Respondent's claim under the Due Process Clause of the
Fourteenth Amendment that, before being dismissed from his
nontenured position as a city policeman, he was entitled to a
hearing due to the stigmatizing effect of certain information in
his personnel file about a suicide attempt while he was a police
trainee
held to be defeated by the failure of respondent
or the courts below to raise a question about the substantial
accuracy of the report of the suicide attempt. Only if the employer
is alleged to have created and disseminated a false and defamatory
impression about the employee in connection with his termination,
or a trial court so finds, is such a hearing required.
525 F.2d 334, reversed.
PER CURIAM.
Respondent Velger's action shifted its focus, in a way not
uncommon to lawsuits, from the time of the filing of his complaint
in the United States District Court for the Southern District of
New York to the decision by the Court of Appeals for the Second
Circuit which we review here. His original complaint alleged that
he had been wrongly dismissed without a hearing or a statement of
reasons from his position as a patrolman with the New York City
Police Department, and, under 42 U.S.C. § 1983, sought
reinstatement and damages for the resulting injury to his
reputation and future employment prospects. After proceedings
in
Page 429 U. S. 625
which Judge Gurfein (then of the District Court) ruled that
respondent had held a probationary position, and therefore had no
hearing right based on a property interest in his job, respondent
filed an amended complaint. That complaint alleged, more
specifically than had the previous one, that respondent was
entitled to a hearing due to the stigmatizing effect of certain
material placed by the City Police Department in his personnel
file. He alleged that the derogatory material had brought about his
subsequent dismissal from a position with the Penn-Central Railroad
Police Department, and that it had also prevented him from finding
other employment of a similar nature for which his scores on
numerous examinations otherwise qualified him. [
Footnote 1]
The case came on for a bench trial before Judge Werker, who, in
the words of his opinion on the merits, found "against plaintiff on
all issues." He determined that the only issue which survived Judge
Gurfein's ruling on the earlier motions was whether petitioners, in
discharging respondent, had "imposed a stigma on Mr. Velger that
foreclosed his freedom to take advantage of other employment
opportunities." After discussing the evidence bearing upon this
issue, Judge Werker concluded that "[i]t is clear from the
foregoing facts that plaintiff has not proved that he has been
stigmatized by defendants."
Among the specific findings of fact made by the District Court
was that an officer of the Penn-Central Railroad
Page 429 U. S. 626
Police Department was shown the City Police Department file
relating to respondent's employment, upon presentation of a form
signed by respondent authorizing the release of personnel
information. From an examination of the file, this officer "gleaned
that plaintiff had been dismissed because, while still a trainee,
he had put a revolver to his head in an apparent suicide attempt."
The Penn-Central officer tried to verify this story, but the Police
Department refused to cooperate with him, advising him to proceed
by letter. In rendering judgment against the respondent, the court
also found that he had failed to establish
"that information about his Police Department service was
publicized or circulated by defendants in any way that might reach
his prospective employer."
Respondent successfully appealed this decision to the Court of
Appeals for the Second Circuit. That court held that the finding of
no stigma was clearly erroneous. It reasoned that the information
about the apparent suicide attempt was of a kind which would
necessarily impair employment prospects for one seeking work as a
police officer. It also decided that the mere act of making
available personnel files with the employee's consent was enough to
place responsibility for the stigma on the employer, since former
employees had no practical alternative but to consent to the
release of such information if they wished to be seriously
considered for other employment.
Velger v. Cawley, 525
F.2d 334 (1975).
We granted certiorari
sub nom. Cawley v. Velger, 427
U.S. 904 (1976), and the parties have urged us to consider whether
the report in question was of a stigmatizing nature, and whether
the circumstances of its apparent dissemination were such as to
fall within the language of
Board of Regents v. Roth,
408 U. S. 564,
408 U. S. 573
(1972), and
Bishop v. Wood, 426 U.
S. 341 (1976). We find it unnecessary to reach these
issues, however, because of respondent's failure to allege or prove
one essential element of his case.
Page 429 U. S. 627
Assuming all of the other elements necessary to make out a claim
of stigmatization under
Roth and
Bishop, the
remedy mandated by the Due Process Clause of the Fourteenth
Amendment is "an opportunity to refute the charge." 408 U.S. at
408 U. S. 573.
"The purpose of such notice and hearing is to provide the person an
opportunity to clear his name,"
id. at
408 U. S. 573
n. 12. But if the hearing mandated by the Due Process Clause is to
serve any useful purpose, there must be some factual dispute
between an employer and a discharged employee which has some
significant bearing on the employee's reputation. Nowhere in his
pleadings or elsewhere has respondent affirmatively asserted that
the report of the apparent suicide attempt was substantially false.
Neither the District Court nor the Court of Appeals made any such
finding. When we consider the nature of the interest sought to be
protected, we believe the absence of any such allegation or finding
is fatal to respondent's claim under the Due Process Clause that he
should have been given a hearing.
Where the liberty interest involved is that of conditional
freedom following parole, we have said that the hearing required by
the Due Process Clause in order to revoke parole must address two
separate considerations. T he first is whether the parolee in fact
committed the violation with which he is charged, and the second is
whether, if he did commit the act, his parole should, under all the
circumstances, therefore be revoked.
Morrissey v. Brewer,
408 U. S. 471,
408 U. S.
479-480 (1972);
Gagnon v. Scarpelli,
411 U. S. 778,
411 U. S. 784
(1973). The fact that there was no dispute with respect to the
commission of the act would not necessarily obviate the need for a
hearing on the issue of whether the commission of the act warranted
the revocation of parole.
But the hearing required where a nontenured employee has been
stigmatized in the course of a decision to terminate his employment
is solely "to provide the person an opportunity to clear his name."
If he does not challenge the substantial truth
Page 429 U. S. 628
of the material in question, no hearing would afford a promise
of achieving that result for him. For the contemplated hearing does
not embrace any determination analogous to the "second step" of the
parole revocation proceeding, which would, in effect, be a
determination of whether or not, conceding that the report were
true, the employee was properly refused reemployment. Since the
District Court found that respondent had no Fourteenth Amendment
property interest in continued employment, [
Footnote 2] the adequacy or even the existence of
reasons for failing to rehire him presents no federal
constitutional question. Only if the employer creates and
disseminates a false and defamatory impression about the employee
in connection with his termination is such a hearing required.
Roth, supra; Bishop, supra.
Our decision here rests upon no overly technical application of
the rules of pleading. Even conceding that the respondent's
termination occurred solely because of the report of an apparent
suicide attempt, a proposition which is certainly not crystal clear
on this record, respondent has at no stage of this litigation
affirmatively stated that the "attempt" did not take place as
reported. The furthest he has gone is a suggestion by his counsel
that "[i]t might have been all a mistake, [i]t could also have been
a little horseplay." This is not enough to raise an issue about the
substantial accuracy of the report. Respondent has therefore made
out no claim under the Fourteenth Amendment that he was harmed by
the denial of a hearing, even were we to accept in its entirety
Page 429 U. S. 629
the determination by the Court of Appeals that the creation and
disclosure of the file report otherwise amounted to stigmatization
within the meaning of
Board of Regents v. Roth, supra.
The judgment of the Court of Appeals is reversed with
instructions to reinstate the judgment of the District Court.
So ordered.
[
Footnote 1]
Respondent's amended complaint did not seek a delayed
Roth hearing to be conducted by his former employer at
which he would have the opportunity to refute the charge in
question.
Board of Regents v. Roth, 408 U.
S. 564,
408 U. S. 573
(1972). The relief he sought was premised on the assumption that
the failure to accord such a hearing when it should have been
accorded entitled him to obtain reinstatement and damages resulting
from the denial of such hearing. We therefore have no occasion to
consider the allocation of the burden of pleading and proof of the
necessary issues as between the federal forum and the
administrative hearing where such relief is sought.
[
Footnote 2]
The Court of Appeals did not pass on this "property interest"
question. Respondent has not urged it as an alternative basis for
affirming the judgment of that court, and indeed has all but
conceded in his brief that the District Court's interpretation of
the relevant New York cases is correct in this respect. Brief for
Respondent 14. The opinion of the District Court on this point
reflects a proper understanding of
Roth, supra, and of
Perry v. Sindermann, 408 U. S. 593
(1972), and we see no reason to disturb its application of those
cases to particular facets of the New York law of entitlement to
public job tenure.
Id. at
408 U. S. 602
n. 7.
MR. JUSTICE BLACKMUN, concurring.
I join the Court's per curiam opinion, but I emphasize that, in
this case, there is no suggestion that the information in the file,
if true, was not information of a kind that appropriately might be
disclosed to prospective employers. We therefore are not presented
with a question as to the limits, if any, on the disclosure of
prejudicial, but irrelevant, accurate information.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL joins,
dissenting.
I dissent from today's holding substantially for the reasons
expressed by my Brother STEVENS in
429 U. S.
despite my belief that the Court's ruling is likely to be of little
practical importance.
Respondent alleged that he suffered deprivation of his liberty
when petitioners terminated his employment and retained
stigmatizing information in his employment file, information later
disseminated to a prospective employer. Under
Board of Regents
v. Roth, 408 U. S. 564,
408 U. S. 573
(1972), respondent therefore was entitled to a timely
pretermination hearing. The Court today reaffirms
Roth,
but holds that respondent's retrospective claim for damages and
equitable relief under 42 U.S.C. § 1983 must be denied because, "at
no stage of this litigation," [
Footnote
2/1]
ante at
429 U. S. 628,
has he "raise[d] an issue
Page 429 U. S. 630
about the substantial accuracy of the report" in question.
[
Footnote 2/2]
Ibid. That
holding, I believe, erroneously allocates the burden of introducing
truth or falsity into the lawsuit.
Twice before this Term, we have reasserted the principle that,
once a plaintiff establishes that another has interfered with his
constitutional rights, the burden shifts to the wrongdoer to
demonstrate that any such interference was strictly harmless.
Arlington Heights v. Metropolitan Housing Dev. Corp., ante
at
429 U. S.
270-271, n. 21;
Mt. Healthy City Board of Ed. v.
Doyle, ante at
429 U. S. 287.
In this case, respondent met his initial burden, for he adequately
alleged that he has suffered injury to his reputation and job
prospects in conjunction with a discharge from public employment,
and that petitioners failed to comply with
Roth's
resulting requirement of a due process hearing. I agree that the
District Court remains open to a determination that petitioners'
denial of respondent's due process rights produced little [
Footnote 2/3] or no compensable injury,
since, even had the
Page 429 U. S. 631
hearing properly been held, the stigmatizing charges would have
remained unrefuted. But any such allegation and proof of truthful
material properly is a defense to be raised by the defendant
wrongdoer, subject, of course, to appropriate disposition of the
case by way of summary judgment should the employee thereupon fail
to contest the "substantial accuracy of the report." Since
petitioners interposed no such defense in this case, respondent's
due process claim should be upheld.
I also agree with Part III of MR. JUSTICE STEVENS dissenting
opinion, and I would therefore remand this case to the Court of
Appeals for further proceedings.
[
Footnote 2/1]
The Court fortunately makes clear that it is not calling for an
overly technical application of the rules of pleading.
Ante at
429 U. S. 628.
Indeed, there may be instances where a plaintiff reasonably cannot
be held responsible for failing to plead falsity in his complaint.
For example, in this instance, respondent cannot be faulted for his
failure to plead falsity, since his complaint alleged that he "does
not know the contents of his personnel file, and has never seen or
been advised of any derogatory matter placed in his file." App.
51a. Thus, his undoing occurred, according to the Court, in the
later "stage[s] of this litigation," when he learned of the
specific contents of the employment file but made little effort "to
raise an issue about the substantial accuracy of the report."
Ante at
429 U. S.
628.
[
Footnote 2/2]
Respondent has never argued that the disseminated information,
while truthful, was not properly informative of his role as
policeman or employee. As MR. JUSTICE BLACKMUN notes,
ante
at
429 U. S. 629,
the Court's opinion, therefore, does not address -- and does not
foreclose -- the question of whether the Constitution imposes
separate constraints upon the collection and dissemination of
stigmatizing information that bears only an attenuated relationship
to one's job performance or qualifications.
[
Footnote 2/3]
A determination of truthful material would preclude an award of
damages for false stigmatization of plaintiff's reputation.
Nonetheless, because of petitioners' failure to satisfy
Roth's requirement of a pretermination due process
hearing, respondent still would have suffered deprivation of an
established constitutional right. As with any infringement of an
intangible constitutional right,
e.g., Nixon v. Herndon,
273 U. S. 536,
273 U. S. 540
(1927) (damages allowable for unlawful denial of the right to
vote), a jury should be permitted to decide whether to fix and
award damages -- perhaps only nominal -- for the very denial of a
timely due process forum where a stigmatized individual could
participate in the process of attempting to clear his name.
MR. JUSTICE STEWART, dissenting.
Although sharing generally the views expressed in the Court'
opinion, I agree with Part III of MR. JUSTICE STEVENS' dissenting
opinion, and I would for that reason remand this case to the Court
of Appeals for further proceedings.
MR. JUSTICE STEVENS, dissenting.
There are three aspects of the Court's disposition of this case
with which I disagree. First, I am not persuaded that a person who
claims to have been "stigmatized" by the State without being
afforded due process need allege that the charge against him was
false in order to state a cause of action under 42 U.S.C. § 1983.
Second, in my opinion, the Court should not assume that this
respondent was stigmatized, because the District Court's contrary
finding was not
Page 429 U. S. 632
clearly erroneous. Third, I would remand the case to the Court
of Appeals to consider the claim that respondent had a property
interest in his job, since that court did not decide this
issue.
I
The Court holds that respondent's failure to allege falsity
negates his right to damages for the State's failure to give him a
hearing. This holding does not appear to rest on the view that a
discharged employee has no right to a hearing unless the charge
against him is false. [
Footnote
3/1] If it did, it would represent a radical departure from a
principle basic to our legal system -- the principle that the
guilty as well as the innocent are entitled to a fair trial.
[
Footnote 3/2] It would also be a
departure from
Board of Regents v. Roth, 408 U.
S. 564,
408 U. S.
572-575. In that case, the Court concluded that a person
is deprived of liberty when the State's refusal to rehire him
destroys his "good name" in the community or forecloses him from
practicing his
Page 429 U. S. 633
profession. A hearing my establish that such a deprivation of
liberty is warranted because the charges are correct. But
Bishop v. Wood, 426 U. S. 341,
426 U. S. 349,
makes it clear that the truth or falsity of the charge "neither
enhances nor diminishes [the employee's] claim that his
constitutionally protected interest in liberty has been impaired."
If the charge, whether true or false, involves a deprivation of
liberty, due process must accompany the deprivation. And normally,
as
Roth plainly states, the Constitution mandates "a full
prior hearing." 408 U.S. at
408 U. S. 574.
[
Footnote 3/3]
This hearing must include consideration of whether the charge,
if true, warrants discharge. The discharge itself is part of the
deprivation of liberty against which the employee is entitled to
defend. Release of unfavorable information can damage an employee's
reputation and employment prospects, but far greater injury is
caused by an official determination, based on such information,
that the employee is unfit for public employment. Indeed, the Court
has held that an injury to reputation had not resulted in a
deprivation of liberty, because it was not associated with the
termination of
Page 429 U. S. 634
employment.
Paul v. Davis, 424 U.
S. 693,
424 U. S.
709-710. Since allowing the employee to keep his job
would eliminate (or at least lessen) the loss of liberty, due
process requires that the hearing include the issue whether the
facts warrant discharge. [
Footnote
3/4] In short, the purpose of the hearing, as is true of any
other hearing which must precede a deprivation of liberty, is
twofold: first, to establish the truth or falsity of the charge,
and second, to provide a basis for deciding what action is
warranted by the facts. [
Footnote
3/5] Even when it is perfectly clear that the charge is true,
the Constitution requires that procedural safeguards be observed.
Cf. Groppi v. Leslie, 404 U. S. 496,
404 U. S. 503.
For these reasons, I disagree with the Court's assertion that the
purpose of the hearing is "solely" to provide the person with an
"opportunity to clear his name." [
Footnote 3/6]
Page 429 U. S. 635
Even, if I agreed with the Court that this was the sole purpose
of the hearing, I could not agree with it holding that failure to
demonstrate falsity is fatal to the employee' suit. Surely the
burden should be on the State to show that failure to provide due
process was harmless error because the charges were true.
See MR. JUSTICE BRENNAN's dissent,
ante, p.
429 U. S. 629.
[
Footnote 3/7] Moreover, failure to
provide a hearing might give rise to damages unrelated to the
possible outcome of the hearing. [
Footnote 3/8]
Page 429 U. S. 636
Today's. holding may have the unfortunate effect of encouraging
public officials to deny hearings when they feel confident of the
correctness of their decision. But, in Mr. Justice Frankfurter's
oft-quoted words:
"That a conclusion satisfies one's private conscience does not
attest its reliability. The validity and moral authority of a
conclusion largely depend on the mode by which it was reached.
Secrecy is not congenial to truth-seeking, and self-righteousness
gives too slender an assurance of rightness. No better instrument
has been devised for arriving at truth than to give a person in
jeopardy of serious loss notice of the case against him and
opportunity to meet it. Nor has a better way been found for
generating the feeling, so important to a popular government, that
justice has been done."
Anti-Fascist Committee v. McGrath, 341 U.
S. 123,
341 U. S.
171-172 (concurring opinion). As the last sentence in
this quotation demonstrates, if state action has consequences
sufficiently grievous to constitute a deprivation of
constitutionally protected liberty, it is essential that fair
procedures be followed for reasons that have nothing to do with the
merits of the individual case. Today's holding is only a minor
impairment of this principle. But the principle is one that admits
of no compromise.
II
Although the plaintiff does not have the burden of proving that
he was discharged for a false reason, if he claims that the
discharge deprived him of liberty, he does have the burden of
proving that he was stigmatized. The District Court found that
respondent did not meet that burden in this case. Under the proper
standard of appellate review, [
Footnote
3/9] I cannot say that
Page 429 U. S. 637
finding was clearly erroneous, particularly when the record
discloses that the respondent did not prove exactly what the
unfavorable information in his file was, or exactly what
information was disseminated to others.
The District Court found that unfavorable information from
respondent's police record reached a prospective employer in only
one instance. In that instance, a private employer was allowed to
see the file with respondent's permission. The private employer
then discharged respondent, who was on probationary status. The
District Court expressly found that no information was released to
any government agency to which respondent had applied. App.
113a-114a. [
Footnote 3/10] Thus,
as far
Page 429 U. S. 638
as the past effects of the unfavorable file are concerned, we
have only the finding that one employer discharged respondent on
the basis of the information. This does not in itself constitute a
"stigma" as that term is used in
Board of Regents v. Roth,
408 U. S. 564.
[
Footnote 3/11]
The Court of Appeals also relied on the nature of the
information itself as demonstrating that future release to employer
would bar respondent from obtaining employment.
Velger v.
Cawley, 525 F.2d 334, 336 (CA2 1975). Notwithstanding the
broad discovery authorized by the Federal Rules of Civil Procedure,
respondent failed to prove precisely what adverse information was
in his personnel file. The revolver incident occurred sometime
before respondent's 21st birthday, when he was still a trainee; as
his counsel points out, it might well have been "a little
horseplay"; and his subsequent conduct as a police officer was
presumably good. There was no finding that the revolver incident
was the official reason for discharge. [
Footnote 3/12] On this record, it cannot be said as a
matter of law
Page 429 U. S. 639
that prospective employers would reject respondent's attempts to
explain this incident and would uniformly refuse to hire him.
In the performance of our appellate function,
"[i]t is not enough that we might give the facts another
construction, resolve the ambiguities differently, and find a more
sinister cast to actions which the District Court apparently deemed
innocent. . . . We are not given those choices, because our mandate
is not to set aside findings of fact 'unless clearly
erroneous.'"
United States v. Real Estate Boards, 339 U.
S. 485,
339 U. S.
495-496.
I conclude that the Court of Appeals was incorrect in setting
aside the District Court's findings of fact. Since those findings
do not establish the existence of a stigma, the Court of Appeals
erred in holding on this basis that a hearing was required.
III
It is possible, however, that a hearing was required because the
discharge deprived respondent of a property interest. The District
Court rejected the claim that he had an entitlement to his job as a
matter of state law, but the Court of Appeals found it unnecessary
to reach this issue. I believe there is enough merit to the
property claim to justify a remand to the Court of Appeals with
directions to consider it.
In
Bishop v. Wood, the plaintiff's job was "terminable
at the will of either party irrespective of the quality of
performance by the other party." 426 U.S. at
426 U. S. 345
n. 9, and accompanying text. There was no right to state judicial
review. In this case, however, the state law may afford the
employee some protection against arbitrary discharge. According to
the state case cited by Judge Gurfein, App. 37a, the Police
Commissioner may terminate only "unsatisfactory employee[s],"
[
Footnote 3/13] and his
determination is reviewable in the
Page 429 U. S. 640
state courts on an "arbitrary and capricious" standard.
In
re Going v. Kennedy, 5 App.Div.2d 173, 176-177, 170 N.Y.S.2d
234, 237-238 (1958),
aff'd, 5 N.Y.2d 900, 156 N.E.2d 711
(1959);
see In re Talamo v. Murphy, 38 N.Y.2d 637, 345
N.E.2d 546 (1976). [
Footnote
3/14] Unlike
Bishop, in which a hearing would have
been pointless because nothing plaintiff could prove would entitle
him to keep his job, in this case, the plaintiff may have had a
right to continued employment if he could rebut the charge against
him. [
Footnote 3/15]
Page 429 U. S. 641
By directing the Court of Appeals to reinstate the District
Court judgment, the Court summarily rejects this claim without the
benefit of briefing or oral argument on the point. [
Footnote 3/16] I would remand the case to
the Court of Appeals for consideration of this claim.
[
Footnote 3/1]
The Court indicated,
ante at
429 U. S. 625
n. 1, that its holding is premised on the form of relief sought. If
falsity were a precondition to the existence of a constitutional
violation, the form of relief would be irrelevant. For, to grant
any relief, the federal court would first have to determine that a
violation had occurred, which would in turn require a finding of
falsity. I recognize that there is authority for the view that
falsity is an element of the violation.
See Sims v. Fox,
505 F.2d 857, 863-864 (CA5 1974) (en banc),
cert. denied,
421 U.S. 1011.
Cf. Paul v. Davis, 424 U.
S. 693,
424 U. S.
709-710 (describing
Board of Regents v. Roth,
408 U. S. 564, as
involving government "defamation").
[
Footnote 3/2]
"When we deny even the most degraded person the rudiments of a
fair trial, we endanger the liberties of everyone. We set a pattern
of conduct that is dangerously expansive and is adaptable to the
needs of any majority bent on suppressing opposition or
dissension."
"It is not without significance that most of the provisions of
the Bill of Rights are procedural. It is procedure that spells much
of the difference between rule by law and rule by whim or caprice.
Steadfast adherence to strict procedural safeguards is our main
assurance that there will be equal justice under law."
Anti-Fascist Committee v. McGrath, 341 U.
S. 123,
341 U. S. 179
(Douglas, J., concurring).
[
Footnote 3/3]
As I read Part II of
Roth, supra at
408 U. S.
572-575, which discusses the kind of "liberty" that is
protected by the Due Process Clause of the Fourteenth Amendment,
there are two quite different interests which may be implicated
when a nontenured employee is discharged. First, the Court, 408
U.S. at
408 U. S. 573,
considers the individual's interest in "
good name, reputation,
honor, or integrity.'" It is with respect to this reputational
interest that the Court indicates, id. at 408 U. S. 573
n. 12, that a name clearing hearing is constitutionally required.
That footnote does not tell us whether that hearing must precede
the injury to reputation, and surely does not imply that such a
hearing is the only remedy available to an employee whose
constitutional right to due process has been violated.
Second, in the ensuing paragraphs, the
Roth opinion
considers the individual interest in avoiding "a stigma or other
disability" that forecloses employment opportunities. With respect
to this interest, the Court rather clearly indicates,
id.
at
408 U. S. 574,
that no such stigma may be imposed without a "full prior
hearing."
[
Footnote 3/4]
Similarly, since disclosure of the charges is also part of the
deprivation of liberty,
Bishop v. Wood, 426 U.
S. 341,
426 U. S. 348,
the hearing could properly include the issue whether the charges
should remain confidential, or whether the written record should at
least be modified to reflect a less one-sided description of the
events.
[
Footnote 3/5]
The Court states,
ante at
429 U. S.
627:
"Where the liberty interest involved is that of conditional
freedom following parole, we have said that the hearing required by
the Due Process Clause in order to revoke parole must address two
separate considerations. The first is whether the parolee in fact
committed the violation with which he is charged, and the second is
whether, if he did commit the act, his parole should, under all the
circumstances, therefore be revoked.
Morrissey v. Brewer,
408 U. S.
471,
408 U. S. 479 480 (1972);
Gagnon v. Scarpelli, 411 U. S. 778,
411 U. S.
784 (1973). The fact that there was no dispute with
respect to the commission of the act would not necessarily obviate
the need for a hearing on the issue of whether the commission of
the act warranted the revocation of parole."
This reasoning is equally applicable to a decision to revoke a
person's employment for a stigmatizing reason. The fact that there
is no dispute with respect to the commission of the act involved
does not necessarily obviate the need for a hearing on the issue of
whether employment should be terminated.
[
Footnote 3/6]
The Court states,
ibid., that
"the hearing required where a nontenured employee has been
stigmatized in the course of a decision to terminate his employment
is
solely 'to provide the person an opportunity to clear
his name.'"
(Emphasis added.) Earlier,
ibid., the Court states:
"Assuming all of the other elements necessary to make out a
claim of stigmatization under
Roth and
Bishop,
the remedy mandated by the Due Process Clause of the Fourteenth
Amendment is 'an opportunity to refute the charge.' 408 U.S. at
408 U. S. 573."
Of course, in neither
Roth nor
Bishop did the
Court state or imply that a name-clearing hearing was the
only remedy mandated by the Constitution.
[
Footnote 3/7]
The Court's contrary approach would produce perverse results
when the relief sought by the plaintiff includes an administrative
hearing. To establish his right to such relief, the plaintiff would
have to plead -- and presumably prove -- that the charges against
him are false. But once it is established that the charges are
false, there is no longer any reason to hold an administrative
hearing on that subject.
This problem is squarely presented by this case because
respondent did request such a hearing. At trial, respondent's
counsel made the following statement:
"And therefore, he should be reinstated and he should be given a
full hearing, an adversary hearing."
App. 93a. Under modern trial practice, no more formal request
was necessary. The amended complaint had requested a declaratory
judgment that "the action of defendants in terminating plaintiff's
employment without charges and without a hearing [was] in violation
of the Constitution . . . ," and had sought "such additional
alternative relief as may seem to this Court to be just, proper and
equitable."
Id. at 55a-56a. And, of course, Fed.Rule
Civ.Proc. 54(c) provides that "every final judgment shall grant the
relief to which the party in whose favor it is rendered is
entitled, even if the party has not demanded such relief in his
pleading."
[
Footnote 3/8]
See Judge Tone's thoughtful discussion of this problem
in
Hostrop v. Board of Junior College Dist. 1, 523 F.2d
569, 578-580 (CA7 1975).
[
Footnote 3/9]
The general principle governing review of a District Court's
findings of fact is clear:
"In applying the clearly erroneous standard to the findings of a
district court sitting without a jury, appellate courts must
constantly have in mind that their function is not to decide
factual issues
de novo. The authority of an appellate
court, when reviewing the findings of a judge as well as those of a
jury, is circumscribed by the deference it must give to decisions
of the trier of the fact, who is usually in a superior position to
appraise and weigh the evidence. The question for the appellate
court under Rule 52(a) is not whether it would have made the
findings the trial court did, but whether, 'on the entire evidence,
[it] is left with the definite and firm conviction that a mistake
has been committed.'
United States v. United States Gypsum
Co., 333 U. S. 364,
333 U. S.
395 (1948)."
Zenith Corp. v. Hazeltine, 395 U.
S. 100,
395 U. S.
123.
[
Footnote 3/10]
The Court of Appeals found "every indication" that respondent
would have obtained a job except for the contents of his file.
Velger v. Cawley, 525 F.2d 334, 335 (CA2 1975). Apart from
the one instance of disclosure found by the District Court, this
conclusion seems to have been based on an incident in which
respondent was told he would be hired if his character
investigation was satisfactory, and on the fact that he had passed
numerous civil service examinations and received several job
interviews, but no jobs. The incident referred to by the Court of
Appeals proves nothing about the effect of the contents of the
file, since respondent testified that he refused to give that
employer permission to inspect the file. App. 81a. The fact that
respondent was unsuccessful in obtaining a job, despite numerous
attempts, good examination scores, and several interviews, does not
prove that he was stigmatized by information in his file, since the
District Court found that those employers had not had access to the
file. Entirely apart from the file, there may have been factors
which made respondent less attractive to employers than other
available applicants.
[
Footnote 3/11]
Roth recognizes two types of stigma.
See
429
U.S. 624fn3/3|>n. 3,
supra. First, the State's
action "might seriously damage [the employee's] standing and
associations in his community." 408 U.S. at
408 U. S. 573.
The release of information to a single employer at the employee's
request can hardly be considered an injury to the employee's
community standing. Second, the State's action might have the
effect of "foreclos[ing] his freedom to take advantage of other
employment opportunities."
Ibid. It is not enough,
however, to make him "somewhat less attractive to some other
employers," for that "would hardly establish the kind of
foreclosure of opportunities amounting to a deprivation of
liberty.'" Id. at 408 U. S. 574
n. 13. The fact that one employer considered the information a bar
to employment does not necessarily mean that most other employers
would have the same reaction. In short, on the basis of the entire
record the District Court could find that this single incident of
disclosure and its aftermath do not establish a sufficiently
grievous harm to reputation to constitute a deprivation of
liberty.
[
Footnote 3/12]
The District Court did find that a private employer who
inspected the file had "gleaned" from the file that this was the
reason for the discharge.
[
Footnote 3/13]
In
Arnett v. Kennedy, 416 U. S. 134, the
employee could be discharged only for "such cause as will promote
the efficiency of [the] service,'"
id. at
416 U. S.
151-152 (opinion of REHNQUIST, J.). Six Members of the
Court were satisfied that that standard was sufficient to create an
entitlement protected by the Due Process Clause. This respondent
had a right to keep his job if he proved "satisfactory." I do not
know whether the difference between Kennedy's entitlement and this
respondent's is of constitutional dimensions, but the similarity to
Arnett is sufficient to justify a remand.
[
Footnote 3/14]
In
In re Going v. Kennedy, the Appellate Division noted
that the appointing officer had been delegated the authority to
terminate "unsatisfactory employee[s]," and compared the probation
period to an additional employment test designed to determine
whether an employee is "able to meet all requirements or
expectations in filling the position." 5 App.Div.2d at 178, 170
N.Y.S.2d at 239. The New York Court of Appeals, citing
Going with approval, applied the "arbitrary and
capricious" standard in
Talamo to determine whether there
was a "rational basis" for the police commissioner's decision to
discharge a prabationary police officer. 38 N.Y.2d at 639, 345
N.E.2d at 547.
See also In re Farrell v. New York City Police
Dept., 44 App.Div.2d 782, 355 N.Y.S.2d 99 (1974),
aff'd, 37 N.Y.2d 843, 340 N.E.2d 469 (1975).
[
Footnote 3/15]
Cf. Perry v. Sindermann, 408 U.
S. 593,
408 U. S.
601:
"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."
Even if respondent's entitlement is a sufficient property
interest to trigger due process, he is not necessarily entitled to
an elaborate adversary hearing. "Once it is determined that due
process applies, the question remains what process is due."
Morrissey v. Brewer, 408 U. S. 471,
408 U. S. 481.
But at least respondent would be entitled to notice of the charge
against him and an opportunity to respond, if only in writing.
[
Footnote 3/16]
Respondent did not abandon that claim in this Court. The portion
of his brief cited by the majority,
ante at
429 U. S. 628
n. 2, concerns the issue whether state law itself requires a
hearing,
see Brief for Respondent 14; this is an entirely
different issue than whether state law creates a sufficient
entitlement to trigger a federal right to a hearing. To preserve
his right to a remand, the party prevailing below need not argue
the merits of claims the lower court failed to reach.
See
generally Dandridge v. Williams, 397 U.
S. 471,
397 U. S.
475-476, n. 6.