concurring.
I concur in the result.
I cannot join the majority opinion because I am not persuaded that Alberico, as a reserve officer within two years of retirement, could have “no reasonable expectations of continued employment and thus no property interests protected by the due process clause.” The Supreme Court has explained its holding about protected property interests:
We have made clear in Roth [408 U.S.] at 571-572 [92 S.Ct. at 2705-06], that “property” interests subject to procedural due process protection are not limited by a few rigid, technical forms. Rather, “property” denotes a broad range of interests that are secured by “existing rules or understandings.” Id., at 577 [92 S.Ct. at 2709.] A person's interest in a benefit is a “property” interest for due process purposes if there are such rules or mutually explicit understandings that support his claim of entitlement to the benefit and that he may invoke at a hearing. Ibid.
Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d 570 (1972).
The record reveals that by a letter dated February 24, 1976, Alberico was offered “an extension of service beyond 20 years active Federal service to complete 10 years active Federal commissioned service.” He was offered the opportunity to be “retained on active duty in a commissioned status until you have completed 10 years active Federal commissioned service.” There was only this restriction on the offer: “This extension will be subject to the policy restrictions relative to promotion and other minimum standards of performance of duty.” In notifying Alberico of the proposed action, his commanding officer referred to that restriction, stating that
your manner of performance has not been consistent with the conditions prescribed upon your acceptance of the tender of retention on active duty beyond the completion of 20 years active Federal service. On 14 May 1977 when you accepted such offer of retention on active duty, you acknowledged and agreed that your continuation on active duty was subject to your “maintaining satisfactory standards.” The manner of your recent performance clearly indicates that you have failed to meet this condition.
App. 10-166.
In forwarding the proposal to the next command level, Alberico’s commander stated that the basis of the proposal was “the manner of CPT Alberico’s performance.” He wrote that Alberico’s “manner of performance has not been consistent with the conditions prescribed upon his acceptance of the tender of retention on active duty.” App. 10-030,031. The endorsement forwarding the proposal to Headquarters, Department of the Army, likewise recognized that his “extension is conditional in that it is subject to his maintaining and meeting promotion and minimum standards of performance. His recent performance of duty does not constitute compliance with these conditions.” App. 10-168. In light of this evidence in the record I cannot agree that Alberico’s interest in remaining on active duty was a “mere expectancy.” Even if the Army could have chosen to release Alberico for no reason at all, by electing to *1030release him for cause other considerations are implicated. See Vitarelli v. Seaton, 359 U.S. 535, 539, 79 S.Ct. 968, 972, 3 L.Ed.2d 1012 (1959) (civilian employee who could have been summarily discharged by Secretary of the Interior at any time without the giving of a reason was entitled to specified procedural protections when Secretary gratuitously decided to give a reason). “While the [Army] may elect not to confer a property interest in [a retention on active duty], it may not constitutionally authorize the deprivation of such an interest, once conferred, without appropriate procedural safeguards.” Cleveland Board of Education v. Loudermill, — U.S. -, 105 S.Ct. 1487, 1493, 84 L.Ed.2d 494 (1985) (quoting Arnett v. Kennedy, 416 U.S. 134, 167, 94 S.Ct. 1633, 1650-51, 40 L.Ed.2d 15 (1974) (Powell, J., concurring in part and concurring in result in part)).
Yet, I concur in the result because assuming, without deciding, that his interest was a protected property interest, I agree that he was afforded his due process rights. Regrettably, I cannot join that part of the majority opinion’s section I because it misstates the law in two respects.
First, contrary to footnote 4, the “[failure to provide a hearing before, rather than after, termination of a property interest” certainly would be “violative of due process.” That is the very issue addressed in Cleveland Board of Education v. Loudermill, — U.S. -, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). Even though Louder-mill was entitled to a full post-termination hearing, the Court said that “[t]he only question is what steps were required before the termination took effect.” Loudermill, 105 S.Ct. at 1495 (emphasis added). The Supreme Court “described ‘the root requirement’ of the Due Process Clause as being ‘that an individual be given an opportunity for a hearing before he is deprived of any significant property interest.’ Boddie v. Connecticut, 401 U.S. 371, 379, 91 S.Ct. 780, 786, 28 L.Ed.2d 113 (1971) (emphasis in original).” Loudermill, 105 S.Ct. at 1493 (footnote omitted).
Second, contrary to the majority, the criminal trial did not satisfy the due process hearing requirement with respect to the administrative action. The criminal trial was an entirely collateral proceeding which focused on whether Alberico was guilty of the felony charges, not on whether, because of his conduct, he should be released from active duty. The Army’s administrative decision to release Alberico from active duty was an exercise of its discretion. That is, even though Alberico had been declared guilty and had been sentenced by the civilian court, the military authorities could have chosen not to release him. Relating to dismissals for cause, the Supreme Court has expressed that
[e]ven where the facts are clear, the appropriateness or necessity of the discharge may not be; in such cases, the only meaningful opportunity to invoke the discretion of the decisionmaker is likely to be before the termination takes effect....8
Loudermill, 105 S.Ct. at 1494 & n. 8.
The Court emphasized that “the right to a hearing does not depend on a demonstration of certain success.” Id., at 1494.
Rather, I am convinced that Alberico was afforded his due process rights because the record reveals that he received the “essential requirements” of due process, “written notice of the charges against him, an explanation of the employer’s evidence, and an opportunity to present his side of the story.” Loudermill, 105 S.Ct. at 1495.
By a letter dated September 20, 1977, Alberico’s commanding officer notified him of the commanding officer’s intention to recommend that he be involuntarily released from active duty. This letter informed Alberico of the charges against him, explained the evidence, and offered him the opportunity to “submit any statements in rebuttal or comments pertaining to this action.” App. 10-167. And Alberico did respond. On September 30, 1977, *1031the commanding officer forwarded through command channels his request that Alberico be released. He “enclosed CPT Alberico’s response by counsel with his request.” App. 10-014. Thus it appears that Alberico had the opportunity to invoke the discretion of the decisionmaker before his release took effect. The fact that he was not successful is beside the point. I am satisfied that he was provided “a meaningfull hedge against erroneous action.” Loudermill, 105 S.Ct. at 1494 n. 8 (quoting Goss v. Lopez, 419 U.S. 565, 583, 95 S.Ct. 729, 740, 42 L.Ed.2d 725 (1975)).
It is on that basis that I concur in the result.
... The point is that where there is an entitlement, a prior hearing facilitates the consideration of whether a permissible course of action is also an appropriate one.