United States Court of Appeals
For the First Circuit
SAN GERÓNIMO CARIBE PROJECT, INC.,
HON. ANÍBAL ACEVEDO-VILÁ, in his individual and personal
capacity; HON. ROBERTO SÁNCHEZ-RAMOS, in his individual
and personal capacity; LUIS A. VÉLEZ-ROCHE, P.E., in his
individual and personal capacity; JOHN DOE; JANE DOE,
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]
Lynch, Chief Judge,
Boudin, Lipez, Howard and Thompson, Circuit Judges.
Richard H. Fallon, Jr., with whom John M. García, García &
Fernandez, and Orlando Fernández were on brief, for appellant.
Susana I. Peñagarícano-Brown, Assistant Solicitor General,
Department of Justice, with whom Luis R. Román-Negrón, Solicitor
General, was on brief, for appellees.
Sookyoung Shin, Assistant Attorney General, with whom Martha
Coakley, Attorney General of Massachusetts, William J. Schneider,
Attorney General of Maine, and Michael A. Delaney, Attorney General
of New Hampshire, were on brief, for the Commonwealth of
Massachusetts and the States of Maine and New Hampshire, amici
July 24, 2012
LYNCH, Chief Judge. This en banc opinion addresses
whether the mistaken invocation by state officials of emergency
powers granted by state law to stay a major construction project
gives rise to a federal claim of denial of procedural due process
under the Parratt-Hudson doctrine, as developed in Parratt v.
Taylor, 451 U.S. 527 (1981), Hudson v. Palmer, 468 U.S. 517 (1984),
and Zinermon v. Burch, 494 U.S. 113 (1990). We hold that the
Parratt-Hudson doctrine applies, so no federal procedural due
process claim is stated.
The San Gerónimo Caribe Project, Inc. (SGCP) appeals from
the dismissal of its federal procedural due process claims. On
December 27, 2007, the Regulations and Permits Administration
(ARPE), a Puerto Rico agency, acting under a statute authorizing
summary process in emergency situations presenting an imminent
danger to the public health, safety, and welfare, issued a
temporary emergency stay of SGCP's ongoing multi-million dollar
construction project. A state intermediate appellate court upheld
the exercise of emergency powers. The stay lasted sixty-three
days, until the Puerto Rico Supreme Court vacated it. That court
issued an opinion on July 31, 2008, disagreeing that there had been
any imminent danger warranting invocation of the emergency
procedure statute and concluding that the stay was issued in error
and in violation of Puerto Rico law.
On October 24, 2008, SGCP filed a federal suit against
the Governor of Puerto Rico, the Secretary of Justice, and
individual members of ARPE asserting, among other claims, that ARPE
violated the Due Process Clause of the Fourteenth Amendment by
failing to hold a predeprivation hearing before temporarily
suspending the construction permits. SGCP sought $38 million in
compensatory damages, as well as other relief. The district court
rejected SGCP's claims at the motion to dismiss stage, holding that
no predeprivation process was required under the Parratt-Hudson
doctrine. San Gerónimo Caribe Project, Inc. v. Vila, 663 F. Supp.
2d 54, 65 (D.P.R. 2009).
A panel of this court held that there was a due process
violation but still affirmed the judgment of the district court, on
only qualified immunity grounds. San Gerónimo Caribe Project, Inc.
v. Acevedo-Vilá, 650 F.3d 826 (1st Cir. 2011). The panel held that
under Zinermon, 494 U.S. 113, ARPE was required to provide
predeprivation process before suspending SGCP's permits and the
Parratt-Hudson doctrine was inapplicable. San Gerónimo, 650 F.3d
at 836-38. However, the panel also found that some of this court's
past precedent on the matter could have reasonably supported ARPE's
determination and affirmed dismissal on the grounds that the
defendants were entitled to qualified immunity. Id. at 838-39.
A majority of active judges of this court voted to grant
rehearing en banc and issued an order vacating the panel opinion.
San Geronimo Caribe Project, Inc. v. Acevedo Vila, 665 F.3d 350
(1st Cir. 2011).
We conclude that the mistake made by ARPE (as found by
the Puerto Rico Supreme Court) fits within the "random and
unauthorized" prong of the Parratt-Hudson doctrine, and that
Zinermon does not apply. As a result, plaintiff's federal
procedural due process claim was properly dismissed. The defendant
state officials were also entitled to qualified immunity, also
We assume as true the plaintiff's "well-pleaded factual
allegations" contained in the complaint. Ashcroft v. Iqbal, 129 S.
Ct. 1937, 1950 (2009). We draw all reasonable inferences in favor
of the plaintiff. Hill v. Gozani, 638 F.3d 40, 55 (1st Cir. 2011).
However, we "are not bound to accept as true a legal conclusion
couched as a factual allegation," Iqbal, 129 S. Ct. at 1950
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007))
(internal quotation marks omitted), nor do we consider "naked
assertion[s] devoid of further factual enhancement," id. at 1949
(alteration in original) (quoting Twombly, 550 U.S. at 557)
(internal quotation marks omitted). See also Soto-Torres v.
Fraticelli, 654 F.3d 153, 156 (1st Cir. 2011). We also consider
the various state decisions of public record giving rise to this
The facts are not in dispute; the legal conclusions from
the facts are.
A. Factual Background
In January 2000, the Planning Board of Puerto Rico
approved the development of a mixed residential, commercial, and
tourism project, known as the Paseo Caribe Project, to be developed
under the auspices of SGCP, a privately held corporation.
Upon approval of the project, SGCP acquired several
parcels of land for the project from Hilton International of Puerto
Rico, Inc. Hilton, in turn, had acquired these parcels from the
Hotel Development Corporation, a subsidiary of the Tourism Company
of Puerto Rico, in 1998. These parcels of land are located near
the Fortín San Gerónimo del Boquerón, the San Gerónimo Fortress, a
historic structure built in the late 16th century, which is listed
on the National Register of Historic Places.
As to the legality of the sale of some of the lands to
SGCP, in 2002 the Puerto Rico Department of Justice (PRDOJ) issued
an opinion concluding that, while some of the lands within the
boundaries of the Paseo Caribe Project had emerged from the sea,
they were nevertheless not part of the public domain and could be
sold, as they were, without legislative action. This opinion was
consistent with a previous opinion of the Justice Department from
Beginning in December 2000, ARPE
issued all of the
permits necessary for SGCP's development of the project.
Construction, to be conducted in several stages, began in August
2002. Starting in 2002, SGCP and the Puerto Rico Institute of
Culture entered into unsuccessful negotiations over public access
to the Fortín San Gerónimo, which had been adversely affected by
the construction. Public controversy had developed over this
access issue, and by 2006 active public protests, requiring police
intercession, had begun to occur at the site. The Puerto Rico
Senate in June 2006 authorized a Senate Commission to conduct an
In February 2007, the PRDOJ began its own
investigation and developed concerns not only about public access
to the Fortín, but also about the ownership of some of the land on
which SGCP's construction had been taking place.
During that investigation, on December 11, 2007, the
PRDOJ Secretary issued an advisory opinion which concluded that
SGCP was not the rightful owner of certain portions of the land on
which the project had been built, because that land was gained from
the sea and no appropriate legislation transferring ownership to a
private party had ever been passed. The opinion found that the two
previous PRDOJ opinions were erroneous and should be disregarded.
The opinion "recommend[ed] that the concerned executive
governmental entities reevaluate all the administrative decisions
already taken" in light of the new opinion, which was "the official
interpretation of the Executive Branch of the Commonwealth of
Puerto Rico." The opinion noted that it was only "advisory" and
did not constitute a final determination of the ownership of the
land in question, as only the courts had the authority to pronounce
such a judgment. The opinion characterized itself as "in the
public interest," given "that controversies related with the Paseo
Caribe Project have captured the attention of our people,"
resulting in "public outcry." The opinion also made clear that it
did not pass judgment on "whether a permit . . . was either correct
The opinion "recommend[ed]" that other agencies "perform
an exhaustive reevaluation of all the permits . . . and other
determinations" regarding the project, and made clear that it did
not "dictate the precise method through which the different
governmental entities concerned should proceed with their
reevaluation and with any possible stay of the construction still
ongoing." It stressed that the agencies should act pursuant to
applicable laws and "safeguard any procedural and substantive law
or rights the affected parties may have," including ensuring that
all proceedings comported with "due process of law." It noted that
ARPE "has ample power to set aside permits," quoting the relevant
regulations. This included the power to revoke permits that were
"granted by fraud or error." No specific mention was made of the
"[e]mergency adjudicatory procedure" of P.R. Laws Ann. tit. 3,
The next day, December 12, 2007, the Governor publicly
ordered all administrative agencies to suspend all permits for the
project and freeze all construction for an initial period of sixty
days. This appears to have been an unusual step.
On December 14, 2007, the Planning Board issued a
resolution which, among other things, (1) requested SGCP's comments
on the Secretary of Justice's opinion and (2) ordered ARPE to take
measures it deemed necessary to implement the recommendations of
the opinion, "including, but not limited, to hold[ing] an
administrative hearing where the parties' right to due process be
That same day the ARPE administrator issued an order to
show cause, requesting that SGCP demonstrate why the permits issued
by ARPE should not be suspended and construction halted for sixty
days, based on the Secretary's opinion, and it scheduled a hearing
for six days later, December 20, 2007. The order invoked P.R. Laws
Ann. tit. 3, § 2167, which is entitled "[e]mergency adjudicatory
procedure." This provision allows for administrative agencies to
"use emergency adjudicatory procedures in any situation in which
there is imminent danger to the public health, safety and welfare
or which requires immediate action by the agency." Id. § 2167(a).
The statute requires that "[a]fter an order or resolution is issued
according to this section, the agency shall promptly proceed to
complete any procedure that has been required, unless there is
imminent danger." Id. § 2167(e).
Absent an emergency, different procedures are to be
followed with full formal hearings. These procedures require
notice, the right to introduce evidence, an impartial adjudication,
and a decision based on the record in the case. See id. § 2151
(outlining the rights that "shall be safeguarded in any formal
adjudicatory procedure before an agency"); id. § 2163 (outlining
the procedure for an adjudicatory hearing).
ARPE stated two justifications for its invocation of the
emergency procedure statute in its order to show cause. First,
ARPE found that the Secretary of Justice's conclusion that some of
the land was in the public domain "evidenced the existence of great
public interest in the reevaluation" of the permits ARPE had
granted and emergency procedures were needed "in order to safeguard
the rights of both the proponents and the developers and the
resources of the People of Puerto Rico." Second, ARPE found that
"[t]here have also been several incidents that could affect the
safety of the employees working on this project, and of the
citizens who have been holding demonstrations near said land."
On December 19, 2007, before the ARPE hearing, SGCP filed
a complaint to quiet title in the local court of first instance,
seeking a declaratory judgment that SGCP held lawful title to the
disputed portions of the land that were the subject of the
The ARPE hearing on the order to show cause took place
before two examiners on December 20th. At the outset, one examiner
explained that the hearing was "not adversarial," and instead would
be focused on "gather[ing] information" so that ARPE could "make a
determination regarding the Stay Order of the construction" at
the project. In addition, the examiner made clear that there was
no issue as to the validity of SCGP's permits of themselves.
SGCP submitted a motion to dismiss, which argued that
ARPE had no jurisdiction because only the Puerto Rico courts could
adjudicate who held valid title to the land and that the ARPE
proceeding was unnecessary as there was no issue regarding the
validity of SGCP's permits or SGCP's compliance with those
This motion to dismiss was denied at the hearing. One
examiner explained that ARPE was not adjudicating the title
question, but rather that because there was "doubt" over whether
SGCP properly owned some of the land, and because ARPE could only
issue permits to those who had rightful title, ARPE was proposing
"to take cautious measures." The examiner made clear that this
"cautious measure" consisted of a "provisional stay" of
construction, pending resolution of the litigation over the
question of title in the Puerto Rico courts, and that the permits
were not being revoked.
SGCP also argued that the hearing was an adjudicative
hearing, and the hearing offended its due process rights because
the notice was too vague and it had unreasonably short notice to
prepare for the hearing. ARPE noted the objection for the record.
SGCP apparently did not argue that the hearing had to be a full
adjudicative hearing. Rather, its main position was that the
agency should hold no hearing at all, or should have given it more
notice and time.
A week later, on December 27, 2007, ARPE issued a
Resolution and Order suspending SGCP's permits and halting
construction for a period of sixty days, with the ability to extend
the term if necessary "in the public interest." The order first
noted that the Secretary of Justice's opinion "casts substantial
doubt on the ownership of the land." ARPE found a stay of
construction justified given this substantial doubt, in order to
protect the public interest; namely to avoid any harm to SGCP, the
public, or the land while the issue of title was resolved. ARPE
explained that it had the authority to revoke permits if they were
obtained by error or fraud, which includes circumstances where the
permittee lacks title, but that it would not revoke the permits at
this time, and instead would wait for the courts to decide the
title issue. ARPE also rejected SGCP's due process notice and
timing argument, saying that while it would leave the title
determination to the courts, there was a substantial public
interest in whether the land was public domain which warranted the
use of § 2167 to shorten the fifteen-day time typically required
between notice and the holding of a hearing, P.R. Laws Ann. tit. 3,
§ 2159. ARPE stated a second ground for prompt action and issuance
of the stay, concluding that these circumstances, including "the
public demonstrations and aggression by different society groups,"
were "a matter of enough urgency" to call for immediate action and
to warrant invoking the emergency procedure statute. ARPE then
suspended the permits and ordered a stay of construction for sixty
days. ARPE did not schedule another hearing, perhaps concluding,
correctly as it turned out, that SGCP would promptly obtain review
by the Puerto Rico courts of both the title question and of ARPE's
own actions. Indeed, ARPE's order noted that it "may be subject to
review by the Court of Appeals."
SGCP complied with the permit suspension; part of the
project was then nearing completion of its final stages. SGCP had
invested approximately $200 million in the project.
SGCP promptly appealed ARPE's order to the Puerto Rico
Court of Appeals, which issued an opinion on February 6, 2008. San
Gerónimo Caribe Project, Inc. v. Administración de Reglamentos y
Permisos, KLRA200800010, 2008 WL 1744564 (P.R. Cir. Feb. 6, 2008)
(certified translation provided by the parties). The court upheld
ARPE's stay order and the exercise of its emergency power. It also
directed that ARPE, having properly issued the stay, should hold a
full adjudicative hearing on the permit suspension question as soon
as possible. The court also held that, under Puerto Rico law, ARPE
had the authority to investigate whether permits had been
erroneously granted, and to order a stay of construction, without
needing to commence a judicial proceeding. As to the due process
claim, the court, applying Puerto Rico Supreme Court precedent,
found that ARPE did not err in invoking the emergency adjudication
procedures. The court also found that there was no error in ARPE
ordering the stay, as the Secretary of Justice opinion was
"binding" on agencies of the executive branch.
The court also held that ARPE had erred in failing to
promptly schedule a full adjudicative hearing for SGCP after it had
ordered the stay, and that this failure (but not ARPE's issuance of
the stay under the emergency procedure) was in violation of SGCP's
due process rights. The court ordered that an evidentiary hearing
be held "as soon as possible -- with all the guarantees of the due
process of law," after which ARPE must reevaluate its initial
order. This hearing never took place in light of further and
prompt actions by the Puerto Rico courts. SGCP filed a petition
for certiorari from the appeals court decision with the Puerto Rico
Supreme Court on February 15, 2008, nine days after the appeals
On February 8, 2008, in the separate court proceeding
brought by SGCP to quiet title, the court of first instance entered
judgment finding that SGCP was the valid owner of all the
properties underlying the Paseo Caribe Project. The court rejected
the arguments contained in the Secretary's opinion as to why the
land was part of the public domain. This was appealed to the
Puerto Rico Supreme Court.
On February 25, 2008, with the initial sixty-day
suspension soon to expire and the petition for certiorari as to the
court of appeals's decision pending before the Supreme Court, ARPE
entered a second order extending the suspension of SGCP's permits
for another sixty-day period. ARPE reasoned that "the factual
situation" regarding the project remained the same, and it was
extending the stay in light of the "absence of a final ruling on
whether the land reclaimed from the sea in this case is public
property." The order also noted that SGCP could "request a formal
administrative hearing," which would be scheduled "as soon as
possible" after any such request. SGCP does not contend it
requested such a hearing, nor is there any evidence in the record
that such a hearing was requested.
Acting quickly, on February 28, 2008, the Puerto Rico
Supreme Court granted SGCP's petition for a writ of certiorari and
issued an opinion. San Gerónimo Caribe Project, Inc. v.
Administración de Reglamentos y Permisos, 173 P.R. Dec. 241 (2008)
(certified translation provided by the parties). The court granted
SGCP's motion for a stay of the (extended) suspension ordered by
ARPE and allowed SGCP to resume construction, which SGCP did
shortly after the stay was granted. The court found that ARPE's
February 25 order extending the suspension contravened the judgment
of the Puerto Rico court of first instance that SGCP possessed
valid title to the disputed parcels. The total period of time from
the initial suspension order to the Supreme Court's vacating of the
suspension was sixty-three days. At a later date, the court also
granted a petition for certiorari with respect to the separate
appeal taken from the court of first instance judgment holding that
SGCP had valid title to the land.
On July 31, 2008, the Puerto Rico Supreme Court issued
two opinions on the merits of the two cases. In a lengthy opinion
it affirmed the decision of the court of first instance, over one
dissent, holding that SGCP had rightful title to the lands
underlying the Paseo Caribe project. San Gerónimo Caribe Project,
Inc. v. Estado Libre Asociado de P.R., 174 P.R. Dec. 518 (2008)
(certified translation provided by the parties). This opinion also
stressed that the Fortín San Gerónimo "is a public domain good
property of the People of Puerto Rico," that public access to the
Fort was necessary "for the use and enjoyment by the general
public," and that nothing prevented SGCP from granting a deed of
access, which it apparently had not done.
Second, the court issued an opinion holding, in a 3-2
decision, that ARPE had violated SGCP's due process rights under
Commonwealth law by suspending the permits without an adjudicatory
predeprivation hearing. San Gerónimo Caribe Project, Inc. v.
Administración de Reglamentos y Permisos, 174 P.R. Dec. 640 (2008)
(certified translation provided by the parties). As factual
background, the court stated that groups opposed to the project had
engaged in demonstrations there, claiming that the construction
work had impeded the public access to the Fortín, and this had led
the Federal and Consumer Affairs Commission of the Puerto Rico
Senate to start an investigation on June 22, 2006. The Department
of Justice had then started its own investigation, including of the
permit-granting process for the project and adjoining lands.
Recognizing that SGCP had a property interest in the
permit, the court noted that where the "Government must act quickly
to guarantee order, safety or health of its citizens" or in other
"extraordinary" situations that "require immediate action," the
government may use summary procedures. The court explained that
"the guiding criteria must be whether the delay that entails
starting an ordinary procedure would al[l]ow the happening,
precisely, of what the summary action intends to avoid."
The court found, disagreeing with both the appeals court
and ARPE, that this standard was not satisfied. The court did
recognize that a "public interest" existed with respect to the
ownership question, but said that the justification provided by
ARPE for invoking the emergency procedures was "very far from the
extraordinary circumstances that would allow the use of the
immediate action procedure contemplated" in the statute. The court
rejected the argument that the public protests over the project
themselves justified the use of summary procedures, finding that
"the degree of unrest . . . would not equal the instances where the
compliance with the imminent danger to public health, safety and
welfare have been acknowledged," and emphasizing that protests can
be controlled without harming general safety. It said "ARPE made
a mistake" in invoking the emergency procedure statute, because
"the particular circumstances of this case do not present an
imminent danger to the public health, safety and well being."
The court then found that ARPE's justification for
suspending the permits was insufficient, holding that "substantial
doubt" about the validity of SGCP's title was not a sufficient
basis under the relevant statutes and regulations to suspend the
permits. The court entered judgment permanently revoking ARPE's
permit suspension order, and ordered ARPE to permanently halt its
permit revocation proceedings.
Two justices dissented. One found that the majority did
not "provide an objective balance between the affected individual's
interest and the protected governmental" interests, and
specifically failed to "take into consideration the legitimate
interest that the State has in preventing the imminent construction
of a permanent building over possible public property."
B. Federal Case Procedural History
SGCP filed this suit on October 24, 2008, naming as
defendants the Governor of Puerto Rico, the Secretary of Justice,
the head of ARPE, and other unnamed individuals. The complaint
raised four claims: (1) violation of federal procedural due process
rights, (2) violation of federal substantive due process rights,
(3) violation of the Equal Protection Clause of the Fourteenth
Amendment, and (4) violation of 42 U.S.C. § 1983, based on the
preceding three claims, in addition to pendent state-law claims.
As to relief, the complaint requested a declaratory judgment that
the defendants each violated SGCP's rights, and an award of $38
million in compensatory damages, as well as punitive damages and
attorneys' fees and costs. The defendants moved to dismiss under
Federal Rule of Civil Procedure 12(b)(6). They argued that the
complaint failed to state a claim of a procedural due process
violation or other violations and, even if it did, the defendants
were entitled to qualified immunity.
The district court referred the motion to a magistrate
judge. On August 3, 2009, the magistrate judge issued a report and
recommendation, recommending that the motion to dismiss be granted.
SGCP filed objections to the report and recommendation.
On September 30, 2009, the district court adopted the
magistrate judge's report and recommendation and granted the
defendants' motion to dismiss. San Gerónimo Caribe Project, 663 F.
Supp. 2d at 69. The district court found that the Parratt-Hudson
doctrine barred plaintiff's procedural due process claims. Id. at
64-65. The court also found that qualified immunity would apply.
Id. at 66-68. The district court rejected SGCP's remaining federal
claims and declined to exercise supplemental jurisdiction over the
state-law claims. Id. at 68-69.
SGCP's appeal raises only an objection to the dismissal
of its federal procedural due process claim and to the grant of
We review de novo the grant of a motion to dismiss under
Rule 12(b)(6). Feliciano-Hernández v. Pereira-Castillo, 663 F.3d
527, 532 (1st Cir. 2011), cert. denied, 80 U.S.L.W. 3678 (U.S.
SGCP does not raise any challenge to the emergency
procedure statute, P.R. Laws Ann. tit. 3, § 2167, itself. There is
no claim that any "established state procedure" deprived it of
property without due process. Logan v. Zimmerman Brush Co., 455
U.S. 422, 436 (1982). As to the claim it does make, all agree that
SGCP has a protected property interest and the defendants acted
under color of state law. See id. at 428 (explaining that the
procedural due process inquiry is "whether [plaintiff] was deprived
of a protected interest, and, if so, what process was his due");
González-Droz v. González-Colón, 660 F.3d 1, 13 (1st Cir. 2011)
(stating the elements of a procedural due process claim).
The issue is whether on these facts SGCP has raised a
viable claim of deprivation of its federal procedural due process
rights as those rights have been articulated in the Parratt-Hudson
doctrine and in Zinermon, 494 U.S. 113.
SGCP's primary theory is
that the "circumstances of this case" -- ARPE's impropriety in
invoking the emergency procedure statute to issue a stay -- "are
governed by Zinermon" and not the Parratt-Hudson doctrine.
outline the Parratt-Hudson doctrine before turning to SGCP's claim
that Zinermon requires finding Parratt-Hudson inapplicable on these
A. The Parratt-Hudson Doctrine
In Parratt v. Taylor, 451 U.S. 527 (1981), the Court held
that no predeprivation process was required where a state prison
guard negligently destroyed a prisoner's property, so long as
adequate postdeprivation remedies were available.
explained that "either the necessity of quick action by the State
or the impracticability of providing any meaningful predeprivation
process, when coupled with the availability of some meaningful
means by which to assess the propriety of the State's action at
some time after the initial taking, can satisfy the requirements of
procedural due process." Id. at 539. The Court concluded that
"the loss is not a result of some established state procedure and
the State cannot predict precisely when the loss will occur. It is
difficult to conceive of how the State could provide a meaningful
hearing before the deprivation takes place." Id. at 541.
In Hudson v. Palmer, 468 U.S. 517 (1984), the Court
extended Parratt to intentional destruction of property by a state
prison guard, explaining that "when deprivations of property are
effected through random and unauthorized conduct of a state
employee, predeprivation procedures are simply 'impracticable'
since the state cannot know when such deprivations will occur."
Id. at 533. Whether the state employee knew in advance of the
deprivation was irrelevant; instead "[t]he controlling inquiry is
solely whether the state is in a position to provide for
predeprivation process." Id. at 534.
In Zinermon v. Burch, 494 U.S. 113 (1990), the Court
found that Parratt-Hudson did not apply to an improper voluntary
admission of a patient to a mental health facility under a Florida
statute. There, Burch arrived at a mental health facility
hallucinating, confused, psychotic, and believing he was in heaven.
Id. at 118. He was provided with forms to sign giving his consent
to admission and treatment, and did so, resulting in his admission
under Florida's statutory provisions for "voluntary" admission.
Id. at 118, 122. These allowed for a patient to be admitted if the
patient gave express and informed consent, which was defined as
requiring the patient to "make a knowing and willful decision."
Id. at 123. A post-release investigation and examination found
that Burch was probably not competent to sign the form and he then
brought his federal suit. Id. at 120.
Florida did have other methods of admission. The
consequences of the use of the voluntary procedure rather than
other procedures were considerable. Depending on which type of
admission was involved, the procedures and the duration of
The substantive standard for the different
forms of admission differed as well. For example, a patient could
only be involuntarily admitted if likely "to injure himself or
others," or if a lack of care or treatment would result in "neglect
or refusal to care for himself" that amounted to a "real and
present threat of substantial harm to his well-being." Id. at 122.
By contrast, voluntary admission simply required "express and
informed consent." Id. at 123. Burch alleged that he was deprived
of procedural due process because he was admitted under the
voluntary consent procedures, even though it should have been clear
that he was not of sufficiently sound state of mind at the time he
was admitted to be able to voluntarily consent to admission. Id.
at 115, 123.
The Court, in a 5-4 decision, agreed with Burch that his
complaint stated a claim. The Court found that the Florida statute
provided "little guidance" on which procedure to use when admitting
patients, id. at 135, and instead provided "broadly delegated,
uncircumscribed power" to officials admitting patients, id. at 136.
The Court explained that Florida delegated "a broad power to admit
patients" to the facility, and that "[b]ecause [the hospital
officials] had state authority to deprive persons of liberty, the
Constitution imposed on them the State's concomitant duty to see
that no deprivation occur without adequate procedural protections."
Id. at 135. Important to the Court's analysis was that the statute
could easily have contained additional safeguards, such as a
requirement that admissions staff "determine whether a person is
competent to give consent" before allowing voluntary admission.
The Court also advanced "three basic reasons" for finding
Parratt-Hudson inapplicable. Id. at 136. First, the risk of
deprivation of liberty was predictable and was so as to the
particular point in the admission process when the deprivation
would occur. Id. The Court found that "the very nature of mental
illness makes it foreseeable that a person needing mental health
care will be unable to" provide informed consent, and so there was
a clear and easily foreseeable risk that some individuals would be
wrongly placed into treatment if allowed to sign in voluntarily
without some threshold determination of competency. Id. at 133,
Second, since Florida already had an established
procedure for involuntary placement, "we cannot say that
predeprivation process was impossible here." Id. at 136. This was
in contrast to Parratt in which it would have made no sense for a
state to tell its employees not to make a mistake as to losing mail
and it would be absurd to hold a hearing on whether employees
should make a mistake. Id. at 137. A state could not anticipate
or control in Parratt and in Hudson when such mistakes would be
made, whether the mistakes were negligent or intentional.
Third, the conduct of the state officials was not
"unauthorized" in the sense used in Parratt and Hudson, for two
reasons. Id. at 138. First, in those cases the defendant guards
did not have broad authority from the state to commit the negligent
and intentional deprivations that they did. Id. Second, the
Zinermon Court stressed that the defendants were dealing with
persons "unable to protect their own interests." Id.
The Supreme Court has not addressed the Parratt-Hudson
doctrine since. Still, Justices Kennedy and Thomas, concurring in
Albright v. Oliver, 510 U.S. 266 (1994), set forth their views that
the Parratt-Hudson doctrine stands for the proposition that "[i]n
the ordinary case where an injury has been caused not by a state
law, policy, or procedure, but by a random and unauthorized act
that can be remedied by state law, there is no basis for [federal
court] intervention under § 1983," in a suit alleging only a
procedural due process claim. Id. at 285 (Kennedy, J., concurring
in the judgment). This "commonsense teaching" is designed to
"respect the delicate balance between state and federal courts,"
and to ensure that the Due Process Clause of the Fourteenth
Amendment does not turn into "a font of tort law to be superimposed
upon whatever systems may already be administered by the States."
Id. at 284 (quoting Parratt, 451 U.S. at 544) (internal quotation
B. Application of Parratt-Hudson
SGCP contends that "not all conduct by state officials
that violates state law falls within the 'random and unauthorized'
doctrine." It argues that the conduct here does not fall within
Parratt-Hudson for three reasons. First, like Zinermon, these
officials had authority to effect the deprivation complained of.
Second, like Zinermon, it is predictable that where government
officials have to choose one or another of two or more protocols,
there will be mistakes which will result in denials of due process.
Third, "and most important, . . . the state could have done more to
guide its officials' choice between available procedural protocols
under circumstances in which a correct choice would have satisfied
the Constitution but an incorrect choice did not." For this last
proposition it relies on the Puerto Rico Supreme Court's
acknowledgment that the statute itself "does not provide
definitions nor guidelines to precisely state what situations or
circumstances justify an agency [to deviate] from the ordinary
adjudicative process to invoke" the emergency procedure. These
three arguments are derived directly from the Zinermon Court's
"three basic reasons" for finding the Parratt-Hudson doctrine
inapplicable. 494 U.S. at 136. We disagree on each point and find
the Parratt-Hudson doctrine applies here.
We outline the emergency procedure statute at issue here
before turning to SGCP's arguments. The statute is entitled
"[e]mergency adjudicatory procedure," and allows agencies to "use
emergency adjudicatory procedures in any situation in which there
is imminent danger to the public health, safety and welfare or
which requires immediate action by the agency." P.R. Laws Ann.
tit. 3, § 2167(a). Agencies "may only take such action as it is
necessary within the circumstances described in the above
subsection (a) which justifies the use of emergency adjudicatory
procedures." Id. § 2167(b). Before emergency procedures under
subsection (a) may be used, the agency must "issue an order or
resolution that shall include a concise determination of the
findings of fact, conclusions of law, and the reasons of public
policy that justify the agency's decision to take specific action."
Id. § 2167(c). When the emergency procedures are invoked, the
agency must give notice "to those persons who are required to
comply with the order or resolution," which order or resolution
becomes "effective upon being issued." Id. § 2167(d).
Furthermore, unlike under the Florida statute at issue in Zinermon,
after invoking the emergency procedure statute the agency must
"promptly proceed to complete any procedure that has been required,
unless there is imminent danger." Id. § 2167(e).
The emergency procedure statute at issue, on its own
language, is explicitly an exception to the general rule requiring
full predeprivation process, and it requires a finding that a
triggering condition -- an emergency rising to certain levels -- in
subsection (a) is satisfied. Section 2167 is a limited exception
to the general requirement that procedural due process protections
be provided "in any formal adjudicatory procedure before an
agency." Id. § 2151.
Moreover, § 2167 requires the agency
invoking emergency procedures to issue an order justifying its use
of such procedures. Id. § 2167(c).
These differences alone cast doubt on whether Zinermon
could apply here, even if the triggering conditions themselves
require some exercise in judgment by agencies in determining when
to invoke them. Zinermon did not involve a use of statutory
emergency procedures. Further, Zinermon did not involve a
triggering requirement that there be a finding that an individual
was competent before admitting an individual under the voluntary
admission procedure. Indeed, that was exactly the flaw in the
procedure. See Zinermon, 494 U.S. at 135 (noting that the Florida
law "do[es] not direct any member of the facility staff to
determine whether a person is competent to give consent, nor to
initiate the involuntary placement procedure for every incompetent
patient"). Moreover, in Zinermon, no guidance at all was provided
as to when to use voluntary as opposed to involuntary procedures.
See id. These distinctions alone are important.
1. Discretion Provided by the Statute
SGCP's first claim is that the statutory language
defining what qualifies as emergency conditions justifying
invocation of the emergency procedure statute does not sufficiently
cabin the discretion of administrative agencies and so this case
falls within Zinermon.
We reject SGCP's argument. The scope of discretion
conferred on agencies in determining when to use emergency
procedures under § 2167 is not equivalent to the completely
uncircumscribed discretion to use voluntary admission procedures
that existed in Zinermon.
There can be no serious argument that the required
triggering finding of "imminent danger to the public health, safety
and welfare" grants excessive discretion. Emergency procedure
statutes similar to the one at issue here are widespread in this
country. Puerto Rico's emergency procedure statute is modeled on
a section of the 1981 Model State Administrative Procedure Act.
Subsection (a) of that section provides that "[a]n agency may use
emergency adjudicative proceedings in a situation involving an
immediate danger to the public health, safety, or welfare requiring
immediate agency action." 1981 Model State Admin. P. Act, § 4-501(a). A number of states have enacted centralized emergency
procedure provisions similar to that of the model act and the
Puerto Rico law. See, e.g., Cal. Gov't Code § 11460.30(a); Idaho
Code Ann. § 67-5247(1); Iowa Code Ann. § 17A.18A(1); Kan. Stat.
Ann. § 77-536(a); N.D. Cent. Code Ann. § 28-32-32; Wash. Rev. Code
Ann. § 34.05.479(1). It cannot be, as the logic of SGCP's argument
would have it, that these statutes vest so much discretion in state
officials that they would be vulnerable to suit under Zinermon for
Indeed, the Supreme Court upheld a similar, but not
identical, emergency procedure statute against a due process
challenge in Hodel v. Virginia Surface Mining & Reclamation Ass'n,
452 U.S. 264 (1981). The Court upheld provisions of the Surface
Mining Control and Reclamation Act that allowed the Secretary of
the Interior to order immediate cessation of activities with no
predeprivation process if two criteria were met. Id. at 298.
First, the mining operation must violate the Act or a permit
condition required by the Act. Id. Second, the secretary must
determine that the operation "creates an immediate danger to the
health or safety of the public, or is causing, or can reasonably be
expected to cause significant, imminent environmental harm to land,
air or water resources." Id. The Act defined "imminent danger to
the health and safety of the public" as the existence of a
condition or practice that could "[r]easonably be expected to cause
substantial physical harm to persons outside the permit area before
such condition, practice, or violation can be abated." Id. at 301
(alteration in original). The Court found that these standards
were easily "specific enough to control governmental action and
reduce the risk of erroneous deprivation," id. at 301, and that
"[i]f anything, these standards are more specific than the criteria
in other statutes authorizing summary administrative action that
have been upheld against due process challenges," id. at 302.
Given Hodel, at oral argument before the en banc court
SGCP argued for the first time that its claim that the emergency
statute at issue here conferred too much discretion was largely
based on other statutory language -- the language allowing
emergency procedures to be invoked in any situation "which requires
immediate action by the agency," which follows after the language
requiring that there be "imminent danger to the public health,
safety and welfare." P.R. Laws Ann. tit. 3, § 2167(a). SGCP
claimed the "or which requires immediate action" clause is to be
read as having an independent meaning from the "imminent danger to
the public health, safety and welfare" clause and does not provide
any guidance to state officials. SGCP did not make this argument
to the district court or in its appeal to the panel. It did not
brief this issue even before the en banc court. We have found no
support for this anywhere in Puerto Rico law, and the argument is
contrary to Puerto Rico law. SGCP further argued that the Puerto
Rico Supreme Court had not, before its decision in this case,
adopted sufficient limiting principles to cure this deficiency.
This is also not so.
There is no deficiency resulting from the "or which
requires immediate action" clause. SGCP's new argument
many reasons, beyond waiver. It is not supported by rules of
statutory construction, it is contrary to judicial interpretation,
and in fact that reading of the statute was not the basis for the
decision here. No Puerto Rico case has interpreted the clause as
independent and unrelated to the imminent danger clause. It is
clear that this portion of the statute, when interpreted in light
of the statute as a whole, earlier Puerto Rico court decisions, and
the circumstances of this case, did not amount to the type of grant
of broad and standardless discretion in Zinermon.
First, the construction of the statute itself does not
support SGCP's argument. As SGCP conceded at oral argument, this
portion of the statute must be construed in light of the preceding
portion, which allows for emergency procedures to be used only
where there is an "imminent danger to the public health, safety and
welfare." P.R. Laws Ann. tit. 3, § 2167(a). This is particularly
so given that this language is within a statute entitled
"[e]mergency adjudicatory procedure" and outlines when "emergency
adjudicatory procedures" can be used. Id. (emphasis added). Other
portions of the statute make clear that the emergency procedures of
subsection (a) are to be used only in narrow circumstances.
a result, an official considering the clause after the word "or"
would construe it to reach only circumstances of comparable
gravity. Cf. Reiter v. Sonotone Corp., 442 U.S. 330, 339 (1979)
("Canons of construction ordinarily suggest that terms connected by
a disjunctive be given separate meanings, unless the context
dictates otherwise . . . ." (emphasis added)); Mizrahi v. Gonzales,
492 F.3d 156, 164 (2d Cir. 2007) ("It is a standard canon of
statutory construction that words separated by the disjunctive are
intended to convey different meanings unless the context indicates
otherwise."); see also Lawson v. FMR LLC, 670 F.3d 61, 68 (1st Cir.
2012) (courts consider "the broader statutory framework, including
particularly the nearby language, and the title and caption" in
construing terms of a statute (citations omitted)).
Judicial construction of the statute also precludes
SGCP's broad reading of the "or" clause as well as its attack on
the imminent danger clause. The emergency procedure statute was
enacted, in 1988, against a backdrop of Puerto Rico Supreme Court
precedent which reads in limiting principles to statutes
authorizing summary action in order to ensure that those statutes
comply with both Puerto Rico's due process clause and the
Fourteenth Amendment's Due Process Clause. Other cases decided
after the statute's enactment similarly emphasize that summary
action is justified only in narrow circumstances.
The Puerto Rico Supreme Court opinion in this case does
explain, as SGCP argues, that the statutory language of § 2167 does
not "precisely state what situations or circumstances justify"
summary procedures, but it also says "[n]evertheless, on prior
occasions we have had the opportunity to precisely measure the
scope of the 'emergency' concept." The court relied on, and quoted
liberally from, this precedent in explaining that § 2167 only
justifies the use of summary procedures if there are
"extraordinary" circumstances that would "imply the existence of
a[n] imminent danger for public health, safety and welfare," and
that "the guiding criteria must be whether the delay that entails
starting an ordinary procedure would al[l]ow the happening,
precisely, of what the summary action intends to avoid." The
Supreme Court relied on and did not overrule any precedent in
reaching this conclusion.
A number of Puerto Rico Court of Appeals decisions also
construed § 2167 narrowly well before ARPE invoked the statute
here. Most notably, a 2001 opinion explained that "[e]xcept in
situations of a true emergency, the agency is obligated to hold a
hearing with all the rights" outlined by P.R. Laws Ann. tit. 3,
§ 2151, and held that because "[i]n the case at hand, such an
emergency situation did not exist," the agency's issuance of an
order under § 2167 violated due process of law. El Comandante
Mgmt. Co. v. Confederación Hípica de P.R., No. JH-01-47, 2001 WL
1850793 (P.R. Cir. Dec. 17, 2001) (emphasis added) (translation
provided by U.S. District of Puerto Rico interpreters). Several
other appellate decisions also explained that § 2167 is an
exception to be used only in emergency situations.
Contrary to SGCP's argument, even before the Puerto Rico
Supreme Court's decision in this case, Puerto Rico had provided
judicial and statutory guidance in construing the "immediate
action" portion of § 2167 as limited to emergency or other
extraordinary situations of similar urgency.
Moreover, the actions taken here were not in fact based
on SGCP's hypothetical reading of the "or which requires immediate
action" clause. Neither the ARPE, the Puerto Rico Court of
Appeals, nor the Puerto Rico Supreme Court treated the "immediate
action" portion of the statute as separate from the "health, safety
and welfare" portion of the statute or reviewed ARPE's action as
based on only the "immediate action" clause. ARPE's stated reasons
relied on the imminent danger to health, safety, and welfare
portion -- including the fact of ongoing public demonstrations,
which required police intervention. Both ARPE and the Puerto Rico
courts cited to subsection (a) of the emergency statute as a whole.
As a result, we reject the argument that the emergency
statute allowed such unfettered discretion as to remove this case
from the reach of Parratt-Hudson. ARPE was not provided with
"broad power and little guidance," or "broadly delegated,
Zinermon, 494 U.S. at 135-36; see also
Lolling v. Patterson, 966 F.2d 230, 234 n.6 (7th Cir. 1992)
(Zinermon does not apply even where an official exercises
"discretion and authority," so long as "that discretion was not
'uncircumscribed' or otherwise unregulated"); Charbonnet v. Lee,
951 F.2d 638, 644 (5th Cir. 1992) ("[T]he Zinermon majority found
that the state actions before it were not 'unauthorized' only
because the state had actually delegated its officials with the
broad authority to carry out the deprivation alleged by Mr.
Burch."); Easter House v. Felder, 910 F.2d 1387, 1400-01 (7th Cir.
1990) (en banc) (explaining that "the extent to which the state
official's discretion is 'uncircumscribed' . . . appears to have
been a decisive factor permitting the majority in Zinermon to rule
that Parratt would not" apply, and holding that "exercis[ing] a
certain amount of discretion and authority" does not mean that such
discretion was uncircumscribed). Sufficient guidance was provided
to ARPE, and ARPE's discretion was so limited, such that this case
does not fall within Zinermon.
Moreover, the view of this court has long been that
Zinermon is best viewed as a case where the state statutory scheme
conferred so much discretion on state officials so as to authorize
the state officials' actions in deprivation of procedural rights.
See Herwins v. City of Revere, 163 F.3d 15, 19 (1st Cir. 1998) (in
Zinermon "the procedure was itself authorized by state law"); see
also Mard v. Town of Amherst, 350 F.3d 184, 194 n.4 (1st Cir. 2003)
(same); O'Neill v. Baker, 210 F.3d 41, 50 (1st Cir. 2000) ("In
Herwins, we viewed Zinermon as a case in which state law did
authorize the procedure followed (albeit unconstitutionally), so
that the act of the officials could not be described as 'random and
unauthorized' . . . ."). We therefore reject SGCP's opening
premise that Zinermon involved a case of violation of state law.
Here, the state statutory scheme did not authorize ARPE's actions,
and a mere mistake by officials in exceeding the limits of their
defined authority is not the stuff of a federal due process claim.
2. Foreseeability of a Deprivation
SGCP's second claim is that the deprivation at issue here
was "foreseeable" as opposed to "random" because, like Zinermon, it
is predictable that where government officials have to choose one
or another of two or more protocols, there will be mistakes which
will result in denials of due process.
We reject SGCP's claim that all it needs to do to fit
under Zinermon is show that it was foreseeable that officials could
make mistakes and as a result of those mistakes, there would be
deprivations of due process. SGCP's argument fundamentally
misapprehends the foreseeability and predictability aspect of
Zinermon's distinguishing of Parratt-Hudson. Zinermon cannot be
reduced to the proposition that whenever there is risk of error,
the protections afforded by Parratt-Hudson do not apply. As
Alexander Pope wrote, "to err is human." The Zinermon Court
likewise did not rule that every time an agency must make a choice
between sets of procedures Parratt-Hudson does not apply.
In Zinermon, the risk of an erroneous non-emergency
commitment of an individual who had not been shown to be a danger
to himself or others was different in kind than the risk present
here. There, it was perfectly obvious that some individuals
seeking non-emergency admission at a mental health facility would
not be competent to give consent to admission. Zinermon, 494 U.S.
at 133 ("Indeed, the very nature of mental illness makes it
foreseeable that a person needing mental health care . . . will be
unable 'to make a knowing and willful decision' whether to consent
to admission."). Given this clear risk, it was predictable that
individuals would be admitted under the voluntary admission
procedure, even though they were not competent to give consent,
because the statute did not require a threshold determination of
competency. Id. at 135 ("[T]he statutes do not direct any member
of the facility staff to determine whether a person is competent to
give consent, nor to initiate the involuntary placement procedure
for every incompetent patient."). That was why the Zinermon Court
explained that the risk of an erroneous deprivation was
"predictable." Id. at 136 ("It is hardly unforeseeable that a
person requesting treatment for mental illness might be incapable
of informed consent, and that state officials with the power to
admit patients might take their apparent willingness to be admitted
at face value and not initiate involuntary placement procedures.").
There was nothing comparable here to the Zinermon foreseeability
that the statute created a substantial risk of erroneous admissions
by failing to first require a determination that someone visibly
mentally ill was competent to voluntarily admit himself.
Our conclusion is consistent with that of other circuits.
See Caine v. Hardy, 943 F.2d 1406, 1413 (5th Cir. 1991) (en banc)
(explaining Zinermon applies only where, among other conditions,
"the particular pre-deprivation administrative procedure presents
a high risk of erroneous deprivation"); Easter House, 910 F.2d at
1401 ("The Court's concern in Zinermon focused on the broadly
delegated authority which the state statute gave the doctors to
effect the deprivation at issue and the subsequent failure of that
same statute to provide for effective pre-deprivation safeguards.
It was in view of this statutory oversight that the Court concluded
that the deprivation which occurred was 'predictable' and, as such,
3. Additional Predeprivation Safeguards
We also note that Zinermon does not govern here because,
unlike in Zinermon, there is no practicable additional
predeprivation process that could be implemented. See Zinermon,
494 U.S. at 132-33 ("To determine whether . . . the Parratt rule
[applies] . . . we must ask whether predeprivation procedural
safeguards could address the risk of deprivations of the kind Burch
alleges."). In Zinermon there existed a straightforward cure for
the statutory failing: the state could have easily imposed a
requirement that a threshold determination of competency take
place, so that involuntary commitment procedures would be used for
patients who, though willing to give consent, were in fact unable
to give valid consent due to their mental health condition. Id. at
136-37. This determination was critical to the court's holding.
See id. at 137 (explaining that "[t]he problem is only to ensure
that [the involuntary placement] procedure is afforded to all
patients who cannot be admitted voluntarily").
That is not true here. In a situation involving a
potential emergency, as here, to require additional predeprivation
safeguards would defeat the very purpose of the emergency statute.
The Supreme Court made this point in Hodel: "The Court has often
acknowledged, however, that summary administrative action may be
justified in emergency situations." 452 U.S. at 299-300. In such
circumstances, summary procedures are justified because "swift
action is necessary to protect the public health and safety." Id.
at 301. As we recently noted in a case holding it would be
impractical to require a predeprivation hearing: "[T]he variety of
. . . circumstances within which the exception [to the general
requirement of predeprivation process] has been recognized
demonstrates that the exception is a flexible one," and "the
Supreme Court's case-by-case approach to impracticality reflects
the flexibility of due-process jurisprudence." Elena v.
Municipality of San Juan, 677 F.3d 1, 6 (1st Cir. 2012).
Here, the very point of Puerto Rico's emergency
procedures is to permit public officials to act promptly where
there is an emergency. It would make no sense to require there
first be a notice and hearing to determine whether the state may
even invoke the emergency power. If a predeprivation hearing had
to be held in these circumstances, "an official charged with
discretion would be in the anomalous position of almost being
forced to hold a hearing to determine whether or not an emergency
exists, so as to then determine whether a predeprivation hearing is
constitutionally required. This cannot be the proper result."
Catanzaro v. Weiden, 188 F.3d 56, 63 (2d Cir. 1999); see also
Harris v. City of Akron, 20 F.3d 1396, 1404 (6th Cir. 1994)
(explaining that under Zinermon, the hospital admission "could have
been accomplished under either the voluntary or the involuntary
admission procedure," but that under an emergency statute, "[i]f an
emergency existed, the only available course of action for removing
the threat to public health and safety was to" use emergency
procedures "forthwith," and noting that "[a]n erroneous
determination that no emergency existed would have resulted in the
very threat to the public that the [summary procedure] was intended
to prevent"). For these reasons, Zinermon does not control here.
The Supreme Court's jurisprudence regarding emergency
procedures recognizes that even though those procedures may
sometimes be invoked in error, such procedures nevertheless satisfy
The possibility of administrative error
inheres in any regulatory program; statutory
programs authorizing emergency administrative
action prior to a hearing are no exception.
. . . "Discretion of any official action may
be abused. Yet it is not a requirement of due
process that there be judicial inquiry before
discretion can be exercised. It is
sufficient, where only property rights are
concerned, that there is at some stage an
opportunity for a hearing and a judicial
Hodel, 452 U.S. at 302-03 (quoting Ewing v. Mytinger & Casselberry,
Inc., 339 U.S. 594, 599 (1950)).
Our conclusion that Parratt-Hudson, not Zinermon, governs
this case is reinforced by Herwins, 163 F.3d 15, a case which SGCP
agrees was correctly decided. Herwins addressed the exercise of
emergency powers by government officials. There, a summary order
requiring that a building be vacated was issued on the basis of a
regulation allowing summary action where a building is "unfit for
human habitation and must be vacated forthwith." 163 F.3d at 17
(internal quotation marks omitted). Herwins, the building owner,
brought a federal suit, alleging a procedural due process violation
on the basis that closure of the building required prior notice and
a hearing. Id. at 16-17. He introduced evidence that the
inspector had falsely or recklessly reported violations of the
building code and so exercise of the summary power was not
justified. Id. at 17.
Relying on Parratt-Hudson, we rejected Herwins's federal
procedural due process claim. As in this case, but for the
official's mistake in declaring an emergency, the plaintiff there
would have been provided a fuller hearing; nonetheless, we held
that the plaintiff was not entitled to such a hearing before the
declaration of an emergency. Id. at 19. And, as here, there were
adequate means of post-deprivation redress. Id. at 19-20. We
explained that but for the Parratt-Hudson limitation:
federal suits might be brought for countless
local mistakes by officials in administering
the endless array of state laws and local
ordinances. Often these errors have a
procedural dimension -- e.g., a tax lien
imposed after a misaddressed notice of taxes
due -- and inflict temporary harm or
inconvenience. Assuming that the state
remedies are themselves adequate, it has
seemed sufficient to leave such random and
individual errors to be corrected by state
courts and agencies.
Id. at 19.
We rejected Herwins's attempt to rely on Zinermon,
[w]hile state law led [the building inspector]
to invoke summary closure, his "authorized"
use of the summary power would not violate the
Constitution, and [his] improper use is
exactly the kind of "random and unauthorized"
conduct that the local government had no duty
(and indeed no practical way) to forestall
through a predeprivation hearing -- a
procedure itself inconsistent with true
The same is true here. We also noted that "Massachusetts
does provide for an opportunity to object before a building is shut
down except in emergencies." Id. Again, the same is true here.
We noted that in Zinermon, the "[c]onfinement of patients
not competent to consent was easily foreseeable and pre-deprivation
screening could feasibly be provided in non-emergency cases." Id.
By contrast, neither condition obtained in Herwins; the same is
true in this case. We concluded that "[w]here an official errs in
declaring an emergency, the only feasible procedure is a post-deprivation remedy." Id.
SGCP's only attempt to distinguish Herwins is the
argument that the Puerto Rico statutory emergency scheme at issue
here confers more discretion than the statute at issue in Herwins.
We doubt that is so, and we have already rejected the argument that
§ 2167 confers such uncircumscribed discretion so as to fall within
In sum, none of the grounds SGCP offers for
distinguishing Parratt-Hudson has merit. The erroneous judgment by
ARPE was exactly the type of "random and unauthorized conduct"
encompassed by Parratt-Hudson. The Puerto Rico Supreme Court
stated that ARPE simply "made a mistake" in invoking the emergency
provisions. That court did find that the ARPE's judgment was
wrong, but that does not remove the case from Parratt-Hudson; it
instead establishes that this case fits firmly within Parratt-Hudson. That is the very kind of unanticipated mistake that is due
to individual error, not induced by the statute.
There is no viable argument here that there were not
adequate postdeprivation processes or remedies, which were
utilized, to address predeprivation mistakes. In fact, SGCP did
receive prompt postdeprivation process, when the Supreme Court of
Puerto Rico in related actions both confirmed its title and said
ARPE had been mistaken in concluding there was an emergency
warranting the stay. The case moved very rapidly throughout the
relevant time period, leading to a stay of the permit suspension by
the Puerto Rico Supreme Court after sixty-three days.
We clarify that we do not hold that whenever an
official's conduct violates state law the Parratt-Hudson doctrine
necessarily applies. Under Zinermon, there may be certain
circumstances warranting the conclusion that such violations do not
fall within the Paratt-Hudson doctrine. See Zinermon, 494 U.S. at
138 n.20 ("Contrary to the dissent's view of Parratt and Hudson,
those cases do not stand for the proposition that in every case
where a deprivation is caused by an 'unauthorized . . . departure
from established practices,' state officials can escape § 1983
liability simply because the State provides tort remedies."
(omission in original) (citation omitted)). To the extent that
dicta in our precedent suggests otherwise,
that dicta is
Our reasoning as to the failure of the procedural due
process claim extends beyond the members of ARPE to the defendant
Governor and Secretary of Justice. These claims necessarily fail
on the same reasoning the claims against the other defendant fail.
The claims also independently fail for other reasons.
A. The Secretary of Justice
As to the Secretary of Justice, SGCP failed to provide
any argument before the district court or on appeal as to why his
actions amounted to a procedural due process violation, so this
claim is waived. Moreover, the opinion issued by the Secretary and
relied on by SGCP belies any assertion that he ordered ARPE to
violate SGCP's right to due process. The opinion made clear that
it did not "dictate the precise method through which the different
governmental entities concerned should proceed with their
reevaluation and with any possible stay of the construction still
ongoing," and stressed that the agencies should act pursuant to
applicable laws and "safeguard any procedural and substantive law
or rights the affected parties may have," including ensuring that
all proceedings comported with "due process of law." As a result,
and because the opinion is the sole basis for the due process claim
against the Secretary, the due process claim against the Secretary
B. The Governor
SGCP's claim against the Governor rests upon the
complaint's allegation that "the Governor publicly ordered all
administrative agencies to suspend all permits for the Paseo Caribe
Project and to freeze all permits for the Paseo Caribe Project and
to freeze all construction for an initial period of sixty (60)
days." SGCP briefly argues, for the first time on appeal, that
this allegation suffices to state a procedural due process claim
and is viable even if the actions of the other defendants are
"random and unauthorized," because the Governor is exempted from
Puerto Rico's administrative procedure act. See P.R. Laws Ann.
tit. 3, § 2102(a)(3) (excluding from the definition of "agency" the
"Office of the Governor and all its attached offices excepting
those where the application of the provisions of this chapter have
been literally expressed"). This argument fails.
At the outset, the complaint itself demonstrates that the
Governor's actions fall within the scope of the Parratt-Hudson
doctrine. SGCP's complaint, in one of the only sentences
discussing the actions of the Governor,
also pleads that "the
Governor does not have the legal authority to suspend construction
permits by decree." This allegation is held against SGCP in
assessing whether the Parratt-Hudson doctrine applies to the
Governor. See 5 Wright & Miller, Federal Practice and Procedure
§ 1226, at 302-03, 304 (3d ed. 2004) ("The pleader must be careful
not to allege facts that constitute a defense to his claim for
relief . . . . A complaint containing a built-in defense usually
is vulnerable under Rule 12(b)(6) to a motion to dismiss for
failure to state a claim upon which relief can be granted."). The
complaint alone thus supports application of the Parratt-Hudson
doctrine to the claim against the Governor.
SGCP has also failed to develop any argument as to why
its claim against the Governor is not barred by the Parratt-Hudson
doctrine. Indeed, in its opposition to the motion to dismiss, SGCP
argued that "the Governor lacks any valid legal authority to
suspend construction permits by decree." SGCP did not raise the
argument that the Governor should be treated differently until its
objection to the magistrate judge's report and recommendation, and
even then did not raise the same argument it makes on appeal.
Instead it asserted in two sentences without citation to any
authority that the non-ARPE defendants should be treated
differently because "the UAPA does not apply in this case to
officials who are not engaged in adjudication." SGCP's argument on
this point before the panel also consisted of two sentences, and
even its argument before the en banc court was brief, consisting of
two paragraphs which cited as authority only the definition in
§ 2102 and Chmielinski. Basic issues necessary to assess SGCP's
due process claim against the Governor, such as the Governor's
authority to direct administrative agencies under Puerto Rico law,
have not been addressed at all. SGCP's claim against the Governor
is accordingly waived. See P.R. Tel. Co. v. T-Mobile P.R. LLC, 678
F.3d 49, 58 n.5 (1st Cir. 2012).
Apart from these independent reasons why SGCP's argument
fails, it also fails on its own terms. The Governor's actions fall
squarely within the Parratt-Hudson doctrine. The complaint's claim
of SGCP's injury was the suspension of its permits, which was
directly ordered by ARPE, and not by the Governor, who lacked the
power to do so. The statute authorizing the suspension of permits
invoked in this case delegated that power to ARPE, not the
Governor. See P.R. Laws Ann. tit. 23, § 71x (2008) ("The
may issue orders to do or not to do, and to cease
and desist so that the necessary preventative or control measures
be taken to achieve the purposes of this chapter . . . ." (emphasis
added)). Likewise, the Puerto Rico Supreme Court has stated that
"[t]he order to stay or order to cease and desist is one of the
remedies which may be delegated to the administrative agencies,"
and that "[u]pon reviewing the organic acts of several
administrative agencies of the Commonwealth of Puerto Rico we
expressly found such faculty delegated. For example, this occurs
with . . . the Regulations and Permits Administrations Act, 23
L.P.R.A. sec. 71x." Consejo Para la Protección del Patrimonio
Arqueológico Terrestre de P.R. v. Gobierno Municipal de
Barceloneta, 168 P.R. Dec. 215, 225 (2006) (emphasis added) (quoted
in San Gerónimo Caribe Project, Inc., 2008 WL 1744564 (certified
translation provided by the parties)).
Further, ARPE was overseen not by the Governor, but by
the Planning Board, another agency. See P.R. Laws Ann. tit. 23,
§ 71a (2008) ("The Regulations and Permits Administration is hereby
created, attached to the Puerto Rico Planning Board."). The
Governor does not appoint the ARPE administrator. Id. § 71c
(providing that ARPE "shall be under the direction of a Regulations
and Permits Administrator," who is "appointed by a majority of the
members of the Planning Board, with the approval of the Governor").
The ARPE administrator does not report to the Governor, but instead
"answer[s] directly to the [planning] board in the performance of
his/her functions and shall hold office at its volition." Id.
While the Planning Board's seven members were appointed by the
Governor with the advice and consent of the Senate, id. § 62d, they
were appointed "for the duration of the quadrennium in which they
and could "only be dismissed for just cause," id.
§ 62e. The Act establishing the Planning Board contains no general
provision granting the Governor authority to direct its operations
-- its decisions are made through majority vote of the Planning
Board members. Id. § 62i.
SGCP develops no argument that the Governor has authority
to direct the operations of either the Planning Board or ARPE.
SGCP also does not claim that if the Governor had such authority,
it could be used to direct ARPE to violate Puerto Rico law in
suspending SGCP's permits. It is clear that the Governor lacks
authority under Puerto Rico law to alter or exceed the authority
conferred by duly enacted statutes. See, e.g., Díaz de Llovet v.
Office of the Governor, 12 P.R. Offic. Trans. 941 (1982) (holding
that legislation governing classification of employees in the
Governor's Office did not confer certain authority on the Governor
and "[l]acking this power, the Governor could not change the
Legislative will through a set of regulations").
Indeed, it would be illogical for a governor's order to
a subordinate agency to violate statutory constraints on the agency
to be "authorized" within the meaning of Parratt-Hudson. If the
governor did issue an order to ARPE, his actions were random and
SGCP also makes no argument that the Parratt-Hudson
doctrine should apply differently simply because the Governor is a
high-ranking official. If that is the intended argument, we reject
it. Nothing in Parratt, Hudson, Zinermon, or this circuit's case
law states that there is an exception for high-ranking state
officials to the usual method of determining whether an action is
random or unauthorized. In this, we join the views of two other
circuits on the matter. See Johnson v. La. Dep't of Agric., 18
F.3d 318, 322 (5th Cir. 1994) ("Simply because Odom is a high state
official does not mean that his actions are automatically
considered established state procedure that would take the case
outside of the Parratt/Hudson doctrine."); Easter House, 910 F.2d
at 1400 ("The question of whether a state official ranks 'high' or
'low' in the state hierarchy, while possibly relevant as indica of
the discretion which that official exercises, cannot by itself be
dispositive of this determination.").
To the extent the Second Circuit has adopted such a
distinction, we decline to follow it. See Rivera-Powell v. N.Y.
City Bd. of Elections, 470 F.3d 458, 465 (2d Cir. 2006) ("This
court has since relied on Zinermon to hold that the acts of
high-ranking officials who are 'ultimate decision-maker[s]' and
have 'final authority over significant matters,' even if those acts
are contrary to law, should not be considered 'random and
unauthorized' conduct for purposes of a procedural due process
analysis." (alteration in original) (quoting Velez v. Levy, 401
F.3d 75, 91-92 & nn.14 & 15 (2d Cir. 2005))). Nor is it clear that
the Second Circuit would apply its doctrine here because the
Governor, both as a matter of fact and of law, was not the ultimate
decision-maker nor did he have the final authority to suspend
permits. Simply because an official is high-ranking does not mean
that the official's actions are automatically placed outside the
scope of Parratt-Hudson, so long as those officials are bound by
statutory limits on their authority under state law. As a result,
the Parratt-Hudson doctrine applies to bar SGCP's claim against the
Governor, and the procedural due process claim against the Governor
was properly dismissed.
The dismissal of the plaintiff's complaint is affirmed.
Costs are awarded to defendants-appellees.
- Concurring Opinion Follows –
LIPEZ, Circuit Judge, concurring. This case highlights
two important facets of the Parratt-Hudson doctrine not yet
addressed by the Supreme Court: application of the "random and
unauthorized" jurisprudence to a state's highest ranking official
and the availability of qualified immunity to state actors whose
disregard of state law provides the basis for a procedural due
process claim. Although I agree with my colleagues' conclusion
that the San Gerónimo Caribe Project, Inc. ("SGCP") has not alleged
a viable due process claim against any of the defendants, I do not
share their willingness to apply the "random and unauthorized"
standard to the alleged conduct of the Governor. The outrageous
behavior of the Commonwealth's chief executive, as alleged, should
not be analyzed in the same way as the unauthorized and
unpredictable acts of the prison employees whose conduct was at
issue in Parratt and Hudson. See Parratt v. Taylor, 451 U.S. 527
(1981); Hudson v. Palmer, 468 U.S. 517 (1984). I also write
separately to express my view that the Supreme Court's Parratt-Hudson jurisprudence, as elaborated in Zinermon v. Burch, 494 U.S.
113 (1990), cannot sensibly be applied in the qualified immunity
context. My hope is that the Court will soon provide much-needed
clarification, ending the decades of uncertainty surrounding the
I accept and join the majority's analysis of the claims
against the ARPE and the Secretary of Justice. With respect to the
Governor, however, it is unnecessary in this case to undertake the
usual Parratt-Hudson inquiry into the defendant's authority and
discretion and, as I shall explain, I believe it is inappropriate
to do so. In my view, the claim against the Governor fails because
the allegations do not plausibly allege a causal link between the
Governor's order and the harm to SGCP. The complaint baldly
asserts that the Governor, through his directive to agency
officials to halt construction,
"willfully caused subsequent
actions by those officials." Compl. ¶ 30. The complaint, however,
does not describe any relationship between the Governor's
pronouncement and subsequent events. Both the Planning Board and
the ARPE administrator cited the previously issued Secretary of
Justice's opinion, not the Governor's order, as the impetus for
initiating the proceedings that led to the suspension of SGCP's
Thus, in effect, the complaint depicts the Governor's
order as merely an outrageous political statement without any
impact on appellant's property rights.
The Governor's alleged involvement in the controversy is
troubling, however. Some five years after construction on the
project had begun, with one part nearing completion and more than
$200 million already invested by SGCP, the Governor issued the
order to suspend all permits and freeze construction for sixty
days. There was no emergency involving public health, safety or
welfare. Instead, there was a vocal group of protesters with a
significant political constituency. Yet, according to the
complaint, the Governor issued an edict that did not contemplate
any opportunity for San Gerónimo to defend its permits at a hearing
before they were suspended.
The Governor's unique role as the chief executive of the
Commonwealth raises the question of whether a defendant's high
status in the state hierarchy should be a factor in the Parratt-Hudson inquiry. Under the majority's reasoning, even if the
Governor's directive had instigated the subsequent events, SGCP
would be without a constitutional remedy for the harm caused. Yet,
the Supreme Court surely did not have in mind the conduct of a
state's chief executive, acting in his official capacity, when it
rejected the claims in Parratt and Hudson to avoid "turning every
alleged injury which may have been inflicted by a state official
acting under 'color of law' into a violation of the Fourteenth
Amendment cognizable under § 1983." Parratt, 451 U.S. at 544.
The suspension of permits by gubernatorial fiat does not
resemble the low-level misconduct at issue in Parratt and Hudson,
and allowing a procedural due process claim based on the Governor's
involvement in the permit suspension would not make a federal case
out of an ordinary tort. To the contrary, such a claim would be
consistent with longstanding precedent holding that § 1983 is
available as a remedy for injuries inflicted by the abuse of state
power, as well as by state law itself. See Monroe v. Pape, 365
U.S. 167, 175-76 (1961) (explaining that § 1983 was created, in
part, as a remedy "against those who representing a State in some
capacity were unable or unwilling to enforce a state law"); id. at
183 ("It is no answer that the State has a law which if enforced
would give relief."); see also Zinermon, 494 U.S. at 124 (noting
that Monroe "rejected the view that § 1983 applies only to
violations of constitutional rights that are authorized by state
law, and does not reach abuses of state authority that are
forbidden by the State's statutes or Constitution or are torts
under the State's common law"); id. at 125 ("[I]n many cases there
is 'no quarrel with the state laws on the books'; instead, the
problem is the way those laws are or are not implemented by state
officials." (quoting Monroe, 365 U.S. at 176) (citation omitted)).
Of course, tension among the principles of Monroe,
Parratt-Hudson, and Zinermon has long been noted by courts and
scholars, traceable to an apparent disagreement within the Court
about when the unlawful acts of a state actor should be
attributable to the state and thus provide the basis for a finding
of a constitutional violation. See, e.g., Bogart v. Chapell, 396
F.3d 548, 564-65 (4th Cir. 2005) (Williams, J., dissenting); Easter
House v. Felder, 910 F.2d 1387, 1408-09 (7th Cir. 1990)
(Easterbrook, J., concurring); Jose R. Juarez, Jr., The Supreme
Court as the Cheshire Cat: Escaping the Section 1983 Wonderland, 25
St. Mary's L.J. 1, 5-7 (1993) ("Cheshire Cat"); Larry Alexander,
Constitutional Torts, the Supreme Court, and the Law of
Noncontradiction: An Essay on Zinermon v. Burch, 87 Nw. U. L. Rev.
576, 580-83 (1993) ("Law of Noncontradiction"). Indeed, Judge
Easterbrook has observed that the Parratt-Hudson-Zinermon line of
cases "resembl[es] the path of a drunken sailor." Easter House,
910 F.2d at 1409 (Easterbrook, J., concurring); see also id. at
1408 (noting that Parratt-Hudson and Zinermon "cannot coexist,
except perhaps by drawing a distinction between liberty and
property, or between important and modest deprivations, neither of
which the majority in Zinermon adopted").
Scholars have identified "two competing visions of § 1983
liability," labeled the "Governmental" model and the "Legalist"
model. Bogart, 396 F.3d at 564 (Williams, J., dissenting). Under
the former, reflected in the Court's decision in Monroe, liability
may be imposed under § 1983 "for all constitutional violations
committed by governmental actors in the scope of their employment
-- even if the actor violates state law when committing the
violation." Id. Under the latter, reflected in Parratt and
Hudson, section 1983 "imposes liability only if state lawmakers
endorse a constitutional violation." Id.
Allusions to both models appear in the majority opinion
in Zinermon, and that inconsistency has left lower courts debating
whether the Supreme Court intended a narrow (more Legalist) or
broad (more Governmental) reading of the case -- and, in turn, a
narrow (more Governmental) or broad (more Legalist) reading of the
Parratt-Hudson doctrine. See, e.g., Bogart, 396 F.3d at 565
(Williams, J., dissenting); Cheshire Cat, 25 St. Mary's L.J. at 27-37 (describing confusion in the lower courts); Law of
Noncontradiction, 87 Nw. U. L. Rev. at 596 ("It is not an
overstatement to describe the Supreme Court's constitutional torts
jurisprudence as a welter of confusion, leaving litigants and lower
courts completely at sea.").
Professor Juarez has proposed
simplifying the procedural due process inquiry by returning it to
pre-Parratt standards, i.e., permitting "[s]ection 1983 procedural
due process claims challenging deprivations without predeprivation
hearings except when there is a need for quick action or when it is
impractical to provide the predeprivation hearing." Cheshire Cat,
25 St. Mary's L.J. at 65. He maintains that, with the quick-action
and impracticality limitations on § 1983 claims, "there should be
no danger of transforming Section 1983 into the 'font of tort law'
feared by so many courts." Id. at 65-66.
Even under a broad construction of the principle espoused
in Parratt and Hudson, however, actions undertaken by a governor in
his or her official capacity should be attributed to the State.
The Supreme Court in Hudson described the inquiry as "whether the
state is in a position to provide for predeprivation process."
Hudson, 468 U.S. at 534 (emphasis added). It is one thing to say
that an errant prison guard is an actor whose actions, in certain
instances, cannot be the basis for a procedural due process
violation because they are not the acts of "the State." It is
another thing to insulate a State from responsibility for the
Moreover, low-level employees routinely
interact with private individuals on small matters, and it is
impossible to implement procedures to prevent some "tort-like"
harms from occurring. The higher you go up in the hierarchy, the
more formal the interactions with the public will be, and it
becomes less plausible to say that the actor's conduct was distinct
from the State's for the purpose of the due process inquiry. Where
the per se "state actor" line in the context of Parratt and Hudson
should be drawn is a worthy subject of discussion. There can be no
debate, however, about where the Governor stands in relation to
As the majority points out, at least two circuits have
rejected a defendant's status as a determinative factor. See
Johnson v. La. Dep't of Agric., 18 F.3d 318, 322 (5th Cir. 1994);
Easter House, 910 F.2d at 1399-1400 (en banc). The Second Circuit,
however, has emphasized the significance of status: "Since the
'state acts through its high-level officials,' the decisions of
these officials more closely resemble established state procedures
than the haphazard acts of individual state actors . . . ." Velez
v. Levy, 401 F.3d 75, 92 (2d Cir. 2005); see also Rivera-Powell v.
N.Y. City Bd. of Elections, 470 F.3d 458, 465 (2d Cir. 2006). The
court in Velez noted that the defendant, the Chancellor of the City
School District of New York, had "the duty . . . to follow the
governing New York statutes and regulations," and it held that
"'any abuse of that authority that rose to the level of a due
process violation cannot be considered "random and unauthorized."'"
401 F.3d at 92 (quoting DiBlasio v. Novello, 344 F.3d 292, 303 (2d
The circuit conflict is unsurprising in light of the
inconsistency and confusion in the precedent described above. See
Cheshire Cat, 25 St. Mary's L.J. at 24-25 ("If we are confused
today, it is because the Supreme Court itself seems to be confused
about what it is doing in these Section 1983 cases." (footnote
omitted)). With respect to the Governor, however, I think it is
plainly unacceptable to say that his conduct, albeit improper under
Commonwealth law, was "unauthorized" in the Parratt-Hudson sense,
regardless of whether one prefers the Legalist or Governmental
model. The Governor is the chief of state and, as such, his
official acts are always those of "the State." At a minimum,
Monroe must mean that a viable section 1983 procedural due process
claim will arise if the Governor sets in motion the denial of
procedural protections to an individual entitled to predeprivation
process. See Zinermon, 494 U.S. at 138 ("The deprivation here is
'unauthorized' only in the sense that it was not an act sanctioned
by state law, but, instead, was a 'depriv[ation] of constitutional
rights . . . by an official's abuse of his position.'" (quoting
Monroe, 365 U.S. at 172) (alteration in original)).
More than two decades ago in Easter House, Judge
Easterbrook observed that the Supreme Court's inconsistent Parratt-Hudson jurisprudence had left "judges of the inferior federal
courts in a difficult position, because any effort to reconcile and
apply the cases will be met with a convincing demonstration . . .
that there is a fly in the ointment." 910 F.2d at 1409. His
concurrence in Easter House was flanked by just such a debate
between majority and dissenting opinions. The debate is ongoing,
and there is plainly a need for clarification and guidance from the
Qualified immunity protects government officials from
personal liability for damages arising from violations of
constitutional rights that were not "clearly established" when the
challenged conduct occurred. Feliciano-Hernández v. Pereira-Castillo, 663 F.3d 527, 532 (1st Cir. 2011). The doctrine
"'balances two important interests -- the need to hold public
officials accountable when they exercise power irresponsibly and
the need to shield officials from harassment, distraction, and
liability when they perform their duties reasonably.'" Glik v.
Cunniffe, 655 F.3d 78, 81 (1st Cir. 2011) (quoting Pearson v.
Callahan, 555 U.S. 223, 231 (2009)). To decide whether a defendant
is entitled to qualified immunity, we must determine, inter alia,
the clarity of the law establishing the constitutional right at
issue and "whether, given the facts of the particular case, a
reasonable defendant would have understood that his conduct
violated the plaintiff['s] constitutional rights." Id. (alteration
in original) (internal quotation mark omitted). The key to
qualified immunity is "the objective legal reasonableness of an
official's acts." Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982)).
As the discussion in Section I demonstrates, a court
would be hard-pressed to say that the law surrounding the Parratt-Hudson doctrine is clearly established. Indeed, the original panel
in this case concluded that our own case law contains statements
that reasonably could be read to adopt an erroneous interpretation
of Parratt and Hudson. We thus held that, even though the
defendants had committed a procedural due process violation, they
were entitled to qualified immunity. See San Gerónimo Caribe
Project, Inc. v. Acevedo-Vilá, 650 F.3d 826, 838-39 (1st Cir.),
vacated and opinion withdrawn, 665 F.3d 350 (1st Cir. 2011) (en
I now realize, however, that we reached that conclusion
by focusing on the clarity of the wrong law. The qualified
immunity inquiry in the context of a procedural due process claim
cannot turn on whether it was clear that the circumstances fit the
mold of Zinermon rather than Parratt-Hudson. The constitutional
violation at issue is the denial of predeprivation process, and to
assess the reasonableness of the defendant's conduct, we logically
must focus on the clarity of the law concerning the plaintiff's
entitlement to a hearing. It has been clearly established for more
than a half-century that "a deprivation of life, liberty, or
property [ordinarily must] 'be preceded by notice and opportunity
for hearing appropriate to the nature of the case.'" Cleveland Bd.
of Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (quoting Mullane
v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950)); see
also Mathews v. Eldridge, 424 U.S. 319, 334-35 (1976) (describing
the balancing of interests necessary to determine "due process").
Hence, if we had determined that any of the defendants in
this case had violated SGCP's due process rights by failing to hold
a meaningful hearing before suspending their permits, the only
basis for qualified immunity should be the defendant's reasonable
uncertainty about whether the circumstances presented an
"extraordinary situation" in which a valid governmental interest
justified postponing the hearing until after the challenged action.
United States v. James Daniel Good Real Prop., 510 U.S. 43, 53
(1993). Uncertainty about the applicability of Parratt-Hudson is
irrelevant to the qualified immunity analysis because the Parratt-Hudson has nothing to do with the rationale for protecting
officials from damages liability: to eliminate the risk that, in
areas where the law is not clearly established, officials will
refrain from independently acting in the public interest for fear
of being sued. See Harlow, 457 U.S. at 814.
Indeed, as SGCP points out, the "peculiarity" of the
Parratt-Hudson doctrine is that it does not focus on what a
reasonable official should have known or done in light of clearly
established law. Rather, the Parratt-Hudson-Zinermon question is
whether the official's alleged misconduct is attributable to the
State -- and thus remediable as a constitutional violation. When
Zinermon is found to apply, and the plaintiff succeeds in showing
that clearly established law entitled him to predeprivation
process, the defendant state official should not be able to avoid
personal liability by raising a qualified immunity defense based on
Parratt-Hudson. Granting immunity based on the lack of clarity as
to whether the State bears responsibility would turn the qualified
immunity doctrine on its head. The official would in effect be
seeking immunity based on a "reasonable" belief that his conduct
was so wrong -- i.e., it was "random and unauthorized" -- that it
could not provide the basis for a procedural due process claim.
Such an immunity would provide an unacceptable "license to lawless
conduct." See Harlow, 457 U.S. at 819.
It is disturbing enough that bad-acting officials escape
liability for a constitutional injury when the Parratt-Hudson
doctrine applies and the wrongful denial of predeprivation process
is not a due process violation.
It would be a greater injustice,
and undermine the objective of the qualified immunity doctrine, for
a court to find a due process violation but provide no remedy to
the plaintiff because the defendant could have thought that the
Parratt-Hudson doctrine would let him (along with the State) off
the hook for his violation of clearly established due process law.
In sum, the qualified immunity doctrine in the procedural
due process context must be applied consistently with its purpose
to shield well-meaning and reasonable public officials from the
burden of damages while holding accountable those officials who
"exercise power irresponsibly," Glik, 655 F.3d at 81. The Parratt-Hudson doctrine itself denies a federal remedy to individuals
harmed by the random and unauthorized conduct of state actors; the
uncertainty surrounding the doctrine's scope should not be used to
further extend the immunity of rogue state officials.
The confusion surrounding the parameters of the Parratt-Hudson doctrine is not merely an academic puzzle. The Constitution
demands that we attempt to insure "justice in the individual case."
Laura Oren, Signing into Heaven: Zinermon v. Burch, Federal Rights,
and State Remedies Thirty Years After Monroe v. Pape, 40 Emory L.J.
1, 70 (1991). At best, the Parratt-Hudson doctrine has been an
unreliable way to advance that objective because of the mixed
messages from the Supreme Court concerning its scope. The
doctrine's rote application to high-ranking government officials is
particularly troubling, and it creates a stark conflict with long
established precedent holding that the State bears responsibility
for the abuse of governmental authority by state officials. The
conflict and confusion concerning the Parratt-Hudson doctrine
should not, however, provide a basis for immunizing government
officials who have acted in blatant disregard of the law from
personal liability for their wrongdoing. Under standard qualified
immunity principles, the only pertinent question when an
unconstitutional denial of predeprivation process has occurred is
whether the defendant should have known that the Constitution
required such predeprivation process.
Additional guidance from the Supreme Court on these
issues is both necessary and inevitable. Until such time as that
Court speaks, lower courts attempting to provide "justice in the
individual case" should be wary of unnecessarily extending its
procedural due process precedents beyond their narrowest
 ' In the order granting rehearing en banc, this court
requested that the parties address three questions:
1. How do the principles of the Parratt-Hudson doctrine,
including its development in Zinermon v. Burch, 494 U.S.
113 (1990), apply in the circumstances of this case?
2. Is First Circuit law inconsistent with this governing
Supreme Court law? If so, is that circuit precedent
relevant to the 'clearly established law' analysis for
purposes of the qualified immunity inquiry?
3. Assuming a due process violation occurred in the
present case, does qualified immunity apply?
San Geronimo Caribe Project, Inc. v. Acevedo Vila, 665 F.3d 350,
351 (1st Cir. 2011).
 ' See Parker v. Hurley, 514 F.3d 87, 90 n.1 (1st Cir. 2008)
(allowing consideration of "documents the authenticity of which are
not disputed by the parties; for official records; for documents
central to plaintiffs' claim; or for documents sufficiently
referred to in the complaint" (quoting Watterson v. Page, 987 F.2d
1, 3 (1st Cir. 1993)) (internal quotation mark omitted)); see also
Giragosian v. Ryan, 547 F.3d 59, 66 (1st Cir. 2008) ("A court may
consider matters of public record in resolving a Rule 12(b)(6)
motion to dismiss. Matters of public record ordinarily include
'documents from prior state court adjudications.'" (citation
omitted) (quoting Boateng v. InterAmerican Univ., Inc., 210 F.3d
56, 60 (1st Cir. 2000))).
 ' The Planning Board is "attached to the Governor's Office."
P.R. Laws Ann. tit. 23, § 62a. It is charged with "guiding the
integral development of Puerto Rico," id. § 62c, and possesses a
variety of powers relating to development, including the power to
adopt zoning regulations, id. §§ 62j, 62o.
 ' At all times relevant to this litigation, ARPE had the
following characteristics. It was "attached to the Puerto Rico
Planning Board." P.R. Laws Ann. tit. 23, § 71a (2008). A primary
purpose of ARPE was to "exercise the functions, duties and
responsibilities which the Planning Board may delegate to the
Administration." Id. § 71d(q). The Puerto Rico Supreme Court has
described ARPE as the "operational arm" of the Planning Board.
Administración de Reglamentos y Permisos v. Rivera Morales, 159
P.R. Dec. 429, 438 (2003) (quoted in San Gerónimo Caribe Project,
Inc. v. Administración de Reglamentos y Permisos, KLRA200800010,
2008 WL 1744564 (P.R. Cir. Feb. 6, 2008) (certified translation
provided by the parties)).
In 2009, Puerto Rico passed the Permit Process Reform Act,
which effected substantial changes to ARPE and the permit process.
See P.R. Laws Ann. tit. 23, §§ 9011 et seq. These changes do not
concern us here.
 ' Counsel for the defendants informed us that the Senate was
at that time under the control of a political party different from
that which controlled the executive branch.
 ' The opinion also noted that the legislature might
ultimately need to determine what should be done about the Paseo
Caribe project, explaining that, at one extreme, total demolition
of the part of the project built on public land might take place,
that at the other extreme, total legalization of the project might
occur, or that there might be some compromise involving the
modification of the project or compensation paid by SGCP for the
 ' There is no indication that SGCP argued that the emergency
adjudicative procedures were not properly invoked because there was
no "imminent danger."
 ' Thereafter, the Commonwealth sought reconsideration of the
Supreme Court opinion holding that title belonged to SGCP. The
court denied reconsideration on August 20, 2008. San Gerónimo
Caribe Project, Inc. v. Estado Libre Asociado de P.R., 174 P.R.
Dec. 766 (2008) (certified translation provided by the parties).
In its denial, the court made clear that its decision was limited
to "the controversy on the juridic classification of the land
reclaimed from the sea" in two parcels of land, did not address
independent concerns arising out of an investigation of the project
by the Commonwealth, and did not preclude any other judicial or
administrative action arising from the investigation. The
concurring opinion of Chief Justice Hernández Denton made clear
that the decision "in no way should be interpreted as granting
legality and impunity in favor of the multiple juridic transaction
that occurred regarding said land in the 1990's," including the
legality of those transactions or the "correction of the boundaries
reclaimed from the sea."
 ' We appreciate the assistance provided by amici curiae the
Commonwealth of Massachusetts and the States of Maine and New
 ' To be clear, in this federal suit, the defendants do not
challenge the Puerto Rico Supreme Court's determination that the
hearing did not comply with Puerto Rico law and did not comply with
due process. Instead they argue that even so, no cause of action
for a remedy for a procedural due process claim is stated under the
 ' The Court also held that there was no "express requirement
of a particular state of mind" for a procedural due process claim
to be maintained under 42 U.S.C. § 1983. Parratt v. Taylor, 451
U.S. 527, 535 (1981). That portion of Parratt was later
"overrule[d] . . . to the extent that it states that mere lack of
due care by a state official may 'deprive' an individual of life,
liberty, or property under the Fourteenth Amendment." Daniels v.
Williams, 474 U.S. 327, 330-31 (1986).
 ' One method allowed a short term emergency admission, which
could last only forty-eight hours and required a judge, mental
health professional, or law enforcement officer to admit the person
only on a finding the person was mentally ill, and likely to injure
himself or others, or was in need of care and lacked capacity to
make a responsible application. Zinermon, 494 U.S. at 122. A
different procedure allowed only a five-day commitment and required
a court order before admission, which had to make certain findings
about likelihood of injury to the patient or others, or find that
a lack of care would result in a "real and present threat of
substantial harm" to the patient. Id. There was another process
for involuntary admission which required the facility administrator
and two mental health professionals to recommend involuntary
placement, and then required a judicial hearing with notice,
appointed counsel, and access to medical records, as well as an
independent examination, to determine whether the patient was
competent to consent to treatment and, if not, the appointment of
a guardian advocate to make treatment decisions. Id. at 122-23.
Involuntary placement could last for up to six months, after which
time the facility must either release the patient or seek a court
order for continuing placement. Id. at 123.
 ' That it is an exception is further reinforced by
subsections (b) and (e) of § 2167.
 ' SGCP also made a new argument about the term welfare. The
term "welfare" in the phrase "public health, safety and welfare" is
not so vague as to confer too much discretion so as to fall within
Zinermon. Indeed, the word "welfare" is used in the conjunctive
here; the statute requires a danger to public health, safety, and
welfare before emergency procedures can be invoked, P.R. Laws Ann.
tit. 3, § 2167(a).
 ' Subsection (b) of the statute provides that "[t]he agency
may only take such action as it is necessary within the
circumstances described in the above subsection (a) which justifies
the use of emergency adjudicatory procedures." P.R. Laws Ann. tit.
3, § 2167(b). Summary procedures are only justified to the extent
that they are necessary in light of the conditions specified in
subsection (a), supporting a narrow interpretation of emergency
authority outlined in subsection (a). The Puerto Rico Supreme
Court referenced this section in explaining that "the emergency
adjudicative procedure started by the agency must be limited to
what is necessary, under the light of what the dangerous or
extraordinary situation would require." San Gerónimo Caribe
Project, Inc. v. Administración de Reglamentos y Permisos, 174 P.R.
Dec. 640 (2008) (certified translation provided by the parties)
Moreover, subsection (e) of the statute provides that
"[a]fter an order or resolution is issued according to this
section, the agency shall promptly proceed to complete any
procedure that has been required, unless there is imminent danger."
P.R. Laws Ann. tit. 3, § 2167(e). Subsection (e) limits the use of
emergency procedures after they have been invoked to situations of
"imminent danger," and applies to the triggering conditions of
subsection (a). Situations that require "immediate action by the
agency" are most reasonably read as limited to situations of
"imminent danger" equivalent in kind to "imminent danger to the
public health, safety and welfare."
 ' See Perez Perdomo v. Respi-Care of P.R., Inc., No.
KLRA050224, 2005 WL 2481385 (P.R. Cir. Aug. 11, 2005) (noting that
§ 2167 is an "exception" to the normal requirement of a
predeprivation hearing, quoting a treatise explaining that the use
of § 2167 "is legitimized by the existence of a clear and imminent
danger to the health, safety and wellbeing of the public which
requires immediate action from the agency," and upholding a
Department of Health regulation allowing summary procedures under
§ 2167 because "[i]t is clear that it only proceeds in emergency
situations or when faced with the existence of imminent danger to
the health and wellbeing of the citizens" (translation provided by
U.S. District of Puerto Rico interpreters)); Torres Álamo v.
Tribunal Examinador de Médicos, No. TEM-Q-2003-01, 2004 WL 2419420
(P.R. Cir. Sept. 30, 2004) (quoting the same language from the same
treatise in a discussion of § 2167 (translation provided by U.S.
District of Puerto Rico interpreters)); Triple C, Inc. v. Oficina
del Procurador del Paciente Beneficiario de la Reforma de Salud,
No. I03-01, 2003 WL 21369138 (P.R. Cir. Feb. 18, 2003) (finding an
agency's action authorized under § 2167 where there was "an
imminent danger to the health, life, and wellbeing" of certain
patients, and explaining the Puerto Rico Supreme Court's due
process precedent as authorizing action "without first providing
the right to be heard when it is necessary to guarantee the order,
safety and security of the people" (translation provided by U.S.
District of Puerto Rico interpreters)).
 ' SGCP contends that in suspending SGCP's permits ARPE cited
and relied on for its emergency powers the statement in A.R.P.E. v.
Ozores Perez, 16 P.R. Offic. Trans. 1005 (1986) (per curiam), that
"it was the lawmaker's intent to grant broad policy-making
discretion to [ARPE] in the formulation and maintenance of permit-processing proceedings." Id. Not so. ARPE did not cite that case
in justifying its decision to use summary procedures; the case was
cited to support that it did have jurisdiction and substantive
authority to suspend the permits after they had already been
 ' Our one decision to hold that a statute's delegation of
authority was so broad and standardless as not to fall within
Parratt-Hudson is Chmielinski v. Massachusetts, 513 F.3d 309 (1st
Cir. 2008), and that case did not involve emergency procedures.
There, we assessed a statute which required only that a termination
hearing be "informal" in nature and provided no guidance at all on
the procedures to be used. Id. at 315. We held that because
"[n]either the statute nor the regulations set out any procedural
requirements, providing only that the hearing be 'informal,'" the
hearing that the plaintiff received "cannot be characterized as a
deviation from the state law." Id. (emphasis added). The
emergency statute at issue here provides far more guidance than
that at issue in Chmielinski and here there was a deviation from
state law. SGCP is wrong that Chmielinski supports its cause.
 ' The Hodel Court noted that "[a] different case might be
presented if a pattern of abuse and arbitrary action were
discernable from review of an agency's administration of a summary
procedure," but a showing there that three summary orders had been
overturned was "far from sufficient" to demonstrate such a pattern.
Hodel v. Va. Surface Mining & Reclamation Ass'n, 452 U.S. 264, 302
n.46 (1981). SGCP does not argue that this is a case of a pattern
of abuse, and the facts do not support such an argument.
 ' See PFZ Props., Inc. v. Rodriguez, 928 F.2d 28, 31 (1st
Cir. 1991) (noting that "[w]hen a deprivation of property results
from conduct of state officials violative of state law, the Supreme
Court has held that failure to provide pre-deprivation process does
not violate the Due Process Clause"); see also SFW Arecibo, Ltd. v.
Rodríguez, 415 F.3d 135, 139-40 (1st Cir. 2005) (quoting PFZ
Properties on this issue).
 ' It is also doubtful whether the complaint pleads sufficient
facts as to the Governor's involvement to establish such a
connection. The complaint simply asserts that the Governor ordered
all agencies to suspend all permits. The Governor's alleged order
is not quoted from or cited to in the complaint, and no such order,
if it even existed, is mentioned in the Secretary of Justice's
opinion, ARPE's orders, or any of the Puerto Rico judicial opinions
in this case. Even that statement in the complaint does not assert
that the permits were ordered to be suspended without regard to due
process. If the Governor did in fact issue such a "public
order," it should have been straightforward for SGCP to provide
more detail, quotations from the order, or a copy of it attached to
Moreover, the undisputed facts lay out a clear chain of
events that led to the permit suspension, with no involvement of
the Governor mentioned. ARPE acted in response to a Planning Board
Resolution directing it to take "the preventative measures it deems
necessary to implement the recommendations of the Secretary of
Justice," "including the holding of an administrative hearing, with
the guarantees of due process of law." The Planning Board's
Resolution, in turn, was based on the Secretary of Justice's
opinion, which likewise stressed that the agencies should act
pursuant to applicable laws and "safeguard any procedural and
substantive law or rights the affected parties may have," including
ensuring that all proceedings comported with "due process of law."
Given this background, and the dearth of facts pled as to
the contents of the Governor's order, there is a fair question
about whether the claim against the Governor meets Iqbal's "facial
plausibility" requirement, which requires the complaint to "plead
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged."
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Even if it did,
it fails for the reasons stated in the text.
 ' The statute defines "Administration" as "The Regulations
and Permits Administration," which goes by the acronym ARPE. P.R.
Laws Ann. tit. 23, § 71b(a) (2008).
 ' The statute itself does not make clear whether these four-year terms are staggered. Puerto Rico amended the Planning Board
statute in 2001 to provide for an increase in the number of board
members from three to seven, and to increase the number of
"alternate members" who are to substitute for members in the case
of vacancies from one to three, but the statute does not itself
state whether the terms of the members were staggered. See P.R.
Laws Ann. tit. 23, § 62d & note (2008).
 ' The complaint does not quote the Governor directly, but
alleges that "the Governor publicly ordered the various agencies
that had issued permits for the Project to withdraw or suspend
those permits and thereby force a halt to construction." Compl.,
at 3. See also id. ¶ 29 (alleging that the Governor "publicly
ordered all administrative agencies to suspend all permits for the
Paseo Caribe Project and to freeze all construction for an initial
period of sixty (60) days").
 ' The complaint alleges that "all subsequent actions by
governmental agencies suspending permits for the Paseo Caribe
Project have been undertaken either at the Secretary's direction or
with his knowledge and assistance or that of his subordinates at
the Department of Justice." Compl. ¶ 28.
 ' Crediting Professors Larry Alexander and Paul Horton for
developing the concept, Professor Juarez describes the two models
The Legalist Model asks whether state laws are
constitutionally adequate. If there is an adequate state
law, then the plaintiff cannot bring a Section 1983
claim, and must instead rely on state-law claims heard,
in most cases, in state court. . . . The Governmental
Model imposes duties on more than state and local
lawmakers; it imposes duties on all government officials
and agents. Under the Governmental model, it doesn't
matter whether the state and local lawmakers have
forbidden the infringement of constitutional rights, or
have attempted to provide a remedy for such
infringements. What matters is whether any state
official has infringed the plaintiff's constitutionally
protected interests. . . . [U]nder the Governmental
Model, plaintiffs may . . . sue under Section 1983 in
either state or federal court, even when the state's
lawmakers have sought to prevent the violation of
Cheshire Cat, 25 St. Mary's L.J. at 8, 10 (footnotes omitted).
 ' Some of the confusion may be attributable to the fact that
the issue in Parratt and Hudson was not the denial of a hearing.
See Law of Noncontradiction, 87 Nw. U. L. Rev. at 589 ("The bone of
contention in both cases was the deprivation, not the process that
led up to it.").
 ' The Supreme Court first warned against turning the
Fourteenth Amendment into "a font of tort law" in Paul v. Davis,
424 U.S. 693, 701 (1976), and the phrase has been used frequently
since then, including in Parratt. See 451 U.S. at 544 (quoting
Paul). See also, e.g., Town of Castle Rock, Colo. v. Gonzales, 545
U.S. 748, 768 (2005) (noting the Court's "continuing reluctance to
treat the Fourteenth Amendment as '"a font of tort law,"'" and
quoting Parratt and Paul); College Sav. Bank v. Fla. Prepaid
Postsecondary Educ. Expense Bd., 527 U.S. 666, 674 (1999) (noting
"our frequent admonition that the Due Process Clause is not merely
a 'font of tort law,'" and quoting Paul). Our precedent reflects
the same sentiment. See Herwins v. City of Revere, 163 F.3d 15, 19
(1st Cir. 1998) (noting that, but for the limitation on procedural
due process claims where "the state provides an adequate means of
redress," "federal suits might be brought for countless local
mistakes by officials in administering the endless array of state
laws and local ordinances").
 ' The Eleventh Amendment, of course, protects states from
damages liability. I refer to the State's "responsibility" only in
the sense that identifying a procedural due process violation under
the Parratt-Hudson doctrine requires an examination of whether the
State could have, and thus should have, prevented the denial of
predeprivation process effected by state employees.
 ' I am not suggesting that only the conduct of policymaking
officials should be attributable to the State for purposes of a
procedural due process claim. At a minimum, under Zinermon, the
State also acts through "any person to whom is delegated the
responsibility of giving predeprivation process." Easter House,
910 F.2d at 1411 (Cudahy, J., dissenting); see also Zinermon, 494
U.S. at 138 (explaining that, where a state "delegate[s] to
[defendants] the power and authority to effect the very deprivation
complained of . . . , and also delegate[s] to them the concomitant
duty to initiate the procedural safeguards set up by state law to
guard against unlawful [deprivations]," conduct abusing that
authority is not "'unauthorized' in the sense the term is used in
Parratt and Hudson").
 ' As we observed in Herwins,
the law might have developed so as to hold the official
liable under the Fourteenth Amendment for his own mistake
even if the state had done all it could. . . . But the
Supreme Court has ruled that in such cases there is no
denial of procedural due process, even by the official,
so long as the state provides an adequate means of
163 F.3d at 19. Oddly, this approach seems to give officials an
incentive to behave as outrageously as possible in certain
circumstances because the further the departure from "clearly
established law," the more likely Parratt-Hudson will apply. Of
course, the risk of state remedies would remain.