SPLIT FOURTH CIRCUIT PANEL ISSUES §1983 RULING
A divided panel of the Fourth Circuit today issed a decision in Bogart v. Chapell, a case involving a procedural due pr(Handling a teenage bully will be covered in an upcoming email.)ocess claim brought by the owner of over 200 dogs and cats. The animals were seized by animal control officers, and contrary to South Carolina law (which required that they be housed safely until a hearing could be held), most of them were euthanized that night. Bogart filed a civil rights suit against numerous defendants, claiming that her right to a predeprivation hearing had been denied.
The district court granted summary judgment to the defendants, citing the Supreme Court’s rulings in Hudson v. Palmer and Parratt v. Taylor. It found that the taking was random and unauthorized, and that no predeprivation hearing was available. Bogart argued below and on appeal that an exception to the Hudson/Parratt doctrine, enunciated by the Supreme Court in a subsequent decision, Zinermon v. Burch, should apply, since the officials who destroyed her animals were acting on a broad grant of unfettered authority.
Walking the minefield of Supreme Court jurisprudence on this issue, the majority held that the Zinermon exception did not apply, and affirmed the district court. Its formulation of its understanding of the current state of the law is stated thusly:
“The teaching of Zinermon, it seems, is that where, as in this dispute, state employees do not have broad authority (or, indeed, any authority) to deprive persons of their property or liberty, and do not have a duty to provide the procedural safeguards required before a deprivation occurs, the Parratt/Hudson doctrine still bars a §1983 procedural due process claim based on the employees’ random and unauthorized conduct. But where, as in Zinermon, state employees do have broad authority to effect deprivations, as well as the duty to provide predeprivation procedural safeguards, the Parratt/Hudson doctrine is inapplicable.”
While the majority signals its frustration with the unclear state of the law wrought by seemingly inconsistent Supreme Court caselaw, it has effectively confined the more liberal Zinermon exception inside a well-defined cage, leaving the more strict Parratt/Hudson rule free to roam the countryside in all cases except those thus narrowly delineated. (One can almost see the majority viewing the Zinermon doctrine and exclaiming, “There! Let’s see you get out of THAT one!”)
In dissent, Judge Williams begins by noting that if this were a case of first impression, she would agree with the majority. But she points out that today’s ruling is at odds with two previous Fourth Circuit decisions interpreting this troublesome and ill-defined area of Constitutional law. She thus points out that the majority’s ruling creates an intra-circuit split of authority. It remains to be seen whether Bogart’s counsel will accept this translucent hint that a suggestion for rehearing en banc might be in order .
TWO FOURTH CIRCUIT REVERSALS
The Fourth Circuit reversed two rulings today, January 31, remanding a civil case and vacating an order of removal (essentially, deportation) against a resident alien.
In College Loan Corp. v. SLM Corp., the court reversed a district court’s finding of federal preemption of state law claims. The lower court, applying the Higher Education Act of 1965, had found that “the HEA impliedly preempts any state law action that utilizes the HEA to satisfy an element of the state law claim.” The Fourth Circuit reversed, noting that “the courts have generally authorized state tort claims . . . even when such claims are in some manner premised on violations of federal regulations.”
The case is noteworthy for the detailed analysis of the current state of preemption jurisprudence it contains. Citing a presumption against preemption, the court brushed aside several arguments advanced by the appellee in support of the lower court’s ruling, including uniformity as a goal of the HEA, the existence of an extensive regulatory scheme, and the fact that the Secretary of Education is the only person authorized to enforce the HEA.
The court reversed a removal order that had been affirmed by the Board of Immigration Appeals in Argaw v. Ashcroft. The case is interesting for the approach the court took to a complicated issue of appellate jurisdiction. Argaw had been ordered removed after an administrative judge found that he had brought khat, an African stimulant, into the country. Ordinarily, the courts of appeals have no jurisdiction to review such removals. 8 USC §1252(a)(2). But the court held that it retained jurisdiction “to determine whether the facts that would deprive us of jurisdiction are present.”
Fundamentally, the court found that khat had not been established to be a controlled substance. The administrative judge had found that it was, based on an unauthenticated printout from a private organization. The BIA assumed that it was, based on two cases the court found inapposite and one DEA information statement. But the court noted that khat did not appear on any list of controlled substances, and that the sample taken from Argaw had never been tested for the presence of component controlled substances. It therefore determined that Argaw had not committed a criminal act, and reversed his removal.
A more cynical court might have declined to hear the case, citing the statutory bar, but the court took pains to analyze the context of, and evidentiary support for, the previous rulings in making its findings.