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Document:
1:14-cv-11689-RWZ
00116798846Document
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19 ID: 5886270
Before
Lynch, Chief Judge,
Souter,* Associate Justice,
and Selya, Circuit Judge.
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Corporation
and
Massachusetts
affiliates
operators
of
casino
for
which
Sterling
Suffolk
damages;
and
(c)
claim
subject
to
supplemental
of
state
legal
and
immunity,
factual
qualified
including
immunity
of
Eleventh
individuals,
-2-
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In our review de
the
exercise
of
highly
discretionary
judgment
in
Massachusetts Expanded Gaming Act, 2011 Mass. Acts ch. 194 (largely
codified
at
Mass.
Gen.
Laws
ch.
23K),
the
Commonwealth
of
three
regions
of
the
state.
The
statute
assigns
that
-3-
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of as "qualifiers").
SSR wishes to
elsewhere
Commission
led
find
to
that
public
Caesars
report
had
not
recommending
carried
its
that
burden
the
to
with
the
United
States
Attorney's
Office
for
the
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in
the
enterprises
past
had
(allegedly
participated.
invested
at
in
loss)
one
in
of
Crosby's
which
he
had
business
actively
co-owner of the Everett land had a felony record, Crosby told his
fellow
commissioners
of
his
relationship
with
Lohnes
and
relationship
short
while
publicly
after
and
that,
recused
Crosby
himself
disclosed
from
the
further
The allegations
say that Crosby urged Wynn to compete for the license and to remain
an applicant at one point when Wynn was poised to withdraw in
exasperation with the proceedings.
-5-
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and
the
IEB
to
hold
it
against
Caesars
that
the
Gansevoort
connection
or
Lohnes's
shady
associate.
Wynn
was
IEB
report,
together
with
informal
advice
that
the
SSR
-6-
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in
an
implied
contract
with
the
state,
promising
license
the
individual
liability
claims
on
the
ground
of
without
due
process
in
violation
of
the
Fifth
and
See
-7-
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00116798846Document
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The
See
Paul Sardella Constr. Co. v. Braintree Hous. Auth., 329 N.E.2d 762,
767 (Mass. App. Ct. 1975), aff'd, 356 N.E.2d 249 (Mass. 1976). For
the purpose of federal-question property analysis, this precedent
may well have suffered from circularity, but in any event while
this appeal was pending the theory's application to casino license
application was clearly repudiated by the Supreme Judicial Court of
Massachusetts in Abdow v. Att'y General, 11 N.E.3d 574, 582-88
(Mass. 2014) (holding that, because the regulation of gambling
falls within a state's core police power, neither a casino licensee
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property
under
state
law).
See
Appellants'
Br.
31
n.8
contracts
individual,
are
a
property,
whether
municipality,
the
state,
obligor
or
the
be
United
private
States."
(quoting Lynch v. United States, 292 U.S. 571, 579 (1934))); see
-9-
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The
See
Assessors, 439 N.E.2d 231, 233 (Mass. 1982) (quoting Roth, 408 U.S.
at 577).
In its simplest form, this issue is approached with some
frequency
in
suits
by
employees
of
the
government
itself
employment
to
qualify
as
"protected
property"
for
-10-
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(Mass. App. Ct. 2005); Costello v. Sch. Comm., 544 N.E.2d 594, 59798 (Mass. App. Ct. 1989); see also Clukey v. Town of Camden, 717
F.3d
52,
56-58
circumstances
in
(1st
Cir.
2013)
which
other
public
(collecting
examples
of
employment
benefits
are
as
against
contracting
government
requires
some
of
state-issued
permits
or
licenses
(which
may
be
-11-
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N.E.2d 587, 590 n.2 (Mass. 1994) (describing the general rule for
recovery for breach of contract actions under Massachusetts law as
"expectation damages," wherein "the wronged party [is] . . . placed
in the same position as if the contract had been performed"
(internal quotation marks omitted)).
and
the
casino
licensing
law
does
the
same
with
unmistakable emphasis.
To begin with, such an expectation seems to be in mortal
tension with Abdow: if there would be no deprivation of protectable
property in a casino operation by a legislative repeal of all
casino licensing authority after licenses had been issued, it is
difficult to imagine that the Massachusetts courts would find a
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The very
the
degree
of
that
discretion:
"integrity,
honesty,
good
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"The commission
Id. 17(g).
U.S. 748, 756 (2005) ("Our cases recognize that a benefit is not a
protected entitlement if government officials may grant or deny it
in their discretion.").
and
"dashed
hopes
[alone]
cannot
yield
-14-
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(Mass. 2008).
the
difference
between
hope
to
get
casino
license
and
land,
but
Kennie
does
not
so
much
as
suggest
the
the
"constitutionally
protected
right
Id. at 943
to
make
-15-
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or
potential
disadvantageous
membership
suspect.
We
in
applicants
treatment
a
class
it
whose
claims
who
to
were
have
differential
subject
suffered
treatment
to
the
and
no
might
be
can
be
Id. at 565.
think
that
no
class-of-one
-16-
cause
of
action
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she
claimed,
any
reasonable
justification
as
judged
by
Engquist's specific
Id. at 604.
Qore, Inc., 541 F.3d 1269, 1273-74 (11th Cir. 2008) (applying
Engquist
to
government
contracting);
-17-
Flowers
v.
City
of
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granted."
553
U.S.
at
603.
The
price
of
such
even
for
single
plaintiff,
could
be
readily
Id. at 602.
has
already
shown
the
breadth
of
discretionary
the
subject
matters
-18-
mentioned
earlier
"without
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court
properly
declined
to
exercise
supplemental
-19-