mandate the assumption that those who communicated the employment commitments to the class members did so with authority." The conclusion to be drawn from this assumption is merely that those who communicated the employment offers had authority to select or nominate, not authority to appoint. Furthermore, a federal appointment to a federal job in an executive department or agency is not similar to a contract and the appointment only occurs when the last discretionary act is completed, at which time the government is then bound under traditional principles of law. Even if contract principles applied to the area of federal government employment, the letter offers here involved would be insufficient to create a contract, because it would require acceptance for them to be binding. Accordingly, whether the signatorees to the letters to the named plaintiffs or the members of their class had authority to make appointments or merely make offers of employment makes no difference, as it is well established and has been since the beginnings of this republic that the last discretionary act necessary for an appointment must be done before federal employment can be said to begin, and this includes the completion of a Form 50 or Form 52 and entry on duty by the appointee.
IV. THE PLAINTIFFS HAVE NOT BEEN DEPRIVED OF PROPERTY WITHOUT COMPENSATION OR DUE PROCESS OF LAW UNDER THE FIFTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES.
Contrary to the contention of the plaintiffs, the Fifth Amendment cannot serve as an independent basis for a liability in this case. The reason is that there is no constitutionally protected right to government employment. Coleman v. Darden, 595 F.2d 533, 538 (10th Cir.), cert. denied, 444 U.S. 927, 100 S. Ct. 267, 62 L. Ed. 2d 184 (1979). This is particularly true here because there can never be, to use the words of the plaintiffs, an entitlement to a federal job without an "appointment." As the Supreme Court has said in Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 7, 99 S. Ct. 2100, 2103, 60 L. Ed. 2d 668 (1979), to obtain a "constitutionally" protectable right, " "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.' " To repeat, although the plaintiffs may have had a unilateral expectation of a job for which they applied, absent an "appointment", they possess no "legitimate claims of entitlement" to such jobs. As Judge Henry Friendly once said, "There is a human difference between losing what one has and not getting what one wants." Friendly, Some Kind of Hearing, 123 U. Pa. L. Rev. 1267, 1296 (1974). The plaintiffs in this action are in the latter category described by Judge Friendly, as the defendants assert.
To put the proposition another way, the Supreme Court has also recognized in Board of Regents v. Roth, 408 U.S. 564, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972), that "property interests ... are not created by the Constitution. Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law ...." 408 U.S. at 577, 92 S. Ct. at 2709. See also Bishop v. Wood, 426 U.S. 341, 345, 96 S. Ct. 2074, 2077, 48 L. Ed. 2d 684 (1976). In this case, it is federal, rather than state, law which is the "independent source" from which any relevant "rules or understandings" must stem. Because of the fact that federal law clearly provides that "orthodox federal employees ... serve by appointment to a particular position, a legitimate claim of entitlement to federal employment can only arise after "appointment" has occurred. Were this not so, as defendants assert, the necessity of adherence to the detailed federal statutory and regulatory process governing federal employment could only be determined on an ad hoc basis, and federal employment and personnel activities would be thrown into havoc. It is fundamental that plaintiffs' expectations of appointment to positions with the federal government cannot constitute legitimate claims of entitlement protectable as property under the Fifth Amendment. Even if this were not so and plaintiffs could somehow prove, absent appointment, that they had a legitimate claim of entitlement to federal employment, their Fifth Amendment claim would fail because they have already received the sole procedural due process protection which they seek, namely, to receive notice of termination containing the reason for the termination. 5 C.F.R. § 315.804. Here, they have been notified of the reason for their nonappointment to a federal job and their papers admitted such, and they have also been given the reason therefore, namely, the Presidential hiring freeze. In examining Board of Regents v. Roth, it is important to note what the Court actually held involving a university professor who was discharged. The Court noted that the 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. This Circuit quoted Board of Regents v. Roth in Colm v. Vance, 186 U.S. App. D.C. 132, 567 F.2d 1125, 1128 (D.C.Cir.1977) and said that something more objectifiable than a sanguine expectation is necessary. Further, the Court in Roth said:
"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 for it ... Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law rules or understandings that secure certain benefits and that support claims of entitlement to those benefits."
408 U.S. at 577, 92 S. Ct. at 2709. Here, there was nothing more on the part of the plaintiffs than a unilateral expectation that they would get a federal job; they had no more; they had not been appointed to a job; they had no property interest in a federal job; there are and were no rules or understandings that secured to them any benefits other than that which they already received, namely a notice of the hiring freeze and that they were not being allowed to come to work by the virtue thereof. That is all that a probationary employee would have gotten, so it follows that plaintiffs were entitled to no more under express decisions of the Supreme Court of the United States. Moreover, the claimed property interest here does not rise to the dignity of those protected by the Constitution under the Fifth Amendment or otherwise.
The foregoing is supported by the opinions of this Circuit, where it held that "a legitimate claim of entitlement must derive from some reasonably identifiable source apart from the mere expectancy or desire of the claimant." Colm v. Vance, 186 U.S. App. D.C. 132, 567 F.2d 1125, 1128. See Sims v. Fox, 505 F.2d 857, 861-62 (5th Cir. 1974) (en banc), cert. denied, 421 U.S. 1011, 95 S. Ct. 2415, 44 L. Ed. 2d 678 (1975). In Colm v. Vance, Judge Tamm points out that "there is no such thing as a federal constitutional common law of property interests" and said that the Court of Appeals for this Circuit is "scarcely inclined to fashion one." A footnote points out that "conventional entitlement theory has not fared well in the periodical literature." See 567 F.2d at 1131, n.8.
For the plaintiffs to claim that they had an absolute entitlement to a benefit or job to which they were deprived cannot stand scrutiny, either under the Constitution or any other theory known to this Court. The government has correctly stated that the President's decision that a freeze on employment by federal agencies is in the public interest and should not be upset, absent the most extraordinary circumstances. No extraordinary circumstances are present here, nor were any vested rights created in the letters to the selectees who are the plaintiffs in the cases at bar or the class whom they represent.
For all of the foregoing reasons, the plaintiffs' claim to a due process right or violation is invalid and cannot withstand the scrutiny under the facts in the case at bar.
V. THE FEDERAL AGENCIES AND DEPARTMENTS HERE INVOLVED CANNOT BE ESTOPPED FROM DENYING PLAINTIFFS' CLAIMS TO THE JOBS SUBJECT TO THIS LITIGATION.
The doctrine of equitable estoppel generally cannot be invoked against the federal government. This is true even though, as previously stated herein, hardship to private parties might result in individual cases. Lee v. Munroe and Thornton, 11 U.S. (7 Cranch) 366, 3 L. Ed. 373 (1813). This principle, founded on the view that a contrary rule would make it "very difficult for the public to protect itself" ( id. at 369-70), has been repeatedly and consistently observed. See Hart v. United States, 95 U.S. 316, 318-19, 24 L. Ed. 479 (1877); Pine River Logging Company v. United States, 186 U.S. 279, 291, 22 S. Ct. 920, 925, 46 L. Ed. 1164 (1902); Utah Power & Light Co. v. United States, 243 U.S. 389, 408-09, 61 L. Ed. 791, 37 S. Ct. 387 (1917).
The elements of estoppel have now been modified by the United States Court of Appeals for the Ninth Circuit in the light of the Supreme Court decision in Immigration & Naturalization Service v. Hibi, 414 U.S. 5, 94 S. Ct. 19, 38 L. Ed. 2d 7 (1973). Here, the Court acknowledged that the government might be estopped for "affirmative misconduct." See Santiago v. INS, 526 F.2d 488 (9th Cir. 1975), cert. denied 425 U.S. 971, 96 S. Ct. 2167, 48 L. Ed. 2d 794 (1976). Thus, in United States v. Ruby Co., 588 F.2d 697 (9th Cir. 1978), after listing the "ordinary elements of estoppel," the Court held that:
the formulation of the necessary elements of estoppel must be modified in the light of the affirmative misconduct limitation expressed in Santiago. As a result, the elements must be read as requiring an affirmative misrepresentation or affirmative concealment of material fact by the government. (Emphasis Added)
(588 F.2d at 703-04).
Accordingly, by requiring an affirmative misrepresentation or concealment of a material fact, the Ninth Circuit has brought the standards for equitable estoppel in line with the traditional standards which are listed by the opposition to plaintiff Trott's motion for class certification. It is also instructive to note the decision of the United States Court of Appeals for this Circuit in Parker v. Sager, 85 U.S. App. D.C. 4, 174 F.2d 657, 661 (D.C.Cir.1948). The Court in Parker set forth the applicable standards which are as follows:
The essential elements of equitable estoppel as related to the party estopped are: (1) conduct which amounts to a false representation or concealment of material facts, or, at least, which is calculated to convey the impression that the facts are otherwise than, and inconsistent with, those which a party subsequently attempts to assert; (2) intention, or at least expectation, that such conduct shall be acted upon by the other party; (3) knowledge, actual or constructive, of the real facts. As related to the party claiming the estoppel, they are: (1) lack of knowledge and of the means of knowledge of the truth as to the facts in question; (2) reliance upon the conduct of the party estopped; and (3) action based thereon of such character as to change his position prejudicially.