Keystone Redevelopment Partners v. Decker, 10–1054.

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Writing for the CourtBefore: AMBRO, FISHER, and GARTH, Circuit Judges.
Citation631 F.3d 89
PartiesKEYSTONE REDEVELOPMENT PARTNERS, LLCv.Thomas DECKER, Mary DiGiacomo Colins; Raymond S. Angeli, Jeffrey W. Coy, Joseph W. Marshall, III, Kenneth T. McCabe, and Sanford Rivers, all named in their individual capacities as members of the Pennsylvania Gaming Control Board in December, 2006; and Gregory C. Fajt; Raymond S. Angeli; Jeffrey W. Coy; James B. Ginty; Kenneth T. McCabe; Sanford Rivers and Gary A. Sojka, all named in their official capacities as current members of the Pennsylvania Gaming Control Boardv.HSP Gaming, L.P. (Intervenor in District Court)Thomas Decker, Mary DiGiacomo Colins, Raymond S. Angeli, Jeffrey W. Coy, Joseph W. Marshall III, Kenneth T. McCabe and Sanford Rivers, Appellants.
Docket NumberNo. 10–1054.,10–1054.
Decision Date07 January 2011

631 F.3d 89

KEYSTONE REDEVELOPMENT PARTNERS, LLC
v.
Thomas DECKER, Mary DiGiacomo Colins; Raymond S. Angeli, Jeffrey W. Coy, Joseph W. Marshall, III, Kenneth T. McCabe, and Sanford Rivers, all named in their individual capacities as members of the Pennsylvania Gaming Control Board in December, 2006; and Gregory C. Fajt; Raymond S. Angeli; Jeffrey W. Coy; James B. Ginty; Kenneth T. McCabe; Sanford Rivers and Gary A. Sojka, all named in their official capacities as current members of the Pennsylvania Gaming Control Board
v.
HSP Gaming, L.P. (Intervenor in District Court)Thomas Decker, Mary DiGiacomo Colins, Raymond S. Angeli, Jeffrey W. Coy, Joseph W. Marshall III, Kenneth T. McCabe and Sanford Rivers, Appellants.

No. 10–1054.

United States Court of Appeals, Third Circuit.

Argued Nov. 16, 2010.Opinion filed: Jan. 7, 2011.


[631 F.3d 90]

David R. Overstreet, Esq. (Argued), John P. Krill, Jr., Esq., Abram D. Burnett, III, Esq., Anthony R. Holtzman, Esq., K & L Gates LLP, Harrisburg, PA, for Appellee.James J. Kutz, Esq., Barbara A. Zemlock, Esq., John W. Dornberger, Esq., Post & Schell, P.C., Harrisburg, PA, R. Douglas Sherman, Esq., Pennsylvania Gaming Control Board, Harrisburg, PA, Ralph G. Wellington, Esq. (Argued), Nancy Winkleman, Esq., Joseph Anclien, Esq., Joseph J. Langkamer, Esq., Schnader Harrison Segal & Lewis, LLP, Philadelphia, PA, for Appellants.William H. Lamb, Esq., Scot R. Withers, Esq., Lamb McErlane, PC, West Chester,

[631 F.3d 91]

PA, Stephen A. Cozen, Esq., F. Warren Jacoby, Esq., Jennifer M. McHugh, Esq., Cozen O'Connor, Philadelphia, PA, Thomas E. Groshens, Esq. (Argued), Richard A. Sprague, Esq., Thomas A. Sprague, Esq., Charles J. Hardy, Esq., Sprague & Sprague, Philadelphia, PA, for Intervenor–Appellant HSP Gaming, L.P.Barbara Adams, Esq., Gregory Dunlap, Esq., Harrisburg, PA, for Amicus Edward G. Rendell, Governor of Pennsylvania.Before: AMBRO, FISHER, and GARTH, Circuit Judges.

OPINION OF THE COURT
GARTH, Circuit Judge.

In this appeal, we consider whether the former members of the Pennsylvania Gaming Control Board are immune from suits brought against them in their individual capacities based on their decisions to grant gaming licenses to certain applicants other than appellee Keystone Redevelopment Partners, LLC (Keystone). We conclude that they are entitled to absolute, quasi-judicial immunity. Accordingly, we will reverse the decision of the District Court.

I.

In 2004, the Pennsylvania General Assembly enacted the Pennsylvania Race Horse and Gaming Act, 4 Pa. Cons.Stat. §§ 1101–1906, which created the Pennsylvania Gaming Control Board (“Gaming Board” or “Board”) to license a limited number of gaming entities within the Commonwealth. 4 Pa. Cons.Stat. §§ 1201, 1202. The Gaming Board is comprised of seven voting members, 1 three of whom are appointed by the Governor and four of whom are appointed by four different members of the General Assembly. Id. § 1201(b). The voting members serve fixed terms of office—three years for gubernatorial appointees, two years for legislative appointees—and may only be removed for “misconduct in office, willful neglect of duty or conduct evidencing unfitness for office or incompetence,” or a conviction for certain criminal offenses. Id. § 1201(b.1), (d). They are prohibited from political activity and from making or soliciting political contributions. Id. § 1202.1(c)(5).

The Gaming Board's procedure for considering license applications is governed by express statutory and regulatory guidelines, which include the following:

• Before conducting a licensing hearing, the Board must hold at least one public input hearing at which witnesses may testify and the opportunity for public comment is afforded. Id. § 1205(b).

• A licensing hearing is held for each of the applicants. The Board must give notice of the hearing to the parties, 2 Pa. Cons.Stat. § 504, and make a schedule of the hearings available to the public, 58 Pa.Code § 441a.7(a).

• The Bureau of Investigations and Enforcement (BIE), an agency created by, but independent from, the Board, 4 Pa. Cons.Stat. § 1202(b)(25), performs background checks on each applicant and delivers a report to the Board “relating to the applicant's suitability for licensure,” id. § 1517(a.1)(2).

• A member of the Board must “[d]isclose and recuse himself from any hearing or other proceeding in which the member's objectivity, impartiality, integrity or independence of judgment may be reasonably questioned due to

[631 F.3d 92]

the member's relationship or association with a party connected to any hearing or proceeding or a person appearing before the board.” 4 Pa. Cons.Stat. § 1202.1(c)(3). In addition, no member may engage in ex parte communication regarding a pending matter. Id. § 1202.1(c.1). However, § 1202.1(e) defines “ ex parte communication” to exclude “off-the-record communications by or between a member or hearing officer of the board ... prior to the beginning of the proceeding solely for the purpose of seeking clarification or correction to evidentiary materials intended for use in the proceedings,” as well as “communications between the board or a member and the office of chief counsel” of the BIE.

• At least thirty days before the initial license hearing, each applicant must file with the Board, and serve on all other applicants for the same license, “a memorandum identifying all evidence it intends to use in support of its presentation before the Board,” 58 Pa.Code § 441a.7(i), including any materials about which an expert witness will testify, id. § 441a.7(i)(4). Evidence that has not been identified in that manner may only be admitted later: 1) in response to a request from the Board, id. § 441a.7(m)(1); 2) “if the issue could not have been reasonably anticipated by the applicant,” id. § 441a.7(m)(2); or 3) to “present evidence which sets forth a comparison between the applicant and other applicants within the same category with respect to the standards and criteria” for receiving a license, id. § 441a.7 (n).

• At the licensing hearing,

• the applicant has a right to counsel, 2 Pa. Cons.Stat. § 502;

• the Board may subpoena documents and witnesses, 4 Pa. Cons.Stat. § 1202(b)(7);

• the applicant may present documentary and testimonial evidence, 58 Pa.Code § 441a.7(i);

• all witnesses must be sworn, id. at § 441a.7(q);

• the Board or Chief Enforcement Counsel, an agent of the BIE, may examine or question the applicant or applicant's witnesses, id. § 441a.7(p); and

• the record must be transcribed, id. § 441a.7(v).

• Although there is no opportunity to cross-examine competitors' witnesses, an applicant may raise objections to competitors' hearings, id. § 441a.7(t), and, after filing notice with the Board and on the competitors, present evidence comparing its application to those of competitors, id. § 441a.7(n). In addition, after submitting their applications, applicants are given the opportunity to make final oral remarks before the Board, id. § 441a.7(w), and file a post-hearing brief addressing competitors' applications for the license, id. § 441a.7(u).

• The Board must grant licenses to the applicants who best demonstrate, by clear and convincing evidence, their suitability for licensure based on certain enumerated factors, id. § 441a.7(d), which relate generally to: (a) the location and quality of the proposed facility; (b) the potential for economic development and new job creation, especially for Pennsylvania residents; (c) a plan for diversity in employment and contracting, (d) the history of the applicant in developing tourism facilities, meeting commitments to local agencies and community-based organizations, dealing with

[631 F.3d 93]

its employees, and complying with the law; and (e) the degree to which potential adverse effects on the public resulting from the project will be mitigated. 4 Pa. Cons.Stat. § 1325(c).

• The Board must issue a final order and written decision, 58 Pa.Code § 441a.7(x), which contains factual findings and the reasons for the Board's determination, 2 Pa. Cons.Stat. § 507. Unsuccessful applicants have the right to appeal to the Pennsylvania Supreme Court. 4 Pa. Cons.Stat. § 1204; 58 Pa.Code § 441a.7(y).

II.

In December 2005, appellee Keystone was one of five entities to apply for one of two Category 2 slot-machine licenses available for the City of Philadelphia. After holding public and licensing hearings for each applicant, at a December 20, 2006, public meeting, the Gaming Board unanimously voted to grant licenses to Foxwoods and to intervenor HSP Gaming, and to deny the other three entities' applications, including Keystone's. The Board detailed its factual findings and offered the reasons for its votes in a 113–page written decision.

In discussing one of the multiple factors weighing against Keystone's application, the Board explained as follows:

The evidentiary record establishes that Keystone's parent company, Trump Resorts, owns three Atlantic City casinos.... [Competitors] HSP/Sugarhouse, Riverwalk and Philadelphia Entertainment/Foxwoods do not own or control any Atlantic City properties. The Board has considered the fact of competing Atlantic City properties as a negative factor for licensure in Philadelphia. While the Board believes that each applicant desires to make a profit in Philadelphia if granted a license, the Board also is cognizant of its duty to license casinos in Philadelphia which are in the best interests of the Commonwealth and Philadelphia. The Board finds it credible that owners of casinos in both locations may attempt to use the Philadelphia property as a gambling-incubator to gain new customers who will then be lured to its Atlantic City properties where it can earn a much higher profit on every dollar gambled [due to the lower tax rate]. Likewise, the Board finds applicants without Atlantic City connections are more strongly motivated to compete directly against the Atlantic City competition because they have no interest in diverting patrons...

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79 practice notes
  • Lokuta v. Sallemi, CIVIL ACTION NO. 3:CV-13-0288
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • October 9, 2013
    ...job function, as opposed to the particular act of which the plaintiff complains.'" Keystone Redevelopment Partners, LLC v. Decker, 631 F.3d 89, 95 (3d Cir. 2011) (quoting Dotzel v. Ashbridge, 438 F.3d 320, 325 (3d Cir. 2006)). Courts have recognized that a "disciplinary proceeding is judici......
  • J.L.D. v. Eedward V. Gannon, the N.J. Judiciary, N.J., Dorsey Samaru LLC, Civ. No. 15-386 (KM)
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • July 29, 2016
    ...Ed. 2d 391 (1993).Ingram v. Twp. of Deptford, 858 F. Supp. 2d 386, 390 (D.N.J. 2012). Cf. Keystone Redevelopment Partners, LLC v. Decker, 631 F.3d 89 (3d Cir. 2011) (quasi-judicial immunity attaches to state gaming control board, which decides applications for slot machine licenses); Dotzel......
  • Mazo v. New Jersey Secretary of State, 21-2630
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • November 23, 2022
    ...Standard of Review We review a district court's denial of a Rule 12(b)(6) motion de novo. Keystone Redev. Partners, LLC v. Decker , 631 F.3d 89, 95 (3d Cir. 2011). We also accept all of Appellants' well-pleaded factual allegations as true and draw "all reasonable inferences" in their favor.......
  • Mfs Inc. v. Dilazaro, Civil Action No. 08–2508.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • February 16, 2011
    ...from treating differently persons who are in all relevant respects alike.’ ” Keystone Redevelopment Partners, LLC v. Decker, 631 F.3d 89, 109 (3d Cir.2011) (Fisher, J., concurring and dissenting). In this case, the type of equal protection claim asserted by MFS is known as a “class-of-one” ......
  • Request a trial to view additional results
79 cases
  • Lokuta v. Sallemi, CIVIL ACTION NO. 3:CV-13-0288
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • October 9, 2013
    ...job function, as opposed to the particular act of which the plaintiff complains.'" Keystone Redevelopment Partners, LLC v. Decker, 631 F.3d 89, 95 (3d Cir. 2011) (quoting Dotzel v. Ashbridge, 438 F.3d 320, 325 (3d Cir. 2006)). Courts have recognized that a "disciplinary proceeding is judici......
  • J.L.D. v. Eedward V. Gannon, the N.J. Judiciary, N.J., Dorsey Samaru LLC, Civ. No. 15-386 (KM)
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • July 29, 2016
    ...Ed. 2d 391 (1993).Ingram v. Twp. of Deptford, 858 F. Supp. 2d 386, 390 (D.N.J. 2012). Cf. Keystone Redevelopment Partners, LLC v. Decker, 631 F.3d 89 (3d Cir. 2011) (quasi-judicial immunity attaches to state gaming control board, which decides applications for slot machine licenses); Dotzel......
  • Mazo v. New Jersey Secretary of State, 21-2630
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • November 23, 2022
    ...Standard of Review We review a district court's denial of a Rule 12(b)(6) motion de novo. Keystone Redev. Partners, LLC v. Decker , 631 F.3d 89, 95 (3d Cir. 2011). We also accept all of Appellants' well-pleaded factual allegations as true and draw "all reasonable inferences" in their favor.......
  • Mfs Inc. v. Dilazaro, Civil Action No. 08–2508.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • February 16, 2011
    ...from treating differently persons who are in all relevant respects alike.’ ” Keystone Redevelopment Partners, LLC v. Decker, 631 F.3d 89, 109 (3d Cir.2011) (Fisher, J., concurring and dissenting). In this case, the type of equal protection claim asserted by MFS is known as a “class-of-one” ......
  • Request a trial to view additional results

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