                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                                                                 FILED
                                                      U.S. COURT OF APPEALS
                                                        ELEVENTH CIRCUIT
                            No. 08-11573                    October 29, 2008
                        Non-Argument Calendar            THOMAS K. KAHN
                                                                CLERK

                 D. C. Docket No. 05-02357-CV-TCB-1

GWENDOLYN TROUP,


                                              Plaintiff-Appellant,


                                 versus


FULTON COUNTY, GEORGIA,


                                              Defendant-Appellee.



               Appeal from the United States District Court
                  for the Northern District of Georgia


                           (October 29, 2008)

Before DUBINA, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:
      Appellant Gwendolyn Troup (“Troup”), brought an action in the United

States Court for the Northern District of Georgia, under 42 U.S.C. § 1983, alleging

that Fulton County, Georgia, violated her procedural due process rights under the

Fifth and Fourteenth Amendments of the United States Constitution by denying

her application for disability retirement benefits. Troup subsequently withdrew

her Fifth Amendment claims, and the district court granted summary judgment in

favor of the county on the remaining Fourteenth Amendment claims. We affirm.

      The issue presented on appeal is whether the district court properly granted

the county’s motion for summary judgment where Troup failed to demonstrate a

constitutionally protected interest in the disability retirement benefits offered by

Fulton County, Georgia’s defined contribution plan.

      We review de novo a district court’s grant of a motion for summary

judgment. Begner v. United States, 428 F.3d 998, 1001 (11th Cir. 2005).

“Summary judgment is proper if, when viewing the evidence in the light most

favorable to the non-moving party, there is no genuine issue of material fact and

the moving party is entitled to judgment as a matter of law.” Sierra Club, Inc. v.

Leavitt, 488 F.3d 904, 911 (11th Cir. 2007).

      After reviewing the record and reading the parties’ briefs, we conclude that

the district court properly granted the county’s motion for summary judgment

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because applicants for benefits do not have a legitimate entitlement to those

benefits that triggers due process protection. Troup contends that the district court

erred in finding that she had no constitutionally protected property interest in

potential disability retirement benefits. The United States Supreme Court has

“never held that applicants for benefits, as distinct from those already receiving

them, have a legitimate claim of entitlement protected by the due process clause of

the Fifth and Fourteenth Amendments.” Lyng v. Payne, 476 U.S. 926, 942, 106 S.

Ct. 2333, 2343 (1986) (citing Walters v. National Assn. of Radiation Survivors,

473 U.S. 305, 320, n.8, 105 S. Ct. 3180, 3189, n.8 (1985)). In her brief, Troup

also recognizes that the Eleventh Circuit has never ruled that applicants for

benefits have constitutionally protected interests. Troup does rely on the Fourth

Circuit case of Mallette v. Arlington County Employees’ Supplemental Retirement

System II, 91 F.3d 630 (4th Cir. 1996), in which the Fourth Circuit found that, as

“a member of the class of persons the Retirement System was intended to protect

and benefit, Mallette has more than an abstract desire for the benefits.” Id. at 636.

It is important to note, however, that the Fourth Circuit further found that Mallette

would have a property interest in those benefits and the attendant right to be heard

only if she could “make a prima facie case of eligibility. . . .” pursuant to “the

Arlington Code [that] vests county employees who meet its eligibility

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requirements with a right to receive disability retirement benefits when they suffer

work-related disabilities.” Id. (internal citations omitted).

      In the present case, however, it is undisputed that after receiving additional

information from hand specialist Dr. Jim Roderique, Dr. Eric A. Benning of the

Fulton County Health Department advised the Administrative Committee of the

plan that Troup did not meet the criteria for total disability under the plan. As

such, Troup did not meet the plan’s disability retirement criteria, and could not

establish a prima facie case of eligibility even if the Fourth’s Circuit’s decision in

Mallette were binding on us.

      Because we conclude that there is no merit to any of the arguments Troup

makes in this appeal, we affirm the district court’s grant of summary judgment.

      AFFIRMED.




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