Koch v. Yunich

• Decision Date: 02 April 1976
• Docket Number: No. 450,D,450
• Citation: 533 F.2d 80
• Parties: 11 Empl. Prac. Dec. P 10,834 Robert P. KOCH et al., Appellants, v. David L. YUNICH, Chairman and Chief Executive Officer, et al., Appellees. ocket 75-7367.
• Court: U.S. Court of Appeals — Second Circuit

Page 80

533 F.2d 80

11 Empl. Prac. Dec. P 10,834

Robert P. KOCH et al., Appellants, v. David L. YUNICH, Chairman and Chief Executive Officer, et al., Appellees.

No. 450, Docket 75-7367.

United States Court of Appeals Second Circuit.

Argued Dec. 15, 1975.

Decided April 2, 1976.

Frederick J. Ludwig, New York City, for appellants.

James P. McMahon, Brooklyn (Stuart Riedel, Terrance J. Nolan, Brooklyn, Nancy A. Serventi, New York City, of counsel), for appellee Yunich.

Diane R. Eisner, Brooklyn (W. Bernard Richland, Corp. Counsel, New York City, L. Kevin Sheridan, New York City, of counsel), for appellee D'Ambrose.

Before MANSFIELD, OAKES and VAN GRAAFEILAND, Circuit Judges.

OAKES, Circuit Judge:

This appeal presents a multi-pronged attack upon the constitutionality of two sections of the New York Civil Service Law. The first is Section 80 ¹ providing that layoffs and demotions for economic reasons from positions achieved by competitive examination shall be made on the basis of seniority determined by the date of permanent appointment to the classified service generally rather than to the particular position held. The second is Section 85 ² giving veterans of World Wars I and II and the Korean and Vietnam Wars certain preferences in retention upon abolition of positions. Appeal is from an order by the United States District Court for the Eastern District of New York, Walter Bruchhausen, Judge, dismissing the complaint ³ of certain Transit Authority police captains, lieutenants and sergeants, seeking declaratory and injunctive relief, as well as the convening of a three-judge court. Appellee Yunich is the chairman of the New York City Transit Authority; appellee D'Ambrose is the personnel director and chairman of the New York City Civil Service Commission. Because we believe that appellants can prove under their complaint no set of facts which would entitle them to relief, Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80, 84 (1957), that their constitutional claims are wholly insubstantial and therefore do not require a three-judge court, Goosby v. Osser, 409 U.S. 512, 518, 93 S.Ct. 854, 858, 35 L.Ed.2d 36, 42 (1973), and that their claims under New York law have been more than adequately disposed of in a state court proceeding initiated after the present federal complaint, ⁴ we affirm the dismissal.

Appellants claim they can or will be ⁵ deprived of four rights guaranteed by the Constitution of the United States: (1) a substantive due process right against arbitrary and capricious denial of property in the form of public employment; (2) a procedural due process right to some kind of hearing before suspension or demotion; (3) an equal protection right to be free from discrimination in demotion or layoff on the basis both of race and color and of merit and fitness, all under the Fourteenth Amendment; and (4) a right, with respect to their pension plans, against impairment of the obligation of contracts under Article I, Section 10. We consider each of the claims separately.

Appellants first argue that Section 80 of the New York Civil Service Law which requires termination by seniority based upon original permanent retention in the civil service, as opposed to seniority based upon tenure in the position currently held, violates substantive due process. This argument cannot be sustained. The substantive due process test applicable since the 1930's in the area of social and economic legislation is whether the challenged law has a rational relation to a valid state objective. Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483, 491, 75 S.Ct. 461, 466, 99 L.Ed. 563, 574 (1955) (prohibition of eye examinations in retail stores rationally related to state objectives of freeing optometrists from taints and temptations of commercialism); Nebbia v. New York, 291 U.S. 502, 529-37, 54 S.Ct. 505, 512-16, 78 L.Ed. 940, 952-57 (1934) (price controls of milk rationally related to state objective of protecting consumers and industry, and preventing waste). While one might question the wisdom of a statute such as Section 80 of the New York Civil Service Law which works against a diligent, ambitious officer who rises quickly through the ranks and holds high positions for longer periods than employees who started earlier but are promoted less often, the rationality of rewarding the total length of employment in government service lies beyond the realm of judicial dispute.

Similarly Section 85(7) of the New York Civil Service Law cannot be attacked on substantive due process grounds; it is certainly rational to give veterans retention preference in the event positions are abolished. Russell v. Hodges, 470 F.2d 212, 218 (2d Cir. 1972) (desire to compensate for disruption of previous life and employment and expression of gratitude for service is rational basis for veteran's preference); August v. Bronstein,369 F.Supp. 190, 193 (S.D.N.Y.) (three-judge court), aff'd, 417 U.S. 901, 94 S.Ct. 2596, 41 L.Ed.2d 208 (1974). The preference does not become irrational merely because it exists simultaneously with a state constitutional provision ⁶ allowing certain veterans modest preferential treatment only once in appointments or promotions in civil service.

The claim of lack of procedural due process is also without substance. Relying on what were the lodestar cases of Goldberg v. Kelly,397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), and Fuentes v. Shevin,407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), appellants argue that they are entitled to some kind of hearing before their demotion. But see Mathews v. Eldridge, --- U.S. ----, 96 S.Ct. 893, 47 L.Ed.2d 18, 44 U.S.L.W. 4224 (1976); Friendly, "Some Kind of Hearing," 123 U.Pa.L.Rev. 1267 (1975). However, all the employment termination cases cited by appellants, i. e., Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974), Burns v. Elrod, 509 F.2d 1133 (7th Cir. 1975), cert. granted, 423 U.S. 821, 96 S.Ct. 33, 46 L.Ed.2d 37, 44 U.S.L.W. 3200 (1975), and Eley v. Morris, 390 F.Supp. 913 (N.D.Ga.1975), are concerned with discretionary removal. In such cases Section 75 of the New York Civil Service Law would require notice and hearing. Here we are concerned only with economic demotions which do not involve any exercise of discretion. Appellees are under a statutory mandate. Absent a claim that the seniority computation is based on erroneous factual premises, there is nothing which a hearing would elucidate. In such a situation, it would border on the absurd to hold that appellants may be denied procedural due process, especially in light of the uniform interpretation of Arnett, supra, that a post-termination evidentiary hearing is generally sufficient to protect interests in one's employment meriting due process protection. See Eley v. Morris, supra, 390 F.Supp. at 920, and cases cited therein. See also Mathews v. Eldridge, supra, --- U.S. at ----, 96 S.Ct. at 902, 47 L.Ed.2d at 32, 44 U.S.L.W. at 4229. Since none of the appellants has as yet been demoted and none therefore has been denied a post-demotion hearing, we need not reach any question pertaining to the requirement of such a hearing in the facts of a particular case.

Appellants' two-pronged equal protection claim is equally without merit. ⁷ Their first argument is that demotion on the basis of civil service seniority will produce a greater adverse impact upon employees of black and other minority groups than would demotion on the basis of seniority determined by tenure in position. This claim is insubstantial on its face because it does not allege why or how the current system would result in greater hardship to minorities than would the former system. Complaints relying on the civil rights statutes are plainly insufficient unless they contain some specific allegations of fact indicating a deprivation of civil rights, rather than state simple conclusions. Powell v. Jervis, 460 F.2d 551, 553 (2d Cir. 1972); Kauffman v. Moss, 420 F.2d 1270, 1275 (3d Cir.), cert. denied, 400 U.S. 846, 91 S.Ct. 93, 27 L.Ed.2d 84 (1970); Powell v. Workmen's Compensation Board of the State of New York, 327 F.2d 131, 137 (2d Cir. 1964). Since no such facts are alleged here, ⁸ this claim was properly dismissed.

Appellants also claim that they are discriminated against because patrolmen are demoted on the basis of merit and fitness only while they, as sergeants, lieutenants and captains, are demoted not just on the basis of merit and fitness but also on the basis of length of service in a prior position. This claim is totally without merit. Appellants have failed to recognize that Transit Authority patrolmen and officers are all demoted according to seniority in the classified service. The fact, if it is a fact, that patrolmen have generally entered the classified service as patrolmen and therefore have seniority only on the basis of merit and fitness, while their superiors have generally held other positions within the classified service, presumably lower police force positions, is beside the point.

Appellants' final claim is based on the fact that under Article V, Section 7, of the Constitution of the State of New York, "membership in any pension or retirement system of the state or of a civil division thereof shall be a contractual relationship . . . ." Accordingly they argue that by virtue of Article I, Section 10, of the United States Constitution, appellees unconstitutionally threaten to impair their pension rights since any demotion accompanied by a decrease in salary will result in a comparable decrease in their pensions. But the contract clause does not prohibit states from modifying contracts within reason. As the Supreme Court stated in Home Building & Loan Association v. Blaisdell, 290 U.S. 398, 435, 54 S.Ct. 231, 239, 78 L.Ed. 413, 427 (1934):

Not only are existing laws read into contracts in order to fix obligations as between the parties, but the reservation of essential...