                Not for Publication in West's Federal Reporter

          United States Court of Appeals
                       For the First Circuit

No. 11-1743

                              TODD R. RICH,

                        Plaintiff, Appellant,

                                     v.

                  GEORGE LAPOINTE, Commissioner,
              Maine Department of Marine Resources,

                         Defendant, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF MAINE

          [Hon. George Z. Singal, U.S. District Judge]


                                  Before

                        Lynch, Chief Judge,
                    Souter, Associate Justice,*
                     and Stahl, Circuit Judge.


     Nicholas H. Walsh for appellant.
     William R. Fisher, Assistant Attorney General, with whom
William J. Schneider, Attorney General, was on brief, for appellee.



                              June 21, 2012




     *
          The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
            SOUTER, Associate Justice.        In this action under 42

U.S.C. § 1983, Todd Rich claims that George LaPointe, in his

capacity    as   Commissioner   of   the   Maine    Department   of   Marine

Resources,1 violated procedural due process while acting under an

erroneous understanding of his legal authority in suspending Rich’s

lobster and crab-taking licence for a period beyond one year. Rich

appeals the district court’s grant of summary judgment for the

defendant Commissioner. Rich v. LaPointe, No. 2:10-cv-300, 2011 WL

2518623 (D. Me. June 24, 2011).        We affirm.

            A state marine patrol officer discovered eight lobster

traps belonging to another fisherman on Rich’s boat and charged him

in the Maine (state) District Court, so far as it matters here,

with violating Me. Rev. Stat. tit. 12, § 6434, prohibiting the

“molesting” of lobster gear.         Traditionally, this was a criminal

offense carrying a mandatory three-year administrative suspension

of the fishing license of a “permit holder . . . convicted,” see

Me. Rev. Stat. tit. 12, § 6402, but just before the incident in

question the state legislature converted the offense to a civil

violation subject to fine, see id. § 6434(3-A).            The suspension

provision, § 6402, remained on the books nevertheless. The push to

amend had come from the state, in order to make it easier to

enforce    the   molestation    prohibition   without    diminishing    the

seriousness of the offense.


     1
         There has been no formal substitution of his successor.

                                     -2-
           Rich and his counsel worked out an agreement with the

state’s lawyer to admit the molestation in return for dismissal of

other charges not involved here. On the day set for disposition in

the state district court, however, neither Rich nor his counsel

appeared, and he was held liable under § 6434 by default.             When the

Maine Department of Marine Resources was informed of the judgment,

it notified Rich of the three-year suspension, to be imposed

without further hearing.           Rich responded with an unsuccessful

motion for reconsideration of the liability judgment in the state

district court, and then resorted to statutory appeal of the

Commissioner’s administrative action to the state superior court,

arguing   that   as   a   merely    civil    offender   under   the   amended

molestation statute he was not a person “convicted” within the

meaning of the unamended three-year suspension provision.                 The

superior court found his position “counter to the clear intent of

the legislature,” and denied relief just one day short of the first

anniversary of the appeal date.            From that judgment he appealed

further to the Supreme Judicial Court of Maine, the Law Court,

which held for Rich nearly a year later, on the ground that the

“convicted” language of the unamended penalty statute plainly

excluded the merely civil offenders who might be found responsible

under the revised liability definition.           Rich v. Dep’t of Marine

Res., 994 A.2d 815 (Me. 2010).




                                     -3-
            This   §   1983   action   followed,      claiming   a   denial    of

procedural due process of law, by a person acting under color of

state law, in depriving Rich of his property in the fishing licence

beyond the period of one year that Rich concedes was authorized by

a statute not otherwise of concern here.           See Me. Rev. Stat. tit.

12, § 6402.    He argues that the Commissioner’s action was a clear

violation of state law, and was constitutionally defective both for

his failure to provide a hearing before the license suspension

became effective, and for the failure of state law to provide

adequate post-deprivation process for advancing Rich’s ultimately

successful position.      The federal district court entered summary

judgment for the defendant, a result that on de novo review,

Méndez-Aponte v. Bonilla, 645 F.3d 60, 64 (1st Cir. 2011), we think

was correct.

            There is no dispute here that Rich’s claim satisfies the

threshold     elements   required      for   relief    under     §   1983:    the

Commissioner was acting under color of state law, and the fishing

license was a species of property, of which the suspension order

deprived him until vacated in the wake of the state appellate

court’s judgment.      The only issue is the adequacy of the procedure

available to Rich to vindicate his interest.

            As for procedural protection that might be due prior to

the suspension order, Rich, of course, does not deny that he had

the opportunity for a hearing on the factual basis claimed for the


                                       -4-
suspension (his possession of another lobsterman’s traps), an

opportunity in the state district court that he agreed to waive and

ultimately lost by defaulting altogether.   But he argues that due

process demands more than this trial opportunity, for two reasons.

First, he says that prior to his agreement and subsequent default

in lieu of trial on the molestation charge he was never informed by

the state (or, for that matter, by his own counsel) that a three-

year suspension would be ordered as a consequence.    Moreover, he

claims that regardless of the court hearing on the underlying

charge, administrative punishment for a civil violation with a

suspension conditioned on a criminal conviction is the sort of

illegal state action that should not be suffered without a chance

to explain an objection in advance.

          Each argument rests on a faulty premise.   The assertion

that due process called for the state or its district court to warn

Rich that the Commissioner would impose a three-year suspension

seems to assume that the court could not recognize a default for

failure to appear, let alone a negotiated settlement, without a

warning of consequences it could trigger at the hands of a state

executive branch official.   This assumption is made out of whole

cloth, and Rich makes no attempt to support any analogy to the rule

that may have prompted it: that a court must assure that waivers of

federal constitutional rights be made knowingly before a court may




                               -5-
accept a guilty plea to a criminal charge.                    See Boykin v. Alabama,

395 U.S. 238 (1969).

             Rich’s       second       point,      that    imposing      a    penalty     for

“conviction”        after     a    civil        default     judgment         violates     the

Constitution absent some further predeprivation process, is best

evaluated     by    looking       to   a    sample    of    the    cases     he   cites    as

authority.     He relies, for example, on Freeman v. Blair, 862 F.2d

1330   (8th        Cir.    1988),       denying      qualified        immunity      for     a

predeprivation        process      violation         in    summarily       suspending      an

occupational permit without establishing a “hazardous condition,”

the factual predicate required by a state statute.                            Likewise, he

points to Guillemard-Ginorio v. Contreras-Gómez, 490 F.3d 31 (1st

Cir. 2007), holding that the suspension of an insurance license

without opportunity for a hearing violated due process.                             But in

Rich’s case there was a predeprivation opportunity to litigate

facts, and there was no dispute about them after the defaulted

district    court        proceeding.         Probably,      Rich    comes      closest     to

revealing his intended point when he cites Malley v. Briggs, 475

U.S. 335, 341 (1986) for the proposition that those who knowingly

commit substantive constitutional violations have no qualified

immunity.          His    implicit         point    is     that    the     Commissioner’s

misapplication of the penalty statute must have been knowing, with

the consequence that relying on its summary procedure must have

been a due process violation per se.                  But if this is Rich’s point,


                                             -6-
it is answered by the rule that action by an official based on a

mistake of state law is not a due process violation or its

equivalent.    Alton Land Trust v. Town of Alton, 745 F.2d 730, 732-

33 (1st Cir. 1984); see Burgess v. Ryan, 996 F.2d 180, 184 (7th

Cir. 1993).2

          It is, however, properly categorized as a random and

unauthorized error, as to which due process is adequately served by

a post-deprivation hearing.          See Parratt v. Taylor, 451 U.S. 527

(1981) (negligent deprivation of property), overruled on other

grounds by Daniels v. Williams, 474 U.S. 327 (1986); Hudson v.

Palmer, 468 U.S. 517 (1984) (intentional deprivation of property);

see also Hadfield v. McDonough, 407 F.3d 11, 19 (1st Cir. 2005).

Rich resists this authority by claiming that the Commissioner’s

conformity with settled procedure excludes the Parratt-Hudson rule

as inapposite. But he cannot have it both ways: his whole argument

rests on the claim that the Commissioner was plainly acting without

authority in a suddenly novel situation, by imposing a mandatory

suspension predicated only on newly created civil liability but no

criminal conviction.        This is not a description of “settled

procedure,”    and   this   is   a   case   in   which   reliance   on   post-

deprivation process will do.


     2
       We do not understand Rich to be raising any issue of
substantive, as distinct from procedural, due process.     In any
event, the Commissioner’s interpretive mistake, repeated by the
Superior Court, is not even arguably the sort of arbitrary action
that could support a substantive due process claim.

                                      -7-
              Here, that post-deprivation avenue was the appeal to the

Maine Superior Court, subject to ultimate review by the Law Court.

Rich   says    that   the   appellate   process   failed   to   satisfy    the

constitutional guarantee because it took so long to work through.

He points out that he was in harsh economic straits by the time the

Maine Law Court finally held that both the Commissioner and the

Superior Court had been mistaken, and declared the three-year

suspension provision inapplicable to a civil violation.              But we

think this claim of inadequate process is not well taken.                 Rich

does not deny that he could have asked the courts to stay the

licence suspension during appeal, at least as to the period beyond

the one year for which he agrees suspension would have been proper.

Indeed, though we do not rest on this, the superior court judgment

issued within that one-year period (tolled for the two months’

extension of time for briefing requested by Rich).                Thus, the

reason Rich suffered the longer suspension is not attributable to

a failure to provide adequately timely process, but to what the

state’s final judicial authority determined was an unsound reading

of the governing statutes.       And as we just mentioned, legal error

without more does not equate to a denial of due process of law.

              Affirmed.




                                    -8-
