Summary
In Matter of Deas v Levitt (73 N.Y.2d 525, cert denied ___ US ___, 110 S Ct 324), the court held that a civil service applicant cannot be hired from an expired list unless the applicant commences a judicial or administrative proceeding prior to the expiration of the list and also challenges the list itself.
Summary of this case from Matter of N.Y. City Department v. WhiteOpinion
Argued March 21, 1989
Decided May 4, 1989
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, Kenneth L. Shorter, J.
Peter L. Zimroth, Corporation Counsel (Dana Martine Robbins, Francis F. Caputo and Larry A. Sonnenshein of counsel), for appellants.
Ellen M. Weber and Margaret K. Brooks for respondent.
Mark D. Lebow and Jean Rodgers Mills for New York City Civil Service Commission, amicus curiae.
Petitioner, seeking a promotion in the competitive classification of the civil service, took the required examination and achieved the third highest score. His certification was delayed, however, because he was found to be medically unqualified. After administrative proceedings, the disqualification was reversed but the eligible list on which his name appeared expired before the Department of Personnel certified him. He instituted this proceeding to compel establishment of a special eligibility list, claiming that this is the appropriate remedy under our decision in Matter of Mena v D'Ambrose ( 44 N.Y.2d 428) and that it is warranted by the Due Process Clauses of the State and Federal Constitutions.
Before being entitled to placement on a special eligible list for a civil service position, an applicant must bring a proceeding, before the list expires, successfully challenging the validity of the list itself. Because petitioner does not challenge the validity of the eligible list as being contrary to the merit and fitness requirements of the State Constitution (art V, § 6), he has no right to the relief requested. This conclusion does not violate due process of law under either the Federal or State Constitutions; nor is distinguishing between applicants who attack the constitutional validity of the list and those that allege only that they were otherwise eligible, arbitrary and capricious. Accordingly, the order of the Appellate Division should be reversed and the judgment of Supreme Court dismissing the petition should be reinstated.
I
Petitioner Melvin Deas is employed as a bus maintainer helper "B" by the New York City Transit Authority. In October 1983, he applied for promotion to the position of bus maintainer "A". Petitioner passed the required civil service examination and ranked third on the eligible list established in March 1984. In August of that year a position became available and he was asked to report for a medical examination. Following a psychiatric evaluation, the Transit Authority disqualified petitioner from employment on medical grounds. He appealed the disqualification to the New York City Department of Personnel which held a hearing and conducted a second psychiatric examination. In March 1985, the New York City Director of Personnel disqualified petitioner for medical reasons based on the psychiatrists' reports. Petitioner then took his final administrative appeal to the New York City Civil Service Commission and requested a hearing. On August 14, 1986, the Civil Service Commission reversed the Department of Personnel's decision and concluded that petitioner was medically eligible for the promotion. On September 5, 1986, the Department of Personnel notified petitioner that it could not certify him for the position because the eligible list had expired on August 27, 1986 upon the formation of a new list based upon a competitive examination held in July. Petitioner had not taken the July examination, thus his name was not on the new eligible list, and he requested that his name be placed on a special eligible list. His request was denied and he initiated this article 78 proceeding, contending that the refusal to certify him for the bus maintainer "A" position was arbitrary and capricious and violated his right to due process of law under the State and Federal Constitutions.
Supreme Court dismissed the petition but the Appellate Division reversed and granted the petition, directing petitioner's name be placed on a special eligible list. Two Justices concluded that petitioner's case was distinguishable from our decision in Matter of Tanzosh v New York City Civ. Serv. Commn. ( 44 N.Y.2d 906) because in this case, unlike Tanzosh, the eligible list did not expire until after the administrative appeals process had been completed and the Civil Service Commission had determined that petitioner was medically eligible. They also held, relying on Logan v Zimmerman Brush Co. ( 455 U.S. 422), that denying petitioner certification would constitute a violation of his Federal due process rights. Justice Wallach concurred in result, concluding that Tanzosh could not be distinguished from the case at bar, but that strict application of the Tanzosh rule results in an unconstitutional deprivation of the opportunity to be heard and a violation of equal protection of the law. Justices Sandler and Sullivan dissented and voted to affirm. The Department of Personnel has appealed as of right (see, CPLR 5601 [a]).
II
Article V, § 6 of the N Y Constitution provides in pertinent part, "Appointments and promotions in the civil service of the state and of all of the civil divisions thereof * * * shall be made according to merit and fitness to be ascertained, as far as practicable, by examination which, as far as practicable, shall be competitive". Pursuant to this provision, periodic examinations are given to candidates for appointment and promotion in the civil service and, after the results of an examination are calculated, an eligible list is established which places the successful candidates in order of their grades. The list continues for not less than one nor more than four years. An eligible list that has been in existence for one year or more terminates upon the establishment of a new list "unless otherwise prescribed by the state civil service department or municipal commission having jurisdiction" (Civil Service Law § 56). Appointments must be made from names appearing on the list but the appointing authority is free, in its discretion, to select any one of the top three candidates.
For many years we interpreted these provisions to mean that a civil service applicant could not be appointed from an expired list. In the words of former Chief Judge Loughran, it is "a legal impossibility" (Matter of Cash v Bates, 301 N.Y. 258, 261; see also, Matter of Carow v Board of Educ., 272 N.Y. 341, 345-346; Ciaccia v Board of Educ., 271 N.Y. 336, 339; Hurley v Board of Educ., 270 N.Y. 275, 280). In Hurley, the seminal case on the subject, the Legislature passed a law which sought to revive an expired list. The plaintiff argued that the statute did not disregard the merit and fitness requirement of the State Constitution since it permitted appointments only from an eligible list previously prepared after a competitive examination. We rejected her argument, stating: "Competitive examination, so far as practicable, is the sole test of merit and fitness permitted by the Constitution. Preference among those qualified for a position must be determined solely by relative standing upon the eligible list then in force. Favor must be excluded. It is not excluded when without a new examination the Legislature commands that appointments must be made from an eligible list then not in force * * *. A competitive examination may demonstrate merit and fitness, at the time of the examination. As time passes, its value as a test of merit and fitness diminishes. Others may, then, be better prepared and more fit to fill a position than those who are upon the list." (Id., at 280 [emphasis in original].)
In 1978, we rendered three decisions which, it appears from the several opinions of the Appellate Division, have generated confusion in this area. In the first case, Matter of Mena v D'Ambrose ( 44 N.Y.2d 428, supra), we established a narrow exception to our previous rule, holding that when an applicant demonstrates in a judicial action instituted prior to the expiration of the eligible list that it is based on an erroneously scored test, the statutory life of the list does not begin until the list is corrected. Thus, we directed that petitioner, having successfully challenged the legality of the list, be placed on a special eligible list. In Matter of New York City Dept. of Personnel v New York State Div. of Human Rights ( 44 N.Y.2d 904), we held that an applicant, who was wrongly passed over for appointment because of her age, could not be placed on a special eligible list because she did not file her administrative complaint until after the eligible list had expired. Finally, in the third decision, Matter of Tanzosh v New York City Civ. Serv. Commn. ( 44 N.Y.2d 906, supra), a case indistinguishable from the matter under consideration, the applicant was initially found medically unfit for the position of patrolman, but it was determined in an administrative proceeding, concluded seven months after the expiration of the list, that he was medically eligible for certification. Tanzosh's claim that he should be placed on a special eligible list was denied.
All five Appellate Division Justices read these decisions to mean that petitioner's entitlement to relief depended upon whether a judicial, as opposed to an administrative, proceeding had been commenced prior to the expiration of the eligible list. Although the commencement of a proceeding before the list expired was necessary, the controlling issue was not the nature of the proceeding, but the nature of the claim. Thus, Mena is different from Tanzosh not only because Mena commenced a judicial action prior to the expiration of the list, but also because Mena challenged the validity of the list itself, asserting that the constitutional merit and fitness requirements had been violated and unqualified individuals were obtaining civil service employment. As these decisions make clear, it is not sufficient to attack either the validity of the eligible list (see, Matter of Cash v Bates, 301 N.Y. 258, supra) or commence a proceeding before the list has expired (see, Matter of Tanzosh v New York City Civ. Serv. Commn., supra). Relief may not be granted unless the applicant does both.
Unlike the petitioner in Matter of Mena, petitioner has not alleged that the eligible list is constitutionally invalid, only that he was wrongfully denied certification. Thus, under the rule applied in Matter of Tanzosh, he is not entitled to be placed on a special eligible list. Unless application of our rules violates Federal due process, appointment of petitioner is impossible because appointment of an individual from a constitutionally valid expired list violates article V, § 6 of the N Y Constitution (Ciaccia v Board of Educ., 271 N.Y. 336, 339, supra; Hurley v Board of Educ., 270 N.Y. 275, 280, supra).
III
Analysis of petitioner's due process claim begins with the identification of the particular property interest affected, if any, and once identified, the determination of what process is due him (Mathews v Eldridge, 424 U.S. 319; Goldberg v Kelly, 397 U.S. 254). The Constitution does not create property interests (Bishop v Wood, 426 U.S. 341, 344; Perry v Sindermann, 408 U.S. 593, 599-603; Matter of Economico v Village of Pelham, 50 N.Y.2d 120, 127). Rather, "they 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; see also, Martinez v California, 444 U.S. 277, 282, n 5; Matter of Russo v New York State Bd. of Parole, 50 N.Y.2d 69, 73-74).As petitioner concedes, successful completion of a civil service examination does not create a property interest in appointment to the position for which he has applied (see, Matter of Cassidy v Municipal Civ. Serv. Commn., 37 N.Y.2d 526, 529-530; Hurley v Board of Educ., 270 N.Y. 275, 279, supra). Nor does the fact that the statutes grant applicants the right to appeal adverse decisions create any property right. Petitioner's claim is that having successfully completed the examination he is entitled to be considered for promotion. He relies on Drogan v Ward ( 675 F. Supp. 832) in which the Federal District Court for the Southern District of New York held that Civil Service Law § 61 and section 3.6 of the Rules and Regulations of the Department of Civil Service (4 N.Y.CRR) served to provide an applicant who has successfully passed an examination with a "claim of entitlement" to be considered for promotion or appointment (see also, Griffin v Carey, 547 F. Supp. 449, 453).
The Drogan holding is contrary to New York law. In Matter of Cassidy v Municipal Civ. Serv. Commn. ( 37 N.Y.2d 526, supra), we considered what right, if any, applicants possess after successfully passing a civil service examination, and concluded that they do "not possess any mandated right to appointment or any other legally protectible interest. [They] can assert at most the right to consideration for and a 'hope' of appointment" (id., at 529 [emphasis added]). As the Supreme Court noted in a similar situation, petitioner may have had a "unilateral expectation" that he would be considered for a position, but he had no claim of entitlement (Board of Regents v Roth, supra, at 577; for illustrative purposes compare, Bishop v Wood, supra, with Arnett v Kennedy, 416 U.S. 134; and Board of Regents v Roth, supra, with Perry v Sindermann, supra). Since petitioner had no property interest to be considered for appointment, the inability of the Department of Personnel to certify him as eligible after expiration of the list upon which his name appeared did not deny him due process of law.
Even if petitioner's argument is accepted, however, it does not entitle him to be placed on a special eligible list. Whatever property interest he might have had to be considered for employment was limited by the life of the eligible list on which his name appeared and the list expired before this action was commenced.
We note there are no allegations that petitioner's rights were impaired by bad faith or arbitrary action by the Department of Personnel during the appeals process.
We also observe that, contrary to petitioner's claim, the City Department of Personnel was not obligated to provide petitioner with personal notice that the list on which his name appeared would soon expire. Petitioner was on notice pursuant to Civil Service Law § 56 that an eligible list may be superseded by a new list at any time after the passage of one year. Moreover, petitioner was placed on notice that a new civil service examination was being held while he was appealing his disqualification for medical reasons. Nothing prevented him from taking this examination and thereby attempting to qualify for the new eligible list.
Petitioner also relies on the United States Supreme Court's decision in Logan v Zimmerman Brush Co. ( 455 U.S. 422, supra) to support his due process claim. In Logan, an individual's employment discrimination claim was inadvertently terminated because the State, although obligated by statute to do so, did not arrange for a fact-finding conference between the claimant and the employer within 120 days after his administrative complaint was filed. Its failure effectively terminated the claim. The Supreme Court concluded that the right of a claimant to use the adjudicatory procedure contained in the Illinois Fair Employment Practices Act was a species of property right protected by the Due Process Clause, and that the State's failure to consider the merits of Logan's charge before deciding to terminate his claim denied him due process. In a separate opinion, Justice Blackmun, joined by three other members of the court, concluded that the 120-day limitation denied claimant equal protection of the law because there was no rational basis for distinguishing between claims processed within 120 days and otherwise identical claims not receiving a hearing within that time.
Petitioner's attempt to bring his case within Logan fails for several reasons. First, unlike the property interest at stake in Logan, the requirement that a civil service applicant demonstrate eligibility prior to the expiration of the eligible list is not a procedural limitation on the ability of the applicant to assert his or her rights; it is "merely one aspect of the State's definition of that property interest" (Martinez v California, 444 U.S. 277, 282, n 5, supra). The State, having created the property interest may also define its dimensions. Here petitioner's asserted property interest was of no greater duration than the life of the eligible list. The distinction is between defining the substantive nature of the right created, which is within the Legislature's power, and determining what process is due to protect the right once it has been defined (compare, Martinez v California, supra, with Mullane v Central Hanover Trust Co., 339 U.S. 306). Even if one characterizes our rules limiting consideration for appointment to the life of the list as a statutory deprivation, however, "it would remain true that the State's interest in fashioning its own rules * * * is paramount to any discernible federal interest, except perhaps an interest in protecting the individual from state action that is wholly arbitrary or irrational" (Martinez v California, supra, at 282). Far from being arbitrary or irrational, the rule which requires civil service appointments to be made from a current rather than expired list is constitutionally mandated. Thus, unlike the situation in Logan where neither of the State's two express purposes for enacting the FEPA — "eliminating employment discrimination, and protecting employers and other potential defendants 'from unfounded charges of discrimination'" — were advanced by the 120-day deadline provision (Logan v Zimmerman Brush Co., supra, at 439), the rule that civil service applicants be appointed from the most recent list promotes New York's constitutional directive.
Although petitioner does not make an equal protection claim as such, the second part of his due process argument, based on his reading of Matter of Mena v D'Ambrose ( 44 N.Y.2d 428) and Matter of Tanzosh v New York City Civ. Serv. Commn. ( 44 N.Y.2d 906) that the State has acted arbitrarily and without a rational basis in distinguishing between applicants that commence judicial proceedings prior to the expiration of the list and those that only file administrative proceedings, is not substantively different from the arguments made in the concurring opinion in Logan.
Nor is there any constitutional prohibition against distinguishing between applicants who have attacked the validity of the list prior to its expiration as being in derogation of the constitutional merit and fitness requirements (e.g., Matter of Mena v D'Ambrose, 44 N.Y.2d 428, supra) and those who have only alleged they have been wrongly ruled ineligible for medical or similar reasons (e.g., Matter of Tanzosh v New York City Civ. Serv. Commn., 44 N.Y.2d 906, supra). The integrity of the civil service system is placed in issue only where the applicant successfully attacks the validity of the list. When that has been done, we have extended the corrected list, because the original was never valid; a special list was created, to continue for a period of one to four years pursuant to section 56. Manifestly, that remedy was not required as a matter of due process, but because of State requirements that appointments be based on merit.
Finally, there is no significance to the fact that in this case petitioner demonstrated eligibility 12 days prior to the expiration of the eligible list rather than after its expiration, as in Tanzosh. The Department was not required to certify him immediately upon learning of the administrative determination. It had four months, pursuant to article 78 of the CPLR, to consider whether to appeal the Civil Service Commission's decision and not until the expiration of this four-month period did a proceeding in the nature of mandamus to compel properly lie. Moreover, as noted by Justice Sullivan below, petitioner's loss of the appointment was not necessarily caused by the Department of Personnel's failure to certify him. Assuming that the Department did certify petitioner on the day the Civil Service Commission rendered its decision, it was not required to appoint him during the 12-day interval between the date of decision and the expiration of the list (see, Matter of Cassidy v Municipal Civ. Serv. Commn., 37 N.Y.2d 526, supra).
Accordingly, the order of the Appellate Division should be reversed and the judgment of Supreme Court dismissing the petition reinstated, without costs.
Chief Judge WACHTLER and Judge ALEXANDER concur with Judge SIMONS; Judge BELLACOSA concurs in result in a memorandum; Judge HANCOCK, JR., dissents and votes to affirm in a separate opinion in which Judge TITONE concurs; Judge KAYE taking no part.
Order reversed, etc.
I concur to reverse solely on constraint of Matter of Tanzosh v New York City Civ. Serv. Commn. ( 44 N.Y.2d 906). The remedy available under that case should be expanded to aggrieved persons invoking administrative as well as judicial fora for relief, especially in view of the peculiar procedural immobilization of and inequity to this petitioner. I would have considered overruling the arbitrary limitation of Tanzosh (supra), but am constrained in this instance against doing so (see, Simpson v Loehmann, 21 N.Y.2d 305, 314-315 [concurring opn, Breitel, J.]).
Petitioner was erroneously disqualified by the New York City Department of Personnel as psychologically unfit and removed from his standing near the top of the eligible list for a civil service promotion. After two years, during which he diligently pursued the available administrative remedies, the mistaken disqualification was rectified. Despite his ultimate success in the administrative proceedings, he was not considered for appointment to existing vacancies. When petitioner finally received the favorable determination, the Department failed to certify him and extend his eligibility. Instead, the list on which his name appeared was replaced and, as a result, the list was automatically terminated. In short, although petitioner "won", he gained nothing.
Under these circumstances is petitioner entitled to legal relief? By any standard of fairness and common sense he should be. Under what I believe is the governing New York rule (Matter of Mena v D'Ambrose, 44 N.Y.2d 428) he should be. Indeed, the Appellate Division plurality, following the rule we established in Mena, held that petitioner's rights should be preserved by placing his name on a special extended eligible list.
The majority of this court now holds, however, that petitioner is without a remedy. In doing so, the plurality makes a highly restrictive interpretation of the principle in Mena and relies on factual distinctions that bear no relation to the civil service objectives and governmental interests which purportedly justify such distinctions (see generally, Baer v Town of Brookhaven, 73 N.Y.2d 942; McMinn v Town of Oyster Bay, 66 N.Y.2d 544, 549; French Investing Co. v City of New York, 39 N.Y.2d 587, 596). As a result, petitioner has, in my view, been deprived of a property interest under State law — i.e., the right to be fairly considered for promotion solely on his merit and fitness and the complementary right to preserve that interest by making effective use of the review and appeal process guaranteed him by State law (see, N Y Const, art V, § 6; N Y City Charter § 812 [c]; Matter of Mena v D'Ambrose, supra; see also, Matter of Pan Am. World Airways v New York State Human Rights Appeal Bd., 61 N.Y.2d 542, 547-548; Matter of Economico v Village of Pelham, 50 N.Y.2d 120, 127). For reasons which follow, I agree with the Appellate Division plurality and concurrer and with the amicus, New York City Civil Service Commission, that failure to afford petitioner his remedy under Mena violates his State and Federal due process rights (see, N Y Const, art I, § 6; US Const 14th Amend). Accordingly, I dissent.
I agree with the view expressed by the concurrer that our precedents, at least as he and the plurality read them, result in a "peculiar procedural immobilization of and inequity to this petitioner". Indeed, it is just this unfair, arbitrary, and unequal result of applying what the concurrer and the plurality accept as the New York rule which gives rise to petitioner's claim that there is a due process violation (see, infra, point III).
I
Petitioner took the civil service competitive examination for the position of bus maintainer "A" and was ranked third out of 37 on the eligible list published in March 1984. When a position became available in August 1984 petitioner was asked to take a physical and psychiatric exam (see, Civil Service Law § 50 [4]). Based on the results of that examination he was disqualified as psychologically unfit. He filed an appeal to respondent New York City Department of Personnel. The Personnel Department, after taking no action for five months, eventually (in Apr. 1985) upheld his disqualification. Although he immediately filed an appeal to the Civil Service Commission, the Department failed to file its reply report until September 1985 and the Commission did not hold a hearing until July 1986. Finally, on August 14, 1986 the Commission reversed, holding that petitioner had been erroneously disqualified by the Department.At the time of the Commission's decision, there were apparently four vacant positions, the eligible list was still in existence, and all of the other candidates on the list had been interviewed and either appointed or rejected. Nonetheless, the Department failed to certify petitioner so that he could be considered for one of the vacancies. Instead, with no notice to petitioner, it established a new eligible list on August 26, 1986 and thereby automatically terminated the list that had petitioner's name on it (see, Civil Service Law § 56). When advised of this in September 1986, petitioner requested that he be placed on a special eligible list pursuant to Matter of Mena (supra) and Matter of State Div. of Human Rights v County of Onondaga ( 84 A.D.2d 931). Upon respondent's denial of this request, he commenced the instant CPLR article 78 proceeding.
II
In Mena a scoring error resulted in a candidate being wrongfully considered for a position although the other candidates, the petitioners, had actually achieved higher test scores. We concluded that this erroneous action violated the constitutional merit and fitness requirement because petitioners had, by the tests, demonstrated greater ability than the candidate who was interviewed and appointed. We held that since petitioners had brought a timely challenge to such action, they were entitled to be placed on a special extended eligible list ( 44 N.Y.2d, at 432-433, supra). The plurality, however, distinguishes Mena on two grounds: (1) that Mena involved a challenge to the eligibility list and (2) that in Mena judicial action was commenced before the expiration of the list. I believe that neither ground is valid.
At the root of the plurality's reading of Mena as requiring that the challenged error must relate to the eligibility list itself is its position that only such an error implicates the State constitutional Merit and Fitness Clause (see, plurality opn, at 527-528, 531, 534). This is not so. The use of competitive examinations and the ranking of test takers by their scores is but one part of the legislative scheme designed to satisfy "the overarching constitutional goal and command" of merit selection (McGowan v Burstein, 71 N.Y.2d 729, 734; see, N Y Const, art V, § 6). The use of the statutory grounds for disqualification (Civil Service Law § 50) is another necessary part of the process of merit selection (see also, Matter of Cassidy v Municipal Civ. Serv. Commn., 37 N.Y.2d 526, 528-529). That the error here was in medical diagnosis instead of scoring is irrelevant; both types of errors mischaracterize the applicant's qualifications and cause someone with less standing to be considered in violation of the Constitution. Indeed, in Matter of Tanzosh v New York City Civ. Serv. Commn. ( 44 N.Y.2d 906, supra) — a case also involving an allegedly erroneous physical-psychological disqualification under Civil Service Law § 50 (4) (b) — this court did not make the distinction now being made by the plurality, that only an error in the eligible list itself implicates the right recognized in Mena.
Petitioner has raised a claim that respondent acted in contravention of the Merit and Fitness Clause. His petition states "respondents acted * * * contrary to the State constitutional mandate that promotions in the civil service of the city shall be made on the basis of merit and fitness, New York State Constitution, Art. 5, Section 6."
Nor does the fact that petitioner here, unlike the petitioners in Mena, failed to commence his CPLR article 78 proceeding until after the list expired, constitute a reason for not according petitioner the same relief given in Mena. There are two reasons why this is so:
(1) The legal principle for our decision in Mena reflects both a principle of fairness to the applicant and the State's interest in the integrity of the merit and fitness selection system: where there is an error in derogation of the merit and fitness standards, the durational limitation provision of Civil Service Law § 56 is "not intended to exonerate known and continued wrongs of the offending testing agency by the mere passage of time" ( 44 N.Y.2d, at 433). The efficacy of this rule in no way depends upon commencement of a CPLR article 78 proceeding or whether it was started before or after the expiration of the list. Thus, the principles underlying Mena are fully applicable here. As in Mena, petitioner timely challenged his erroneous disqualification. The belated recognition of error came only after procedures lasting two years, including approximately 17 months of administrative delay in filing papers and scheduling hearings and examinations. When the error was finally corrected the Department failed to certify petitioner so that he could be considered for the available vacancies. As in Mena, it would be both unfair to petitioner and contrary to the civil service concept of merit selection to use this period of bureaucratic delay to exonerate the Department and to deny petitioner relief (see, 44 N.Y.2d, at 432-433).
(2) In any event, unlike the petitioners in Mena, petitioner was not aggrieved until after the list expired. Thus, he had no basis for commencing a CPLR article 78 proceeding. In Mena, the petitioners were expressly informed prior to the expiration of the list that despite the agency's error their eligibility could not be extended because existing State law did not then permit it. Here, by contrast, petitioner was not informed that his rights would not be honored until after the list expired. Thus, he had every reason to believe that since he had demonstrated the Department's error, he would receive the relief that had been established in Mena — i.e., that "the statutory durational period [would] not begin to run until the [error was] corrected" (id., at 433).
In sum, in Mena we recognized a right that by its very nature is self-executing: where it is demonstrated prior to the expiration of the eligible list that there were errors in violation of the constitutional merit and fitness requirements, the statutory durational period does not begin to run until the errors are corrected (see, 44 N.Y.2d, at 433, supra; see also, Matter of State Div. of Human Rights v County of Onondaga, 84 A.D.2d 931, supra). Applying this rule here, I believe, entitles petitioner to relief. Because he demonstrated that he was wrongfully disqualified from consideration for the promotion, his eligibility could not expire until the error was corrected. The court holds, nonetheless, that this case is distinguishable and, as a result, petitioner is left without recourse under State law. It becomes necessary, therefore, to address his second contention — adopted by the Appellate Division plurality and concurrer and endorsed by the City Civil Service Commission — that the failure to grant Mena relief violates petitioner's State and Federal due process rights (NY Const, art I, § 6; US Const 14th Amend). I believe it does.
Matter of Tanzosh v New York City Civ. Serv. Commn. ( 44 N.Y.2d 906) is not to the contrary. In that case, petitioner failed to demonstrate the existence of any error prior to the expiration of the eligible list. Thus, he was not entitled to rely on the self-executing right to extend an existing list. Rather, he required the revival of an expired list. It is unnecessary here to decide whether due process would require that an applicant in such circumstances is entitled to relief. We note that no due process claim was raised in Tanzosh.
III
Preliminarily, it should be evident that petitioner's due process argument does not depend on a claimed State law right to appointment. Rather, his property interest stems from his expectancy under State law of being fairly considered for a position based upon his relative merit and fitness. The distinction is critical because the cases relied on by the plurality (Matter of Cassidy v Municipal Civ. Serv. Commn., 37 N.Y.2d 526, supra; Board of Regents v Roth, 408 U.S. 564) involve claimed property rights to appointment. An applicant, such as petitioner, who ranks in the top three for a particular position must be considered, as a matter of statutory right, unless there is some valid ground for finding the applicant unfit (see, Civil Service Law § 50; § 61).
In Matter of Cassidy v Municipal Civ. Serv. Commn. we stated that "Petitioner does not possess any mandated right to appointment or any other legally protectible interest. He can assert at most the right to consideration for and a 'hope' of appointment" ( 37 N.Y.2d 526, 529). The plurality underscores the phrase "or any other legally protectible interest" apparently to demonstrate that we held there is no right to be considered for appointment. In Cassidy the plaintiff, however, had been considered. His only claim was to appointment. Thus, we could not and did not hold that there is no property right to consideration.
Petitioner's State property interest includes the right to be fairly considered solely on the basis of his relative qualifications. It also includes the concomitant right not to be excluded from consideration for a merited appointment by being mistakenly disqualified. It is to assure this protection that the State has devised the appeal procedures which petitioner used here (see, e.g., N Y City Charter § 812 [c]; § 813 [a] [3]-[8]; [b] ). We have held that this statutory scheme embraces the right to placement on a special eligible list if the employing agency caused an error in violation of the State constitutional Merit and Fitness Clause and a timely challenge is brought (see, Matter of Mena v D'Ambrose, supra). Because, as demonstrated, supra (at 538), there is no basis for substantively distinguishing Mena, the sole remaining ground for denying petitioner Mena relief is that he did not commence a CPLR article 78 proceeding prior to the expiration of the eligible list. I believe that reliance on this factor for nullifying petitioner's property interest — like the determining procedural requirement in Logan v Zimmerman Brush Co. ( 455 U.S. 422), that a hearing be held within 120 days — violates his due process rights.
In Logan the Illinois Fair Employment Practices Act required that a hearing be conducted by a State agency within 120 days after the filing of an employment discrimination claim and that a failure to comply with this condition would result in final dismissal of the complaint ( 455 US, at 426-428). The Supreme Court held that the State had created a property interest in using the FEPA administrative adjudicatory procedures to redress grievances (id., at 431). It specifically rejected the State's argument that the 120-day time limitation was merely an aspect of the definition of the property right and decided instead that it was a procedural limitation on the claimant's ability to assert his rights (id., at 433).
In concluding that this procedural limitation violated petitioner's due process rights the Logan court stressed three factors:
(1) that the dismissal of the claim was not due to any fault of claimant but solely to the government's failure to act prior to the deadline;
(2) that claimant had a substantial interest in keeping his job and disproving his employer's erroneous charges of incompetence or inability; and
(3) that no substantial governmental interest was furthered by adherence to the procedural rule which resulted in the defeat of claimant's property interest.
I believe that Logan controls this case. Here, petitioner had a State-created property interest in being fairly considered for a civil service position and in being able to make effective use of the available administrative processes to correct governmental errors which might defeat that interest. Like the 120-day limitation in Logan, the precondition upon which the majority of this court makes Mena relief depend (that a judicial proceeding be started before the list expires) is purely procedural. Enforcement of this precondition results in a final deprivation of petitioner's State property interest.
Moreover, as in Logan:
(1) That the limiting precondition was not met was not the result of any failure on petitioner's part. Rather, it was due to governmental delay in the appeal process and the failure to certify petitioner for available positions.
This case is even more compelling than Logan. In Logan, the time ran before it could be determined whether there was a meritorious claim. Here, it was already decided that petitioner was wronged when the list expired. The majority uses this time limit to deny relief to a proven wrong.
(2) Petitioner had a substantial interest in being considered for a promotion and in erasing the erroneous determination of psychological unfitness.
(3) No substantial State interest is furthered by giving effect to the prior judicial proceeding precondition. The plurality's sole attempt to demonstrate a State concern in adherence to this procedural requirement for Mena relief — that the State has an important interest in civil service applicants being appointed from a current list (see, plurality opn, at 534) — seems particularly unconvincing in the light of this court's holding in Mena. In Mena, of course, the identical consideration existed. The government asserted an interest in appointing only from the current list and in not allowing an applicant's eligibility to be extended beyond the life of the list. The Mena court specifically rejected this claimed governmental interest and extended the petitioners' eligibility stating, "Although there does exist a strong policy that appointments be made from contemporary lists, this policy must be secondary to the constitutional mandate governing appointment [i.e., merit and fitness] which is implemented by the Civil Service Law standards" ( 44 N.Y.2d, at 433, supra).
(4) Finally, as in Logan, the classification resulting from today's decision — according list-extending rights under Mena to some applicants but not to others depending upon the happening of an event over which the applicant has no control — is entirely arbitrary and produces incongruous and patently unfair consequences (see also, Baer v Town of Brookhaven, supra; McMinn v Town of Oyster Bay, 66 N.Y.2d 544, 549, supra; French Investing Co. v City of New York, 39 N.Y.2d 587, 596, supra [there must be reasonable relationship between the legitimate government interest sought to be achieved and the means used]). This can best be demonstrated by an example:
Three job applicants are erroneously disqualified and all file their administrative appeals on the same day. The first applicant's appeal is decided quickly. He "wins", is certified, and under Mena the statutory durational period of his eligibility begins to run from the date of correction. He is considered for existing vacancies. The second applicant's appeal is decided quickly. He "loses" and immediately commences a CPLR article 78 proceeding which the courts resolve in his favor. Under Mena, he has his eligibility extended and is considered for existing vacancies. The third applicant's appeal procedures are held up due to administrative delays. Eventually they terminate in his favor but not until the eligible list is about to expire. He is not certified immediately. Because he "won" he is not aggrieved and cannot commence a proceeding. Under the decision here, he is entitled to no Mena relief. The list is not extended. He cannot be considered for existing vacancies.
The case of the third applicant is the case before us. That the first and the second applicants should obtain Mena relief but not the third, comports with neither fairness nor common sense and the holding that this is the New York rule results in a violation of petitioner's Federal and State due process rights. His substantial property interest in being considered for appointment based on merit and fitness and in being able to protect that interest through an effective use of the administrative appeal mechanism is cut off by implementation of a State procedural precondition which does not reasonably further any discernible governmental purpose (see, N Y Const, art I, § 6; US Const 14th Amend; Logan v Zimmerman Brush Co., supra; see also, Baer v Town of Brookhaven, supra; McMinn v Town of Oyster Bay, supra, at 549; French Investing Co. v City of New York, supra, at 596).
The order should be affirmed.