United States Court of Appeals
For the First Circuit
No. 06-2666
EUGENE MONGEAU,
Plaintiff, Appellant,
v.
CITY OF MARLBOROUGH, and STEPHEN REID,
Individually and as Commissioner of Inspectional Services
for the City of Marlborough and as a Member of the City
of Marlborough Site Plan Review Committee,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Torruella and Lipez, Circuit Judges,
and Stafford, Jr.,* Senior District Judge.
J. David Breemer, with whom Pacific Legal Foundation,
Catherine J. Savoie, Of Counsel, and Posternak, Blankenstein &
Lund, LLP were on brief, for appellant.
Judy A. Levenson, with whom Leonard H. Kesten, Deidre Brennan
Regan, and Brody, Hardoon, Perkins & Kesten, LLP were on brief, for
appellees.
June 22, 2007
*
Of the District of Northern Florida, sitting by designation.
TORRUELLA, Circuit Judge. This case asks us to determine
whether a plaintiff in a land-use dispute must prove that a
defendant engaged in behavior that "shocks the conscience" in order
to prevail on a substantive due process claim related to that
dispute. Eugene Mongeau, a landowner, brought suit against the
City of Marlborough (the "City") and Stephen Reid, the Commissioner
of Inspectional Services for the City of Marlborough (collectively,
"Defendants"), after Reid denied him a building permit. Mongeau
alleged, inter alia, that Reid, in his official capacity, violated
Mongeau's Fourteenth Amendment substantive due process rights. The
district court granted judgment in favor of Reid, holding that
Mongeau failed to allege that Reid engaged in behavior that shocked
the conscience. We reaffirm our earlier holdings1 that a plaintiff
may prevail on a substantive due process claim only if the
defendant has engaged in behavior that "shocks the conscience," and
affirm the judgment in favor of Reid.
I. Background
In 1991, the City commenced eminent domain proceedings
against various parcels of land. Mongeau owned three of those
parcels as part of a larger tract of land. Mongeau agreed to sell
the parcels to the City in exchange for $450,000 and a promise by
1
See, e.g., Pagán v. Calderón, 448 F.3d 16, 32 (1st Cir. 2006);
SFW Arecibo, Ltd. v. Rodríguez, 415 F.3d 135, 141 (1st Cir. 2005);
Néstor Colón Medina & Sucesores, Inc. v. Custodio, 964 F.2d 32, 45
(1st Cir. 1992) (quoting PFZ Properties, Inc. v. Rodríguez, 928
F.2d 28, 31-32 (1st Cir. 1991)).
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the City that Mongeau would be able to construct a "60 ft. by 80
ft. building" on the remaining tract "in full compliance with the
building code and ordinance[s] of the City of Marlborough."
In 2003, Mongeau submitted an application to the City of
Marlborough Building Department to construct a 35 ft. by 40 ft.
building on the tract covered by the prior settlement. Reid denied
the application, citing a lack of proper frontage and access as
reasons for the denial. Later in 2003, Mongeau submitted an
application to build a 60 ft. by 110 ft. building on the site.
Reid again rejected the application, giving as reasons the proposed
building's lack of frontage and location on a former railway
right-of-way, and Mongeau's failure to submit the plan to the Site
Plan Review Committee. Mongeau appealed the rejection of the
building permit to the Marlborough Zoning Board of Appeals ("ZBA").
Reid wrote a memo to the ZBA urging them to reject Mongeau's
appeal. On June 16, 2003, the ZBA granted Mongeau's appeal,
allowing him to build a 60 ft. by 80 ft. structure, waiving the
frontage, "sideyard planting," and "minimum centerline"
requirements, and granting a right-of-way. The ZBA's decision
required Mongeau to submit his plans for approval by the Site Plan
Review Committee and the Conservation Commission and stated that
the variances granted to Mongeau would expire in one year.
Mongeau and the Site Plan Review Committee, of which Reid
is a member, embarked on a long series of negotiations for the
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Committee's approval which required various revisions to Mongeau's
building plans. Because of the delays, Mongeau sought and received
extensions of his variances from the ZBA. In December 2004, Reid
allegedly informed Mongeau that he had insufficient time to
consider the revised site plan and suggested that Mongeau request
another extension of the ZBA variance. On December 14, 2004,
Mongeau applied for and received an extension until June 15, 2005.
Mongeau alleges that the following day, Reid threatened to appeal
the extension and told Mongeau that he would not issue a building
permit for the structure.
Nevertheless, on May 23, 2005, the Site Plan Review
Committee approved Mongeau's site plan. Likewise, the Conservation
Commission also approved Mongeau's site plan, subject to certain
conditions. A citizens committee filed an appeal of the conditions
entered by the Conservation Commission. Mongeau alleges "on
information and belief" that Reid "orchestrated" this appeal.
Mongeau's variance lapsed on June 15, 2005, and the ZBA refused to
grant another extension.
On September 6, 2005, the Massachusetts Department of
Environmental Protection rejected the citizens committee's appeal
and affirmed the order of the Conservation Commission. Mongeau
then applied for a building permit. On October 19, 2005, Reid
denied the permit application, stating that the ZBA variance had
expired and that the "property is deficient in many ways." Reid
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also stated that Mongeau could apply for another variance with the
ZBA. Mongeau alleges that Reid's recalcitrance in refusing to
issue the building permit was due to the fact that Mongeau had
never offered to make an unspecified "mitigation payment" to the
City of Marlborough.
On December 22, 2005, Mongeau filed suit in the Superior
Court of Middlesex, Massachusetts against Defendants, seeking a
declaratory judgment that he was entitled to construct his
building, injunctive relief ordering the City of Marlborough to
issue him a building permit, and damages arising from violations of
42 U.S.C. § 1983 and Massachusetts state law. Defendants removed
the case to the United States District Court for the District of
Massachusetts and moved for judgment on the pleadings pursuant to
Federal Rule of Civil Procedure 12(c). The district court granted
judgment in favor of Defendants on all of Mongeau's federal claims
and remanded the remaining state law claims to state court. In
particular, the district court said that to state a substantive due
process violation, a plaintiff needed to allege that defendants
acted in a manner that shocked the conscience. The court ruled
that most of Reid's alleged behavior was not so outrageous that it
shocked the conscience. The court stated the allegation that Reid
demanded "mitigation payments" before issuing the permit might
shock the conscience, but that it was not alleged to be a common
practice of the City, and as such, could not be imputed to Reid in
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his official capacity. As such, the court decided that Mongeau's
allegations, taken as true, did not state a substantive due process
claim against Reid in his individual capacity.2 Mongeau now
appeals.
II. Discussion
A. Standard of Review
We review a district court's grant of judgment on the
pleadings de novo. Mass. Nurses Ass'n v. N. Adams Reg'l Hosp., 467
F.3d 27, 31 (1st Cir. 2006). We "accept all the well-pleaded facts
as true, draw all reasonable inferences in favor of the nonmovant
. . . , and grant the motion only if it appears that the nonmovant
could prove no set of facts that would entitle it to relief." Id.
B. The Requirements for a Substantive Due Process Claim
We have stated with "a regularity bordering on the
monotonous" that to be liable for a violation of substantive due
process rights, a defendant must have engaged in behavior that is
"conscience-shocking": "the substantive due process doctrine may
not, in the ordinary course, be invoked to challenge discretionary
permitting or licensing determinations of state or local
decisionmakers, whether those decisions are right or wrong."
Pagán, 448 F.3d at 33. We have repeatedly affirmed the use of this
2
The court also granted judgment in favor of Reid on a procedural
due process claim and found that Reid was entitled to qualified
immunity on claims against him in his personal capacity. Mongeau
does not appeal these decisions. The court then remanded the
state-law claims to the Massachusetts Superior Court.
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standard in the context of challenges to land use decisions. See,
e.g., PFZ Properties, Inc., 928 F.2d at 31 ("[R]ejections of
development projects and refusals to issue building permits do not
ordinarily implicate substantive due process. Even where state
officials have allegedly violated state law or administrative
procedures, such violations do not ordinarily rise to the level of
a constitutional deprivation." (internal citations omitted)); see
also SFW Arecibo, 415 F.3d at 141; Néstor Colón, 964 F.2d at 46.
Nevertheless, Mongeau argues that the shocks-the-
conscience test is inappropriate when analyzing a substantive due
process claim in the land use context, and that instead, we should
use an "arbitrary and capricious" standard. Mongeau contends that
the shocks-the-conscience standard is appropriate only when
addressing a claim where state officials have made split-second
judgments, i.e., when they have not had time to deliberate before
coming to a decision to engage in the behavior that is the basis of
the claim. Mongeau points to case law from other circuits which
suggests that the application of the shocks-the-conscience standard
to deliberate decisions by state officials is problematic. See,
e.g., Khan v. Gallitano, 180 F.3d 829, 836 (7th Cir. 1999) ("[T]he
Court [in County of Sacramento v. Lewis, 523 U.S. 833 (1998),] made
clear that its shocks-the-conscience analysis was not generally
applicable to all substantive-due-process claims."); Moreland v.
Las Vegas Metro. Police Dep't, 159 F.3d 365, 372 (9th Cir. 1998)
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("[T]he critical consideration [in determining whether to apply the
'shocks the conscience test'] [i]s whether the circumstances are
such that 'actual deliberation is practical.'" (quoting Lewis, 523
U.S. at 851)). However, a closer examination of Lewis -- the
principal case relied upon by Khan and Moreland – belies Mongeau's
assertion. In Lewis, the Supreme Court did not reject the
application of the shocks-the-conscience test to deliberate
decisions, but instead stated that its application would vary with
the circumstances. 523 U.S. at 851 ("[A]ttention to the markedly
different circumstances of normal pretrial custody and high-speed
law enforcement chases shows why the deliberate indifference that
shocks in the one case is less egregious in the other."). We have
never precluded a plaintiff from arguing that conduct that is the
product of a deliberate and premeditated decision might be
conscience-shocking whereas the same conduct might not be if it was
undertaken in the heat of the moment. Ultimately such an argument
would not affect our conclusion that only conscience-shocking
behavior will constitute a substantive due process violation.
Mongeau also contends that our use of the shocks-the-
conscience standard is justified only by a footnote in Creative
Environments, Inc. v. Estabrook, 680 F.2d 822 (1st Cir. 1982). In
that case, we stated that "[w]here a state has provided reasonable
remedies to rectify a legal error by a local administrative
body . . . current authority indicates that due process has been
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provided, and that section 1983 is not a means for litigating the
correctness of the state or local administrative decision in a
federal forum." Id. at 832 n.9. Mongeau contends that this means
that a substantive due process claim turns on the adequacy of state
remedies, i.e., if state remedies were adequate, a substantive due
process claim could only be brought when the defendant's conduct
shocked the conscience.
This is a flawed reading of Creative Environments.
First, it is more likely that footnote 9 was referring to the
plaintiff's procedural due process rights; throughout the opinion,
we referred to "due process" without distinguishing its procedural
and substantive components. See id. at 831-32. Second, Creative
Environments has not been subsequently cited by any First Circuit
case for the proposition that a substantive due process claim is
dependent on procedural remedies. Cf. Chongris v. Board of
Appeals, 811 F.2d 36, 40 (1st Cir. 1987) (citing Creative
Environments for the proposition that "[w]here state procedures --
though arguably imperfect -- provide a suitable form of
predeprivation hearing coupled with the availability of meaningful
judicial review, the fourteenth amendment guarantee of procedural
due process is not embarrassed" (emphasis added)). Finally, we
expressly rejected this proposition in Amsden v. Moran when we
stated: "As distinguished from its procedural cousin, then, a
substantive due process inquiry focuses on 'what' the government
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has done, as opposed to 'how and when' the government did it." 904
F.2d 748, 754 (1st Cir. 1990).
In any case, Mongeau's arguments suffer from a more fatal
defect: we recently decided that the shocks-the-conscience test
applied to a substantive due process claim in the land use context,
see SFW Arecibo, 415 F.3d at 141, and we are bound by the prior
panel decisions of this Court. It is true that we have recognized
at least two exceptions to the rule that we must follow the
precedent of this Circuit. First, we may depart from the holding
of a prior panel decision if "a preexisting panel opinion is
undermined by subsequently announced controlling authority, such as
a decision of the Supreme Court, a decision of the en banc court,
or a statutory overruling." Eulitt v. Me. Dep't of Educ., 386 F.3d
344, 349 (1st Cir. 2004). Second, we may deviate from a prior
holding of this Circuit in "those relatively rare instances in
which authority that postdates the original decision, although not
directly controlling, nevertheless offers a sound reason for
believing that the former panel, in light of fresh developments,
would change its collective mind." Williams v. Ashland Eng'g Co.,
45 F.3d 588, 592 (1st Cir. 1995), abrogated on other grounds by
Carpenters Local Union No. 26 v. United States Fid. & Guar. Co.,
215 F.3d 136, 145 (1st Cir. 2000). We do not find, nor does
Mongeau offer, any reason why either of these exceptions to the
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doctrine of stare decisis should apply, and as such, we are bound
by our decision in SFW Arecibo.
Mongeau rejoins that our precedent on this issue has been
inconsistent, resulting in standards ranging from "clearly
arbitrary and unreasonable," Roberts v. City of Woonsocket, 575
F.2d 339, 341 (1st Cir. 1978) (quoting Village Euclid v. Ambler
Realty Co., 272 U.S. 365, 395 (1926)), to "when some basic and
fundamental principle has been transgressed that 'the
constitutional line has been crossed,'" Amsden, 904 F.2d 748, 754
(1st Cir. 1990) (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d
Cir. 1973)), to a "truly horrendous situation[]," Néstor Colón, 964
F.2d at 45. While we have used various incantations to describe
the standard for prevailing on a substantive due process claim, we
have "decline[d] the invitation to sort out so wide a variety of
labels." Amsden, 904 F.2d at 754. "[A]lthough the yardstick
against which substantive due process violations are measured has
been characterized in various ways, we are satisfied that, before
a constitutional infringement occurs, state action must in and of
itself be egregiously unacceptable, outrageous, or
conscience-shocking." Id.
Thus, our precedent on this issue is both clear and
binding on this case: in order to state a substantive due process
claim of any ilk, a plaintiff must allege behavior on the part of
the defendant that is so outrageous that it shocks the conscience.
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C. Mongeau's Claim
Having reaffirmed the proper standard for a substantive
due process claim, we must now examine Mongeau's allegations to
determine whether Reid's behavior shocks the conscience. The
district court determined that nearly all of Mongeau's allegations
-- that Reid had denied his building permit and interfered in the
zoning process for improper reasons -- failed to shock the
conscience. We agree. We rejected a similar claim in Licari v.
Ferruzzi, where the plaintiffs alleged that "hostility and animus"
motivated the revocation of a building permit and the issuance of
certain enforcement orders. 22 F.3d 344, 349 (1st Cir. 1994). In
the past, we have indicated that one of the problems with
adjudicating claims of "bias" or "animus" in the zoning context is
that "[e]very appeal by a disappointed developer from an adverse
ruling by a local . . . planning board necessarily involves some
claim that the board exceeded, abused or 'distorted' its legal
authority in some manner, often for some allegedly perverse (from
the developer's point of view) reason." Creative Env'ts, 680 F.2d
at 833. For that reason, we have generally been hesitant "to
involve federal courts in the rights and wrongs of local planning
disputes" unless there is a "truly horrendous situation[]." Néstor
Colón, 964 F.2d at 45. Taking all of Mongeau's allegations as
true, we do not see such a conscience-shocking situation; we can
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discern nothing more than a run-of-the-mill dispute between a
developer and a town official.
The district court hinted that Mongeau might have stated
a substantive due process claim inasmuch as he alleged that his
permit was denied because he had failed to offer a "mitigation
payment" to the City of Marlborough. In Néstor Colón, we suggested
that it was possible that bribery or threats could constitute a
substantive due process violation. Id. at 47. However, at oral
argument, counsel for Mongeau made it clear that he was not
alleging that the City or Reid was seeking a "bribe."3 If Mongeau
believes that the City or Reid has wrongly charged or demanded too
much for his building permit, he may find recourse in other laws,
but not in the substantive component of the Due Process Clause of
the Fourteenth Amendment. Such conduct, without more, cannot be
said to transgress "some basic and fundamental principle . . .
[such] that 'the constitutional line has been crossed'" and our
conscience is shocked. Amsden, 904 F.2d at 754.
3
In a particularly confusing exchange at oral argument, Mongeau's
counsel stated that while Reid did not demand a bribe of any sort,
the permit was not approved because Mongeau did not offer a
"mitigation payment," which counsel insinuated was improperly
demanded by the city. We still do not understand what Mongeau's
purported "mitigation payment" is, but we take counsel at his word
that it would not constitute a "bribe" within the meaning of Néstor
Colón. Accordingly, we see no need to address the argument
advanced by the district court that Reid's conduct did not form
part of a pattern or common practice of the City.
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III. Conclusion
For the foregoing reasons, we affirm the judgment of the
district court.
Affirmed.
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