Colm v. Vance

• Decision Date: 18 November 1977
• Docket Number: No. 76-1252,76-1252
• Parties: Peter W. COLM and John M. McIntyre, Appellants, v. Cyrus R. VANCE, Secretary of State, U. S. Department of State.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1125

567 F.2d 1125

186 U.S.App.D.C. 132

Peter W. COLM and John M. McIntyre, Appellants, v. Cyrus R. VANCE, Secretary of State, U. S. Department of State.

No. 76-1252.

United States Court of Appeals, District of Columbia Circuit.

Argued Feb. 28, 1977.

Decided Nov. 18, 1977.

Murray J. Belman, Washington, D. C., for appellants.

Neil A. Kaplan, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry, William D. Pease, and Ann S. DuRoss, Asst. U. S. Attys., Washington, D. C., were on the brief for appellee.

Richard B. Finn, Chicago, Ill., filed a brief on behalf of the American Foreign Service Ass'n as amicus curiae urging reversal.

Suellen T. Keiner, Washington, D. C., filed a brief on behalf of the American Federation of Government Employees, AFL-CIO, as amicus curiae urging reversal.

Before TAMM, ROBINSON and ROBB, Circuit Judges.

Opinion for the court filed by TAMM, Circuit Judge.

Opinion filed by ROBB, Circuit Judge, concurring in the remand.

TAMM, Circuit Judge:

Section 633 of the Foreign Service Act of 1946, as amended, provides for the "selection-out" of Foreign Service officers who fail to be promoted to the next higher grade within a period of years prescribed from time to time by the Secretary of State. This provision, central to the constitutional issue raised on this appeal, reads in relevant part as follows:

(a) The Secretary shall prescribe regulations concerning

(1) the maximum period during which any Foreign Service officer below the class of career minister shall be permitted to remain in class without promotion . . . .

(b) Any Foreign Service officer below the class of career minister who does not receive a promotion to a higher class within the specified period . . . shall be retired from the Service and receive benefits in accordance with the provisions of section 1004 of this title.

22 U.S.C. § 1003 (1970). Our appellants herein, two Foreign Service officers who were retired pursuant to this statutory "up-or-out" requirement, argue that their involuntary retirements contravened the procedural due process guarantee of the Constitution's fifth amendment in that neither of them was afforded a hearing before an impartial tribunal to challenge certain adverse comments contained in confidential portions of their personnel files.

The factual background to this litigation is adequately portrayed in the district court's memorandum opinion, reported below sub nom. Colm v. Kissinger, 406 F.Supp. 1250 (D.D.C.1975), and we need not repeat it here. For present purposes we need only note that the district court granted the Department of State's motion for summary judgment on the ground that, since neither appellant had a legitimate claim of entitlement to continued employment in the Foreign Service beyond the maximum time-in-class then applicable (having remained in the Department's employ to the end of that period), any constitutionally protected property interest in their government employment necessary to require due process protections had expired. See id. at 1255-56. We would agree with Judge Gasch's articulate analysis of the property interest claims in this case and accordingly affirm his decision if it were not for our discovery of certain germane provisions of title 22 of the United States Code that make such a course impossible at this point and require us to vacate the award of summary judgment and to remand the case for further proceedings.

I

In this appeal we must decide whether appellants had a property interest such that their selection-out for non-promotion had to comport with some degree of procedural due process. ¹

A person's job under certain circumstances is indeed conceived of as his property in our prevailing jurisprudence and therefore cannot be taken away by the government without due process of law. See U.S.Const. amend. V; id. amend. XIV, § 1. The usual due process analysis, familiar at least since Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), has been two-staged: identifying the existence of a constitutionally protected property or liberty interest and then assessing the appropriate measure of procedural protection due. See, e. g., Goss v. Lopez,419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975); Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974); cf. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) (protected liberty interest in parole revocation). If the aggrieved party is determined to have no protected property interest (e. g., job tenure) or in liberty (stemming from the circumstances surrounding the termination of employment), due process itself does not apply, and the party is left with only those procedural protections established by or otherwise binding upon the employing agency. See Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).

Our consideration of the property interest claim in the instant case must begin with the landmark companion cases of Roth and Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), in which the Supreme Court reviewed the procedural due process claims of two state employees who had not been discharged during their contract periods, but rather had not had their employment contracts renewed for a subsequent term. In Roth, the Court held that a state university professor had no property interest in continued employment when he had been hired only for a fixed term of one academic year, had no formal tenure, and could point to nothing in state law or in his employment contract which might otherwise explicitly or implicitly entitle him to contract renewal. In so holding, the Court explained that a property interest sufficient to trigger due process protection may be created by statute, contract, or less formal "understandings", but that something more objectifiable than a sanguine expectation is necessary.

To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. It is the purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined. It is a purpose of the constitutional right to a hearing to provide an opportunity for a person to vindicate those claims.

Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.

408 U.S. at 577, 92 S.Ct. at 2709.

This judicial recognition that a protected property interest in one's job may have its source in something less formal than a statute or contract was further refined in Perry, where the Court held that proof of a teacher's allegations that he was entitled to tenure under an informal de facto tenure system fostered by the college in a faculty guide and other official guidelines would establish a property interest of which he could not be deprived without due process. 408 U.S. at 600-03, 92 S.Ct. 2694. Thus, Perry is especially pertinent to appellants' property claims in that it demonstrates that the source of a protected property right might be implicit in the overall workings of a particular government employer. Cf. Morrissey v. Brewer, 408 U.S. at 479, 481-82, 92 S.Ct. 2593 (liberty "(i)mplicit in the system's concern with parole violations . . . ."); Geneva Towers Tenants Organization v. Federated Mortgage Investors, 504 F.2d 483, 489-90 (9th Cir. 1974) (property interest in continued benefits of low-cost housing). It emphasized that

absence of such an explicit contractual provision may not always foreclose the possibility that a teacher has a "property" interest in re-employment.

A teacher, like the respondent, who has held his position for a number of years, might be able to show from the circumstances of this service and from other relevant facts that he has a legitimate claim of entitlement to job tenure. Just as this Court has found there to be a "common law of a particular industry or of a particular plant" that may supplement a collective-bargaining agreement (citation omitted), so there may be an unwritten "common law" in a particular university that certain employees shall have the equivalent of tenure.

We disagree with the Court of Appeals insofar as it held that a mere subjective "expectancy" is protected by procedural due process, but we agree that the respondent must be given an opportunity to prove the legitimacy of his claim of such entitlement in light of "the policies and practices of the institution." (Citation omitted) Proof of such a property interest would not, of course, entitle him to reinstatement. But such proof would obligate . . . officials to grant a hearing at his request, where he could be informed of the grounds for his nonretention and challenge their sufficiency.

408 U.S. at 601-03, 92 S.Ct. at 2699-2700.

The district court in our present case concluded, and we agree, that a legitimate claim of entitlement must derive from some reasonably identifiable source apart from the mere expectancy or desire of the claimant. See Sims v. Fox, 505 F.2d 857, 861-62 (5th Cir. 1974) (en banc), cert. denied, 421 U.S. 1011, 95 S.Ct. 2415, 44 L.Ed.2d 678 (1975). "It is simply our job to identify the choice that . . . (was) made, and to respect that decision." Adams v. Walker, 492 F.2d 1003, 1009 (7th Cir. 1974) (Stevens, J., concurring); see Paul v. Davis, 424 U.S. 693, 710, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976).

II

This case, as not infrequently occurs, ² has refined its focus as the litigation has progressed. Somewhere between the time appellants filed their main brief and...