Velger v. Cawley

• Decision Date: 31 October 1973
• Docket Number: No. 73 Civ. 2350.,73 Civ. 2350.
• Parties: Elliott H. VELGER, Plaintiff, v. Donald F. CAWLEY, Police Commissioner, City of New York, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

366 F. Supp. 874

Elliott H. VELGER, Plaintiff, v. Donald F. CAWLEY, Police Commissioner, City of New York, et al., Defendants.

No. 73 Civ. 2350.

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

October 31, 1973.

Samuel Resnicoff, New York City, for plaintiff.

Norman Redlich, Corp. Counsel, New York City, for defendants.

GURFEIN, District Judge:

This is an action against the Police Commissioner of the City of New York and other city officials by Elliott H. Velger who alleges that he was a Patrolman Trainee employed by the Police Department and that he was discharged without a hearing and without stated reasons other than his "capacity having been unsatisfactory to the Police Commissioner."¹

He claims federal question jurisdiction, 28 U.S.C. § 1331, violation of constitutional rights under the 14th Amendment, and deprivation of constitutional rights under 28 U.S.C. § 1343(3) and (4). He seeks declaratory relief under 28 U.S.C. §§ 2201 and 2202, and Fed.R. Civ.P. 57, and injunctive relief under 42 U.S.C. § 1983.

The defendants have moved to dismiss the complaint under Fed.R.Civ.P. 12(b) (1) and 12(b)(6) for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted.

The plaintiff moves under 28 U.S.C. §§ 2281 and 2284 for an order to convene a three-judge court to declare Section 63 of the New York State Civil Service Law, McKinney's Consol.Laws, c. 7, unconstitutional.

The complaint alleges that the plaintiff successfully competed in an open competitive written examination for "Patrolman, Police Trainee," and was duly appointed from an eligible list established by the New York City Civil Service Commission as a result of such examination on January 31, 1970. On that day, the plaintiff purchased $500 worth of necessary equipment, gear and uniform and enrolled in the John Jay College of Criminal Justice and Long Island University. On February 16, 1973, after three years of employment, the plaintiff received a notice of termination from the Police Department. At the time of his dismissal, he was earning $11,200 per annum. As a result of his dismissal he was forced to quit the colleges where he was studying for a Police Science Degree, and both Universities are now claiming reimbursement.

He alleges that: 1) the refusal to afford him a hearing is a denial of due process; 2) the refusal to state the reason for his dismissal makes it impossible for the plaintiff to determine whether his civil rights have been violated; 3) his property right to his position has been summarily taken away, as a result of which dismissal "plaintiff's name has been placed on a list which disqualifies him from competing in Civil Service Examinations for employment in the City and State of New York for at least one year."

The plaintiff seeks the following relief:

1) Mandamus directing the defendants to reinstate plaintiff to his quondam position;

2) A declaratory judgment that he has been denied procedural due process;

3) A temporary restraining order restraining the defendants from continuing to refuse to employ him;

4) A preliminary and permanent injunction to the same effect;

5) A final judgment annuling his dismissal;

6) Money damages; and

7) Alternative relief that may be proper.

It may be noted that the complaint does not attack the constitutionality of Section 63 of the New York Civil Service Law. Plaintiff seeks to do this only by the motion which asks for the convening of a three-judge court. That is not sufficient. A three-judge court may be convened only when the complaint justifies it. "The existence of a substantial question of constitutionality must be determined by the allegations of the bill of complaint." Ex parte Poresky, 290 U.S. 30, 32, 54 S.Ct. 3, 4, 78 L.Ed. 152 (1933). See Bartlett & Co. Grain v. State Corporation Commission, 223 F.Supp. 975, 980-987 (D.Kansas, 1963); Silver v. Queen's Hospital, 53 F.R.D. 223 (D.Hawaii 1971). In any event, the attack on Section 63 of the New York Civil Service Law as unconstitutional based on "the claim that the appointment of provisional and probationary employees not entitled to the protection of tenure is irrational is too frivolous to warrant discussion." Russell v. Hodges, 470 F.2d 212, 218 n. 6 (2 Cir. 1972). Since the Court of Appeals for this Circuit has already held the contention of the plaintiff "frivolous," there is no need to convene a three-judge court to consider it. Ex parte Poresky, supra; Swift & Co. v. Wickham, 382 U.S. 111, 115, 86 S.Ct. 258, 15 L.Ed.2d 194 (1965).²

Turning to the motion to dismiss, there is jurisdiction, based in part upon an alleged violation of the plaintiff's civil rights, 42 U.S.C. §§ 1981 and 1983, and the plaintiff need show no exhaustion of State administrative remedy. See Preiser, Correction Commissioner, et al. v. Rodriguez et al., 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). But cf. Burger, C. J., dissenting in Perry v. Sindermann, 408 U.S. 593, 603, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). He must, however, show standing based upon State law and a violation of due process under the Federal Constitution.

The Supreme Court has recently considered the elements of tenure which make it necessary to afford procedural due process to an employee, such as notice and the right to a hearing. Board of Regents v. Roth, 408 U.S. 564, 92 S. Ct. 2701, 33 L.Ed.2d 548 (1972); Perry v. Sindermann, supra.

In Roth, the Court held "that the Constitution does not require opportunity for a hearing before the nonrenewal of a nontenured teacher's contract, unless he can show that the decision not to rehire him somehow deprived him of an interest in `liberty' or that he had a `property' interest in continued employment, despite the lack of tenure or a formal contract." See Perry v. Sindermann, 408 U.S. at 599, 92 S.Ct. at 2698.

In the case at bar the plaintiff had no contractual tenure. He was appointed as a police trainee on January 13, 1970. He was appointed to the position of "Patrolman on Probation in the Police Department of the City of New York" on August 18, 1972. At the termination of six months probationary service, he was discharged without a specification of charges or a hearing.

The Supreme Court has explained that a mere "unilateral expectation" of continued employment was not "property," and would not trigger due process guarantees. Perry v. Sindermann, supra, 408 U.S. at 603, 92 S.Ct. 2694; see Russell v. Hodges, supra, 470 F.2d at 216. His claim of tenure must be based upon State law. Board of Regents v. Roth, 408 U.S. at 578, 92 S.Ct. 2701.

The New York courts have held that the Police Commissioner has power to determine whether or not a probationary patrolman is to receive permanent appointment, that the sole requirement in making the decision is that the Commissioner act in good faith, and that a hearing is not required. Matter of Going v. Kennedy, 5 A.D.2d 173, 178; 170 N.Y.S.2d 234 (1958). Since, as a matter of State law, the probationary patrolman has no legitimate expectation of tenure, he has no such "property" right as the Supreme Court defined in Roth.

The plaintiff seeks to counter the conclusion that he was merely a "patrolman on probation" by pointing out that the public notice of examination for "Patrolman, Police Trainee (Police Department)" recites that "A Police Trainee will receive a regular appointment as a Patrolman on reaching his 21st birthday, or as shortly thereafter as practicable, without taking any further written or physical tests, provided he has a...