John Brown v. Steve Brienen

FLAUM, Circuit Judge,

concurring.

As the majority opinion states, ante at 362, the appellees have not appealed from the district court ruling that the alleged breach of contract was a deprivation of property within the meaning of the fourteenth amendment. The majority opinion states that this court may consider any grounds for affirmance that the record will support, citing Brown v. Marquette Savings & Loan Ass’n, 686 F.2d 608, 611 (7th Cir.1982). I read Brown, however, to state that this court will affirm a judgment if the record supports affirmance where the district court relied on a wrong ground or applied the wrong reasoning for its judgment. See also Panter v. Marshall Field & Co., 646 F.2d 271, 281 (7th Cir.), cert. denied, 454 U.S. 1092, 102 S.Ct. 658, 70 L.Ed.2d 631 (1981). I understand the majority opinion here to affirm the decision below on the very grounds relied on by the district court — that there was no denial of due process. See ante at 364-365. I therefore see no need to address other grounds for affirmance not raised before this court. Furthermore, as the United States Supreme Court has recently granted certiorari in the case of Vail v. Board of Education, 706 F.2d 1435 (7th Cir.), cert. granted, - U.S. -, 104 S.Ct. 66, 78 L.Ed.2d 81 (1983) to consider the extent to which contractual rights may constitute property interests under the fourteenth amendment, I find it unnecessary to reach the issue of whether there was a deprivation of property in this case, and I do not join in the portion of the majority opinion discussing this issue. In addition, I deem it appropriate to restrict the examination of whether there has been a denial of due process to the specific facts of this case.

Appellants allege that they have been deprived of their accrued compensatory time off without due process of law. Both parties agree that appellants could bring a state court suit for breach of contract. Thus, the specific issue presented by this appeal is whether the due process clause requires more than a post-deprivation state lawsuit for breach of contract involving a denial of accrued compensatory time off.

The due process clause requires some form of hearing before a final deprivation of a property interest by the state. Logan v. Zimmerman Brush Co., 455 U.S. 422, 433, 102 S.Ct. 1148, 1156, 71 L.Ed.2d 265 (1982); Parratt v. Taylor, 451 U.S. 527, 540, 101 S.Ct. 1908, 1915, 68 L.Ed.2d 420 (1981). However, the state is not always required to provide the hearing before the initial deprivation of property. See Parratt v. Taylor, 451 U.S. at 540, 101 S.Ct. at 1915; Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977); Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). Where there has been a deprivation of property, merely postponing the hearing does not deny due process if there is an adequate opportunity given for an ultimate determination of liability. Parratt v. Taylor, 451 U.S. at 540, 101 S.Ct. at 1915 (quoting Mitchell v. W.T. Grant Co., 416 U.S. 600, 611, 94 S.Ct. 1895, 1902, 40 L.Ed.2d 406 (1974)).

Whether the hearing must be held before an alleged initial deprivation of property *368depends on three factors: the private interest involved; the risk of government error and the probable value of other procedural safeguards; and the state’s interest, including the fiscal and administrative burdens of the proposed procedural safeguards. Logan v. Zimmerman Brush Co., 455 U.S. at 434, 102 S.Ct. at 1157; Mathews v. Eldridge, 424 U.S. at 335, 96 S.Ct. at 903.

An analysis of the private interest involved focuses on the importance of the interest and the finality of the deprivation. Logan v. Zimmerman Brush Co., 455 U.S. at 434, 102 S.Ct. at 1157. Appellants’ interest in having their employment contracts honored is not insubstantial. However, it is not clear that the deprivation of property charged here is final. Apparently, there has been no decision that appellants can never receive their accrued compensatory leave, merely that current conditions do not permit their taking time off at present.1 Additionally, it may well be that appellants will not have been finally deprived of any property rights until a state court has rejected their breach of contract claims. See Bonner v. Coughlin, 517 F.2d 1311, 1320 n. 27 (7th Cir.1975), modified en banc, 545 F.2d 565 (1976), cert. denied, 435 U.S. 932, 98 S.Ct. 1507, 55 L.Ed.2d 529 (1978). Cf. Parratt v. Taylor, 451 U.S. at 543, 101 S.Ct. at 1916; Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977). Compare Logan v. Zimmerman Brush Co., 455 U.S. at 434, 102 S.Ct. at 1157 (deprivation was final because plaintiff had no opportunity to obtain judicial review).

The risk of government error and the value of a predeprivation hearing in reducing that risk here appears insubstantial. The alleged deprivation in this case is a breach of contract that occurs each time the sheriff refuses to allow one of the appellants to take compensatory time off. To require a hearing before each breach would produce few positive results. The appellants are well aware that the sheriff cannot currently grant compensatory time off and maintain minimum staffing levels. The sheriff is well aware that the appellants want to take their accrued time off forthwith. The parties in essence are at a stalemate; a hearing would do little to advance a resolution of the dispute. This is not a case requiring individualized determinations of fact or law, see Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975); hence individualized opportunities for hearings should not be required.

Finally, the state’s interest in not providing numerous predeprivation hearings is substantial. To require a hearing for each breach could well place an undue administrative burden on the sheriff and county. Moreover, if this court were to require any procedures other than an “informal give- and-take” between the parties, see Goss v. Lopez, 419 U.S. at 584, 95 S.Ct. at 741; Ingraham v. Wright, 430 U.S. at 695, 97 S.Ct. at 1425 (White, J., concurring), hearings could also impose an unwarranted fiscal burden upon the appellees.

On balance, then, individual predeprivation hearings should not be required. A state court suit for breach of contract provides adequate protection of the appellants’ interests. The relief provided by a state court suit might not be identical to that which appellants could receive under section 1983. However, state court relief is adequate for due process purposes if it fully compensates a plaintiff for his property loss. Parratt v. Taylor, 451 U.S. at 544-45, 101 S.Ct. at 1917-18.

Appellants also allege that they have been deprived of their property without substantive due process of law. The Supreme Court, however, has analyzed the issue of deprivation of property as involving only procedural due process rights. Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982); Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981).2 Similarly, this court *369has analyzed the issue as one of procedural due process. See, e.g., Vail v. Board of Education, 706 F.2d 1485 (7th Cir.), cert. granted, - U.S. -, 104 S.Ct. 66, 78 L.Ed.2d 81 (1983). Thus, substantive due process is inapplicable here.

Moreover, this court has recently held that an administration of local law causing a deprivation of property does not implicate substantive due process where plaintiffs have an adequate state remedy. Albery v. Reddig, 718 F.2d 245 (1983). In Albery, plaintiffs complained that the administration of the local zoning ordinance denied them substantive due process of law. The court found that plaintiffs had an adequate state remedy and noted:

That the zoning laws may have been administered negligently or without an appropriately sensitive concern for plaintiffs’ interest is not a violation of their Fourteenth Amendment rights if state remedies are adequate.... The Alberys have been subjected to an uncertain, and perhaps frustrating, administration of a typically local regulation. But they have not been deprived of a property interest (or even more clearly of a liberty interest) without due process of law.

718 F.2d at 251 (footnote reference omitted). Here, as in Albery, appellants are complaining about the administration of local law. A state court remedy provides them with all the process that is due.

For the foregoing reasons, I would affirm the decision of the district court.

. Counsel for appellees stated at oral argument that the personnel policy is still in effect. Documentation of overtime worked continues. Further, the record reflects no indication that the granting of the accrued time off will not take place if staffing requirements permit.

. In Parratt, the majority opinion did not discuss substantive due process. Justices White, *369Blackmun and Powell each concurred. Each found generally that the due process clause embodies substantive limits on state action. However, no member of the Court found substantive due process to be implicated in that case.