Gravitte v. NC Div of Motor ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
MARK GRAVITTE, 
Plaintiff-Appellant,
and
NORTH CAROLINA POLICE BENEVOLENT
ASSOCIATION,
Plaintiff,
v.
NORTH CAROLINA DIVISION OF MOTOR
VEHICLES; NORTH CAROLINA
DEPARTMENT OF TRANSPORTATION;
 No. 01-1718
DAVID MCCOY; JANICE FAULKNER;
DAVID RICHARDS; STATE OF NORTH
CAROLINA, and all agents and
successors in office of the official
capacity defendants,
Defendants-Appellees,
SOUTHERN STATES POLICE
BENEVOLENT ASSOCIATION,
Amicus Curiae.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Terrence W. Boyle, Chief District Judge.
(CA-00-845-1-BO)
Argued: February 25, 2002
Decided: March 25, 2002
Before LUTTIG and GREGORY, Circuit Judges, and
Henry M. HERLONG, Jr., United States District Judge
for the District of South Carolina,
sitting by designation.
2 GRAVITTE v. NORTH CAROLINA DMV
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Joseph Michael McGuinness, THE MCGUINNESS
LAW FIRM, Elizabethtown, North Carolina, for Appellant. Jeffrey
Reid Edwards, Assistant Attorney General, NORTH CAROLINA
DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appel-
lees. ON BRIEF: Roy Cooper, North Carolina Attorney General, Hal
F. Askins, Special Deputy Attorney General, David Roy Blackwell,
Special Deputy Attorney General, NORTH CAROLINA DEPART-
MENT OF JUSTICE, Raleigh, North Carolina, for Appellees. Rich-
ard Hendrix, Stem, North Carolina, for Amicus Curiae.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Mark Gravitte is a law enforcement officer with the North Carolina
Division of Motor Vehicles ("DMV"). He, along with the North Car-
olina Police Benevolent Association ("NCPBA"), claims that certain
policies of his employer, which require police officers to average a
minimum number of enforcement actions and citations each day, vio-
late his constitutional rights. The district court dismissed Gravitte’s
and NCPBA’s section 1983 complaint for failing to state a claim on
which relief may be granted, and for the following reasons, we affirm.
I.
According to the plaintiffs’ complaint, which we must accept as
true for the purposes of a motion to dismiss, the defendants have
GRAVITTE v. NORTH CAROLINA DMV 3
implemented a "ticket quota" policy, "which is employed against
. . . law enforcement employees of DMV within some DMV districts
including Plaintiff Gravitte herein." J.A. 221. In the districts that
employ these "ticket quotas," DMV officers are expected to: 1) aver-
age five "enforcement actions" per day,1 2) average two inspections
per day on commercial vehicles, 3) issue "a certain number" of traffic
citations, and 4) issue "enough" overweight citations on commercial
vehicles. J.A. 225-26. DMV officers who fail to meet these expecta-
tions are given supervisory complaints. Id.
The complaint asserts that this "ticket quota" policy interferes with
police discretion, pressures DMV officers to "selectively enforce the
law," and is causing "frustration, hardship, fear, worry, and stress"
upon DMV officers. J.A. 224. Gravitte, in particular, alleges that this
policy is adversely affecting his employment and career, and refer-
ences an October 19, 2000, memorandum in which Sgt. C.O. Edwards
rebuked Gravitte for issuing too many traffic tickets to private vehi-
cles for speeding, and not enough citations to commercial vehicles.
J.A. 45. The plaintiffs allege that this "ticket quota" policy violates
the Equal Protection clause, the Due Process clause, the Privileges
and Immunities clause, and the Fourth Amendment. They seek declar-
atory and injunctive relief.
1
This policy is evidenced by a June 8, 2000, memorandum from
Gravitte’s supervisor, Sgt. C.O. Edwards, which states, in part:
[T]he requirement for an average day’s work is five enforcement
actions per day. . . .
Stopping only 4 trucks in an eight hour or ten hour period, shows
poor work habits . . . Unless tied up it is easy to stop a truck per
hour to perform some type of check.
There are way too many NCUC being written on private vehi-
cles. The area of responsibility is Commercial vehicles not pri-
vate. I am requesting that you get in your area of responsibility
and give the State of North Carolina DMV Enforcement Section
a good eight hours work each day.
J.A. 50.
4 GRAVITTE v. NORTH CAROLINA DMV
II.
In determining whether the plaintiffs have stated a claim under sec-
tion 1983, we must determine whether the alleged "ticket quota" pol-
icy infringes rights of the plaintiffs secured by the United States
Constitution. We are convinced that it does not. With regard to the
plaintiffs’ Equal Protection claim, the mere assertion that the DMV
district in which Gravitte worked imposed "ticket quota" policies on
its officers, while other districts in North Carolina did not, is insuffi-
cient to state a violation of the Clause. The Constitution does not
require state agencies to impose identical employment policies over
each of its geographic subdivisions. Moreover, the priorities of local
law enforcement units vary over different geographical regions;
hence, officers who work in different districts of the DMV are not
similarly situated for the purposes of equal protection analysis. And
Gravitte was treated no differently than the other similarly situated
DMV officers in the district where he worked — they were all subject
to the ticket quota requirement.
The plaintiffs’ due process claims are also without merit. The due
process clause protects the right of an individual to pursue his chosen
occupation, see Conn v. Gabbert, 526 U.S. 286, 291-92 (1999);
Meyer v. Nebraska, 262 U.S. 390, 399 (1923), although this right is
subject to reasonable government regulation. See Conn, 526 U.S. at
292. But the right to occupational liberty does not provide for judicial
scrutiny when the government acts as employer to regulate the
employment relationship with its own employees. Rather, it protects
the right to pursue one’s calling in the private sector from licensure
or regulatory requirements that lack a rational relationship to a legiti-
mate governmental interest. See, e.g., Craigmiles v. Giles, 110 F.
Supp. 2d 658, 661-62 (E.D. Tenn. 2000) (invalidating a state law that
required any person selling caskets to hold a funeral director’s license
issued by the state). No such claim is alleged here.
The substantive component of the due process clause also protects
the individual against "arbitrary government action." See County of
Sacramento v. Lewis, 523 U.S. 833, 845-46 (1998). However, in
cases challenging executive action, (rather than legislation), under the
substantive due process clause, "only the most egregious official con-
duct can be said to be ‘arbitrary in the constitutional sense.’" Id. at
GRAVITTE v. NORTH CAROLINA DMV 5
846 (emphasis added) (citations omitted). Compare Rochin v. Califor-
nia, 342 U.S. 165, 172 (introduction of evidence at trial obtained by
forced pumping of suspect’s stomach was so "brutal" and "offensive
to human dignity" as to violate the due process clause), with Lewis,
523 U.S. 833, 854 (allegation of policer officer’s "deliberate and reck-
less indifference to life" during a high-speed automobile chase that
ended in the death of a motorcycle passenger did not state a claim of
"arbitrary conduct" under the substantive due process clause).
The alleged facts regarding the defendants’ ticket quota policy are
not even close to an allegation of "egregious" or "outrageous" execu-
tive action necessary to state a substantive due process claim under
Lewis. See 523 U.S. 833, 847, n.8. The policy adopted by the DMV
helps to ensure a minimum quantity of work from its law enforcement
officers and helps to prevent shirking on the job. An employment pol-
icy enacted in pursuit of these goals, goals that would be shared by
any reasonable employer, can hardly be deemed "egregious" or "out-
rageous," even if it impinges on traditional police discretion and
imposes more burdensome working conditions on law enforcement
officers. The plaintiffs’ allegation that officers are "pressured and
coerced to violate the law as a result of the ongoing ticket quota
scheme,"2 J.A. 224, does not alter our conclusion. While it is conceiv-
able that officers might be tempted to fill their quota by issuing cita-
tions for borderline or non-existent violations out of laziness, there is
no allegation that the numerical quotas are so onerous that it is
impossible for a diligent DMV officer to meet them without breaking
the law. To be sure, the alleged ticket quota policy makes a law
enforcement officer’s job more difficult. We are also sure that is not
enough, standing alone, to constitute a substantive due process viola-
tion.
Moreover, although we need not resolve this issue, it is far from
clear that the defendants’ actions, even if they could be deemed "arbi-
trary" in the constitutional sense, have deprived (or have threatened
to deprive) Gravitte of any cognizable liberty interest or property
interest. Although Gravitte was a tenured employee of the DMV, he
2
General Order No. 29 forbids officers from issuing citations for any-
thing short of "definite clear cut, substantial violations." J.A. 64 (empha-
sis in original).
6 GRAVITTE v. NORTH CAROLINA DMV
was not fired from his job, but was merely criticized by his supervisor
for issuing too many speeding tickets to private vehicles and not
enough citations to commercial motor vehicles. J.A. 29. See Gilbert
v. Homar, 520 U.S. 924, 929 (1997) ("[W]e have not had occasion
to decide whether the protections of the Due Process Clause extend
to discipline of tenured public employees short of termination.");
Stone v. University of Maryland Medical System Corp., 855 F.2d 167,
172 n.5 (4th Cir. 1988) ("[A] public employer’s stigmatizing remarks
do not deprive an employee of a liberty interest unless they are made
in the course of a discharge or significant demotion."). A plaintiff
seeking to assert a substantive due process claim must allege the
deprivation of a cognizable interest in life, liberty, or property; a mere
allegation of "arbitrary" government conduct in the air, so to speak,
will not suffice. See Collins v. City of Harper Heights, Texas, 503
U.S. 115, 129-30 (1992) (assuming arguendo that plaintiff had a "lib-
erty interest" before analyzing whether the deprivation of that liberty
was "arbitrary in the constitutional sense").
The plaintiffs’ remaining claims merit only brief discussion. Their
complaint fails to allege a violation of the Privileges and Immunities
clause of Article IV because there is no allegation that the "ticket
quota" policy discriminates against citizens of states other than North
Carolina. See Toomer v. Witsell, 334 U.S. 385, 396 (1948) (holding
that the Privileges and Immunities clause "bars discrimination against
citizens of other States where there is no substantial reason for the dis-
crimination beyond the mere fact that they are citizens of other
States.") (emphasis added). And plaintiffs have no standing to assert
the Fourth Amendment rights of those who "might" be illegally
searched or seized solely because of the existence of the challenged
policy in this case — they must allege an actual or imminent injury
to their own Fourth Amendment rights, not someone else’s. See Allen
v. Wright, 468 U.S. 737, 751 (1984) ("[A] plaintiff must allege per-
sonal injury fairly traceable to the defendant’s allegedly unlawful
conduct and likely to be redressed by the requested relief.") (emphasis
added); Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)
("[A] plaintiff must have suffered an ‘injury in fact’ — an invasion
of a legally protected interest which is (a) concrete and particularized,
and (b) ‘actual or imminent, not "conjectural" or "hypothetical." ’ ")
(internal citations omitted).
GRAVITTE v. NORTH CAROLINA DMV 7
The complaint was properly dismissed by the district court.
AFFIRMED