The opinion of the court was delivered by: WEXLER
Plaintiff is an employee of the U.S. Postal Service.On August 29, 1979 plaintiff's supervisors suspended plaintiff for seven days without pay, allegedly on the ground that plaintiff had deliberately mishandled certain equipment. Plaintiff's union appealed to the installation head. On December 4, 1979 the installation head affirmed the suspension.On April 9, 1981 the union sent a letter to the Regional Labor Relations Office. The union stated that the union local had sent an appeal to the Regional Office on December 4, 1979. On April 21, 1981 the Regional Office stated that it would accept the appeal for processing but that the Regional Office reserved the right to raise the issue of timeliness. On December 31, 1981 the Regional Office affirmed the suspension, finding both that the appeal was untimely and that the suspension was justified on the merits. The union then appealed, demanding arbitration. On November 1, 1982 the arbitration hearing was held. On November 16, 1982 the Postal Service withdrew its contention that the proceeding was time-barred. On November 19, 1982 the arbitrater ruled in plaintiff's favor, finding that the suspension was unjustified, and ordering that plaintiff be compensated for lost wages.
Plaintiff filed the instant action May 24, 1984. In the first cause of action, plaintiff alleges that the individual defendant supervisors conspired to interfere with plaintiff's employment by filing false statements and giving false testimony (plaintiff originally named the United States Postal Service as a defendant on this cause of action, but has withdrawn this cause of action as against the Postal Service). In the second cause of action, plaintiff alleges that all defendants violated plaintiff's right to due process under the Fifth Amendment by delaying the hearing. Plaintiff has withdrawn the third, fourth, and fifth causes of action.
A. DUE PROCESS CLAIM AGAINST POSTAL SERVICE
The first issue is whether the due process claim against the Postal Service is barred by sovereign immunity. We hold that it is . The Due Process Clause of the Fifth Amendment does not create a cause of action for money damages against the federal government. Duarte v. U.S., 532 F.2d 850, 852 (2d Cir. 176); Boyce v. U.S., 523 F. Supp. 1012, 1016 (E.D.N.Y. 1981) (Neaher, J.). We see nothing in the decision in United States v. Mitchell, 463 U.S. 206, 103 S. Ct. 2961, 77 L. Ed. 2d 580 (1983) to the contrary.
B. DUE PROCESS CLAIM AGAINST INDIVIDUALS
The second issue is whether the complaint states a claim for relief under the Due Process Clause of the Fifth Amendment against the individual defendants. We hold that it does not.
We begin by noting that, had the complaint stated a claim for relief, such claim would not be barred on the ground of failure to exhaust union remedies. Nothing which has been presented to us suggests that there exist union remedies in the form of money damages against individuals alleged to have violated the Due Process Clause.
Plaintiff acknowledges that mere delay in the processing of a claim will not give rise to a violation of the Due Process Clause. Polk v. Kramarsky, 711 F.2d 505, 508-509 (2d Cir. 1983). Plaintiff argues, however, that the delay in the processing of plaintiff's case prevented plaintiff from being promoted. However, a federal employee's expectation of promotion does not constitute "property" within the meaning of the Due Process Clause.Boyce v. U.S., 523 F. Supp. 1012, 1017 (E.D.N.Y. 1981) (Neaher, J.). Consequently, the complaint does not state a claim against the individual defendants under the Due Process Clause.
Even if the complaint had stated a claim under the Due Process Clause against the individual defendants, we would grant summary judgment to the defendants. The responsibility for sending a notice of appeal from the December 4, 1979 decision to the Regional Office rested upon the union local. The delay which took place between December 4, 1979 and April 21, 1981 could have resulted from error on the part of the union local or the Regional Office, or from papers being lost in ...