Keystone Redevelopment Partners, LLC v. Decker

631 F.3d 89, 2011 U.S. App. LEXIS 398, 2011 WL 43707
CourtCourt of Appeals for the Third Circuit
DecidedJanuary 7, 2011
Docket10-1054
StatusPublished
Cited by76 cases

This text of 631 F.3d 89 (Keystone Redevelopment Partners, LLC v. Decker) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Keystone Redevelopment Partners, LLC v. Decker, 631 F.3d 89, 2011 U.S. App. LEXIS 398, 2011 WL 43707 (3d Cir. 2011).

Opinions

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.l), (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.l)(2).
• A member of the Board must “[disclose 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 [92]*92the 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.l). 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)(l); 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 [93]*93its 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.

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631 F.3d 89, 2011 U.S. App. LEXIS 398, 2011 WL 43707, Counsel Stack Legal Research, https://law.counselstack.com/opinion/keystone-redevelopment-partners-llc-v-decker-ca3-2011.