Couch v. Wilkinson, 91-1178

• Decision Date: 01 August 1991
• Docket Number: No. 91-1178,91-1178
• Citation: 939 F.2d 673
• Parties: Clyde COUCH, Plaintiff-Appellant, v. Michael WILKINSON, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 673

939 F.2d 673

Clyde COUCH, Plaintiff-Appellant, v. Michael WILKINSON, et al., Defendants-Appellees.

No. 91-1178.

United States Court of Appeals,

Eighth Circuit.

Submitted June 11, 1991.

Decided Aug. 1, 1991.

Thomas J. McCann, Des Moines, Iowa, for plaintiff-appellant.

Gordon E. Allen, argued (Gordon E. Allen and Bonnie J. Campbell on brief), Des Moines, Iowa, for appellee.

Before LAY, Chief Judge, RONEY ^*, Senior Circuit Judge, and WOLLMAN, Circuit Judge.

RONEY, Senior Circuit Judge:

The issue in this case is whether the Iowa Veterans Preference Act, Chapter 70 of the Iowa Code (1991), gives an Armed Forces veteran, a state probationary employee, a sufficient expectation of continued employment upon which to base a 42 U.S.C. Sec. 1983 claim of termination without due process. We hold that the statute does not give the plaintiff a property interest in his job, and affirm the district court's grant of summary judgment on that issue and dismissal of Couch's pendant state law claims of wrongful discharge.

Plaintiff Clyde Couch is an honorably discharged United States Armed Forces Veteran who was hired by Job Services of Iowa, a division of the Iowa Department of Employment Services, to serve as an interviewer assisting in the administration of a government program for veterans. He was discharged without a hearing within his six-month probationary period after a dispute arose between him and his supervisor. Couch subsequently requested a hearing and reminded the Division of his status as a veteran. The Division denied his request on the ground that Couch was a probationary employee who was terminable at will without right of appeal.

An employee must show a property interest in continued employment to assert a Sec. 1983 claim for violation of constitutional due process. Cleveland v. Board of Education v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). Property interests are not created by the Constitution, but are defined by state law. Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1971). See also, Bishop v. Wood, 426 U.S. 341, 344, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976).

Chapter 70 of the Iowa Code, the Iowa Veterans Preference Law, grants employed veterans a protected property interest in their public employment by guaranteeing that veterans will not be discharged except for incompetency or misconduct shown at a hearing prior to termination. Specifically, section 70.6 provides:

No person holding a public position by appointment or employment, and belonging to any of the classes of persons to whom a preference is herein granted, shall be removed from such position or employment except for incompetency or misconduct shown after a hearing, upon due notice, upon stated charges, and with the right of such employee or appointee to a review by a writ of certiorari or at such person's election, to judicial review in accordance with the terms of the Iowa administrative procedure Act if that is otherwise applicable to their case. (emphasis added)

The "classes of persons to whom a preference is herein granted" refers to honorably discharged veterans. See Iowa Code Sec. 70.1 (1991).

Iowa Code section 19A.9(8) of Chapter 19A, which provides for a merit system of personnel administration for Iowa state employees, provides that the personnel commission established by that chapter shall adopt rules for a probationary period of six months for merit system employees. The commission has adopted such rules. See 581 Iowa Admin.Code Secs. 9.1 and 9.2 (1990). Under the statute and rules, probationary employees may be discharged at the discretion of the appointing authority without right of appeal.

Thus, Iowa Code sections 19A.9(8) and 70.6 conflict where the probationary employee is an honorably discharged veteran within the meaning of the Veterans Preference law. The Iowa Supreme Court has recognized the well settled principle that when a general and a special statute are in conflict, it is the special statute that controls. Peters v. Iowa Employment Sec. Comm'n, 248 N.W.2d 92 (Iowa 1976). Iowa Code Sec. 4.7 also provides: "If a general provision conflicts with a special or local provision, they shall be construed, if possible, so that effect is given to both. If the conflict between the provisions is irreconcilable, the special or local provision prevails as an exception to the general provision."

The Iowa Supreme Court has held that the Veterans Preference law is a general statute in relation to other statutes regulating public employment. See Devine v. City of Des Moines, 366 N.W.2d 580, 583 (Iowa 1985) (Iowa Code Secs. 400.18 and 400.27 prevail over Iowa Code Sec. 70.6); Peters v. Iowa Employment Sec. Comm'n, 248 N.W.2d 92, 95-96 (Iowa 1976) (Iowa Code Secs. 97B.45 and 97B.46 prevail over Iowa Code ch. 70); Andreano v. Gunter, 252 Iowa 1330, 1335-36, 110 N.W.2d 649, 651-52 (1961) (Iowa Code Sec. 365.19 (1958) prevails over Iowa Code Sec. 70.6). See also Richards v. Board of Control of State Inst., 170 N.W.2d 243, 245 (Iowa 1969) (chapter 70 is a general statute). Specifically, the Iowa Supreme Court has held that "... chapter 70 is a general statute governing all appointments and removals to and from positions of public service in Iowa ..." Id. at 96 (citing Andreano v. Gunter, 252 Iowa 1330, 1335, 110 N.W.2d 649, 651 (1961)).

Conversely, section 19A.9(8) is a special and later enacted statute limited to the first six months of employment. In Andreano v. Gunter, 252 Iowa 1330, 110 N.W.2d 649 (1961), the Iowa Supreme Court faced a similar dilemma when it construed the Iowa Veterans Preference Law and an overlapping civil service statute. The following portion of the Andreano court's statutory analysis is instructive:

The first statute says that no one may be removed without notice and hearing (referring to the Veterans Preference statute); the second, special and later enacted, says anyone under civil service may be summarily discharged. Many persons under civil service will...