91 F.3d 630 (4th Cir. 1996), 94-2298, Mallette v. Arlington County Employees' Supplemental Retirement System II

Docket Nº:94-2298.
Citation:91 F.3d 630
Party Name:Lila M. MALLETTE, Plaintiff-Appellant, v. ARLINGTON COUNTY EMPLOYEES' SUPPLEMENTAL RETIREMENT SYSTEM II; Arlington County Board of Supervisors, Defendants-Appellees.
Case Date:August 01, 1996
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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91 F.3d 630 (4th Cir. 1996)

Lila M. MALLETTE, Plaintiff-Appellant,



II; Arlington County Board of Supervisors,


No. 94-2298.

United States Court of Appeals, Fourth Circuit

August 1, 1996

Argued Nov. 1, 1995.

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ARGUED: Robert Dean Weiss, Fairfax, Virginia, for Appellant. Andrew Ray McRoberts, Assistant County Attorney, Arlington, Virginia, for Appellees. ON BRIEF: Barbara S. Drake, County Attorney, Arlington, Virginia, for Appellees.

Before ERVIN and WILKINS, Circuit Judges, and MICHAEL, Senior United States District Judge for the Western District of Virginia, sitting by designation.

Reversed and remanded by published opinion. Judge ERVIN wrote the opinion, in which Judge WILKINS and Senior Judge MICHAEL joined.


ERVIN, Circuit Judge:

After Arlington County denied her application for service-related disability retirement benefits, Lila Mallette brought this action under 42 U.S.C. § 1983, claiming that the County violated her constitutional right to due process by failing to provide adequate notice. The district court granted the County's motion for summary judgment, reasoning that Mallette had no "property interest" entitling her to due process, and that, in any event, she had received all the process she was due. We disagree. We find that the County ordinance endowed Mallette with a legitimate claim of entitlement to the benefits, and thus she had a property interest in her application protected by the Due Process Clause. We further find that significant issues of material fact remain regarding whether Mallette received the minimum procedural safeguards compelled by the Constitution. Accordingly, we reverse and remand.


In reviewing the district court's grant of summary judgment, we consider the evidence in the light most favorable to the appellant. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 1356-57, 89 L.Ed.2d 538 (1986).

Lila Mallette suffers from spina bifida and, as a result, has a history of severe and debilitating back pain. In 1978, a major surgery greatly improved Mallette's condition, eliminating much of her pain and allowing her to engage in most normal activities with the help of a cane.

After the successful surgery, Mallette undertook various types of volunteer work for

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Arlington County. In 1981, she volunteered at the Arlington County Visitor's Center, where she later applied for part-time employment. At the time she applied, Mallette informed the County of her medical history and passed a pre-employment physical examination. The County initially hired Mallette in a part-time position. About eight months later, Mallette became the full-time Coordinator of the Visitor's Center and a member of the County's employee retirement plan--the Arlington County Employees' Supplemental Retirement System II.

In 1983, Mallette was injured in an auto accident while on duty. After that accident, Mallette experienced renewed pain and weakness, requiring her to spend most of her non-working time lying down. Later the same year, as part of her duties, Mallette went on a strenuous week-long bus tour of County tourist sites. After the bus trip her condition drastically worsened, forcing her to stop working completely and barring her from most activities. She now spends nearly all of her time lying down and must take narcotic pain medications. According to her physician, Mallette's condition has permanently incapacitated her and prevents her from working.

After her re-injuries in 1983, Mallette applied for worker's compensation benefits, which she received until 1993. In March 1993, near the end of the 500-week statutory maximum for payment of worker's compensation benefits, the County Personnel Department sent a letter informing Mallette that her payments would cease on June 6, 1993. However, the letter stated that "[t]he Retirement System will begin paying you effective June 7, 1993." The letter further instructed Mallette to contact the Retirement Office "for additional information regarding your retirement benefits." According to Mallette, conversations with County employees led her to believe that the County would convert her worker's compensation benefits to service-related retirement benefits as a matter of course.

On March 17, 1993, Mallette submitted an application for service-connected disability retirement benefits to the County Board of Supervisors. On May 28, 1993, a physician for the Retirement System, William A. Hanff, examined Mallette and concluded that she was permanently disabled and was eligible for service-connected disability retirement benefits. Dr. Hanff gave Mallette a copy of his report, which stated that she "should be permanently retired on job connected disability."

On June 26, 1993, the System's Board of Trustees notified Mallette that it would "consider [her] disability application at its next meeting," to be held July 1, 1993. The notice "requested" Mallette's presence and "encouraged" her to attend. Approximately 125 pages of medical and administrative records, generated over the ten years of Mallette's worker's compensation case, accompanied the notice. Also enclosed was a copy of Dr. Hanff's report, recommending that Mallette receive service-related disability benefits. 1

Mallette appeared at the hearing unrepresented by counsel. Before the 8:00 a.m. proceeding began, Retirement Administrator Irwin Mazin handed Mallette a copy of a revised medical report by Dr. Hanff, dated June 29, 1993. The new report indicated that, after a telephone conversation with Mazin, Dr. Hanff reversed his earlier conclusion and instead recommended that the Board deny Mallette's service-related claim. Dr. Hanff stated that it was not medically certain that the automobile accident was the "sole reason for her to be on job-connected disability without any pre-existing condition."

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Mallette submitted a written statement at the hearing. 2 The parties dispute whether she also testified. Mallette contends that the Board gave her no opportunity to question Dr. Hanff or the System Administrator. She did not request time to present additional evidence or witnesses.

After the hearing, the Board of the Retirement System denied Mallette's claim for service-connected disability retirement benefits. The Board found that her accident was not the "sole reason" for her disability in view of her preexisting disability.

Mallette unsuccessfully sought administrative redress, then filed an action in the District Court seeking a declaration, injunctive relief, and other remedies under § 1983, based on due process and equal protection. She later withdrew the equal protection claim. The district court granted the County's motion for summary judgment. It ruled that Mallette had no property interest entitling her to procedural due process. And it further found that, even if due process applied, Mallette had received all protections due because she was notified of and attended the hearing.


The Due Process Clause of the Fourteenth Amendment reduces unfair or mistaken deprivations of individual interests by commanding states to provide persons in jeopardy of loss with certain procedural safeguards. It is by now axiomatic that the language of the Due Process Clause--"nor shall any State deprive any person of life, liberty, or property, without due process of law ...."--calls for two separate inquiries in evaluating an alleged procedural due process violation. First, did the plaintiff lose something that fits into one of the three protected categories: life, liberty, or property? Board of Regents v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972). And, if so, did the plaintiff receive the minimum measure of procedural protection warranted under the circumstances? Logan v. Zimmerman Brush Co., 455 U.S. 422, 428, 102 S.Ct. 1148, 1153-54, 71 L.Ed.2d 265 (1982). We conclude that the Arlington County Retirement System afforded Mallette a property interest in her right to apply for disability retirement benefits, triggering procedural due process protection. We further conclude that Mallette raised genuine issues of material fact regarding whether the County deprived her of her property interest without meaningful notice and an opportunity to be heard--the minimum procedural safeguards guaranteed by the Constitution.


Mallette is entitled to procedural due process only if she holds a constitutionally protected property interest in the disability retirement benefits. Roth, 408 U.S. at 569, 92 S.Ct. at 2705. The Supreme Court provided the most frequently relied-upon definition of "property interest" in Board of Regents v. Roth:

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.

408 U.S. at 577, 92 S.Ct. at 2709. Although clothed in due process protection by the Constitution, "property interests" are the creatures of independent positive law. As the Court explained, property rights

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.

Id. Thus, to decide whether Mallette has a property interest protected by the Fourteenth

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Amendment, we must look for an independent source of a "claim of entitlement." We find such a source in the Arlington County Code.

Virginia law establishes a retirement system for the benefit of state, county, and local employees, but permits certain localities to provide their own retirement plans. Va.Code Ann. §...

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