UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Appeal from the United States District Court for the District of Columbia (D.C. Civil 74-1371).
Tamm, Robinson and Robb, Circuit Judges. Opinion for the court filed by Circuit Judge Tamm. Opinion filed by Circuit Judge Robb, concurring in the remand.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE TAMM
Section 633 of the Foreign Service Act of 1946, as amended, provides for the "selection-out" of Foreign Service officers who fail to be promoted to the next higher grade within a period of years prescribed from time to time by the Secretary of State. This provision, central to the constitutional issue raised on this appeal, reads in relevant part as follows:
(a) The Secretary shall prescribe regulations concerning -
(1) the maximum period during which any Foreign Service officer below the class of career minister shall be permitted to remain in class without promotion . . . .
(b) Any Foreign Service officer below the class of career minister who does not receive a promotion to a higher class within the specified period . . . shall be retired from the Service and receive benefits in accordance with the provisions of section 1004 of this title.
22 U.S.C. § 1003 (1970). Our appellants herein, two Foreign Service officers who were retired pursuant to this statutory "up-or-out" requirement, argue that their involuntary retirements contravened the procedural due process guarantee of the Constitution's fifth amendment in that neither of them was afforded a hearing before an impartial tribunal to challenge certain adverse comments contained in confidential portions of their personnel files.
The factual background to this litigation is adequately portrayed in the district court's memorandum opinion, reported below sub nom. Colm v. Kissinger, 406 F. Supp. 1250 (D.D.C. 1975), and we need not repeat it here. For present purposes we need only note that the district court granted the Department of State's motion for summary judgment on the ground that, since neither appellant had a legitimate claim of entitlement to continued employment in the Foreign Service beyond the maximum time-in-class then applicable (having remained in the Department's employ to the end of that period), any constitutionally protected property interest in their government employment necessary to require due process protections had expired. See id. at 1255-56. We would agree with Judge Gasch's articulate analysis of the property interest claims in this case and accordingly affirm his decision if it were not for our discovery of certain germane provisions of title 22 of the United States Code that make such a course impossible at this point and require us to vacate the award of summary judgment and to remand the case for further proceedings. I
In this appeal we must decide whether appellants had a property interest such that their selection-out for non-promotion had to comport with some degree of procedural due process. *fn1
A person's job under certain circumstances is indeed conceived of as his property in our prevailing jurisprudence and therefore cannot be taken away by the government without due process of law. See U.S.CONST. amend. V; id. amend. XIV, § 1. The usual due process analysis, familiar at
Our consideration of the property interest claim in the instant case must begin with the landmark companion cases of Roth and Perry v. Sindermann, 408 U.S. 593, 33 L. Ed. 2d 570, 92 S. Ct. 2694 (1972), in which the Supreme Court reviewed the procedural due process claims of two state employees who had not been discharged during their contract periods, but rather had not had their employment contracts renewed for a subsequent term. In Roth, the Court held that a state university professor had no property interest in continued employment when he had been hired only for a fixed term of one academic year, had no formal tenure, and could point to nothing in state law or in his employment contract which might otherwise explicitly or implicitly entitle him to contract renewal. In so holding, the Court explained that a property interest sufficient to trigger due process protection may be created by statute, contract, or less formal "understandings", but that something more objectifiable than a sanguine expectation is necessary.
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. It is the purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined. It is a ...