Russo v. White

United States District Court for the Southern District of New York · Torts

TortsDue ProcessEqual ProtectionSection 1983Section 1985Public Employmentprovisional appointmentproperty interest

Facts

Russo, a police sergeant, was provisionally appointed to lieutenant on June 1, 1989 while he was already on vacation and had previously applied for terminal leave, returned his police property, and begun the process of retirement. He attended the promotion ceremony and received orders to report to the Police Academy and a new assignment, but he did not attend orientation or report for duty, and he filed his pension application on June 5. After investigating his absence and learning that he had already commenced the retirement process and would not be available to serve, city officials rescinded his provisional appointment on June 15 and restored him to sergeant. Russo later retired and claimed he was entitled to pension benefits based on the lieutenant rank.

Issue

Whether rescinding Russo's provisional appointment to lieutenant before he served in that position deprived him of a constitutionally protected property interest, denied him equal protection, or supported a conspiracy claim under 42 U.S.C. § 1985. The case also asked whether any facts supported his other constitutional claims.

Rule

To prevail under § 1983, a plaintiff must show action under color of state law and deprivation of a federal right. In a due process claim, the court first asks whether the plaintiff had a protected property or liberty interest and, if so, what process was due; under New York law, a provisional employee has no tenure or property interest in the provisional position, though termination or demotion may not be arbitrary or capricious in the sense of being for a constitutionally impermissible purpose or in violation of statutory or decisional law. Equal protection challenges to non-suspect classifications that do not affect fundamental rights are judged under rational basis review, and § 1985(3) requires class-based, invidiously discriminatory animus.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Buffalo, a county corrections officer, Elena Marquez, was provisionally promoted to shift commander after a staffing shortage. Two days later, before she reported for mandatory supervisory training, county officials learned she had already submitted final retirement paperwork and would not return after her accrued leave, so they rescinded the provisional promotion.

If Elena sues under 42 U.S.C. § 1983 alleging that the rescission deprived her of property without due process, what is the strongest argument for the county?

Explanation. The majority opinion held that a § 1983 due process claim first requires a protected property or liberty interest. Under New York law, a provisional appointment is temporary, a stop-gap measure, and carries no tenure or property right in the position. Because there is no protected property interest in continued occupancy of the provisional rank, rescission of that appointment does not itself amount to a due process deprivation. (Derived from Russo v. White (n.d.).)