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January 10, 2003


The opinion of the court was delivered by: Ellen Segal Huvelle, United States District Judge


Plaintiff Wayne Humberson, an officer employed by the United States Park Police, brings this suit challenging his continued inclusion on the so-called "Lewis list" of police officers under investigation for misconduct. Contending that defendant, the United States Attorney's Office for the District of Columbia, has violated his Fifth Amendment due process rights by retaining his name on the Lewis list for an unreasonable period of time, plaintiff now seeks a preliminary injunction ordering his removal from the list. On January 4, 2003, the Court informed the parties that, pursuant to FED. R. CIV. P. 65(a)(2), it would consolidate its decision on the preliminary injunction with its decision on the merits. Because plaintiff has no constitutionally cognizable property interest that has been jeopardized by defendant's actions, he cannot state a Fifth Amendment claim. Accordingly, plaintiff's application for a preliminary injunction will be denied, and his suit will be dismissed under FED. R. CIV. P. 12(b)(6).


The background to this action begins on December 28, 1999, when plaintiff and two other police officers arrested Melvin Smith in Northwest D.C. on suspicion of drug distribution. During the arrest, the officers forcibly tackled Smith, injuring his left arm and shoulder. Smith subsequently filed an excessive force complaint against plaintiff and one of the other arresting officers, which led the U.S. Attorney's Office for the District of Columbia to launch an investigation of the incident. As a result of this investigation, defendant placed plaintiff on the Lewis list. This list grows out of the D.C. Court of Appeals' decision in Lewis v. United States, 408 A.2d 303 (D.C. 1979), which requires the government to turn over to criminal defendants information regarding the "impeachable convictions" of government witnesses.*fn1 The U.S. Attorney's Office maintains the list as a computerized file containing the names of police officers who are under investigation for misconduct, and usually discloses the names of officers appearing on the list to defendants against whom those officers may be called to testify. See United States v. Bowie, 198 F.3d 905, 907-08 (D.C. Cir. 1999).

It is not clear when exactly the investigation of plaintiff began or when his name was first placed on the Lewis list, although in December 2001 plaintiff was interviewed by the U.S. Attorney's Office in connection with the arrest of Smith. (Compl. ¶ 18.) While the record does not indicate the results of this interview or what subsequent action, if any, defendant has taken, the investigation remains open and plaintiff has not been told when it is likely to conclude. (Def.'s Opp. at 3.) On November 5, 2002, plaintiff filed the instant action, asserting that the U.S. Attorney's Office was violating his right to procedural due process by allowing his name to remain on the Lewis list while taking "no meaningful action to close or expedite its investigation of him."*fn2 (Compl. ¶ 15.) Plaintiff's constitutional claim is based only on the allegation that his name has "languished" on the list, not on the fact that it was placed there initially. (Compl. ¶¶ 25-27.) He asserts that because of this continued listing, his employer, the Park Police, no longer allows him to perform certain aspects of his job, including making arrests, testifying on behalf of the government, or participating in undercover operations, and that his prospects for career advancement are thereby diminishing. (Compl. ¶¶ 16-17; Pl.'s Mot., Ex. A. [Humberson Dec.] ¶ 8.) Arguing that these changes in his duties have deprived him of a property interest secured by the Fifth Amendment, plaintiff contends that defendant has a constitutional obligation to afford him a prompt opportunity to have his name removed from the list. Plaintiff now seeks a preliminary injunction compelling defendant to take this step. (Pl.'s Mot. at 1.) Because the issues presented in this application for preliminary relief are entirely legal and require no further development of the record, the Court has elected to consolidate its decision on the preliminary injunction with its final decision on the merits.


The Due Process Clause requires the government to provide certain procedural protections whenever it deprives an individual of property, which the Supreme Court has defined as the "interests that a person has already acquired in specific benefits." Board of Regents v. Roth, 408 U.S. 564, 576 (1972). The first step in assessing any due process claim, therefore, is to ensure that the claimant actually has a cognizable property interest that has been jeopardized by governmental action.*fn3 See American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 43, 59 (1999). In the absence of such an interest, no due process claim can proceed.

It is familiar law that property interests are not created by the Constitution; rather, they are derived from independent sources, such as state or federal law, statutes, regulations, contracts, or other existing rules or understandings. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538 (1985); Doe v. Gates, 981 F.2d 1316, 1320 (D.C. Cir. 1993). In order to have a constitutionally protected property interest in a particular benefit, a claimant must have more than "an abstract need and desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it." Roth, 408 U.S. at 577. In the public employment context, it is well-settled that government employees enjoy such an entitlement when governing law — be it statute, regulation, or contract — provides that they may be discharged only for cause. Thus, an employee who can be discharged only for cause has a property interest in continued employment, and cannot be terminated without due process of law. See Gilbert v. Homar, 520 U.S. 924, 928-29 (1997); Loudermill, 470 U.S. at 538-39 (finding such an interest in state civil service protections that allow employees to remain in their jobs "during good behavior and efficient service").

In the present case, plaintiff contends that as a federal employee covered by the Civil Service Reform Act ("CSRA"), Pub.L. 95-454, 92 Stat. 1111 et seq. (codified, as amended, in various sections of 5 U.S.C.), he has a property right in his position that is protected by the Fifth Amendment. To this end, he asserts, and defendant does not dispute, that he is a "Competitive Service" employee.*fn4 (Pl.'s Reply at 2). As such, Chapter 75 of the CSRA protects plaintiff against suspension for a period greater than 14 days, reduction in grade or pay, furlough, or removal without cause. See 5 U.S.C. § 7513(a) (such actions can be taken "only for such cause as will promote the efficiency of the service.") (emphasis added).*fn5 The existence of these protections has led courts to conclude that Competitive Service employees possess a legitimate expectancy of, and therefore a property interest in, continued federal employment. See Buchholz v. Aldaya, 210 F.3d 862, 867 (8th Cir. 2000); Stone v. FDIC, 179 F.3d 1368, 1375 (Fed. Cir. 1999).*fn6

However, while these provisions do give plaintiff a property interest in his job, it does not follow that he has such an interest in every aspect of his job, or that the Fifth Amendment protects him from employment actions short of those described in Chapter 75. Indeed, plaintiff here has not been discharged from his job, nor has he been furloughed or suspended.*fn7 Neither his grade nor his salary has been reduced. Instead, the only change in plaintiff's employment status that has resulted from his being on the Lewis list is that he has been precluded from performing certain tasks (doing undercover work, testifying in court, etc.) that he once was allowed to perform. However, this sort of reassignment is not regulated by Chapter 75, and thus the "for cause" provisions that limit employer discretion — and engender employee property interests — simply do not apply in this case.

While the other prohibited practices enumerated in § 2302(b) do offer "limited" protection against such changes, Fausto, 484 U.S. at 459, they do not thereby create property rights. Significantly, these provisions do not allow employees to avoid changes in work assignments except for cause, but rather forbid employers from imposing such changes out of particular illicit motivations, such as racial discrimination, § (b)(1)(A), nepotism, § (b)(7), and retaliation for whistleblowing, § (b)(8). See Carducci v. Regan, 714 F.2d 171, 174 n. 3 (D.C. Cir. 1983). And therefore, because these restrictions neither use the "for cause" language typically the hallmark of a property right in employment, see Loudermill, 470 U.S. at 538-39, nor set forth "so comprehensive a list of prohibited reasons for discharge that an employee would reasonably have as great an expectation of continued employment as one who knows he cannot be fired except for cause," the D.C. Circuit has specifically held that Chapter 23 does not create a property interest in any aspect of a federal job. See Garrow, 856 F.2d at 206-07.*fn8

Therefore, nothing in the CSRA gives federal employees a property interest in performing particular aspects of their jobs, which would preclude their duties and responsibilities from being rearranged without due process. Nor has plaintiff identified any other legal restriction on the ability of federal employers to assign their employees to tasks that the employer considers to be appropriate, or to bar employees from tasks considered to be inappropriate, at least where the employees are not also deprived of rank, grade, or pay.

While the absence of such restrictions suffices to scuttle plaintiff's constitutional claim, it is also appropriate to note that federal courts have uniformly concluded that a change in a public employee's duties (or, similarly, a lateral transfer) unaccompanied by a reduction in salary is not a sufficient deprivation to trigger due process obligations. See Anglemyer v. Hamilton County Hosp., 58 F.3d 533, 539 (10th Cir. 1995) ("[T]he overwhelming weight of authority holds that no protected property interest is implicated when an employer reassigns or transfers an employee absent a specific statutory provision or contract term to the contrary."); Ferraro v. City of Long Branch, 23 F.3d 803 (3d Cir. 1994) (holding that change in work assignment, whereby a supervisor was assigned menial tasks such as garbage collection and shoveling sand that were outside the scope of his duties, did not amount to a deprivation of a property interest); Huang v. Bd. of Governors, 902 F.2d 1134, 1142 (4th Cir. 1990) (finding that transfer, or intradepartmental demotion, without loss of rank or pay, does not impinge upon a property interest); Maples v. Martin, 858 F.2d 1546, 1550 (11th Cir. 1988) ("Transfers and reassignments have generally not been held to implicate a property interest."); Lewandowski v. Two Rivers Public School Dist., 711 F. Supp. 1486, 1495 (E.D.Wis. 1989) ("mere transfers and reassignments have generally not been held to constitute a constructive discharge or to implicate a constitutionally protected property interest"). This is true even for employees who have a property interest in their job that protects them from actual or constructive discharge. See, e.g., Fields v. Durham, 909 F.2d 94, 98 (4th Cir. 1990) ("Although we recognize the significance of an employee's property interest in retaining employment, we have previously held that the constitutionally protected property interest in employment does not extend to the right ...

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