Claudio Tundo v. County of Passaic

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.

2

Donald S. DeDio, Esq.

Dwyer Connell & Lisbona

100 Passaic Avenue

Third Floor

Fairfield, NJ 07004

Counsel for Appellee Passaic County Sheriff Jerry

Speziale

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OPINION OF THE COURT

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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

4

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 at

1221 & 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.

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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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