San Gerónimo Caribe Project, Inc. v. Acevedo-Vilá

United States Court of Appeals
For the First Circuit

No. 09-2566

SAN GERÓNIMO CARIBE PROJECT, INC.,

Plaintiff, Appellant,

v.

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,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]

Before

Torruella and Lipez, Circuit Judges,
and Smith,* District Judge.

Richard H. Fallon, Jr., with whom John M. García, García &
Fernández, Orlando Fernández, and Orlando Fernández Law Offices,
were on brief for appellant.
Susana I. Peñagarícano-Brown, Assistant Solicitor General,
Department of Justice, with whom Irene S. Soroeta-Kodesh, Solicitor
General, Leticia Casalduc-Rabell, Deputy Solicitor General, and
Zaira Z. Girón-Anadón, Deputy Solicitor General, were on brief for
appellees.

June 17, 2011

*
Of the District of Rhode Island, sitting by designation.
 TORRUELLA, Circuit Judge; LIPEZ, Circuit Judge; and

SMITH, District Judge. This appeal stems from a dispute involving

the Paseo Caribe Project in San Juan, Puerto Rico. The controversy

regarding the project concerned whether some of the lands on which

the project was being built were part of the public domain and had

therefore been improperly sold to a private party. Many opposed

the construction of the project because it obstructed access to the

San Gerónimo del Boquerón Fort.

The controversy prompted a legislative investigation and

an opinion from the Puerto Rico Secretary of Justice finding that

the lands were part of the public domain.1 Op. Sec. Jus. No. 07-

230-B of Dec. 11, 2007. As will be presently recounted, this was

not the first opinion to be issued by a Secretary of Justice of the

Commonwealth with respect to this matter. Relying on the Secretary

of Justice's opinion, the Regulations and Permits Administration of

Puerto Rico ("ARPE," for its Spanish acronym) issued a resolution

and order holding all permits for the Paseo Caribe Project in

abeyance and ceasing construction for an initial period of sixty

days. The ARPE issued this resolution and order without providing

1
Under Puerto Rico law, the opinions that the Puerto Rico
Secretary of Justice issues are advisory in nature at the internal
level of the executive agencies. See San Gerónimo Caribe Project,
Inc. v. Regulations & Permits Admin., 2008 TSPR 130, 2008 PR Sup.
LEXIS 135, at *35 (P.R. July 31, 2008) (certified translation
provided by the parties). Although the Secretary of Justice's
opinions do not bind the Puerto Rico courts, "they do have a great
convincing value." Id. at *34.

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the project's developer, San Gerónimo Caribe Project, Inc. ("San

Gerónimo"), with a meaningful hearing. After successful appeals in

the Puerto Rico courts, San Gerónimo filed a complaint in the

United States District Court for the District of Puerto Rico under

42 U.S.C. § 1983 due to the defendants' alleged violation of, inter

alia, its procedural due process rights. San Gerónimo also

included a Puerto Rico law tort claim under Article 1802 of the

Puerto Rico Civil Code. The district court dismissed the complaint

pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).

We affirm the dismissal of San Gerónimo's complaint.

I. Facts and Procedural History

Because the district court dismissed the case pursuant to

Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), we view the

well-pleaded facts in the light most favorable to San Gerónimo and

draw all reasonable inferences in its favor. IOM Corp. v. Brown

Forman Corp., 627 F.3d 440, 443 (1st Cir. 2010); Fothergill v.

United States, 566 F.3d 248, 251 (1st Cir. 2009).

A. The Paseo Caribe Project and the Decisions of the
Puerto Rico Courts

On January 12, 2000, the Puerto Rico Planning Board2

approved a proposal from San Gerónimo to develop the Paseo Caribe

2
Among its principal functions, "[t]he Puerto Rico Planning Board
issues rules for granting controlled access permits, P.R. Laws Ann.
tit. 23, §§ 64, 64e, and [the ARPE] administers the Board's
permitting regulations . . . ." Watchtower Bible & Tract Soc'y of
N.Y., Inc. v. Sagardía De Jesús, 634 F.3d 3, 7 n.4 (1st Cir. 2011),
reh'g denied, 638 F.3d 81 (1st Cir. 2011).

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Project. The Paseo Caribe Project is a mixed residential,

commercial and tourism project located in San Juan, Puerto Rico.

On July 21, 2000, San Gerónimo purchased two parcels of land from

Hilton International of Puerto Rico, Inc. ("Hilton International").

Shortly before, Hilton International had purchased the two parcels

from the Hotel Development Corporation, a subsidiary of the Tourism

Company of Puerto Rico.

In 2002, at the request of the Secretary of the

Department of Natural Resources of Puerto Rico, the Department of

Justice of Puerto Rico issued an opinion (the "2002 Department of

Justice Opinion"), Op. Sec. Jus., No. 02-55-B of Oct. 28, 2002,

concluding that the parcels sold in connection with the Paseo

Caribe Project were not part of the public domain and could be sold

without legislative action, despite the fact that the parcels were

gained from the sea.

The ARPE issued all necessary permits for the development

of the Paseo Caribe Project. San Gerónimo began construction in

August 2002 and by 2007, it had invested over two hundred million

dollars. As previously alluded to, in 2007, when part of the

project was nearing completion, the Paseo Caribe Project became the

target of negative publicity. This negative publicity was due to

a small but persistent group of concerned citizens who claimed that

the Paseo Caribe Project obstructed access to the San Gerónimo del

Boquerón Fort. The group picketed the site and attempted to

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paralyze construction. This vocal group of protestors established

a significant political constituency and received attention from

the press.

The Puerto Rico legislature commenced an investigation

and, in connection therewith, sought the advice of the Secretary of

Justice, Roberto J. Sánchez Ramos, regarding public access to the

San Gerónimo del Boquerón Fort. On December 11, 2007, Sánchez

Ramos issued an opinion (the "2007 Department of Justice Opinion"),

Op. Sec. Jus. No. 07-230-B of Dec. 11, 2007, in which he reversed

the 2002 Department of Justice Opinion and concluded that San

Gerónimo lacked valid title to some of the land on which the Paseo

Caribe Project was being built. The 2007 Department of Justice

Opinion stated that the land at issue was gained from the sea and

therefore belonged to the public domain.3 As such, the land could

not have been sold to a private party without legislative action.

The 2007 Department of Justice Opinion recommended that state

agencies reevaluate all permits granted in connection with the

Paseo Caribe Project.

The next day, December 12, 2007, the Governor of Puerto

Rico, Aníbal Acevedo Vilá, met with his cabinet. After this

meeting, without granting San Gerónimo an opportunity for a

3
The 2007 Department of Justice Opinion acknowledged that the
Secretary of Justice had no authority to determine the legality of
San Gerónimo's title to the property and that this was an issue for
the Puerto Rico courts to decide. Op. Sec. Jus. No. 07-230-B of
Dec. 11, 2007, at *180.

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hearing, Acevedo Vilá publicly ordered the pertinent administrative

agencies to suspend all permits for the Paseo Caribe Project and to

freeze all construction for an initial period of sixty days.

On December 14, 2007, the administrator of the ARPE,

Luis A. Vélez Roche, invoked Puerto Rico's emergency adjudicatory

procedure,4 P.R. Laws Ann. tit. 3, § 2167, and issued an order to

show cause why the Paseo Caribe Project permits should not be held

in abeyance and the construction suspended for sixty days in

accordance with the 2007 Department of Justice Opinion. The ARPE

scheduled a hearing for December 20, 2007.

Prior to the administrative hearing, San Gerónimo sought

to quiet title in the lands at issue. Therefore, on December 19,

2007, San Gerónimo filed a complaint for declaratory judgment in

the Puerto Rico Court of First Instance, requesting that the court

enter judgment declaring that the parcels of land at issue are not

part of the public domain and that title lawfully rests with San

Gerónimo.

4
Under Puerto Rico law, the ARPE is generally required to follow
the ordinary adjudicative process before revoking a permit; this
process requires a hearing that satisfies the requirements listed
in the Uniform Administrative Procedure Act. P.R. Laws Ann. tit.
3, §§ 2151(a), 2152, 2157-2159, 2161, 2163-2164. Puerto Rico law
does, however, provide the ARPE with the option of an immediate
action procedure that allows it to temporarily sidestep the
ordinary adjudicative procedures. P.R. Laws Ann. tit. 3, § 2167.
Even when an agency appropriately uses the immediate action
procedure, the statute provides that it "shall promptly proceed to
complete any procedure that has been required unless there is
imminent danger." P.R. Laws Ann. tit. 3, § 2167(e).

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 San Gerónimo appeared at the December 20, 2007 hearing.

The ARPE panel consisted of two hearing examiners, one of whom

stated that "the nature of the hearing [was] not adversarial" and

that the purpose of the hearing was for the ARPE to "gather

information . . . so that [the ARPE] may make a determination

regarding the Stay Order of the construction[]" on the Paseo Caribe

Project. San Gerónimo presented a motion to dismiss and provided

evidence of its valid title along with a copy of its complaint for

declaratory judgment filed with the Puerto Rico Court of First

Instance. San Gerónimo argued that the Department of Justice and

the ARPE lacked jurisdiction to adjudicate the title over the

property. The ARPE denied the motion to dismiss. The presiding

officers stated that the issue of the validity of San Gerónimo's

title would not be considered during the hearing. The presiding

officer specifically stated that the ARPE's intent was to stop all

construction until the issue of San Gerónimo's title was resolved.

During the hearing, San Gerónimo also claimed that its

due process rights were being violated and that notice for the

hearing had been insufficient. The ARPE did not introduce any

evidence against San Gerónimo and did not charge it with any

violations. The 2007 Department of Justice Opinion was not

introduced into the record of the hearing.

On December 27, 2007, defendant Vélez Roche,

administrator of the ARPE, issued a resolution and order holding

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the permits in abeyance and ceasing construction for a period of

sixty days, with a proviso that the ARPE could extend that period

if such extension was "in the public interest." The ARPE's

resolution did not address San Gerónimo's proprietary interest or

that of the owners of the completed apartments.

San Gerónimo appealed the ARPE's order to the Puerto Rico

Court of Appeals. On February 6, 2008, the Puerto Rico Court of

Appeals concluded that the ARPE had violated San Gerónimo's due

process rights as protected under the Puerto Rico Constitution.

San Gerónimo Caribe Project, Inc. v. ARPE, case # KLRA2008-00010,

2008 PR App. LEXIS 777 (P.R. Cir. Feb. 6, 2008) (certified

translation provided by the parties). The court recognized San

Gerónimo's proprietary interest in the permits and its claim of

proprietary interest in the land. Id. at *52.5 Therefore, the

court ordered the ARPE to hold an evidentiary hearing. Id. at *61.

The court did not, however, lift the stay on the construction. See

id. The ARPE failed to hold the evidentiary hearing that the

Puerto Rico Court of Appeals had ordered.

On February 8, 2008, the Court of First Instance entered

a judgment upholding the validity of San Gerónimo's title to the

land upon which it was building the Paseo Caribe Project. San

5
Where no official translation of a Puerto Rico court decision is
available, all pinpoint citations used herein refer to the
certified translation the appellant submitted. See App. to Br. of
Appellant, at 329-89, 394-509, San Gerónimo Caribe Project, Inc. v.
Acevedo Vilá, No. 09-2566 (1st Cir. argued Oct. 4, 2010).

-8-
Gerónimo Caribe Project, Inc. v. E.L.A. de P.R., No. K2AC2007-2577

(Ct. of First Instance, Super. Part of San Juan, filed Feb. 8,

2008). The judgment held that the 2007 Department of Justice

Opinion lacked legal foundation and that the suspension of San

Gerónimo's permits due to doubts about the validity of its title to

the land was indefensible.

On February 15, 2008, San Gerónimo filed a petition for

certiorari in the Puerto Rico Supreme Court requesting review of

the Court of Appeals' decision that had ordered the ARPE to hold an

evidentiary hearing but failed to lift the stay on the

construction. On February 25, 2008, the ARPE extended the initial

suspension of San Gerónimo's building permits for an additional

sixty days without holding the evidentiary hearing that the Puerto

Rico Court of Appeals had ordered.

On February 28, 2008, the Puerto Rico Supreme Court

issued a writ of certiorari and granted San Gerónimo's motion for

a stay of the ARPE's suspension orders pending the issuance of its

decision. Construction resumed. The Puerto Rico Supreme Court

issued its opinion regarding this matter on July 31, 2008. San

Gerónimo Caribe Project, Inc. v. Regulations & Permits Admin., 2008

TSPR 130, 2008 PR Sup. LEXIS 135 (P.R. July 31, 2008) (certified

translation provided by the parties).6 The Puerto Rico Supreme

6
This decision was not unanimous as it was issued by a vote of
three to two. Puerto Rico Supreme Court Justices Fiol Matta and
Anabelle Rodríguez Rodríguez filed dissenting opinions.

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Court held that the ARPE violated San Gerónimo's due process rights

under the Puerto Rico Constitution by deviating from the ordinary

procedure and failing to hold a meaningful hearing before depriving

San Gerónimo of its permits. Id. at *41. The court recognized

that, although Puerto Rico law provides for an emergency

adjudicatory procedure, id. at *25, the ARPE's justification for

circumventing the ordinary process was "very far from the

extraordinary circumstances that would allow the use of the

immediate action procedure contemplated in [Puerto Rico's Uniform

Administrative Procedure Act--the] L.P.A.U.," id. at *30 (emphasis

added).7 The Court also concluded that the ARPE erred in

suspending San Gerónimo's permits based on the 2007 Department of

Justice Opinion as the opinion lacked legal effect and neither the

Secretary of Justice nor the ARPE had authority to decide the issue

of title to the property. Id. at *41-42. The Court vacated the

ARPE's order suspending the permits and ordered it to suspend all

7
The Puerto Rico Supreme Court added that the questions that the
2007 Department of Justice Opinion raised regarding the ownership
of the lands at issue "[did] not present a situation where the
summary action of the State is required to avoid imminent damage."
San Gerónimo Caribe Project, Inc., 2008 TSPR 130 at *30. "[W]e
cannot support the thesis by the State to the effect[] that the
incidents and protests occurred in the mentioned project were
sufficient to justify the summary intervention by ARPE. . . .
Without a doubt, the degree of unrest that the same may have
generated, would not equal the instances where the compliance with
imminent danger to public health, safety and welfare have been
acknowledged, or that of an extraordinary situation that would
require the immediate action by the State." Id. at *31.

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proceedings to set aside San Gerónimo's permits based on the 2007

Department of Justice Opinion. Id. at *42-43.

In a separate decision also dated July 31, 2008, the

Supreme Court of Puerto Rico affirmed the judgment of the Court of

First Instance declaring that San Gerónimo had valid title to the

land underlying the Paseo Caribe Project. San Gerónimo Caribe

Project, Inc. v. Estado Libre Asociado de P.R., 2008 TSPR 129, 2008

PR Sup. LEXIS 142 (certified translation of the majority opinion

provided by the parties).8

B. Procedural Posture

On October 24, 2008, San Gerónimo filed a complaint in

the United States District Court for the District of Puerto Rico

under 42 U.S.C. § 1983 due to defendants' alleged violation of its

due process rights, its substantive due process rights and its

equal protection rights, as guaranteed under the Fifth and

Fourteenth Amendments to the United States Constitution. San

Gerónimo also included a Puerto Rico law tort claim under Article

1802 of the Puerto Rico Civil Code. The complaint requested

damages of thirty-eight million dollars due to the seventy-day

delay in construction that the defendants allegedly caused.

8
This decision was by a vote of four to one. Puerto Rico Supreme
Court Justice Fiol Matta dissented in part and concurred in part.
Justice Fiol Matta's dissent was strong and concluded that some of
the lands at issue were in fact part of the public domain.

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 On December 23, 2008, the defendants filed a motion to

dismiss the complaint under Federal Rule of Civil Procedure

12(b)(6) for failure to state a claim and under Federal Rule of

Civil Procedure 12(b)(1) for lack of subject matter jurisdiction

with respect to the pendent jurisdiction claims. San Gerónimo

filed its response on February 5, 2009.

The motion to dismiss was referred to a magistrate judge,

who issued a report and recommendation on August 3, 2009. The

magistrate judge advised in favor of the dismissal of the complaint

in its entirety, reasoning, inter alia, that San Gerónimo's

procedural due process claims were barred by the Parratt-Hudson

doctrine. See Hudson v. Palmer, 468 U.S. 517 (1984); Parratt v.

Taylor, 451 U.S. 527 (1981). On August 10, 2009, San Gerónimo

filed its opposition to the magistrate judge's report and

recommendation. On September 30, 2009, the district court issued

an opinion and order adopting in toto the magistrate judge's report

and recommendation, adding that San Gerónimo's claims are also

subject to dismissal under the doctrine of qualified immunity. The

district court entered judgment in favor of defendants, dismissing

all federal claims with prejudice and dismissing the pendent state

law claims without prejudice.

On October 28, 2009, San Gerónimo filed a timely notice

of appeal. We have jurisdiction pursuant to 28 U.S.C. § 1291.

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 II. Discussion

A. Standard of Review

The district court dismissed San Gerónimo's complaint

pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).

The district court educed its ruling from different parts of

Federal Rule of Civil Procedure 12(b); under either subsection, our

review of the court's ruling is de novo. Coggeshall v. Mass. Bd.

of Registration of Psychologists, 604 F.3d 658, 662 (1st Cir.

2010); McCloskey v. Mueller, 446 F.3d 262, 266 (1st Cir. 2006). We

accept as true the plaintiff's well-pleaded facts and draw all

reasonable inferences in its favor. McCloskey, 466 F.3d at 266.

We may affirm a court's dismissal pursuant to Rules 12(b)(1) and

12(b)(6) on "any basis made apparent from the record." Cook v.

Gates, 528 F.3d 42, 48 (1st Cir. 2008); Aguilar v. U.S. Immigration

& Customs Enforcement Div. of the Dep't of Homeland Sec., 510 F.3d

1, 8 (1st Cir. 2007). We review the district court's determination

that the defendants were entitled to qualified immunity de novo.

Meléndez-García v. Sánchez, 629 F.3d 25, 35 (1st Cir. 2010).

B. Procedural Due Process

A plaintiff seeking to establish a procedural due process

claim under 42 U.S.C. § 1983 must allege that the defendants

deprived it of a property interest while acting under color of

state law and without providing constitutionally adequate process.

Maymí v. P.R. Ports Auth., 515 F.3d 20, 29 (1st Cir. 2008). As a

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preliminary matter, the plaintiff must claim the deprivation of a

property interest recognized under state law. SFW Arecibo, Ltd. v.

Rodríguez, 415 F.3d 135, 139 (1st Cir. 2005). San Gerónimo has

done that here. See San Gerónimo Caribe Project, Inc., 2008 TSPR

130, at *19-20 (holding that San Gerónimo's suspended building

permits constituted a property interest under Puerto Rico law).

But a further showing is required. As the Supreme Court has

explained, "[i]n procedural due process claims, the deprivation by

state action of a constitutionally protected interest in 'life,

liberty, or property' is not in itself unconstitutional; what is

unconstitutional is the deprivation of such an interest without due

process of law." Zinermon v. Burch, 494 U.S. 113, 125 (1990).

What constitutes "due process of law" depends upon the

facts of each case. See id. at 127 ("Due process . . . is a

flexible concept that varies with the particular situation.").

Typically, due process requires that an opportunity for a hearing

be provided prior to the deprivation. See Cleveland Bd. of Educ.

v. Loudermill, 470 U.S. 532, 542 (1985). In this appeal, the

defendants do not dispute that the hearing the ARPE provided prior

to suspension of San Gerónimo's building permits was inadequate to

satisfy the requirements of due process.9 Although predeprivation

9
The Puerto Rico Supreme Court held that the predeprivation
hearing provided by the defendants deviated from the process
ordinarily required under the Puerto Rico Constitution to "satisfy
the minimum demands of due process, as for instance, the
opportunity of being heard, the right to cross-examine and the

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process may be the norm, however, "the necessity of quick action by

the State or the impracticality of providing any meaningful

predeprivation process" may render a postdeprivation remedy

constitutionally adequate in some circumstances. Parratt, 451 U.S.

at 539. The defendants claim that this is such a case, citing the

so-called Parratt-Hudson doctrine. After close examination of the

merits of their contention, we disagree.

1. The Parratt-Hudson Doctrine

The core principle of the Parratt-Hudson doctrine is

simple to state, though its application in the individual case can

be elusive. Parratt-Hudson provides that, where "a deprivation of

a property interest is occasioned by random and unauthorized

conduct by state officials, . . . the due process inquiry is

limited to the issue of the adequacy of postdeprivation remedies

provided by the state." Chmielinski v. Massachusetts, 513 F.3d

309, 315 (1st Cir. 2008) (quoting O'Neill v. Baker, 210 F.3d 41, 50

(1st Cir. 2000)) (internal quotation mark omitted). The doctrine

takes its name from a pair of Supreme Court decisions involving due

process claims by inmates against prison officials for the loss of

personal property -- in one case, property negligently misplaced in

the internal mail system, and in the other, property intentionally

right to examine the evidence filed by the other party." San
Gerónimo Caribe Project, Inc., 2008 TSPR, 130 at *20, *41. Because
defendants do not contest the issue, we accept the proposition that
the predeprivation procedures did not by themselves satisfy due
process.

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destroyed by officials during a "shakedown" search. See Hudson,

468 U.S. 517; Parratt, 451 U.S. 527. In each case, the Court held

that the availability of state tort-law remedies after the loss was

sufficient to satisfy the Due Process Clause. Hudson, 468 U.S. at

531-33; Parratt, 451 U.S. at 539-41. The rationale was one of

impracticability: where a loss occurs "as a result of a random and

unauthorized act by a state employee," the State "cannot predict

precisely when the loss will occur" and thus it "is difficult to

conceive of how the State could provide a meaningful hearing before

the deprivation takes place." Parratt, 451 U.S. at 541.

We have cautioned that, "[b]efore invoking the Parratt-

Hudson doctrine, . . . courts must give a hard look at allegations

that conduct is 'random and unauthorized.'" Chmielinski, 513 F.3d

at 315. Where a state official's action takes the form of classic

tort-like behavior, as was the case in both Parratt and Hudson,

applying the concepts of "random and unauthorized" conduct poses

little difficulty. That conceptual clarity begins to dissipate,

however, in situations where more formal, traditional government

action is at issue -- for example, in the suspension of building

permits. The Supreme Court has twice attempted to clarify the

application and limits of Parratt-Hudson in these sorts of

circumstances.

First, in Logan v. Zimmerman Brush Co., 455 U.S. 422, 436

(1982), the Court held that the doctrine has no application where

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a loss is the result of an "established state procedure," even if

due in part to negligent official conduct. At issue in Logan was

an Illinois law that predicated a claimant's right to pursue an

employment discrimination claim on a state commission's action on

the claim (specifically, convening a factfinding conference) within

a prescribed time period. Id. at 424-25. In Logan, the law had

barred the plaintiff from pursuing a disability claim due to the

state commission's inadvertent failure to act on his claim in the

allotted time. Id. at 426-27. The defendant argued that the

claimed loss was of the "same type of essentially negligent

deprivation" at issue in Parratt, and thus state tort remedies

should be deemed to satisfy due process. Id. at 435. The Court

disagreed, explaining that "Parratt was not designed to reach" the

situation where "it is the state system itself that destroys a

complainant's property interest, by operation of law, whenever the

Commission fails to convene a timely conference -- whether the

Commission's action is taken through negligence, maliciousness, or

otherwise." Id. at 436; see also Hudson, 468 U.S. at 532

("[P]ostdeprivation remedies do not satisfy due process where a

deprivation of property is caused by conduct pursuant to

established state procedure, rather than random and unauthorized

action.").

Second, in Zinermon, 494 U.S. at 135, relied on by the

plaintiff here, the Court addressed the situation where a

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deprivation of a liberty or property interest occurs under the

auspices of a state law that gives government officials "broad

power and little guidance . . . ." The case involved a due process

claim by a former psychiatric patient who was admitted for long-

term inpatient mental health treatment under a "voluntary" protocol

when he clearly was not competent to voluntarily consent to

admission. Id. at 123-24. Because the rationale underlying

Zinermon is both somewhat abstruse and of central importance to

this appeal, the decision bears more thorough discussion.

2. Zinermon v. Burch

Zinermon was set against a background of state law

affording hospital staff the discretion to choose from two separate

protocols for long-term admission for mental health treatment. The

first was an involuntary protocol, which granted a patient "a right

to notice, a judicial hearing, appointed counsel, access to medical

records and personnel, and an independent examination." Id. at

123. The second was a voluntary protocol, applicable only where an

adult patient showing evidence of mental illness gave "express and

informed consent" to admission. Id. The defendant hospital

officials admitted the plaintiff under the latter, voluntary

protocol despite the fact that he was heavily medicated and showing

signs of disorientation, psychosis, hallucinations, and paranoia

around the time he signed the hospital's consent form.

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 Following his release, the plaintiff filed suit for a

violation of procedural due process. Of particular note, the

plaintiff expressly "disavowed any challenge to the statutes

themselves and restricted his claim to the contention that

petitioners' failure to provide constitutionally adequate

safeguards in his case violated his due process rights." Id. at

117. Indeed, the Court found that the plaintiff "apparently

concede[d] that, if Florida's statutes were strictly complied with,

no deprivation of liberty without due process would occur." Id. at

117 n.3. Sharing the plaintiff's view that the officials' actions

contravened the procedures required by state law, the district

court concluded that the conduct at issue was "unauthorized" and

dismissed the suit under Parratt-Hudson. On appeal, the plurality

of an en banc panel of the 11th Circuit reversed, finding the

Parratt-Hudson doctrine inapplicable because the state could have

provided additional predeprivation remedies.

The Supreme Court agreed, distinguishing Parratt and

Hudson on three bases. First, it noted that the deprivation of

liberty in Zinermon was not "unpredictable," and that "[a]ny

erroneous deprivation will occur, if at all, at a specific,

predictable point in the admission process -- when the patient is

given admission forms to sign." Zinermon, 494 U.S. at 136.

Second, the Court found that, unlike in Parratt and Hudson,

implementing a predeprivation process was not impossible, as the

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state could have provided additional administrative procedures that

would have "limited and guided [the defendants'] powers to admit

patients" by ensuring that hospital officials correctly chose

between the voluntary and involuntary admission protocols. Id. at

137. Third, the Court found that the defendants could not rightly

characterize their conduct as "unauthorized" in the sense that word

was used in Parratt and Hudson, because "[t]he State delegated to

them the power and authority to effect the very deprivation

complained of . . . ." Id. at 138. In thus construing the term

"unauthorized," the Zinermon majority expressly rejected the view

that the Parratt-Hudson doctrine applies "in every case where a

deprivation is caused by an unauthorized . . . departure from

established practices." Id. at 138 n.20 (internal quotation marks

omitted).10

More fundamentally, the Court emphasized that the state

"chose to delegate to [hospital officials] a broad power to admit

patients to [mental hospitals], i.e., to effect what, in the

absence of informed consent, is a substantial deprivation of

liberty." Id. at 135. The Court explained that it might be

10
We note that this understanding of "unauthorized" appears to be
in direct tension with several of our precedents, which can be read
to suggest that a departure from established state procedures by
itself renders an official action "unauthorized" under Parratt and
Hudson. See, e.g., SFW Arecibo, Ltd., 415 F.3d at 139; PFZ Props.,
Inc. v. Rodríguez, 928 F.2d 28, 31 (1st Cir. 1991). This point
becomes critical in our qualified immunity analysis. See infra
Part II.C.

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constitutional to provide such broad discretion with little

guidance on its exercise, but "when those officials fail to provide

constitutionally required procedural safeguards to a person whom

they deprive of liberty, the state officials cannot then escape

liability by invoking Parratt and Hudson." Id.

3. Application to San Gerónimo's Due Process Claim

Turning to the facts of this case, we conclude that the

rationale of Zinermon is squarely applicable, and thus the

postdeprivation remedies available to San Gerónimo could not be

sufficient to satisfy the Due Process Clause.

Though presenting the deprivation of a property rather

than liberty interest, the problem at the heart of this case is the

same as in Zinermon: state officials, imbued with the broad

discretion to effect deprivation of property interests, erroneously

chose to deprive the plaintiff of its property under a protocol

lacking the procedural protections required by due process.

Commonwealth law provided the ARPE with two options for the

suspension of San Gerónimo's construction permits: (1) an ordinary

adjudicative process involving a formal hearing and other

procedural safeguards, see P.R. Laws Ann. tit. 3, §§ 2151(a), 2152,

2157-59, 2161, 2163-64, or (2) an "Emergency Adjudicatory

Procedure", see id. § 2167. The latter was available "in any

situation in which there is imminent danger to the public health,

safety and welfare or which requires immediate action by the

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agency." P.R. Laws Ann. tit. 3, § 2167(a). The ARPE chose this

"emergency" procedure, explaining:

Pursuant to [§ 2167], the agencies may hold
emergency adjudicatory procedures of an
expeditious nature when there is an imminent
danger to the public health, safety and
welfare or which require immediate action by
the agency. Some questions have arisen as to
the ownership of the land where the Proyecto
Paseo Caribe development is located after the
Opinion issued by the Secretary of Justice.
There have also been several incidents that
could affect the safety of the employees
working in this project, and of the citizens
who have been holding demonstrations near said
land. The conclusion in the aforementioned
Opinion that some of the land occupied by the
Proyecto Paseo Caribe development is public
land, has evidenced the existence of a great
public interest in the reevaluation of the
endorsements of said project to safeguard the
rights of both the proponents and the
developers and the resources of the People of
Puerto Rico.

In re San Gerónimo Development, Inc., Order to Show Cause, at *2

(ARPE Dec. 14, 2007) (certified translation provided by the

parties).

As in Zinermon, there is no question that the defendants

erred in their choice of the Emergency Adjudicatory Procedure. The

Puerto Rico Supreme Court determined that the justification relied

upon in the ARPE's order was "very far from the extraordinary

circumstances that would allow the use of the immediate action

procedure . . . ." San Gerónimo Caribe Project, Inc., 2008 TSPR

130, at *30. If Puerto Rico's statutes had been "strictly complied

with," the ARPE would have followed normal adjudicatory procedures

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and "no deprivation of [property] without due process would [have]

occur[red]." Zinermon, 494 U.S. at 117 n.3.

Though the defendants may have departed from state law

protocols in suspending San Gerónimo's permits via the emergency

procedure, we conclude that their action is distinguishable, on the

three bases Zinermon cites, from the sort of genuinely "random and

unauthorized" conduct subject to Parratt and Hudson. First, as in

Zinermon, the point at which a deprivation of property would be

effected is perfectly predictable -- it was at the point where an

agency is choosing between regular and emergency procedures. See

Zinermon, 494 U.S. at 136. Thus, it cannot be said that the

deprivation of property without sufficient process was truly

"random."

Second, unlike Parratt and Hudson, this was not a

situation where "the very nature of the deprivation made

predeprivation process 'impossible.'" Id. at 137 (quoting Parratt,

451 U.S. at 541). To the contrary, it is plain that, as in

Zinermon, additional processes could have been implemented to

"limit[] and guide[]" the defendants' power to effect deprivations

of property under the emergency adjudicatory procedure. Id. The

emergency procedures statute fails to offer any meaningful guidance

on what types of circumstances will justify emergency action,

stating only that such circumstances include "any situation in

which there is imminent danger to the public health, safety and

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welfare or which requires immediate action by the agency." P.R.

Laws Ann. tit. 3, § 2167(a). There is thus significant room for

guidance or additional procedures for identifying when emergency

adjudicatory procedures can permissibly be employed.

Third, with regard to whether the defendants' actions

were "authorized," it is undisputed that the ARPE purported to act

under the authority of § 2167(a), which does indeed permit

deprivation of property interests without a hearing in exigent

circumstances. Defendants suggest that their actions were

"unauthorized" because they did not follow the procedures

ordinarily required by Puerto Rico law. However, Zinermon teaches

that this sort of "unauthorized . . . departure from established

practices" is not "'unauthorized' in the sense the term is used in

Parratt and Hudson." Zinermon, 494 U.S. at 138 & n.20. Rather, as

in Zinermon, "[t]he deprivation here is 'unauthorized' only in the

sense that it was not an act sanctioned by state law, but, instead,

was a deprivation of constitutional rights by an official's abuse

of his position." Id. at 138 (citation omitted) (internal

quotation marks and alterations omitted). And, in this case, as in

Zinermon, "[t]he State delegated to [the defendants] the power and

authority to effect the very deprivation complained of . . . ."

Id.

In short, this case does not match the mold cast by

Parratt and Hudson. This was not a matter of random and

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unauthorized action, but instead of predictable overreaching by

government officials given broad discretion to choose the manner by

which property interests might be deprived. As such,

postdeprivation remedies were not sufficient to meet the

requirements of due process here. San Gerónimo has made out a

valid procedural due process claim.

C. Qualified Immunity

Qualified immunity shields government officials from

personal liability for damages arising from actions taken while

performing discretionary functions. Barton v. Clancy, 632 F.3d 9,

21 (1st Cir. 2011). It provides "an immunity from suit and not a

mere defense to liability." Maldonado v. Fontánes, 568 F.3d 263,

268 (1st Cir. 2009). "Officials are entitled to qualified immunity

unless (1) 'the facts that a plaintiff has alleged or shown make

out a violation of a constitutional right' and (2) 'the right at

issue was "clearly established" at the time of their alleged

misconduct.'" Walden v. City of Providence, 596 F.3d 38, 52 (1st

Cir. 2010) (brackets omitted) (quoting Pearson v. Callahan, 129 S.

Ct. 808, 816 (2009)).

In this case, we have already held that plaintiffs have

made out a due process claim, see supra Part II.B., and we assume

here that they would prevail in proving a constitutional violation.

Still, the second prong of qualified immunity--whether the right at

issue was clearly established--remains to be addressed. "The

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relevant, dispositive inquiry in determining whether a right is

clearly established is whether it would be clear to a reasonable

officer that his conduct was unlawful in the situation he

confronted." Saucier v. Katz, 533 U.S. 194, 202 (2001), overruled

in part on other grounds by Pearson, 129 S. Ct. at 818; accord

Meléndez-García, 629 F.3d at 36. In other words, "[a] right is

considered clearly established if viewed objectively at the time

the defendant acted, he was on clear notice that what he was doing

was unconstitutional." Decotiis v. Whittemore, 635 F.3d 22, 37

(1st Cir. 2011) (citations omitted) (quotation marks omitted). To

demonstrate such clear notice, "the plaintiff must point to

controlling authority or a body of persuasive authority, existing

at the time of the incident, that can be said to have provided the

defendant with 'fair warning'" that his conduct was unlawful. Id.

(citing Wilson v. Layne, 526 U.S. 603, 617 (1999)). Obviously,

notice is measured by reference to the state of the law at the time

defendants acted, not with the benefit of hindsight. See, e.g.,

Wilson, 526 U.S. at 616-18; Decotiis, 635 F.3d at 37-38 (both

analyzing the state of the law at the time of defendants' actions).

In this case, we are not persuaded that the state of the

law at the time of the incidents put defendants on clear notice

that their actions violated due process. Specifically, we explain

above that not every deviation from state law qualifies as "random

and unauthorized" conduct within the meaning of Parratt and Hudson,

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such that defendants are not required to provide predeprivation

process. See supra at p. 20. Zinermon makes this conclusion

unmistakably clear. See 494 U.S. at 138 n.20 ("Parratt and Hudson

. . . 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." (ellipsis omitted)

(citations omitted) (internal quotation marks omitted)). Yet, as

we have noted (and in fairness to the defendants), a number of our

previous decisions might have been reasonably read to require this

erroneous interpretation of Parratt and Hudson. See PFZ Props.,

Inc. v. Rodríguez, 928 F.2d 28, 31 (1st Cir. 1991) ("When 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." (citing Parratt, 451 U.S. at 543)); accord SFW Arecibo,

415 F.3d at 139-40 (quoting PFZ Props., 928 F.2d at 31). These

statements easily could have led the defendants to believe that

they were not required to provide a meaningful predeprivation

hearing and that, under Parratt and Hudson, providing

postdeprivation remedies was all the process that was due. In view

of this, it cannot fairly be said that the defendants were on clear

notice that their failure to provide predeprivation process

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violated the plaintiff's constitutional rights, and defendants thus

are entitled to qualified immunity.

III. Conclusion

For the foregoing reasons, although the district court's

holding that the plaintiff has failed to state a procedural due

process claim was erroneous, the defendants are entitled to

qualified immunity. Therefore, the judgment of the district court

is affirmed.

AFFIRMED.

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