his unsatisfactory performance or other cause for separation must be established.
Plaintiffs' Due Process Argument
Plaintiffs were never allowed to see certain confidential portions of their efficiency reports. Therefore they were not even aware of the adverse comments in their files which they allege severely impaired their promotion possibilities. Even had they been aware of these materials, there was little they could do to rebut them under the existing State Department regulations.
Their only response would have been to submit a simple rebuttal which would have been placed in their personnel files. It is asserted by plaintiffs that such action would have worked to the prejudice of their careers even more, because their superiors would have deemed them not to be "team players" and to be "rocking the boat." There was no opportunity to mount any challenge to these comments before an impartial tribunal.
The selection-out of plaintiffs under such circumstances, it is alleged, violates plaintiffs' rights to procedural due process. Plaintiffs assert that it is now settled law that before an individual may be dismissed from public employment, he is entitled to a hearing process at least informing him of the grounds for dismissal and giving him an opportunity to challenge those grounds.
Plaintiffs state that they had a reasonable expectation that they would be able to continue in the Foreign Service until they reached the mandatory retirement age.
They acknowledge that a Foreign Service officer's appointment is subject to earlier termination for cause, for substandard performance, or for failure to be promoted. In the case of selection-out for cause, the Foreign Service Act itself requires a hearing.
In the case of selection-out for substandard performance, the Lindsay case requires that a hearing be given. Thus plaintiffs argue selection-out for failure to be promoted, which cuts short the same expectation of continued employment as the other two selection-out procedures, must also be accompanied by a due process hearing.
The defendant does not dispute, and indeed even acknowledges, that plaintiffs have been denied a "due process" hearing. The issue, then, is whether plaintiffs were deprived of a "property interest" in their continued employment. The Court concludes that they had no such property interest in the constitutional sense and they were therefore not entitled to a due process hearing before their employment was terminated.
Several cases decided by the Court of Claims in the 1960's indicated that government employees [both Foreign Service and military officers] in a system of selection-out for reasons other than cause were not entitled to the due process protections of a hearing. Thus in Chwat v. United States,18 the Court of Claims distinguished between the provisions of § 637(a) of the Foreign Service Act
providing for separation for cause and requiring a hearing, and § 633(a),
providing for selection-out for substandard performance and making no mention of a hearing. Where Congress had expressly provided for a hearing in one situation, the court would not implicitly provide for it in the other.
These cases, of course, were decided before the recent expansion of the role of procedural due process in public employment cases. At one time due process was required only when the state deprived a person of a right. Government employment, characterized as a privilege, was not entitled to due process protection.
The Supreme Court has since rejected the "right-privilege" distinction.
The Court has not, however, gone so far as to require due process protection whenever the State acts to the detriment of an individual. In Board of Regents v. Roth,24 the Court held that it would not require procedural due process unless the interest at stake could be characterized as liberty or property. If such an interest is found, then the Court must additionally balance the competing interests at stake to determine the specific procedural safeguards required.
In determining whether the benefit involved is a property interest in the constitutional sense, it must be found that the individual had a "legitimate claim of entitlement":
To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. . . .