of the panel who had the most seniority to apply for recertification," thereby weeding out all older panel members. (Cpt P 5A) In November 1995, he filed age discrimination complaints with the New York State Division of Human Rights and the federal Equal Employment Opportunity Commission ("EEOC"), both of which were dismissed for lack of jurisdiction. Plaintiff then commenced this action after obtaining a "right to sue" letter from the EEOC.
As defendants' motion to dismiss is potentially dispositive, the Court considers it at the outset.
Defendants argue that plaintiff fails to state a valid claim because "the Eleventh Amendment to the United States Constitution bars suit against the State of New York in federal court, regardless of the relief sought." (Def.Mem.at 3) While the Eleventh Amendment bars suits against a state in federal court, it is well established that a federal court, in certain circumstances, may entertain an action by an individual for prospective injunctive relief against state officials. See Edelman v. Jordan, 415 U.S. 651, 39 L. Ed. 2d 662, 94 S. Ct. 1347 (1974); Ex Parte Young, 209 U.S. 123, 52 L. Ed. 714, 28 S. Ct. 441 (1908). "[A] suit challenging the constitutionality of a state official's action is not one against the state." Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 102, 79 L. Ed. 2d 67, 104 S. Ct. 900 (1984).
Plaintiff's claim is excepted from the Eleventh Amendment under Pennhurst. An injunction ordering the heads of a government agency to reinstate a privilege enjoyed by a plaintiff is the sort of prospective injunctive relief that is not prohibited the Eleventh Amendment. Dwyer v. Regan, 777 F.2d 825, 836 (2d Cir. 1985), modified, 793 F.2d 457 (2d Cir. 1986). The court in Dwyer held that "reinstatement is purely prospective injunctive relief that orders the state official to return the former employee to the state's payroll." Dwyer, 777 F.2d at 836; accord, Russell v. Dunston, 896 F.2d 664, 668 (2d Cir. 1990), cert. denied, 498 U.S. 813, 112 L. Ed. 2d 26, 111 S. Ct. 50 (1990) (quoting Dwyer and citing Edelman).
Thus, insofar as plaintiff's claim seeks to order defendants to reinstate him, it is not barred by the Eleventh Amendment.
Procedural Due Process
Plaintiff claims that the defendants deprived him of his liberty and property without due process of law, in contravention of the Fourteenth Amendment. In order to prevail on his due process claim, plaintiff must show that he had a constitutionally protected liberty or property interest and that his protected interest was violated by the defendants' actions. Though plaintiff undoubtedly has a great personal interest in continued certification to the 18B Panel, it is not the magnitude but the type of interest that controls the determination of a due process claim. There is a well developed body of case law on what constitutes a protected interest, and evaluation of plaintiff's claimed interest under these standards shows that his allegations are inadequate.
The complaint argues that "plaintiff's appointment for an indefinite term subject to recertification ... is a 'property interest.'" (Cpt P 34) Property interests:
"are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law -- rules or understandings that secure certain benefits and that support claims of entitlement to those benefits." Board of Regents v. Roth, 408 U.S. 564, 577, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972).
An individual's expectation of employment is insufficient to support a due process claim; state law must create an entitlement to employment. New York law therefore determines if plaintiff had only "an unprotected unilateral expectation of employment, or instead a constitutionally-protected 'legitimate claim of entitlement.'" Donato v. Plainview-Old Bethpage Central School District, 96 F.3d 623, 1995 WL 537682, at * 5 (2d Cir. 1996) (quoting Roth, 408 U.S. at 577, and citing Martz v. Incorporated Village of Valley Stream, 22 F.3d 26, 29-30 (2d Cir, 1994)).
Plaintiff's claim of a property interest in his appointment to the 18B Panel is based on Section 612.2 of the New York Code of Rules and Regulations ("NYCRR"), which provides that "an appointment of an attorney to any of the indigent defendants' legal panels shall be for an indefinite term subject to recertification."
(Cpt P 33) The term "indefinite" does not establish an entitlement to the appointment it describes. In fact, the rule specifically makes the appointment "subject to recertification." It contains no terms mandating that a refusal to certify a panel attorney be for good cause. Instead, it puts a panel member on notice that his or her appointment could end at any time. While plaintiff presumably had an expectation to continuation as a panel member, Section 612.2 did not give him a protected right to that appointment.
Roth is the leading case on whether an expectation of continuing employment rises to the level of a constitutionally protected property interest. The plaintiff there was an assistant professor working under a one-year contract. He alleged that most teachers hired by the defendants on a year-to-year basis were rehired. The Court nevertheless held that the plaintiff's one-year contract did not create a property interest that was protected by the Fourteenth Amendment.
State law is explicit in this case: It grants panel members appointments only for an indefinite time subject to recertification. This Court therefore concludes that:
"the terms of the [plaintiff's] appointment secured absolutely no interest in re-employment for the next year. They supported absolutely no possible claim of entitlement to re-employment." Roth, 408 U.S. at 578.