Laid-off civil service employees who sued over their removal from a ”rehire list” have no Fourteenth Amendment property right in their inclusion on that list, the U.S. Court of Appeals for the Third Circuit has ruled.

In a precedential ruling, the appeals court affirmed a ruling from the District of New Jersey granting summary judgment to Passaic County, Sheriff Jerry Speziale and Warden Charles Myers in a lawsuit brought by two former corrections officers. The former employees have no constitutionally protected interest in any benefit if the government has broad discretion to deny that benefit, unless it constrains that discretion, the appeals court said.

The New Jersey Civil Service Commission has broad discretion to take the plaintiffs off the rehire list, and it never promised the employees they would stay on the lists or acted to constrain its discretion to remove them, the appeals court said.

Plaintiffs Claudio Tundo and Ruben Gilgorri were hired on a trial basis as corrections officers for Passaic County in 2005, but they were often absent and frequently reprimanded for insubordination and incompetence. They were fired as part of a mass layoff before completing their one-year trial period. But six months later, Passaic County needed more employees, so it asked the Civil Service Commission to create a list of former corrections officers who it might rehire. After the commission issued its list, which included Tundo and Gilgorri, Passaic County tried to remove them based on their work history. But the commission blocked that move and ordered the county to place them in a new, 12-month trial period of employment.

Passaic County offered to rehire Tundo and Gilgorri on the condition that they agree not to sue the county, but they objected and refused to complete the application, so the commission removed them from the list. They then filed a lawsuit.

U.S. District Judge Esther Salas dismissed the suit, which included a procedural due process claim. The plaintiffs appealed the grant of summary judgment against them on that claim, contesting the court's holding that they did not have a protected property interest in staying on the rehire list.

On appeal, Third Circuit Judges Michael Chagares and Stephanos Bibas, and Chief Judge Juan Sanchez of the Eastern District of Pennsylvania, sitting by designation, said the government's discretion to deny a benefit remains in effect even if former employees had a reasonable expectation that the benefit would not disappear.

“Here, the Commission had significant discretion to take former employees off its rehire lists, and it never suggested that it would constrain itself. So it did not create a protected property interest,” Bibas wrote for the panel.

A worker can have a protected interest in a benefit if the government can withhold it only for cause, or if the government promises a benefit without leaving any room to wiggle out of its promise, Bibas wrote.

But no such interest exists if the government has broad discretion to terminate a benefit, so an employee has no protected interest if the government can fire an employee at will, and the same is true if the government has broad discretion not to hire candidates based on job-related criteria and standards established by the government, Bibas wrote. And when the scope of the government's discretion is ambiguous, loss of a benefit is not a sufficient basis to support the weight of a constitutional right, he said.

In the present case, the New Jersey Administrative Code gives the Civil Service Commission the right to take former employees off its rehire lists for lacking job requirements or “other sufficient reasons,” as well as “other valid reasons as determined by the commission,” Bibas wrote. Qualifiers such as “sufficient” or “valid” may suggest the commission's discretion is not absolute, but “in effect, the government can take former employees off rehire lists if it does not want to hire them,” Bibas wrote.

Tundo and Gilgorri bore the burden of resolving any ambiguity and convincing the court that they and the commission both understood that they would stay on the lists, but they failed to meet that burden, Bibas said.

Mark Frost and Ryan Lockman of Mark Frost & Associates in Philadelphia, who represented Tundo and Gilgorri, did not respond to a request for comment.

Albert Buglione of Buglione, Hutton & DeYoe in Wayne, who represented the county, and Myers, and Donald DeDio of Dwyer, Connell & Lisbona in Fairfield, the lawyer for Speziale, also did not respond to a request for comment.