Claudio Tundo v. County of Passaic , 923 F.3d 283 ( 2019 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 18-1460
_______________
CLAUDIO TUNDO; JAMES RACANELLI; RUBEN
GILGORRI
v.
COUNTY OF PASSAIC; PASSAIC COUNTY
SHERIFF JERRY SPEZIALE;
WARDEN CHARLES MYERS
Claudio Tundo; Ruben Gilgorri,
Appellants
_______________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 2:09-cv-05062)
District Judge: Honorable Esther Salas
_______________
Submitted under Third Circuit LAR 34.1(a)
on January 23, 2019
Before: CHAGARES and BIBAS, Circuit Judges, and
SÁNCHEZ, * Chief District Judge
(Filed: May 2, 2019)
_______________
Mark B. Frost, Esq.
Ryan M. Lockman, Esq.
Mark B. Frost & Associates
1515 Market Street
Suite 1300
Philadelphia, PA 19102
Counsel for Appellants
Albert C. Buglione, Esq.
Buglione Hutton & DeYoe
401 Hamburg Turnpike
Suite 206
Wayne, NJ 07474
Counsel for Appellees County of Passaic and Warden
Charles Myers
*
The Honorable Juan R. Sánchez, Chief District Judge of the
United States District Court for the Eastern District of Penn-
sylvania, sitting by designation.
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Donald S. DeDio, Esq.
Dwyer Connell & Lisbona
100 Passaic Avenue
Third Floor
Fairfield, NJ 07004
Counsel for Appellee Passaic County Sheriff Jerry
Speziale
_______________
OPINION OF THE COURT
_______________
BIBAS, Circuit Judge.
A chance at a job is not a right to it. When the government
has broad discretion to take a benefit away from its employees,
that benefit is not a constitutionally protected property interest.
New Jersey’s Civil Service Commission offered Claudio
Tundo and Ruben Gilgorri such a benefit. After they were laid
off from their jobs as corrections officers, the Commission put
them on its rehire lists so they could be considered for rehiring.
But it had broad discretion to take them off those lists, and it
later did.
Tundo and Gilgorri reasonably expected that they would
stay on these lists forever. But the Commission has many ways
to take anyone off its lists. And it neither promised that they
would stay on the lists nor constrained its discretion to remove
them. Because there was no mutually explicit understanding
that they would stay on the lists, Tundo and Gilgorri had no
protected property interest in doing so. We will affirm.
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I. BACKGROUND
A. New Jersey’s civil-service regulations
The New Jersey Administrative Code sets the rules and pro-
cedures for rehiring former employees. N.J. Admin. Code
§ 4A:4-4.8 (2019). And the Code empowers the Commission
to handle various civil-service employment matters. It lets the
Commission set up different categories of rehire lists of former
employees. Id. §§ 4A:4-3.4(a)(4), 4A:4-5.5(b). Employees on
the “special” rehire list get considered for employment ahead
of those on other rehire lists. Id. §§ 4A:4-3.7(a)(1), 4A:8-
2.3(b)(1). And they “shall be placed” on that list “for an unlim-
ited duration.” Id. § 4A:8-2.3(c).
But the Commission can remove employees from all types
of lists—special or not—for many reasons. These include the
obvious reasons, like having a criminal record, refusing to
accept reappointment, or not following the instructions for
staying on the lists. Id. § 4A:4-4.7(a)(3)-(4), (6). The Commis-
sion can also take employees off the lists for “[l]ack[ing] the
job requirements,” being “physically or psychologically unfit”
for the job, having bad employment history, or any “[o]ther
sufficient reasons.” Id. § 4A:4-6.1(a)(1), (3), (7), (9) (emphasis
added); accord id. § 4A:4-4.7(a)(1). Finally, it can remove em-
ployees for “[o]ther valid reasons as determined by the [Com-
mission].” Id. § 4A:4-4.7(a)(1), (11) (emphasis added).
B. Facts
The Passaic County Sheriff’s Office hired Tundo and Gil-
gorri as corrections officers on a trial basis. But they were poor
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employees: they were often absent from work and were repri-
manded many times for insubordination and incompetence. So
they were fired as part of a mass layoff even before they had
completed their twelve-month trial period.
But that was not the end of their road. Less than six months
later, Passaic County needed more employees. So it asked the
Commission to create lists of former officers whom it might
rehire. And the Commission included both Tundo and Gilgorri
on the lists.
The parties dispute what type of list they were on: Tundo
and Gilgorri claim that the Commission put them on “special”
rehire lists. But Passaic County argues that the Commission la-
beled those lists as “revived” lists—not special lists. App. 925-
26. New Jersey law supports Passaic County’s reading: it al-
lows only former “permanent employee[s]” to be on a special
list. N.J. Admin. Code § 4A:8-2.3(a). The two were never per-
manent employees.
Either way, Passaic County and the Commission soon
found themselves at odds. After the Commission issued its re-
hire lists, Passaic County tried to remove Tundo and Gilgorri
from the lists based on their work and disciplinary history. But
the Commission blocked this attempt and restored Tundo and
Gilgorri to the eligible list. And it ordered Passaic County to
place them in “a new 12-month working test period.” App. 952.
Passaic County then offered to rehire the two and asked
them to complete a re-employment application. This applica-
tion asked them to agree not to sue Passaic County. But they
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did not like this, so they refused to complete the application.
The Commission then removed them from the list.
They responded with this lawsuit. The District Court even-
tually disposed of all their claims, including a Section 1983
procedural-due-process claim. Tundo v. Passaic Cty., No. 09-
5062, 2018 WL 734663, at *10 (D.N.J. Feb. 6, 2018). They
appeal the grant of summary judgment against them only on
that claim, contesting the court’s holding that they did not have
a protected property interest in staying on the rehire list. So on
appeal, just one issue remains: do former civil-service employ-
ees in New Jersey have a property interest protected by the
Fourteenth Amendment in staying on rehire lists?
C. Standard of review
We review a district court’s grant of summary judgment de
novo. Giles v. Kearney, 571 F.3d 318, 322 (3d Cir. 2009). A
district court properly grants summary judgment if the moving
party shows that “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). We “view the facts in the light most fa-
vorable to the non-moving party and [draw] all reasonable in-
ferences in that party’s favor.” Scheidemantle v. Slippery Rock
Univ. State Sys. of Higher Educ., 470 F.3d 535, 538 (3d Cir.
2006).
II. TUNDO AND GILGORRI HAVE NO PROTECTED PROP-
ERTY INTEREST IN STAYING ON THE REHIRE LISTS
On appeal, Tundo and Gilgorri argue that they had a pro-
tected property interest in staying on the rehire lists. But former
employees have no constitutionally protected property interest
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in a benefit if the government has broad discretion to deny that
benefit, unless it constrains that discretion. This is true even if
the former employees had a reasonable expectation that the
benefit would not disappear. Here, the Commission had signif-
icant discretion to take former employees off its rehire lists,
and it never suggested that it would constrain itself. So it did
not create a protected property interest.
A. A protected property interest requires a mutually
explicit understanding, not just a reasonable expectation
The Fourteenth Amendment forbids deprivations of an in-
dividual’s “property, without due process of law.” U.S. Const.
amend. XIV, § 1; see Hill v. Borough of Kutztown, 455 F.3d
225, 233-34 (3d Cir. 2006) (property interest in public employ-
ment). A protected property interest can spring from state stat-
utes, regulations, policies, or other sources that establish “a
mutually explicit understanding between a government em-
ployer and an employee” that the employee is entitled to the
property. Carter v. City of Philadelphia, 989 F.2d 117, 120 (3d
Cir. 1993). It can also arise from the “circumstances of . . . ser-
vice.” Perry v. Sindermann, 408 U.S. 593, 602 (1972).
An employee claiming a protected property interest in a
particular benefit must have “a legitimate claim of entitlement
to” that benefit. Bd. of Regents of State Colls. v. Roth, 408 U.S.
564, 577 (1972). That requires more than just an “abstract need
or desire for” or a “unilateral expectation of” the benefit. Id.Even an employee’s reasonable expectation of the benefit is
not enough. Leis v. Flynt, 439 U.S. 438, 443 (1979) (per cu-
riam). Any understanding must be mutual: the government and
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the employee must both clearly expect that the employee has
some entitlement to the benefit. Id.And an employee has no protected interest in a benefit if
the government has ample discretion to deny that benefit. See
Anderson v. City of Philadelphia, 845 F.2d 1216, 1221 (3d Cir.
1988). This discretion need not be absolute. It just has to be
enough that there is no mutually explicit understanding that the
benefit will continue.
We recognize a protected interest in a benefit, for example,
if the government can withhold it only “for cause.” See Rich-
ardson v. Felix, 856 F.2d 505, 511 (3d Cir. 1988) (continued
employment); accord Sonnleitner v. York, 304 F.3d 704, 711
(7th Cir. 2002) (demotion). The same is true if the government
promises a benefit without leaving any room to wiggle out of
its promise. See Stana v. Sch. Dist. of Pittsburgh, 775 F.2d 122,
126-27 (3d Cir. 1985).
But we recognize no such interest if the government has
broad discretion to terminate a benefit. So an employee has no
protected interest if the government can fire an employee at
will. Elmore v. Cleary, 399 F.3d 279, 282 (3d Cir. 2005). The
same is true if the government has “broad discretion” not to
hire candidates “ ‘based on job-related criteria’ ” and “ ‘stand-
ards established by the [government].’ ” Anderson, 845 F.2d at1221 & n.4 (quoting 4 Pa. Code § 97.16). And when the scope
of the government’s discretion is at best ambiguous, that is “too
slender a reed to support the weight of a constitutional right.”
McKinney v. Univ. of Pittsburgh, 915 F.3d 956, 963 (3d Cir.
2019).
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B. There is no property interest here because the Com-
mission had broad discretion to take employees off its re-
hire lists
Here, the Commission has similarly broad discretion to re-
move former employees from its rehire lists. For example, it
can take former employees off its rehire lists for lacking job
requirements or for any “[o]ther sufficient reasons.” N.J. Ad-
min. Code § 4A:4-6.1(a)(1), (9); see id. § 4A:4-4.7(a)(1). And
it can remove them for “[o]ther valid reasons as determined by
the [Commission].” Id. § 4A:4-4.7(a)(11).
True, these catchall provisions demand that the reasons be
“sufficient” or “valid,” and those qualifiers may suggest that
the Commission’s discretion is not absolute. But in effect, the
government can take former employees off rehire lists if it does
not want to hire them. And the Code lets the Commission set
the standards for removing them. We found that a similar reg-
ulation in Anderson gave Pennsylvania agencies broad enough
discretion. 845 F.2d at 1221 & n.4 (citing 4 Pa. Code § 97.16).
At the very least, the scope of this discretion is too ambig-
uous to create a constitutionally protected interest. Tundo and
Gilgorri bore the burden of resolving any ambiguity and con-
vincing us that they and the Commission both understood that
they would stay on the lists. McKinney, 915 F.3d at 962. They
failed to meet this burden.
And the Commission and New Jersey courts agree with us.
Acknowledging its broad discretion to remove individuals
from its lists, the Commission emphasized that being on the
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rehire list “simply provides [applicants] with another oppor-
tunity for employment.” App. 948. The New Jersey Supreme
Court similarly found that “[n]o right accrues to a candidate
whose name is placed on” a rehire list. In re Foglio, 22 A.3d
958, 961 (N.J. 2011). Being on a list gives the benefit of con-
sideration for employment over others not on the list only “so
long as that list remains in force.” Id. at 962 (quoting In re
Crowley, 473 A.2d 90, 97 (N.J. Super. Ct. App. Div. 1984))
(emphasis added). But that is far from a vested property inter-
est.
No other source creates a protected interest here. Tundo and
Gilgorri point to no policy or practice that entitles them to re-
main on the rehire lists. See Perry, 408 U.S. at 601-02. And
neither Passaic County nor the Commission communicated to
them that they would not be removed from these lists. So they
have shown no protected property interest in remaining on
these lists.
C. Stana is not to the contrary
Tundo and Gilgorri rely heavily on Stana to support their
claimed property interest. But they misapply that case here. In
Stana, a teacher brought a Section 1983 claim for being re-
moved from a hire list without notice or due process. 775 F.2d
at 124-25. We recognized the teacher’s property interest in re-
maining on the list because her school district had an explicit
policy of keeping teachers on the lists for two to four years. Id.
at 126. And a school official had told her that she would stay
on the list for four years. Id.10
Tundo and Gilgorri argue that this case is like Stana. They
claim that, because they were on the special rehire lists, New
Jersey promised to consider rehiring them “for an unlimited
duration.” N.J. Admin. Code § 4A:8-2.3(c). And they claim
that this promise, like the school district’s in Stana, created a
protected interest in staying on the rehire lists.
But they miss the mark. Even if we assume that they were
on the special rehire lists, the Commission could have removed
them for the same reasons that it could have removed them
from other lists. As mentioned, the Commission has broad dis-
cretion to remove anyone from its lists. The school district in
Stana did not. The only way the school district could have re-
moved Stana from its hire list was if she failed to provide in-
formation about her present status. Stana, 775 F.2d at 124. And
unlike in Stana, the Commission made no representation to
Tundo and Gilgorri that limited its discretion.
Even if Tundo’s and Gilgorri’s expectation of a property
interest in the rehire lists were reasonable, it would have been
unilateral. The Commission promised them no permanent
placement on the rehire lists. And it retained broad discretion
to remove them. A promise that can be revoked at any time for
almost any reason is no promise at all. So they had no protected
property interest in remaining on the rehire lists.
D. Absent a property interest, the other due-process
considerations are irrelevant
Tundo and Gilgorri spill much ink complaining that they
received no notice of removal or opportunity to be heard. But
whether they received due process matters only if they had a
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constitutionally protected interest. See Mathews v. Eldridge,
424 U.S. 319, 332 (1976). We hold here that they did not.
And they explain at great length that their conduct did not
meet any of the criteria for removal. But these considerations
are also irrelevant. A plaintiff first has to show a protected in-
terest before he can dispute the government’s power to deny it.
A protected interest could attach to a benefit no matter how
improperly an employee behaved. But good behavior does not
itself create a protected interest. Here, their conduct was rele-
vant only to whether they met any of the valid criteria for re-
moval under New Jersey’s Code. That question is not before
us.
* * * * *
There can be no mutually explicit understanding to create a
protected property interest in a benefit if the government has
broad discretion to deny that benefit. This is true even if an
employee unilaterally and reasonably expects to keep this ben-
efit indefinitely. There is no genuine dispute about whether
Tundo and Gilgorri had a cognizable property interest in stay-
ing on the rehire list. They did not, so we will affirm.
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