On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 03-cv-01418) District Judge: Honorable James M. Munley.
The opinion of the court was delivered by: Fisher, Circuit Judge.
Before: SLOVITER and FISHER, Circuit Judges, and POLLAK,*fn1 District Judge.
In this appeal we consider whether the members of the Board of Supervisors of Salem Township, Pennsylvania are immune from suits brought against them in their individual capacities relating to their decision to deny an application for a permit for a conditional use. We conclude that they are entitled to absolute quasi-judicial immunity. Accordingly, we will reverse the decision of the District Court.
When reviewing a ruling on a motion to dismiss for failure to state a claim, we accept the allegations in the pleadings as true and draw all reasonable inferences in favor of the plaintiff. Schrob v. Catterson, 948 F.2d 1402, 1405 (3d Cir. 1991). The relevant allegations can be stated briefly. The Appellants, the defendants below, are Salem Township and the three members of its Board of Supervisors ("the Board"): Ernest Ashbridge, John R. Bower, and Darren Crispin. The Appellees, the plaintiffs below, are Norbert and Joanne Dotzel, the owners of a trucking business in the Township, who applied for a permit to operate a "small mining operation" on their land. Following a hearing in March 2002, the Salem Township Planning Commission granted conditional approval of the Dotzels' application. The Board then held a public hearing on April 9, 2002, and rejected the application. The Board's decision explained that the application was denied because "[t]he proposed use . . . jeopardize[s] the community development objectives of the ordinance." The Dotzels contend that the Board's decision was not supported by the evidence before the Board, but rather was based upon the personal animus of the individual Board members and other improper motives. The Dotzels allege that the Board members failed to review prior to the hearing various submissions accompanying their permit application; that the Board members ignored the recommendation of the Township solicitor to delay the hearing for 120 days; that the Township engineer had advised the Planning Commission to approve the application; that Appellant Ashbridge based his decision upon an inapplicable provision in the Township zoning ordinance; and that Appellant Bower's brother had a quarry operation that would have been forced to compete with the Dotzels' proposed gravel pit.
As was their right under Pennsylvania law, the Dotzels appealed the permit denial in state court and prevailed, winning a reversal and an order that the permit be granted. They then brought suit in the District Court under 42 U.S.C. § 1983 against the Township and the Board, raising several constitutional claims, including violations of their First Amendment rights and their rights to procedural and substantive due process. The District Court dismissed all but the substantive due process claim, holding that the state appellate review provided adequate procedural protection and that the complaint was "devoid of any allegation that describes or particularizes any protected activity" under the First Amendment. The Dotzels do not appeal from those dismissals.
The District Court denied the defendants' motion to dismiss the substantive due process claim, however, holding that discovery was necessary on two issues crucial to municipal liability: whether the Board's denial of the Dotzels' application was so egregiously illegal as to "shock the contemporary conscience," see Desi's Pizza, Inc. v. City of Wilkes-Barre, 321 F.3d 411, 427 (3d Cir. 2003) (quoting County of Sacramento v. Lewis, 523 U.S. 833, 847 n.8 (1998)), and whether the Board's action constituted "official policy," see Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978).
The Board members argued below that regardless of the merits of the claim against the Township, they are entitled to quasi-judicial immunity and cannot be sued in their individual capacities based on their votes. The District Court rejected that argument, explaining that it was "unable to determine the capacity" in which the Board members were acting when they considered the Dotzels' permit application. The Court therefore found itself "unable to determine whether the defendants are protected by judicial immunity," and denied their motion to dismiss. On this question, we disagree with the District Court and will reverse. Analysis of the functions undertaken by the Board in ruling on permit applications persuades us that the Board members act in a quasi-judicial capacity and are therefore entitled to absolute immunity from suit.
We begin, as we must, with an inquiry into whether we have jurisdiction to consider this appeal under the collateral order doctrine set forth in Cohen v. Beneficial Loan Corporation, 337 U.S. 541 (1949), and its progeny. See Lazy Oil Co. v. Witco Corp., 166 F.3d 581, 587 (3d Cir. 1999) ("[W]e have an inherent obligation to ensure that we only decide those cases for which there is a proper ground for appellate jurisdiction").
Generally, as an appellate court, we have jurisdiction only over final orders of district courts as set forth in 28 U.S.C. § 1291. A "final order" is one "which terminates the litigation between the parties on the merits of the case and leaves nothing to be done but to enforce by execution what has been determined." Richerson v. Jones, 551 F.2d 918, 922 (3d Cir. 1977) (quoting St. Louis, Iron Mountain and Southern Ry. Co. v. Southern Express Co., 108 U.S. 24, 28-29 (1883)). The denial of a motion to dismiss does not end the litigation between the parties and thus does not normally qualify as a final order under section 1291. See Petroleos Mexicanos Refinacion v. M/T King A (Ex Tblisi), 377 F.3d 329, 333-34 (3d Cir. 2004). However, the Supreme Court in Cohen explained that section 1291 is to be given a "practical rather than a technical construction," and that there is a "small class" of non-final orders "which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself ...