Thursday, June 20, 2013

Court of Appeals reinstates employment due process case

Very few procedural due process claims survive in federal court. There are may reasons for this, among them the fact that you have to prove that the government deprived you of a liberty or property interest without due process, and it's hard to prove that you had a liberty or property interest in the first place. This pro se plaintiff might have a property interest, so his case is reinstated by the Court of Appeals.

The case is Cancel v. New York City Human Resources Administration, a summary order decided on May 23. The Court of Appeals is reversing Rule 12 and Rule 56 dismissals by way of summary orders more and more these days. One reason for this may be that the cases are not ground-breaking and that the district court simply blew it. This case does not strike me as routine. The plaintiff was offered a position before the potential employer then threw in some belated conditions that seemed too burdensome or somehow unreasonable.

A property interest in the employment context exists when the plaintiff has a legitimate claim of entitlement to a position. The Court of Appeals (Raggi, Droney and Kaplan [D.J.]) says, "Generally, 'there is no constitutionally protected property interest in prospective government employment,' but a written or verbal communication guaranteeing government employment may, in some circumstances, give rise to a such a property interest."

The plaintiff's complaint is enough to make out a due process claim. The Court's reasoning:

Cancel’s amended complaint alleges that, at the end of his January 15, 2009 interview, he was offered a Paralegal Aide position in the Office of Legal Affairs, signed a form accepting it, and “was instructed to return for processing prior to his start date of February 9, 2009.” Only thereafter was Cancel asked to submit certified dispositions of his convictions. Drawing all reasonable inferences in Cancel’s favor, we conclude that these pleadings allege a legitimate claim of entitlement to the Paralegal Aide position, subject only to the completion of ministerial tasks prior to his start date. Insofar as defendants submit that circumstances can be adduced showing otherwise, they may certainly pursue that argument after discovery. But on a review only of the amended complaint, we cannot conclude that Cancel fails as a matter of law to state a procedural due process claim. Accordingly, we reverse that part of the district court’s judgment.
The decision does not tell us why Cancel is suing in the first place. But the district court ruling says that Cancel has a felony record and the job offer was revoked because of that record. In the district court, Cancel did argue that the revocation violated a state law that prohibits job terminations based on certain criminal records. Cancel lost that argument. But Cancel did argue in the Court of Appeals that N.Y. Correct. Law §§ 752 and 753 creates a legally-protected property interest in the paralegal position. The Second Circuit rejects that argument in a footnote, citing precedent that “[T]he fact that state law creates a right to non-discriminatory consideration for a discretionary[appointment] does not create a property interest, any more than does the requirement of acompetitive civil service exam.”

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