Lead Opinion
OPINION OF THE COURT
Pеtitioner, seeking a promotion in the competitive classification of the civil service, took the required examination and achieved the third highest score. His certification was delayed, however, because he was found to be medically unqualified. After administrative proceedings, the disqualification was reversed but the eligible list on which his name appeared expired before the Department of Personnel certified him. He instituted this proceeding to compel establishment of a special eligibility list, claiming that this is the appropriate remedy under our decision in Matter of Mena v D’Ambrose (
Before being entitled to placement on a speсial eligible list for a civil service position, an applicant must bring a proceeding, before the list expires, successfully challenging the validity of the list itself. Because petitioner does not challenge the validity of the eligible list as being contrary to the merit and fitness requirements of the State Constitution (art V, § 6), he
I
Petitioner Melvin Deas is employed as a bus maintainer helper "B” by the New York City Transit Authority. In October 1983, he applied for promotion to the position of bus maintainer "A”. Petitioner passed the required civil service examination and ranked third on the eligible list established in March 1984. In August of that year a position became available and he was asked to report for a medical examination. Following a psychiatric evaluation, the Transit Authority disqualified petitioner from employment on medical grounds. He appealed the disqualification to the New York City Department of Personnel which held a hearing and conducted a second psychiatric examination. In March 1985, the New York City Director of Pеrsonnel disqualified petitioner for medical reasons based on the psychiatrists’ reports. Petitioner then took his final administrative appeal to the New York City Civil Service Commission and requested a hearing. On August 14, 1986, the Civil Service Commission reversed the Department of Personnel’s decision and concluded that petitioner was medically eligible for the promotion. On September 5, 1986, the Department of Personnel notified petitioner that it could not certify him for the position because the eligible list had expired on August 27, 1986 upon the formation of a new list based upon a competitive examination held in July. Petitioner had not taken the July examination, thus his name was not on the new eligible list, and he requested that his name be placed on a special eligible list. His request was denied and he initiated this article 78 proceeding, contending that the refusal to certify him for the bus maintainer "A” position was arbitrary and capricious and violated his right to due process of law under the State and Federal Constitutions.
Supreme Court dismissed the petition but the Appellate Division reversed and granted the petition, directing petitioner’s name be placed on a special eligible list. Two Justices
II
Article V, § 6 of the NY Constitution provides in pertinent part, "Appointments and promotions in the civil service of the state and of all of the civil divisions thereof * * * shall be made according to merit and fitness to be ascertained, as far аs practicable, by examination which, as far as practicable, shall be competitive”. Pursuant to this provision, periodic examinations are given to candidates for appointment and promotion in the civil service and, after the results of an examination are calculated, an eligible list is established which places the successful candidates in order of their grades. The list continues for not less than one nor more than four years. An eligible list that has been in existence for one year or more terminates upon the establishment of a new list "unless otherwise prescribed by the state civil service department or municipal commission having jurisdiction” (Civil Service Law §56). Appointments must be made from names appearing on the list but the appointing authority is free, in its discretion, to select any one of the top three candidates.
For many years we interpreted these provisions to mean that a civil service applicant could not be appointed from an expired list. In the words of former Chief Judge Loughran, it is "a legal impossibility” (Matter of Cash v Bates,
In 1978, we rendered three decisions which, it appears from the several opinions of the Appellate Division, have generated confusion in this arеa. In the first case, Matter of Mena v D’Ambrose (
All five Appellate Division Justices read these decisions to mean that petitioner’s entitlement to relief depended upon
Unlike the petitioner in Matter of Mena, petitioner has not alleged that the eligible list is constitutionally invalid, only that he was wrongfully denied certification. Thus, under the rule applied in Matter of Tanzosh, he is not entitled to be placed on a special eligible list. Unless application of our rules violates Federal due process, appointment of petitioner is impossible because appointment of an individual from a constitutionally valid expired list violates article V, § 6 of the NY Constitution (Ciaccia v Board of Educ.,
HI
Analysis of petitioner’s due process claim begins with the identification of the particular property interest affected, if any, and once identified, the determination of what process is due him (Mathews v Eldridge,
The Drogan holding is contrary to New York law. In Matter of Cassidy v Municipal Civ. Serv. Commn. (
Even if petitioner’s argument is accepted, however, it does not entitle him to be placed on a special eligible list. Whatever property interest he might have had to be considered for employment was limited by the life of the eligible list on
Petitioner also relies on the United States Supreme Court’s decision in Logan v Zimmerman Brush Co. (
Petitioner’s attempt to bring his case within Logan
Nor is there any constitutional prohibition against distinguishing between applicants who have attacked the validity of the list prior to its expiration as being in derogation of the constitutional merit and fitness requirements (e.g., Matter of Mena v D’Ambrose,
Finally, there is no significance to the fact that in this case petitioner demonstrated eligibility 12 days prior to the expiration of the eligible list rather than after its expiratiоn, as in Tanzosh. The Department was not required to certify him immediately upon learning of the administrative determination. It had four months, pursuant to article 78 of the CPLR, to consider whether to appeal the Civil Service Commission’s decision and not until the expiration of this four-month period did a proceeding in the nature of mandamus to compel properly lie. Moreover, as noted by Justice Sullivan below, petitioner’s loss of the appointment was not necessarily caused by the Department of Personnel’s failure to certify him. Assuming that the Department did certify petitioner on the day the Civil Service Commission rendered its decision, it was not required to appoint him during the 12-day interval between the date of decision and the expiration of the list (see, Matter of Cassidy v Municipal Civ. Serv. Commn.,
Accordingly, the order of the Appellate Division should be reversed and the judgment of Supreme Court dismissing the petition reinstated, without costs.
Notes
. We note there are no allegations that petitioner’s rights were impaired by bad faith or arbitrary action by the Department of Personnel during the appeals process.
We also observe that, contrary to petitioner’s claim, the City Department of Personnel was not obligated to provide petitioner with personal notice that the list on which his name appeared would soon expire. Petitioner was on notice pursuant to Civil Service Law § 56 that an eligible list may be superseded by a new list at any time after the passage of one year. Moreover, рetitioner was placed on notice that a new civil service examination was being held while he was appealing his disqualification for medical reasons. Nothing prevented him from taking this examination and thereby attempting to qualify for the new eligible list.
. Although petitioner does not make an equal protection claim as such, the second part of his due process argument, based on his reading of Matter of Mena v D’Ambrose (
Dissenting Opinion
(dissenting). Petitioner was erroneously disqualified by the New York City Department of Personnel as psychologically unfit and removed from his standing near the top of the eligible list for a civil service promotion. After two years, during which he diligently pursued the available administrative remedies, the mistaken disqualification was rectified. Despite his ultimate success in the administrative proceedings, he was not considered for appointment to existing vacancies. When petitioner finally received the favorable determination, the Department failed to certify him and extend
Under these circumstanсes is petitioner entitled to legal relief? By any standard of fairness and common sense he should be. Under what I believe is the governing New York rule (Matter of Mena v D’Ambrose,
The majority of this court now holds, however, that petitioner is without a remedy.
Petitioner took the civil service competitive examination for the position of bus maintainer "A” and was ranked third out of 37 on the eligible list published in March 1984. When a position became available in August 1984 pеtitioner was asked to take a physical and psychiatric exam (see, Civil Service Law § 50 [4]). Based on the results of that examination he was disqualified as psychologically unfit. He filed an appeal to respondent New York City Department of Personnel. The Personnel Department, after taking no action for five months, eventually (in Apr. 1985) upheld his disqualification. Although he immediately filed an appeal to the Civil Service Commission, the Department failed to file its reply report until September 1985 and the Commission did not hold a hearing until July 1986. Finally, on August 14, 1986 the Commission reversed, holding that petitioner had been erroneously disqualified by the Department.
At the time of the Commission’s decision, there were apparently four vacant positions, the eligible list wаs still in existence, and all of the other candidates on the list had been interviewed and either appointed or rejected. Nonetheless, the Department failed to certify petitioner so that he could be considered for one of the vacancies. Instead, with no notice to petitioner, it established a new eligible list on August 26, 1986 and thereby automatically terminated the list that had petitioner’s name on it (see, Civil Service Law § 56). When advised of this in September 1986, petitioner requested that he be placed on a special eligible list pursuant to Matter of Mena (supra) and Matter of State Div. of Human Rights v County of Onondaga (
II
In Mena a scoring error resulted in a candidate being wrongfully considered for a position although the other candidates, the petitioners, had actually achieved higher test scores. We concluded that this erroneous action violated the constitutional merit and fitness requirement because petitioners had, by the tests, demonstrated greater ability than the candidate who was interviewed and appointed. We held that since petitioners had brought a timely challenge to such action, they were entitled to be placed on a special extended eligible
At the root of the plurality’s reading of Mena as requiring that the challenged error must relate to the eligibility list itself is its position that only such an error impliсates the State constitutional Merit and Fitness Clause (see, plurality opn, at 527-528, 531, 534). This is not so.
Nor does the fact that petitioner here, unlike the petitioners in Mena, failed to commence his CPLR article 78 proceeding until after the list expired, constitute a reason for not according petitioner the same relief given in Mena. There are two reasons why this is so:
(1) The legal principle for our decision in Mena reflects both a principle of fairness to the applicant and the State’s interest in the integrity of the merit and fitness selection system: where there is an error in derogation of the merit and fitness standards, the durational limitation provision of Civil Service
(2) In any event, unlike the petitioners in Mena, petitioner was not aggrieved until after the list expired. Thus, he had no basis for commencing a CPLR article 78 proceeding. In Mena, the petitioners were expressly informed prior to the expiration of the list that despite the agency’s error their eligibility could not be extended because existing State law did not then permit it. Here, by contrast, petitioner was not informed that his rights would not be honored until after the list expired. Thus, he had every reason to believe that since he had demonstrated the Department’s error, he would receive the relief that had been established in Mena — i.e., that "the statutory durаtional period [would] not begin to run until the [error was] corrected” (id., at 433).
In sum, in Mena we recognized a right that by its very nature is self-executing: where it is demonstrated prior to the expiration of the eligible list that there were errors in violation of the constitutional merit and fitness requirements, the statutory durational period does not begin to run until the errors are corrected (see,
Ill
Preliminarily, it should be evident that petitioner’s due process argument does not depend on a claimed State law right to appointment. Rather, his property interest stems from his expectancy under State law of being fairly considered for a position based upon his relative merit and fitness. The distinction is critical because the cases relied on by the plurality (Matter of Cassidy v Municipal Civ. Serv. Commn.,
Petitioner’s State property interest includes the right to be fairly considered solely on the basis of his relative qualifications. It also includes the concomitant right not to be excluded from consideration for a merited appointment by being mistakenly disqualified. It is to assure this protection that the State has devised the appeal procedures which petitioner used here (see, e.g, NY City Charter § 812 [c]; § 813 [a] [3]-[8]; [bj
In Logan the Illinois Fair Employment Practices Act required that a hearing be conducted by a State agency within 120 days after the filing of an employment discrimination claim and that a failure to comply with this condition would result in final dismissal of the complaint (
In concluding that this procedural limitation violated petitioner’s due process rights the Logan court stressed three factors:
(1) that the dismissal of the claim was not due to any fault of claimant but solely to the government’s failure to act prior to the deadline;
(2) that claimant had a substantial interest in keeping his job and disproving his employer’s erroneous charges of incompetence or inability; and
(3) that no substantial governmental interest was furthered by adherence to the procedural rule which resulted in the defeat of claimant’s property interest.
I believe that Logan controls this case. Here, petitioner had a State-created property interest in being fairly considered for a civil service position and in being able to make effective use of the available administrative processes to correct governmental errors which might defeat that interest. Like the 120-
Moreover, as in Logan:
(1) That the limiting precondition was not met was not the result of any failure on petitioner’s part. Rather, it wаs due to governmental delay in the appeal process and the failure to certify petitioner for available positions.
(2) Petitioner had a substantial interest in being considered for a promotion and in erasing the erroneous determination of psychological unfitness.
(3) No substantial State interest is furthered by giving effect to the prior judicial proceeding precondition. The plurality’s sole attempt to demonstrate a State concern in adherence to this procedural requirement for Mena relief — that the State has an important interest in civil service applicants being appointed from a current list (see, plurality opn, at 534) — seems particularly unconvincing in the light of this court’s holding in Mena. In Mena, of course, the identical consideration existed. The government asserted an interest in appointing only from the current list and in not allowing an applicant’s eligibility to be extended beyond the life of the list. The Mena court specifically rejected this claimed governmental interest and extended the petitioners’ eligibility stating, "Although there does exist a strong policy that appointments be made from contemporary lists, this policy must be secondary to the constitutional mandate governing appointment [i.e., merit and fitness] which is implemented by the Civil Service Law standards” (
(4) Finally, as in Logan, the classification resulting from today’s decision — according list-extending rights under Mena to some applicants but not to others depending upon the happening of an event over which thе applicant has no control —is entirely arbitrary and produces incongruous and patently unfair consequences (see also, Baer v Town of Brookhaven, supra; McMinn v Town of Oyster Bay,
Three job applicants are erroneously disqualified and all file their administrative appeals on the same day. The first applicant’s appeal is decided quickly. He "wins”, is certified, and under Mena the statutory durational period of his eligibility begins to run from the date of correction. He is considered for existing vacancies. The second applicаnt’s appeal is decided quickly. He "loses” and immediately commences a CPLR article 78 proceeding which the courts resolve in his favor. Under Mena, he has his eligibility extended and is considered for existing vacancies. The third applicant’s appeal procedures are held up due to administrative delays. Eventually they terminate in his favor but not until the eligible list is about to expire. He is not certified immediately. Because he "won” he is not aggrieved and cannot commence a proceeding. Under the decision here, he is entitled to no Mena relief. The list is not extended. He cannot be considered for existing vacancies.
The case of the third applicant is the case before us. That the first and the second applicants should obtain Mena relief but not the third, comports with neither fairness nor common sense and the holding that this is the New York rule results in a violation of petitioner’s Federal and State due process rights. His substantial property interest in being considered for appointment based on merit and fitness and in being able to protect that interest through an effective use of the administrative appeal mechanism is cut off by implementation of a State procedural precondition which does not reasonably further any discernible governmental purpose (see, NY Const, art I, § 6; US Const 14th Amend; Logan v Zimmerman Brush Co., supra; see also, Baer v Town of Brookhaven, supra; McMinn v Town of Oyster Bay, supra, at 549; French Investing Co. v City of New York, supra, at 596).
The order should be affirmed.
Chief Judge Wachtler and Judge Alexander concur with Judge Simons; Judge Bellacosa concurs in result in a memorandum; Judge Hancock, Jr., dissents and votes to affirm in a separate opinion in which Judge Titone concurs; Judge Kaye taking no part.
Order reversed, etc.
. I agree with the view expressed by the concurrer that our precedents, at least as he and the plurality read them, result in a "peculiar procedural immobilization of and inequity to this petitioner”. Indeed, it is just this unfair, arbitrary, and unequal result of applying what the concurrer and the plurality accept as the New York rule which gives rise to petitioner’s claim that there is a due process violation (see, infra, point III).
. Petitioner has raised a claim that respondent acted in contravention of the Merit and Fitness Clause. His petition states "respondents acted * ** * contrary to the State constitutional mandate that promotions in the civil service of the city shall be made on the basis of merit and fitness, New York State Constitution, Art. 5, Section 6.”
. Matter of Tanzosh v New York City Civ. Serv. Commn. (
. In Matter of Cassidy v Municipal Civ. Serv. Commn. we stated that "Petitioner does not possess any mandated right to appointment or any other legally protectible interest. He can assert at most the right to consideration for and a 'hope’ of appointment” (
. This case is even more compelling than Logan. In Logan, the time ran before it could be determined whether there was a meritorious claim. Here, it was already decided that petitioner was wronged when the list expired. The majority uses this time limit to deny relief to a proven wrong.
Concurrence Opinion
(concurring). I concur to reverse solely on constraint of Matter of Tanzosh v New York City Civ. Serv. Commn. (