Pearl M. Rieger v. Township of Fairfield

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-1197
PEARL M. RIEGER,
Appellant
v.
TOWNSHIP OF FAIRFIELD;
A. CRAIG THOMAS; VIOLA THOMAS;
MARVIN R. PEIRCE; JOSE VELEZ
Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 01-cv-05676)
District Judge: Honorable Joseph E. Irenas
Submitted Under Third Circuit LAR 34.1(a)
January 25, 2005
Before: SCIRICA, Chief Judge, RENDELL and FISHER, Circuit Judges.
(Filed: February 9, 2005)
OPINION OF THE COURT
RENDELL, Circuit Judge.
Pearl Rieger appeals the order of the District Court for the District of New Jersey
granting summary judgment for the Township of Fairfield (“Township”) on her claim

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1 We note that there is some confusion as to whether the first appointment should
be viewed as commencing a 3 year term beginning on July 1, 1997 or whether it was for a
six month term after which plaintiff was reappointed to a three year term beginning on
January 1, 1998. The District Court found that plaintiff’s first appointment was for 6
months and after that six month period expired, plaintiff was reappointed to serve a three
year term on January 1, 1998. We will assume for purposes of this appeal that she was
appointed to a three year term beginning January 1, 1998. However, even if plaintiff’s
three year term should be viewed as commencing on July 1, 1997, our reasoning below
does not change, as plaintiff’s term was still to have extended until July 1, 2000, and
was, thus, cut short when she was terminated on June 20, 2000.
2
under 42 U.S.C. § 1983. Rieger claims that she was wrongfully terminated as municipal
clerk during her three year term of office and was deprived of her due process rights
under the Fourteenth Amendment when the Township failed to afford her any notice or a
hearing. The District Court found that Rieger had no property interest in the remainder of
her term and, therefore, was not entitled to procedural due process prior to termination.
We will reverse and remand.
I. Factual and Procedural Background
As we write only for the parties, we include only such factual and procedural
events as are necessary to our decision. Rieger was appointed as municipal clerk for a six
month term on July 1, 1997. On January 1, 1998, she was nominated and unanimously
approved for the position of municipal clerk for a three year term. This appointment was
to run from January 1, 1998 to December 31, 2000.1 At a June 20, 2000 township
meeting, by a vote of 3-2, Beth Taylor was appointed to replace Rieger. Two days after
the meeting, plaintiff received a letter informing her that her employment had been

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2 Rieger also claims on appeal that it was error for the District Court to enter any
opinion as to whether or not she would have attained tenure if she had completed her
three year term. The District Court considered the discussion of tenure necessary to the
disposition of at least some of Rieger’s state law claims. Rieger claims this was error
because the District Court had already dismissed her federal claim and, therefore, should
not have entered any opinion on her state law claims. However, because the District
Court had discretion to address her state law claims under 28 U.S.C. § 1367(c)(3), it was
not beyond its authority to do so and we will not disturb this ruling.
3
terminated.
Rieger brought suit in the United States District Court for the District of New
Jersey under 42 U.S.C. § 1983, claiming violation of her Fourteenth Amendment Due
Process rights because she was not afforded notice or a hearing prior to her termination.
She also brought state law claims for breach of statutory term, breach of implied contract
and discrimination. The District Court denied summary judgment for the plaintiff and
granted summary judgment for the defendants, dismissing the § 1983 claim with
prejudice. The District Court also dismissed all of plaintiff’s state law claims, dismissing
the discrimination claim and implied contract claims without prejudice.
Plaintiff subsequently brought her state law claims for violation of statutory term,
violation of implied contract rights, and age and race discrimination in the Superior Court
of New Jersey, Law Division, Cumberland County. On April 30, 2004, the trial court
granted plaintiff’s motion for summary judgment on the breach of statutory term of office
claim and the breach of the implied contract claim. Rieger now appeals the District
Court’s dismissal of her § 1983 claim.2

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II. Jurisdiction and Standard of Review
The District Court had jurisdiction over the § 1983 claim pursuant 28 U.S.C. §§
1331 and 1343(a)(3) and had supplemental jurisdiction over plaintiff’s state law claims
under 28 U.S.C. § 1367. We have jurisdiction to hear this appeal from the granting of
summary judgment under 28 U.S.C. § 1291.
We have plenary review of the District Court's decision to grant summary
judgment. See Blair v. Scott Specialty Gases, 283 F.3d 595, 602-03 (3d Cir. 2002). We
apply the same standard as used by the District Court. Id.
III. Discussion
The District Court focused on whether Rieger had acquired tenure in her position
as municipal clerk and found that because she had not, she had no protected property
interest in the remainder of her term and could be terminated without procedural due
process. We find this reasoning to not be controlling, however, because regardless of
whether or not Rieger had tenure, she did have a legitimate expectation of continued
employment at least for the remainder of her three year term.
In Perry v. Sinderman, 408 U.S. 593 (1972) and Board of Regents of State College
v. Roth, 408 U.S. 564 (1972), issued the same day, the Supreme Court held that in order
to have a property interest in a benefit that is protected by the Fourteenth Amendment, a
plaintiff must show “more than an abstract need or desire for it. He must have more than
a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to

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3 Rieger also contends that her term in office was further protected by Fairfield
Township Ordinance 2-1.14(a). However, because the caselaw construes N.J.S.A. 41A:9-
133 to afford a clear, fixed three year term of office to a municipal clerk, which gives
Appellant a right to the remainder of her term tantamount to a property right, we need not
depend on the ordinance in order to find the basis for a due process claim.
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it.” Roth, 408 U.S. 564 at 577. Rieger certainly had such a claim in the remainder of her
term given the statutory three year term for municipal clerks set forth in N.J.S.A. 40A:9-
133(a). Further, the Supreme Court of New Jersey has stated that an appointment under
N.J.S.A. 40A:9-133(a), the statute under which Rieger was appointed, is for a three year
term. See McCurrie v. Town of Kearny, 174 N.J. 523, 527 (N.J. 2002). Additionally in
McCurrie v. Town of Kearny, 344 N.J. Super. 470, 474 (N.J. Super. Ct. App Div. 2001)
(vacated on other grounds), the New Jersey Superior Court specifically distinguished
between the fixed term of a municipal clerk and the at-will nature of a municipal
administrator’s employment: “By statute, the term for a municipal clerk is three years,
N.J.S.A. 40A:9-133, while a municipal administrator serves at the pleasure of the
governing body, N.J.S.A. 40A:9-137.” Therefore, the fact that employment is for a fixed
term and not at the pleasure of the governing body is sufficient to create a legitimate
expectation of continued employment on the part of Rieger. Such expectation gives rise
to a right protected by due process. 3
Additionally, as stated above, in a subsequent suit on her state law claims, the
Superior Court of New Jersey, Law Division, Cumberland County granted plaintiff’s
motion for summary judgment on her breach of statutory term of office claim and the

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breach of the implied contract claim. This is further evidence of the legitimacy of
plaintiff’s expectation of continued employment.
For the reasons stated above, we will reverse the order of the District Court and
remand for further proceedings consistent with this opinion.

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