08-4984-cv
     Hilfiger v. Alger


                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT ’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL .


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 30 th day of July, two thousand ten.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                BARRINGTON D. PARKER,
 9                PETER W. HALL,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       LORETTA HILFIGER,
14                Plaintiff-Appellant,
15
16                    -v.-                                               08-4984-cv
17
18       MARK ALGER, Steuben County Executive
19       of Steuben County Department of Social
20       Services, KATHRYN BEILH, Commissioner,
21       and ROBERT PLENGE, Deputy Commissioner
22       of Administration and Finance for the
23       Department of Social Services,
24
25                    Defendants-Cross-Claimants-
26                    Cross-Defendants-Appellees,
27


                                                  1
 1   CARLA HIBBARD, Director Steuben Child
 2   Care Project--A Division of Pro
 3   Action of Steuben and Yates Inc.,
 4   d/b/a Steuben Child Care Project, and
 5   JOAN SIMPSON, Caseworker at Steuben
 6   Child Care Project,
 7
 8            Defendants-Cross-Defendants-
 9            Cross-Claimants-Appellees.
10
11   - - - - - - - - - - - - - - - - - - - -X
12
13   FOR APPELLANT:             CATHERINE MONTJAR IRWIN,
14                              Kornstein Veisz Wexler &
15                              Pollard, LLP, New York, New
16                              York.
17
18   FOR APPELLEES:             BRYAN J. MAGGS, Davidson &
19                              O’Mara, P.C., Elmira, New York;
20                              MATTHEW J. DUGGAN, Lippman
21                              O’Connor, Buffalo, New York.
22
23        Appeal from a judgment of the United States District
24   Court for the Western District of New York (Larimer, J.).
25
26        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
27   AND DECREED that the judgment of the district court be
28   AFFIRMED.
29
30        Plaintiff-appellant Loretta Hilfiger alleges, inter
31   alia, that (1) the defendants violated her rights under the
32   due process clause of the Fourteenth Amendment by denying
33   her a child care subsidy without providing constitutionally
34   sufficient pre-deprivation process, and (2) that this
35   violation was not cured by post-deprivation procedures.
36
37        “To determine whether a plaintiff was deprived of
38   property without due process of law in violation of the
39   Fourteenth Amendment, we must first identify the property
40   interest involved. Next, we must determine whether the
41   plaintiff received constitutionally adequate process in the
42   course of the deprivation.” O’Connor v. Pierson, 

  187, 196 (2d Cir. 2005). It is undisputed here that
44   Hilfiger had a property interest in her continued receipt of
45   the child care subsidy; the contested issue is whether she
46   received constitutionally adequate process.

                                  2
 1        “An essential principle of due process is that a
 2   deprivation of life, liberty, or property be preceded by
 3   notice and opportunity for hearing appropriate to the nature
 4   of the case.” Cleveland Bd. of Educ. v. Loudermill, 470
 

, 542 (1985) (internal quotation marks omitted).
 6   Due process should include “notice [that is] reasonably
 7   calculated, under all the circumstances, to apprise
 8   interested parties of the pendency of the action and afford
 9   them an opportunity to present their objections.” Mullane
10   v. Cent. Hanover Bank & Trust Co., 

, 314 (1950).
11
12        “To determine whether [a plaintiff] received the
13   process [s]he was due, we must consider: (1) the private
14   interest at stake; (2) the risk of an erroneous deprivation
15   of that interest through the procedures used and the
16   probable value (if any) of alternative procedures; [and] (3)
17   the government’s interest, including the possible burdens of
18   alternative procedures.” 

(citing
19   Mathews v. Eldridge, 

, 335 (1976)). In
20   undertaking this analysis, we abide by the principle that
21   “[p]re-deprivation process ‘need not be elaborate,’” and
22   that the “primary function” of such process “is to serve as
23   an ‘initial check against mistaken decisions.’” O’Connor,

(quoting 

).
25   “[T]he Constitution mandates only that such process include,
26   at a minimum, notice and the opportunity to respond.”
27   

.
28
29        Applying these principles, we hold that Hilfiger
30   received constitutionally sufficient pre-deprivation
31   process. As to the July 2004 denial: Hilfiger was notified
32   on July 14 that “care is not normally covered for an older
33   sibling during maternity leave and [that Hilfiger] could be
34   responsible for the full cost of care.” J.A. 259.
35   Accordingly, she was asked that same day to submit specific
36   documentation which might support her eligibility for the
37   subsidy. By August 12, Hilfiger had not submitted the
38   documentation. Thus, in the period between July 14 and the
39   August 13 oral denial of the July subsidy, Hilfiger had
40   received both notice that the subsidy might be denied for
41   July, and an opportunity to respond to that notice by
42   providing the requested documentation or by objecting to the
43   possibility of the pending denial (as her legal advocate did
44   in the August 23 letter).
45
46        As to the September 2004 termination: On September 3,
47   Hilfiger’s case manager wrote Hilfiger a letter warning that

                                  3
 1   her eligibility for the subsidy depended on her submission
 2   by September 13, 2004 of an employment verification form and
 3   pay stubs for Linza Ford--the father of her two children,
 4   who was scheduled to move into the home on September 14.
 5   That letter gave notice that “[f]ailure to submit all of the
 6   required documentation listed above before the due date will
 7   result in the termination of child care services.” J.A.
 8   277. Hilfiger failed to submit the requested documentation
 9   until September 23-24, after the September 22 notice
10   terminating her subsidy effective September 29. Thus, at
11   this juncture as well, Hilfiger was given notice that her
12   eligibility might terminate, and an opportunity to respond.
13
14       Finally, it is irrelevant whether Hilfiger was entitled
15   to more process under New York law than that which she
16   actually received. “Unlike the existence of a property
17   interest, which finds its origins in state law, minimum
18   procedural requirements are a matter of federal law.”
19   Ciambriello v. County of Nassau, 

, 319 (2d Cir.
20   2002) (brackets and internal quotation marks omitted); see
21   also Vitek v. Jones, 

, 491 (1980). “The
22   Constitution, not state law sources[,] . . . determines what
23   process is due.” 

. Thus,
24   where--as here--constitutionally sufficient process has been
25   afforded, there can be no liability under 42 U.S.C. § 1983,
26   regardless of whether state procedural rules were
27   contravened.
28
29        Finding no merit in Hilfiger’s remaining arguments, we
30   hereby AFFIRM the judgment of the district court.
31
32
33                              FOR THE COURT:
34                              CATHERINE O’HAGAN WOLFE, CLERK
35




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