Thomas v. Held

• Citation: 941 F.Supp. 444
• Decision Date: 23 October 1996
• Docket Number: No. 96 Civ. 5968 (LAK).,96 Civ. 5968 (LAK).
• Parties: Stanley B. THOMAS, Plaintiff, v. Laura HELD, as Administrator of the Assigned Counsel Plan for the Appellate Division of the State of New York, First Department, The Departmental Screening Committee Of the Criminal Courts Panel Of the Assigned Counsel Plan, and Marvin Raskin, as Chair of the Departmental Screening Committee of the Criminal Courts Panel of the Assigned Counsel Plan, Defendants.
• Court: U.S. District Court — Southern District of New York

941 F.Supp. 444

Stanley B. THOMAS, Plaintiff, v. Laura HELD, as Administrator of the Assigned Counsel Plan for the Appellate Division of the State of New York, First Department, The Departmental Screening Committee Of the Criminal Courts Panel Of the Assigned Counsel Plan, and Marvin Raskin, as Chair of the Departmental Screening Committee of the Criminal Courts Panel of the Assigned Counsel Plan, Defendants.

No. 96 Civ. 5968 (LAK).

United States District Court, S.D. New York.

October 23, 1996.

COPYRIGHT MATERIAL OMITTED

Frederick Seligman, Delice Seligman, Kingston, NY, for Plaintiff.

Rebecca Ann Durden, Assistant Attorney General, New York City, Dennis C. Vacco, Attorney General of New York, Albany, NY, for Defendants.

MEMORANDUM OPINION

KAPLAN, District Judge.

This action alleges that plaintiff wrongfully was denied recertification to the Assigned Counsel Plan's Criminal Courts Panel, commonly referred to as the 18B Panel. Plaintiff contends that the Screening Committee refused to recertify him to the 18B Panel solely due to his age and seeks redress under 42 U.S.C. § 1983, alleging violations of the Fourteenth Amendment of the United States Constitution, the Age Discrimination in Employment Act ("ADEA") 29 U.S.C. § 621 et seq., and the New York Human Rights Law, N.Y.EXEC.L. § 296(1)(a) (McKinney 1994). Plaintiff moves for a preliminary injunction requiring his reinstatement pendente lite. Defendants move to dismiss the complaint under FED.R.CIV.P. 12(b)(6).

Facts

Plaintiff is a seventy-eight year old attorney who has been a member of the 18B Panel for the past twenty-five years. Membership on the 18B Panel allowed plaintiff to represent indigent defendants in criminal proceedings in the state courts and to be compensated by the state for his work.

On or about March 29, 1994, plaintiff completed and returned an application for recertification to the panel. Plaintiff never had been asked to apply for recertification before. On or about October 4, 1995, he was informed that his application had been denied. No rationale for the denial was advanced in the letter informing plaintiff of the Screening Committee's decision, and the Committee refused to disclose its reasoning, or plaintiff's file, upon later request of plaintiff's counsel. Plaintiff states that his "knowledge of the law, legal judgement, ability to prepare cases, vigor of advocacy, punctuality, candor with the court, or courtesy, had rarely if ever, been questioned." (Cpt. ¶ 21) He has submitted letters from a number of state court judges attesting to his character and competence.

Plaintiff alleges that defendants "embarked upon a course of conduct, with discriminatory intent, to `recertify' its panel plan members by directing only those members of the panel who had the most seniority to apply for recertification," thereby weeding out all older panel members. (Cpt. ¶ 5A) In November 1995, he filed age discrimination complaints with the New York State Division of Human Rights and the federal Equal Employment Opportunity Commission ("EEOC"), both of which were dismissed for lack of jurisdiction. Plaintiff then commenced this action after obtaining a "right to sue" letter from the EEOC.

Discussion

As defendants' motion to dismiss is potentially dispositive, the Court considers it at the outset.

Eleventh Amendment

Defendants argue that plaintiff fails to state a valid claim because "[t]he Eleventh Amendment to the United States Constitution bars suit against the State of New York in federal court, regardless of the relief sought." (Def. Mem. at 3) While the Eleventh Amendment bars suits against a state in federal court, it is well established that a federal court, in certain circumstances, may entertain an action by an individual for prospective injunctive relief against state officials. See Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). "[A] suit challenging the constitutionality of a state official's action is not one against the state." Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 102, 104 S.Ct. 900, 909, 79 L.Ed.2d 67 (1984).

Plaintiff's claim is excepted from the Eleventh Amendment under Pennhurst. An injunction ordering the heads of a government agency to reinstate a privilege enjoyed by a plaintiff is the sort of prospective injunctive relief that is not prohibited by the Eleventh Amendment. Dwyer v. Regan, 777 F.2d 825, 836 (2d Cir.1985), modified, 793 F.2d 457 (2d Cir.1986). The court in Dwyer held that "reinstatement is purely prospective injunctive relief that orders the state official to return the former employee to the state's payroll." Dwyer, 777 F.2d at 836; accord, Russell v. Dunston, 896 F.2d 664, 668 (2d Cir.1990), cert. denied, 498 U.S. 813, 111 S.Ct. 50, 112 L.Ed.2d 26 (1990) (quoting Dwyer and citing Edelman).¹ Thus, insofar as plaintiff's claim seeks to order defendants to reinstate him, it is not barred by the Eleventh Amendment.²

Procedural Due Process

Plaintiff claims that the defendants deprived him of his liberty and property without due process of law, in contravention of the Fourteenth Amendment. In order to prevail on his due process claim, plaintiff must show that he had a constitutionally protected liberty or property interest and that his protected interest was violated by the defendants' actions. Though plaintiff undoubtedly has a great personal interest in continued certification to the 18B Panel, it is not the magnitude but the type of interest that controls the determination of a due process claim. There is a well developed body of case law on what constitutes a protected interest, and evaluation of plaintiff's claimed interest under these standards shows that his allegations are inadequate.

Property Interest

The complaint argues that "[p]laintiff's appointment for an indefinite term subject to recertification ... is a `property interest.'" (Cpt ¶ 34) Property interests:

"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." Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972).

An individual's expectation of employment is insufficient to support a due process claim; state law must create an entitlement to employment. New York law therefore determines if plaintiff had only "an unprotected unilateral expectation of employment, or instead a constitutionally-protected `legitimate claim of entitlement.'" Donato v. Plainview-Old Bethpage Central School District, 96 F.3d 623, 629 (2d Cir.1996) (quoting Roth, 408 U.S. at 577, 92 S.Ct. at 2709, and citing Martz v. Incorporated Village of Valley Stream, 22 F.3d 26, 29-30 (2d Cir.1994)).

Plaintiff's claim of a property interest in his appointment to the 18B Panel is based on Section 612.2 of the New York Code of Rules and Regulations ("NYCRR"), which provides that "an appointment of an attorney to any of the indigent defendants' legal panels shall be for an indefinite term subject to recertification."³ (Cpt ¶ 33) The term "indefinite" does not establish an entitlement to the appointment it describes. In fact, the rule specifically makes the appointment "subject to recertification." It contains no terms mandating that a refusal to certify a panel attorney be for good cause. Instead, it puts a panel member on notice that his or her appointment could end at any time. While plaintiff presumably had an expectation to continuation as a panel member, Section 612.2 did not give him a protected right to that appointment.⁴

Roth is the leading case on whether an expectation of continuing employment rises to the level of a constitutionally protected property interest. The plaintiff there was an assistant professor working under a one-year contract. He alleged that most teachers hired by the defendants on a year-to-year basis were rehired. The Court nevertheless held that the plaintiff's one-year contract did not create a property interest that was protected by the Fourteenth Amendment.⁵ State law is explicit in this case: It grants panel members appointments only for an indefinite time subject to recertification. This Court therefore concludes that:

"the terms of the [plaintiff's] appointment secured absolutely no interest in re-employment for the next year. They supported absolutely no possible claim of entitlement to re-employment." Roth, 408 U.S. at 578, 92 S.Ct. at 2710.

The decision in Donato confirms the inadequacies of plaintiff's claim. In Donato, a probationary educational administrator alleged violations of her right to due process arising from a firing in which certain derogatory statements about her performance allegedly were made by state officials. The Second Circuit upheld dismissal of her claim, reasoning that, as a probationary employee, she had no right to continuing employment. The Court stated that "the law expressly permitted her termination at any time during the probationary period," much as plaintiff's appointment was made "subject to recertification." Donato, at 629-30. What Roth and Donato make clear is that no protected property interest is created absent a distinct grant of security under state law. Plaintiff has made no showing that he has any such right under New York law.

This view is supported also by Schwartz v. Mayor's Committee on the Judiciary, 816 F.2d 54, 57 (2d Cir.1987). In rejecting a claim that the defendant had violated the plaintiff's due process rights in declining to recommend the reappointment of a sitting judge, the Schwartz court held that the judge had no property right in reappointment:

"the fact that many, or even most, incumbent judges have been reappointed cannot operate to raise appellant's `subjective expectation' to a constitutionally protected right, especially when...