, how many, and specifically, to which, applicants

the sheriff will issue certificates. Because of this grant of discretion to the sheriff,

the Georgia Supreme Court has held that an applicant for authority to be a

professional bondsman does not have a constitutionally protected right. Harrison

v. Wiggington, 497 S.E.2d 568, 569 (Ga. 1998).

       In sum, A.A.A.'s mere unilateral expectation that its application might be

accepted in the Sheriff’s discretion does not qualify as a constitutionally protected

property interest. Because A.A.A. cannot claim a protected property interest in an

unissued, discretionary certificate of authority, it therefore fails the first prong of

the Foxy Lady test and is unable to allege a procedural due process violation.3

       The District Court’s reliance on Pryor Organization, Inc. v. Stewart, 554

S.E.2d 132 (Ga. 2001), is misplaced. Pryor is distinguishable because, in that



       3
       Because we so hold, there is no need to reach the question of Sheriff Brown’s qualified
immunity.

                                               5
case, the company had an existing, already-acquired certificate of authority. The

lawsuit arose when a new sheriff informed the company that he would not permit

it to continue to write bonds in the county. Thus, to the extent that Pryor stands

for the proposition that the right to operate a bail bonding company is an interest

protected by the Georgia constitution, it applies only to the extent that such a right

already exists. Pryor does not speak to the mere expectation of the discretionary

conferring of that right. See Pryor, 554 S.E.2d at 487-88 (noting that the case was

about “the sheriff’s refusal to allow [the Pryor Organization] to continue to write

bonds” after having “engaged in the bail bonding business” via a license for a

number of years) (emphasis added).

      We reach the same result with respect to the third prong of our procedural

due process analysis—i.e., whether there was a constitutionally inadequate

process. Foxy Lady, Inc. v. City of Atlanta, Ga., 347 F.3d 1232, 1236 (11th Cir.

2003).

      Under the rule established in McKinney v. Pate, 20 F.3d 1550 (11th Cir.

1994) (en banc), “only when the state refuses to provide a process sufficient to

remedy the procedural deprivation does a constitutional violation actionable under

section 1983 arise.” Id. at 1557. We have explained:

      [T]he McKinney rule looks to the existence of an opportunity—to

                                          6
         whether the state courts, if asked, generally would provide an
         adequate remedy for the procedural deprivation the federal court
         plaintiff claims to have suffered. If state courts would, then there is
         no federal due process violation regardless of whether the plaintiff
         has taken advantage of the state remedy or attempted to do so.

Horton v. Bd. of County Comm’rs of Flagler County, 202 F.3d 1297, 1300 (11th

Cir. 2000). Thus, if Georgia law provides an adequate means to remedy the

alleged procedural deprivation, A.A.A.’s § 1983 procedural due process claim

fails.

         Regardless of whether or not A.A.A. has a constitutionally protected

property interest in its application for a certificate of authority, it had an adequate

state procedure, the writ of mandamus, to remedy any alleged procedural

deprivations. In applying Georgia law, we have previously held that the writ of

mandamus can be an adequate state remedy to ensure a party was not deprived of

its due process rights. Cotton v. Jackson, 216 F.3d 1328, 1333 (11th Cir. 2000);

see also Pryor, 554 S.E.2d at 136 (holding no due process violation when plaintiff

had a hearing in state court concerning his petition for mandamus).

         “Under Georgia law, when no other specific legal remedy is available and a

party has a clear legal right to have a certain act performed, a party may seek




                                             7
mandamus.”4 Cotton, 216 F.3d at 1332 (citing Ga. Code Ann. § 9-6-20).

Mandamus will not normally issue to compel the performance of a discretionary

act; however, mandamus is available when a public official has grossly abused his

or her discretion. Pryor, 554 S.E.2d at 134 (citation omitted). Georgia courts

have explained that the “legally flawed exercise of discretion is the same as refusal

to exercise any discretion, which is a manifest abuse of discretion.” Id. (quoting

Wilson v. State Farm Mut. Auto. Ins. Co., 520 S.E.2d 917, 920 (Ga. Ct. App.

1999)).

       In this case, mandamus would have been available to A.A.A. because at the

time of the District court’s decision, Sheriff Thomas Brown had refused to

exercise any discretion in either approving or denying A.A.A.’s application for a

certificate of authority. As a result, A.A.A. could have filed a petition for

mandamus in state court, seeking to compel Sheriff Brown to exercise his

discretion and make a decision with regards to A.A.A.’s application. Moreover,


       4
        In recognizing mandamus to be an adequate remedy, we do not have to “express an
opinion on the availability of other remedies under Georgia law.” Cotton, 216 F.3d at 1332 n.3.
We have explained:
       [E]ven if other state remedies are available to Plaintiff . . ., our ultimate
       conclusion would not change. The availability of those remedies, if they are
       adequate to protect Plaintiff’s right[s] . . ., would preclude a procedural due
       process claim. And, if they are inadequate to protect Plaintiff’s right[s] . . ., then
       mandamus would still be available to Plaintiff, and he would be precluded from
       bringing a procedural due process claim.
Id.

                                               8
the availability of mandamus as an adequate state remedy should have been

evident to A.A.A. because Pryor—the case upon which A.A.A. relies in asserting

it has a property interest—is a mandamus case. Pryor, 554 S.E.2d at 133–36.

         Because the writ of mandamus represents an adequate and available state

remedy through which A.A.A.’s alleged procedural deprivations could have been

corrected, A.A.A. has failed to allege a procedural due process violation.

         We reverse and remand to the District Court with instructions to enter

summary judgment in favor of Appellants on A.A.A.’s procedural due process

claim.

                                      II. Ripeness

         The District Court dismissed A.A.A.’s other claims as not ripe for judicial

decision, based upon the fact that Appellants had not yet issued a decision with

regard to A.A.A.’s application. As part of its January 20, 2004 order, the Court

directed Sheriff Brown to issue a decision on A.A.A.’s application within 45 days.

The Sheriff did so. At that time, A.A.A.’s counterclaims necessarily became ripe.

We therefore vacate the District Court’s order dismissing those claims and remand

so that they can be addressed by the District Court in the first instance.

                                    III. Conclusion

         We reverse the order entered by the District Court on January 20, 2004, and

                                            9
remand for further proceedings consistent with this opinion.

      REVERSED AND REMANDED.




                                        10
