viability of Plaintiffs claim, therefore, turns on whether the law recognizes a constitutionally protected property interest in the process of merit selection.
Property interests do not arise from the Constitution itself. They are defined by existing rules or understandings that stem from an independent source, such as state law. Roth, 408 U.S. at 577, 92 S. Ct. at 2709. However, it is federal constitutional law that determines whether the interests articulated by state law rise to the level of a constitutionally protected property interest. Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1, 9, 98 S. Ct. 1554, 1560, 56 L. Ed. 2d 30 (1978) (citing Roth, 408 U.S. at 577, 92 S. Ct. at 2709).
"The property interests protected by procedural due process extend well beyond actual ownership of real estate, chattels, or money," Roth, 408 U.S. at 571-72, 92 S. Ct. at 2706, and the types of interests protected as "property" are varied and often intangible, relating to the whole domain of social and economic fact.
Logan v. Zimmerman Brush Co., 455 U.S. 422, 430, 102 S. Ct. 1148, 1155, 71 L. Ed. 2d 265 (1982). However, not every state or municipal law, regulation, or ordinance creates a constitutionally protected entitlement. See Clark v. Township of Falls, 890 F.2d 611, 620 n.4 (3d Cir. 1989) ("A property interest is no more created by the mere fact that a state has established a procedural structure than is a liberty interest.") Rather, "the hallmark of property . . . is an individual entitlement grounded in state law which cannot be removed except 'for cause.'" Logan, 455 U.S. at 432, 102 S. Ct. at 1155 (citation omitted).
Plaintiffs argue that merit selection is a protected property interest because the Charter and Regulations are drafted in the imperative, mandating the procedures by which promotions are to be made. See 351 Pa. Code §§ 7.7-401. Limitations placed on government discretion in the administration of a benefit is one factor that may be considered in determining whether that benefit rises to the level of a constitutionally protected property interest. See Midnight Sessions, Ltd. v. City of Philadelphia, 945 F.2d 667, 678 (3d Cir. 1991) (noting entitlement may exist for benefit sought but not yet obtained if state law limits exercise of discretion by state official responsible for conferring the benefit), cert. denied, 503 U.S. 984, 112 S. Ct. 1668, 118 L. Ed. 2d 389 (1992). However, Plaintiffs' argument does not alter the fact that the entitlement to which they lay claim is a procedure through which the true substantive benefit, employment at a higher level, is conveyed.
My research has revealed no case in which a property interest has been held to exist in a procedure, and Plaintiffs have failed to bring any such case to my attention. To the contrary, procedural interests under state law are not themselves property interests that will be enforced in the name of the Constitution. Olim v. Wakinekona, 461 U.S. 238, 248-51, 103 S. Ct. 1741, 1746-49, 75 L. Ed. 2d 813 (1983). See also Swartz v. Scruton, 964 F.2d 607 (7th Cir. 1992) (finding no property interest in method by which university awards merit pay raises); Doe by Nelson v. Milwaukee County, 903 F.2d 499 (7th Cir. 1990) (finding no property interest in procedures intended to prevent child abuse). "Process is not an end in itself. Its constitutional purpose is to protect a substantive interest to which the individual has a legitimate claim of entitlement." Olim, 461 U.S. at 250, 103 S. Ct. at 1748.
The selection procedures established by the Charter and Regulations are intended to ensure that appointments and promotions are carried out "based on merit principles and scientific methods." 351 Pa. Code § 7.7-300. However, the principles of merit selection which they establish are not, in themselves, an entitlement to which a property interest may attach. Rather, they represent a process by which the substantive benefit, employment at a higher level, is conveyed.
I conclude that Plaintiffs possess no constitutionally protected property interest the City's merit selection procedures.
Accordingly, I will dismiss Plaintiffs' Complaint because it has failed to present sufficient facts upon which a § 1983 claim can be granted.
An appropriate Order follows.
AND NOW, this 24th day of October, 1995, upon consideration of the Defendant's Motion To Dismiss (Document No. 8) pursuant to Fed. R. Civ. P. 12(b)(6), and Plaintiffs' response in opposition thereto (Document No. 9), IT IS HEREBY ORDERED that:
1. Defendant's Motion is GRANTED.
2. The Clerk of the Court shall mark this case CLOSED.
BY THE COURT:
JOHN R. PADOVA, J.