622 N.Y.S.2d 529 | N.Y. App. Div. | 1995
OPINION OF THE COURT
The principal issue on this appeal involves the present-day viability of the United States Supreme Court trilogy of Service v Dulles (354 US 363), Accardi v Shaughnessy (347 US 260), and Vitarelli v Seaton (359 US 535), and whether they constitute a valid predicate by a discharged probationary employee for a Federal due process violation. Specifically, the question presented is whether, pursuant to these decisions, a municipal agency’s failure to adhere to its own procedural rules governing a probationary employee’s discharge encroaches upon the probationary employee’s procedural due process rights.
The plaintiff was appointed to the position of probationary correction officer on August 2, 1990. On April 20, 1991, while the plaintiff was still serving his probationary period, a criminal complaint was lodged against him. This complaint charged him with assault in the third degree arising out of a street altercation which occurred earlier on that same date. On May 3, 1991, as a result of the pending criminal action, the plaintiff was served with a notice of summary suspension from duty by the DOC. On May 6, 1991, the plaintiff received a DOC memorandum of complaint (hereinafter the complaint) setting forth several administrative disciplinary charges against him. On May 8, 1991, the plaintiff appeared before the DOC Commissioner, the defendant Allison Lewis-Smith. At that time, he was offered the option of either voluntarily resigning his position or being discharged from his employment. In response to this offer, the plaintiff submitted his resignation on May 8, 1991. On October 29, 1991, the criminal charges pending against the plaintiff were dismissed. On November 4, 1991, the plaintiff sent a letter to the personnel division of the DOC requesting that he be reconsidered for reinstatement to his former position as a probationary correction officer. By letter dated November 7, 1991, the DOC rejected the plaintiff’s request.
On April 24, 1992, the plaintiff commenced this action, alleging that his procedural due process rights under the United States Constitution and 42 USC § 1983 had been violated. The plaintiff’s complaint asserted that he had been given only two days to respond to the DOC’s complaint, contravening the DOC’s rule 3.25.040 requiring that DOC employees be given at least eight days to respond to administrative disciplinary charges proffered against them. The plaintiff further alleged that his procedural due process rights had
In the order appealed from, the Supreme Court denied the defendants’ cross motion. The court found that the plaintiff had clearly framed an action for damages based upon the theory of denial of due process. We are unable to agree with the Supreme Court’s ruling.
"The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment’s protection of liberty and property” (Board of Regents v Roth, 408 US 564, 569). In order to establish a Federal procedural due process claim, the plaintiff must first establish that he possesses a property right in his continued
In support of his position, the plaintiff improperly relies on the "trilogy” of Supreme Court cases, Service v Dulles (supra), Accardi v Shaughnessy (supra), and Vitarelli v Seaton (supra), decided in the 1950’s.
In Olim v Wakinekona (461 US 238, 250), the Supreme
The courts have explicitly and repeatedly rejected the proposition that an individual has an interest in a State-created procedural device, such as a hearing, that is entitled to constitutional due process protection (see, Brandon v District of Columbia Bd. of Parole, 823 F2d 644; United States v Jiles, 658 F2d 194, 200, cert denied 455 US 923; Pugliese v Nelson, 617 F2d 916, 924-925; Cofone v Manson, 594 F2d 934, 938; Lombardo v Meachum, 548 F2d 13, 14-16; Adams v Wainwright, 512 F Supp 948, 953; Matter of Holbrook v State Ins. Fund, 54 NY2d 892; Matter of Stanziale v Executive Dept., Off. of Gen. Servs., 55 NY2d 735). Indeed, the identical claim raised by the plaintiff, namely, that there exists a due process right to have an agency adhere to its regulations, has been rejected as lacking support in law or logic, and as analytically indefensible (Brandon v District of Columbia Bd. of Parole, 823 F2d 644, 647, supra; see also, Shango v Jurich, 681 F2d 1091, at 1100; Bills v Henderson, 631 F2d 1287, 1298-1299). The mere fact that the government has established certain procedures does not mean that the procedures thereby become substantive rights entitled to Federal constitutional protection under the Due Process Clause (Yale Auto Parts v Johnson, 758 F2d 54, 58; Velasco-Gutierrez v Crossland, 732 F2d 792, 798; Harris v McDonald, 737 F2d 662, 665). “Statutory procedural requirements without a separately articulable substantive right do not create a constitutionally protected interest” (Rudow v City of New York, 822 F2d 324, 330; Olim v Wakinekona, supra; Cleveland Bd. of Educ. v Loudermill, 470 US 532, 541).
The plaintiff “has failed to satisfy the first requirement of
The plaintiff’s 42 USC § 1983 claim is based solely on the aforementioned arguments, and is also without merit.
The plaintiff’s further claim that his procedural due process rights have been violated because the defendants failed to provide him with a name-clearing hearing is similarly without any legitimate legal basis. It is well settled that there is no entitlement to a name-clearing hearing where there has been no public disclosure of any allegations affecting the plaintiff’s good name or reputation (Matter of Bonacci v Quinones, 124 AD2d 659; Matter of Lentlie v Egan, 61 NY2d 874; Matter of Petix v Connelie, 47 NY2d 457). The complaint alleges only that "false and defamatory charges * * * are contained in plaintiff’s personnel file and remain there today”. The plaintiff has failed to allege public dissemination, and has thus failed to state a cause of action for a name-clearing hearing (see, Matter of Thomas v New York Temporary State Comm. on Regulation of Lobbying, 56 NY2d 656, 658-659; Supan v Michelfeld, 97 AD2d 755). The plaintiff’s additional contention that the claim should not be dismissed because it is "possible]” that the information might be disseminated is without merit (Matter of Carlo v City of New York, 156 AD2d 685, 686).
Insofar as the plaintiff alleges State law claims based on the DOC’s failure to follow its procedural rule, and based additionally on his alleged "coerced” resignation, these claims were required to be brought in a proceeding pursuant to CPLR article 78 and are presently time barred. The plaintiff’s attempt to characterize this case as a "declaratory class action” seeking review of "a continuing policy of DOC”, and, therefore, subject to a six-year Statute of Limitations, is
Accordingly, the order of the Supreme Court is reversed insofar as appealed from, on the law, with costs, the cross motion is granted, it is declared that the defendants did not violate the plaintiff’s right to answer and defend administrative disciplinary charges against him, and the complaint is otherwise dismissed.
Lawrence, J. P., Santucci and Altman, JJ., concur.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, the cross motion is granted, it is declared that the defendants did not violate the plaintiff’s right to answer and defend administrative disciplinary charges against him, and the complaint is otherwise dismissed.
In Service, the Supreme Court held that while the Secretary of State was under no obligation to provide any procedural protections when terminating foreign service officers, once he adopted regulations setting up procedures, he was bound by those regulations. In Accardi, the Supreme Court vacated a deportation order of the Justice Department on the ground that the agency had violated its own rules in failing to exercise independent discretion during the course of a deportation hearing. In Vitarelli, the Department of the Interior discharged an employee without following the procedures dictated by the Department’s own regulations. The Supreme Court held that the Secretary, having chosen to proceed against the petitioner on security grounds, was bound by the regulations which he himself had promulgated for dealing with cases of this nature.