that P&P must provide a suspended party with the opportunity for a prompt post-deprivation hearing. Indeed, the regulations governing P&P suspensions specifically provide for such a hearing. See N.J.A.C. § 17:12-6.7.
In this opinion, however, we do not address the right to a hearing, but rather whether plaintiffs' admitted failure to request a hearing was a waiver of that right or a consequence of some state action or inaction that amounted to a constitutional deprivation. Thus, the law of the case doctrine does not prevent us from reconsidering the court's previous denial of qualified immunity.
III. SUMMARY JUDGMENT STANDARD
Under Fed. R. Civ. P. 56(c), a court may grant summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." The nonmoving party may not simply rest on its pleadings to oppose a summary judgment motion, but must affirmatively come forward with admissible evidence establishing a genuine issue of fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).
In deciding a motion for summary judgment, the court must construe the facts and inferences in a light most favorable to the nonmoving party. Pollock v. American Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986). The role of the court is not "to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). A genuine issue for trial does not exist "unless the party opposing the motion can adduce evidence which, when considered in light of that party's burden of proof at trial, could be the basis for a jury finding in that party's favor." J.E. Mamiye & Sons, Inc. v. Fidelity Bank, 813 F.2d 610, 618 (3d Cir. 1987) (Becker, J., concurring).
The Supreme Court has held that "government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982). For a right to be "clearly established," the "contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987). Although the "very act in question" need not have been previously held unlawful, the right is "clearly established" only if "in light of pre-existing law the unlawfulness [is] apparent." Id.
The Third Circuit recently clarified the notion of qualified immunity. The determination of qualified immunity involves "two governing inquiries." Acierno v. Cloutier, 40 F.3d 597 1994 WL 567015, at *23 (3d Cir. Oct. 18, 1994) (in banc). First, while a right may be "clearly established" other than through controlling case law directly on point, it must be clear enough that "'reasonable officials in the defendants' position at the relevant time could have believed, in light of what was in the decided case law, that their conduct would be lawful.'" Id. (quoting Good v. Dauphin County Social Servs. for Children and Youth, 891 F.2d 1087, 1092 (3d Cir. 1989)). Second, even where the right is clearly established, government officials are entitled to immunity "'if based on the information available to them they could have believed their conduct would be consistent with those principles.'" Id. (quoting Good, 891 F.2d at 1092). Thus, qualified immunity protects government officials unless they act in a "plainly incompetent" manner or "knowingly violate the law." Id., at *24 n.16 (citing Malley v. Briggs, 475 U.S. 335, 341, 89 L. Ed. 2d 271, 106 S. Ct. 1092 (1986)).
A. The Contours of the Right at Issue
We must begin by examining the "contours of the right" at issue. Anderson, 483 U.S. at 640. Plaintiffs allege that defendants deprived them of a property interest without due process of law. Thus, we must first determine whether a property interest is at stake.
It is well-settled that property interests are not created by the Constitution, but by independent sources such as state law. Board of Regents v. Roth, 408 U.S. 564, 577, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972). The previous judge concluded, and we agree, that New Jersey law provides plaintiffs with a property interest in their ability to do business with the state. See Berlanti v. Bodman, 780 F.2d 296, 300 (3d Cir. 1985); Department of Labor v. Titan Constr. Co., 102 N.J. 1, 17, 504 A.2d 7 (1985). Therefore, we turn to the process due plaintiffs before the state deprived them of this right.
The process due is a question of federal, rather than state, law. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541, 84 L. Ed. 2d 494, 105 S. Ct. 1487 (1985). In determining what process is due, we must consider:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.