B. Plaintiff's Liberty Interest
Prefatorily, the court accords no weight to defendants'
"admission" of the existence of plaintiff's liberty interest in
their answer, since the existence of the interest is a matter
of law to be determined by the court, not a fact which may be
deemed admitted. However, plaintiff's assertion that he has
been deprived of a liberty interest in pursuing the occupation
of his choice merits closer consideration.
The Supreme Court indicated in Roth that a person is not
deprived of "liberty" when he or she is denied one job but
remains as free as before to seek another. Roth, 408 U.S. at
575, 92 S.Ct. at 2708. It is widely recognized, however, that
the rejection of an applicant for admission to an educational
program or to a state bar is an effective denial of the
opportunity to participate in a chosen profession. Schware v.
Bd. of Bar Examiners of State of New Mexico, 353 U.S. 232, 77
S.Ct. 752, 1 L.Ed.2d 796 (1957); Jones v. Bd. of Comm'rs of
Alabama State Bar, 737 F.2d 996 (11th Cir.), reh'g denied,
745 F.2d 72 (11th Cir. 1984); Brown v. Bd. of Bar Examiners of
State of Nevada, 623 F.2d 605, 609 (9th Cir. 1980); Tomanio v.
Bd. of Regents, 603 F.2d 255 (2d Cir. 1979) (reversed on
grounds not relevant here, 446 U.S. 478, 100 S.Ct. 1790, 64
L.Ed.2d 440 (1980)); Tyler v. Vickery, 517 F.2d 1089, 1104 (5th
Cir.), reh'g denied, 521 F.2d 814 (1975); Grove v. Ohio State
Univ. College of Veterinary Medicine, 424 F. Supp. 377 (S.D.
Those courts concluded that the plaintiffs had been denied
their right to pursue their profession since their rejections
had the practical effect of precluding them from working in
their chosen careers, and not simply from filling a particular
job. That raises the question whether the plaintiff here,
denied certification as a Master Plumber, has been effectively
precluded from practicing as a plumber, or whether he has
simply been closed out of a small number of specified jobs. The
court refers then to the complaint, in which plaintiff alleges
that he has been denied the right "to become self-employed in
the business of plumbing in Onondaga County," Complaint, ¶ 31,
and that he has been prevented from "engaging in the business
of plumbing in Onondaga County." Complaint, ¶ 34. For the
purposes of the motion for judgment on the pleadings, on which
all well-pleaded facts must be deemed as true and all
reasonable inferences must be construed in a light most
favorable to the non-moving party, the court must assume that
the effect of plaintiff's failing the examination was the
denial of his right to pursue his chosen profession, and not
merely the ability to work in a small number of preferred jobs.
That does not end the analysis of plaintiff's claim, however.
The Fourteenth Amendment does not protect against all
deprivations of life, liberty or property by the state. It
protects only against deprivations made "without due process of
law." Parratt v. Taylor, 451 U.S. 527, 537, 101 S.Ct. 1908,
1914, 68 L.Ed.2d 420 (1981). Thus, the inquiry must focus on
whether plaintiff was deprived of his liberty to pursue his
profession without due process of law.
Plaintiff's complaint can be fairly read to assert both
procedural and substantive due process violations. Plaintiff
complains that the procedures provided by the Examining Board
were not sufficient to provide an adequate review of his test
scores, but the gravamen of the complaint is that the
defendants administered an unfair examination, that "the
defendants acted recklessly and with a callous indifference to
plaintiff's federally protected rights," and that their actions
were arbitrary and capricious and an abuse of discretion.
Complaint, ¶¶ 29, 30, 37, 38.
The "substantive component" of the Fourteenth Amendment's Due
Process Clause bars arbitrary, wrongful government actions
"`regardless of the procedures used to implement them.'"
Zinermon v. Burch, ___ U.S. ___, 110 S.Ct. 975, 983, 108
L.Ed.2d 100 (1990) (quoting Daniels v. Williams, 474 U.S. 327,
331, 106 S.Ct. 662, 664, 88 L.Ed.2d 662 (1986)). Therefore,
"the constitutional violation actionable under § 1983 is
complete when the
wrongful action is taken." Id. In a procedural due process
claim, based on the Fourteenth Amendment's guarantee of fair
procedure, the deprivation by state action of a
constitutionally protected interest in life, liberty or
property "is not in itself unconstitutional; what is
unconstitutional is the deprivation of such an interest without
due process of law." Id. (citing Parratt v. Taylor,
451 U.S. 527, 537, 101 S.Ct. 1908, 1913, 68 L.Ed.2d 420 (1981)). Thus,
the existence of state procedural remedies must be considered
on a procedural due process claim.
The court will first address the substantive due process
claim. The plaintiff has alleged arbitrary action on the part
of the Examining Board in designing and administering the
examination. Plaintiff has further alleged that the exam does
not test his fitness or capacity to work as a Master Plumber.
The right to pursue one's chosen profession cannot be
arbitrarily denied by the state. Wilkerson v. Johnson,
699 F.2d 325, 328 (6th Cir. 1983). Also, a state can require high
standards of qualification, but the qualifications must have a
rational connection with the applicant's fitness or capacity to
practice his profession. Schware v. Bd. of Bar Examiners of the
State of New Mexico, 353 U.S. 232, 239, 77 S.Ct. 752, 756, 1
L.Ed.2d 796 (1957); see also Brown, 623 F.2d at 609 ("a person
may not be excluded from the practice of law in a manner or for
reasons which contravene the Fourteenth Amendment, nor can the
state court impose qualifications which lack `a rational
connection with the applicant's fitness or capacity to practice
law'" (quoting Schware, supra)); Bailey v. Bd. of Law Examiners
of State of Texas, 508 F. Supp. 106, 108-09 (W.D.Tex. 1980)
("the Constitution prohibits only those requirements having no
rational connection with the applicant's fitness or capacity to
be a lawyer"); Grove, 424 F. Supp. at 382 ("due process requires
that the reasons for rejection have a rational connection with
the profession the applicant is seeking to enter"). Plaintiff's
allegations that certain questions on the test were not related
to his fitness or capacity to practice as a Master Plumber, and
that other actions by the defendants arbitrarily denied him of
his qualification for certification, are sufficient to
withstand the motion for judgment on the pleadings.
With respect to the procedural due process issue, a number of
courts have decided that if an applicant has an opportunity to
retake a bar examination he or she has failed, no other type of
hearing or review procedure is necessary to comply with due
process. See Jones, 737 F.2d at 1002-03; Lucero v. Ogden,
718 F.2d 355, 358 (10th Cir. 1983), cert. denied, 465 U.S. 1035,
104 S.Ct. 1308, 79 L.Ed.2d 706 (1984); Tyler, 517 F.2d at 1104.
The same reasoning applies here. However, the pleadings do not
inform the court whether the applicant may take the Master
Plumber's examination again.*fn3
The Second Circuit has also stated that where
post-deprivation procedures are adequate, the only process due
a plaintiff complaining of the actions of an administrative
body in New York is the commencement of an Article 78
proceeding in the New York courts. Campo v. New York City
Employees' Retirement Sys., 843 F.2d 96 (2d Cir. 1988). Since
the plaintiff has raised an Article 78 cause of action here,
the court has retained part of plaintiff's federal claims, and
the issue of abstaining from deciding the Article 78 claim has
not been raised by the parties, the court will retain pendent
jurisdiction over that claim, at least at this time.
C. Plaintiff's Cross-Motion
The plaintiff has cross-moved for an amendment to the Rule 16
scheduling stipulation to extend the June 1, 1990 discovery
deadline. The plaintiff argues that, since the crux of his
claim is that the entire
testing scheme administered by the Examining Board is unfair,
he should be able to conduct discovery pertaining to the 1987,
1989, and 1990 exams, which plaintiff also failed. Plaintiff
points out that in the parties' pre-trial joint status report,
reached after a conference conducted on May 1, 1989, counsel
agreed that "[t]he primary issue of the litigation discussed by
Counsel involved the fairness of the defendants' entire scheme
of testing applicants for a Master Plumber[']s license in
Onondaga County." See Affidavit of Dennis G. O'Hara, sworn to
November 13, 1990, Exhibit A, ¶ "A".
The plaintiff also noticed depositions of two members of the
Examining Board, to be conducted on April 24, 1989, and
requested the production of documents related to the 1987 and
1988 examinations. The depositions were adjourned at the
request of the defendants' attorney, Ms. Pirro, who then served
the plaintiff's counsel with objections to the discovery
requests. Ms. Pirro asserted that the plaintiff's request for
production of information pertaining to the 1987 exam was
irrelevant because plaintiff had only alleged causes of action
related to the 1988 exam in the complaint. The depositions were
conducted on May 23, 1989, but the defendants refused to
produce materials related to the 1987 exam. Plaintiff now
requests an extension of the discovery deadline, presumably to
conduct discovery regarding the 1987, 1989 and 1990 exams.
In opposition to the cross-motion, Ms. Pirro maintains that
since the complaint alleged causes of action related only to
the 1988 exam, discovery materials pertaining to the other
exams are irrelevant. Ms. Pirro also states that plaintiff made
no discovery demands after the May 23, 1989, depositions; made
no requests to extend the discovery deadline or for leave to
amend the complaint; and did not move to compel discovery or
for leave to amend the complaint from the date of the
depositions to the close of discovery on June 1, 1990.
See Affidavit of Michele M. Pirro, sworn to December 4, 1990,
¶¶ 5, 7, 8, 10, 12, 13, 14.
Ms. Pirro is correct that discovery regarding exams
administered in any year other than 1988 is irrelevant and need
not be produced by the defendants. While plaintiff's counsel
asserts in his affidavit that the allegations of an unfair
testing scheme implicate other exams, the complaint clearly
alleges only that the 1988 exam was unfair. The cross-motion
for extension of discovery is denied.
The defendants' motion for judgment on the pleadings as to
plaintiff's first cause of action, asserting a deprivation of
a protected property interest without due process of law, is
granted. Defendants' motion as to the second cause of action,
asserting a deprivation of a protected liberty interest without
due process of law, is denied. Defendants' motion as to the
third cause of action, a pendent state claim brought under
Article 78 of the CPLR, is also denied at this time.
Plaintiff's cross-motion for an amendment of the Rule 16
scheduling stipulation to extend the June 1, 1990, discovery
deadline is denied.
IT IS SO ORDERED.