365 F.3d 882 (10th Cir. 2004), 03-4046, Morgan v. McCotter

Docket Nº:03-4046.
Citation:365 F.3d 882
Party Name:Nicholas G. MORGAN, III, Plaintiff-Appellant, v. O. Lane McCOTTER, an individual; Frank Mylar, an individual; Gil Garcia, an individual, Defendants-Appellees.
Case Date:April 21, 2004
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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365 F.3d 882 (10th Cir. 2004)

Nicholas G. MORGAN, III, Plaintiff-Appellant,


O. Lane McCOTTER, an individual; Frank Mylar, an individual; Gil Garcia, an individual, Defendants-Appellees.

No. 03-4046.

United States Court of Appeals, Tenth Circuit

April 21, 2004

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[Copyrighted Material Omitted]

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Roger D. Sandack, Salt Lake City, UT, for Plaintiff-Appellant.

Nancy L. Kemp, Assistant Attorney General, (Bless Young, Assistant Attorney General and Mark L. Shurtleff, Utah Attorney General, on the brief) for Defendants-Appellees.

Before TACHA, Chief Judge, BRORBY, Senior Circuit Judge, and KELLY, Circuit Judge.

PAUL KELLY, JR., Circuit Judge.

Plaintiff-Appellant Nicholas G. Morgan, III, appeals from the district court's grant of summary judgment in favor of Defendants-Appellees O. Lane McCotter, the Executive Director of the Utah Department of Corrections ("UDOC"), Frank Mylar, UDOC's legal counsel, and Gil Garcia, an investigator for the Utah Department of Public Safety. 1 Proceeding under

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42 U.S.C. § 1983, Plaintiff claimed that he was deprived of a property interest in his continued employment with the State of Utah as a career service employee without due process of law when he was terminated "for cause" from an exempt position without adequate procedural protections. He also claimed that he was deprived of a liberty interest. The district court held that Plaintiff was provided adequate pre-termination due process protections, and that he failed to utilize post-termination proceedings available to him. IV Aplt.App. 1010-19. Rejecting the due process claims, the district court declined to address Plaintiff's remaining supplemental state-law claim. Our jurisdiction arises under 28 U.S.C § 1291. Because we find that the case presents no justiciable controversy, we remand to the district court to dismiss the action without prejudice.


After a career in law enforcement, Plaintiff became employed by the State of Utah in 1985. In 1993, he was appointed Deputy Director of the Utah Department of Corrections. Under Utah law, the position of Deputy Director is an "exempt" position, meaning that an individual occupying that position is essentially an at-will employee, and as such may be terminated without cause at any time. See Utah Code Ann. § 67-19-15(1)(d). This status stands in contrast to that of most other state employees who are classified as "career service employees." "Career service employees" are essentially tenured public employees who maintain a statutory property interest in their position and consequently may not be terminated without cause. See Utah Code Ann. § 67-19-18. If a career service employee is subject to termination "for cause," Utah law provides that prior to the termination becoming effective, the employee must be afforded a number of procedural protections including written notification of the reasons for termination, an opportunity to respond to the charges, and an opportunity to be heard by the department head. Id. Should a career service employee be dissatisfied with a department head's decision on the matter, he or she has a statutory right to appeal this decision to the Career Service Review Board (CSRB), an independent entity charged with reviewing the employment decisions of the various state departments. See Utah Code Ann. § 67-19a-202.

Prior to his appointment as Deputy Director, Plaintiff had achieved career service status through his service as a state employee. Consequently, if Plaintiff were removed from his position as Deputy Director without cause, he would have had automatic priority for reassignment to a comparable career service position if one were available. According to Utah law, this priority would be effectuated through the placement of Plaintiff's name in a reappointment register designed specially for those career service members terminated "without cause" from an exempt position. See Utah Code Ann. § 67-19-17.

In late June 1996, Defendant McCotter met with Plaintiff and informed him that he had received reports that Plaintiff had engaged in conduct that violated departmental policies, and that such violations would have to be investigated. Aplt. Br. at 4. On July 3, 1996, Defendant McCotter placed Plaintiff on administrative leave with pay pending investigation of the charges. Id. Following an investigation, on September 6, 1996, Defendant McCotter met with Plaintiff and requested his resignation. Plaintiff refused to resign.

On September 16, 1996, Defendant McCotter sent Plaintiff a letter detailing

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the results of the investigation 2 and terminating Plaintiff "for cause" effective September 23, at 5:00 p.m. I Aplt.App. at 254. The letter concluded "[i]f you disagree with this action, you may appeal this decision directly to me within five (5) working days, where you will have a chance to respond to these allegations in a personal meeting." Id. at 258.

On September 23, Plaintiff's attorney faxed a letter to Defendant McCotter denying the truth of many of the allegations and "strongly urg[ing Defendant McCotter] to reconsider [the] decision to terminate Mr. Morgan after considering the whole story." Id. at 280. Defendant McCotter responded the same day with a letter confirming Plaintiff's termination and stating that "[e]ven though the pre-termination time has elapsed to present any further response, I will gladly review any post-termination written argument and evidence you may wish to submit on or before September 30, 1996." Id. at 282.

Plaintiff's attorney again responded to Defendant McCotter's letter, again requesting that Plaintiff's termination be rescinded and that Defendant "allow a reasonable period of time to review all the information provided ... regarding [Plaintiff] and submit a response for your consideration." Id. at 284.

One more exchange of letters ensued in which Defendant McCotter refused to withdraw Plaintiff's termination and Plaintiff again requested recision of the termination and more time to provide evidence in response. See Aplee. Br. at 6. Following this exchange of letters, Plaintiff made no effort to appeal Defendant McCotter's decision to the CSRB, nor did he present any evidence that he in fact desired reappointment to a career services position.

Plaintiff initiated this action on February 5, 1999. On appeal, what remains is his claim that Defendant violated his constitutional rights by depriving him of a property interest without affording him due process of law. See Snyder v. City of Moab, 354 F.3d 1179, 1189 (10th Cir. 2003). Plaintiff essentially concedes he has no property interest in the exempt position of Deputy Director, so his termination from that position cannot form the basis of a procedural due process...

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