Tibbetts v. Kulongoski

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CECIL TIBBETTS and DAVID 

THURBER,

Plaintiffs-Appellees,

v.

THEODORE KULONGOSKI,

individually and in his official No. 07-36067

capacity,

Defendant-Appellant,  D.C. No.

CV-06-00503-ALH

and OPINION

STATE ACCIDENT INSURANCE FUND

CORP., an Oregon corporation;

BRENDA ROCKLIN, individually and

in her official capacity,

Defendants.



Appeal from the United States District Court

for the District of Oregon

Ancer L. Haggerty, District Judge, Presiding

Argued and Submitted

March 4, 2009—Portland, Oregon

Filed May 29, 2009

Before: Susan P. Graber, Raymond C. Fisher and

Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.

6357

6360 TIBBETTS v. KULONGOSKI

COUNSEL

Hardy Myers, Attorney General, Mary H. Williams, Solicitor

General, and Erin C. Lagesen, Assistant Attorney General,

Salem, Oregon, for appellant Theodore Kulongoski.

TIBBETTS v. KULONGOSKI 6361

Gregory A. Hartman and Aruna H. Masih, Bennett, Hartman,

Morris & Kaplan, LLP, Portland, Oregon, for appellees Cecil

Tibbetts and David Thurber.

OPINION

MILAN D. SMITH, JR., Circuit Judge:

Defendant-Appellant Oregon Governor Theodore Kulon-

goski appeals from the district court’s order denying his

motion for summary judgment on the ground of qualified

immunity. Plaintiffs-Appellees, who are former employees of

the State Accident Insurance Fund, brought this action pursu-

ant to 42 U.S.C. § 1983, alleging, among other claims, that

Governor Kulongoski violated their Fourteenth Amendment

due process rights by making stigmatizing statements about

them in two press releases without providing them name-

clearing hearings.

Because the relevant parameters of a Fourteenth Amend-

ment right to a name-clearing hearing were not clear at the

time of the allegedly stigmatizing statements, we conclude

that a reasonable official in the Governor’s position would not

have been aware of his alleged obligation to provide Plaintiffs

name-clearing hearings. We therefore reverse the district

court and hold that Governor Kulongoski is entitled to quali-

fied immunity in this suit.

Factual and Procedural Background

Plaintiffs Cecil Tibbetts and David Thurber (together,

Plaintiffs) are former managerial employees of Defendant

State Accident Insurance Fund Corporation (SAIF). SAIF is

a part of the executive branch of the State of Oregon but is

organized to function as a public corporation. The Oregon

legislature created SAIF “for the purpose of transacting work-

6362 TIBBETTS v. KULONGOSKI

ers’ compensation insurance and reinsurance business” with

Oregon employers. Or. Rev. Stat. § 656.752(1). SAIF is gov-

erned by a five-member Board of Directors (Board) whose

members are appointed by the Governor of Oregon, Or. Rev.

Stat. § 656.752(1) and (3), and who serve at the Governor’s

pleasure, id. The Board appoints a manager to run SAIF, who

“serves at the pleasure of the board of directors.” Id. Governor

Kulongoski was Governor of Oregon at all times material to

this dispute.

In the time period leading up to the events that are the sub-

ject of this appeal, SAIF was the subject of extensive media

attention because of alleged scandals regarding the practices

of its then-President, Katherine Keene. Charges of ethics vio-

lations had been filed against SAIF for its alleged failure to

report its lobbying expenditures accurately, and a lawsuit had

been filed alleging a willful failure to produce documents in

violation of public records laws. See Oregonians for Sound

Econ. Policy, Inc. v. SAIF, 182 P.3d 895 (Or. Ct. App. 2008)

(hereinafter, OSEP litigation). In December 2003, Keene

resigned from her position as SAIF’s President/Manager.

After Keene’s resignation, Plaintiff Cecil Tibbetts, who had

served as Vice President for Human Resources at SAIF since

November 1, 1995, was appointed to act as SAIF’s Interim

President/Manager by SAIF’s Board. In April 2004, the SAIF

Board responded to Governor Kulongoski’s public demand

for a report regarding some of SAIF’s controversial policies

and practices. In a letter to Governor Kulongoski, the Board

questioned, among other things, SAIF’s relationship with

Associated Oregon Industries, a non-profit business advocacy

group, with which Plaintiff David Thurber, Vice President for

Policy Services at SAIF, was closely associated. The letter

noted that the relationship “has been particularly controversial

to some, and it therefore merits special attention.” Some Ore-

gon senators called for an “independent review” of spending,

and the media reported that the Oregon Government Stan-

dards and Practices Commission had voted to initiate an

TIBBETTS v. KULONGOSKI 6363

investigation into whether SAIF had under-reported the

money it spent to lobby the legislature.

In June 2004, Mark Cohen, a former SAIF employee, filed

an affidavit in the ongoing OSEP litigation which, among

other things, accused Tibbetts of twice having ordered the

destruction of certain records to avoid producing them in the

OSEP litigation. Cohen further alleged that Tibbetts was con-

cealing documents in his office and at his home to avoid dis-

closing them. The contents of the affidavit were covered by

the media. SAIF officials called the allegations “erroneous,

misleading and untrue” and described Cohen as a “disgruntled

former employee who destroyed the documents without their

knowledge.” Tibbetts told a legislative committee that “[he]

never told anyone to destroy documents that should have been

retained.” Governor Kulongoski thereafter issued a prepared

statement to the media, reading:

Unauthorized destruction of public records is against

the law and cannot be tolerated by any public offi-

cial. These allegations are very serious, and I believe

they require immediate investigation. I am asking the

attorney general to ensure there is a thorough investi-

gation.

At the same time, Governor Kulongoski’s spokeswoman

stated to the press that “the governor is not taking a position

on the allegations.”

On August 12, 2004, Governor Kulongoski issued a press

release announcing his intention to appoint Brenda Rocklin to

replace Tibbetts as Interim President/Manager of SAIF. Pre-

ceding the issuance of that press release, Governor Kulon-

goski had explained to Board members that he thought

Rocklin was an appropriate replacement because of “her cred-

ibility as a person that could fix things.” He further told Board

members that he thought that, given its problems, SAIF

required some housecleaning and that Rocklin was the person

6364 TIBBETTS v. KULONGOSKI

who could make that happen. During this conversation, some

Board members reminded Governor Kulongoski that they

alone had the statutory authority to appoint the President of

SAIF. Nevertheless, after discussing the replacement, the

Board voted unanimously on August 12, 2004, to appoint

Rocklin as interim President and CEO.

In a press release following Rocklin’s appointment, Gover-

nor Kulongoski stated that “[f]or months now, I have been

very concerned about management decisions at SAIF,” and “I

have asked Brenda to conduct a top-to-bottom review of SAIF

to make sure it is accountable to the public.” The Governor

further stated that “[t]o preserve [SAIF’s] future, the public

needs to know that SAIF is being run in an ethical and

accountable manner — and the person to lead this effort is

Brenda Rocklin.” According to Rocklin’s deposition testi-

mony, in her discussions with Governor Kulongoski prior to

accepting the position as interim president, the Governor indi-

cated that “he hoped there would be some role for Mr. Tib-

betts at SAIF Corporation, after he was no longer Acting

President,” but “that ultimately [Rocklin] would have to make

that decision.”

According to Board member Jon Egge’s deposition testi-

mony, in November 2004, after Rocklin’s interim appoint-

ment, Governor Kulongoski contacted the SAIF Board and

asked it to call off the search for a permanent CEO for SAIF,

and to appoint Rocklin as permanent CEO. Another Board

member, Mathew Chapman, testified that the Governor told

the Board members that if they did not do so “ASAP,” the

Governor intended to remove them from their positions. At

the Board’s November 2004 meeting, Board member Chap-

man tendered his resignation, explaining that he opposed the

Governor’s efforts to install Rocklin as the permanent CEO.

The Board took no action at the November 2004 meeting to

appoint Rocklin to the permanent position. At or about this

time, Board member Egge testified, Governor Kulongoski

also informed SAIF Board members: “I’ve told [Rocklin] to

TIBBETTS v. KULONGOSKI 6365

fire Cecil Tibbetts if he gets in her way or in any way

impeded what she’s trying to do here, and that goes for any-

body else that gets in [her] way.”

On January 27, 2005, Rocklin asked Tibbetts to resign. Tib-

betts refused, and Rocklin terminated him. On the same day,

Rocklin met with Plaintiff Dave Thurber and asked him to

resign. Thurber agreed. The media contacted Rocklin and

SAIF about the terminations. SAIF declined to elaborate on

the terminations other than to confirm that Tibbetts and Thur-

ber were terminated without severance.1 Media coverage

noted that it was unclear what motivated the firings, but that

they appeared to be a part of the “housecleaning” that the

Governor ordered — and that some Oregon lawmakers

demanded. One article reported that Plaintiff Tibbetts was a

“well-known” figure who, according to his critics, “had a

hand in some of the consultant contracts that brought SAIF

under fire.” Another article mentioned that when Governor

Kulongoski appointed Rocklin to conduct a review of SAIF,

“[t]he Governor said that several controversies at SAIF

prompted him to take action, including complaints about

SAIF’s spending on lobbyists and allegations that SAIF offi-

cials destroyed public records. The axing of Tibbetts and

Thurber trims SAIF’s management team to six members.”

Nineteen days after Plaintiffs’ terminations, SAIF issued its

“Initial Report to the Governor: Review of SAIF Corpora-

tion.” A section of the report dealt with operational deficien-

cies in properly maintaining public records. This section

stated:

Prior to our arrival at SAIF, a former SAIF

employee, Mark Cohen, had alleged in an affidavit

filed in Marion County Circuit Court that he had

been instructed to destroy and conceal SAIF records.

1

Under SAIF’s severance policy, SAIF can deny severance pay to an

employee “terminated for misconduct.”

6366 TIBBETTS v. KULONGOSKI

Specifically, he alleged that, on two occasions, his

supervisor, Cecil Tibbetts, instructed him to delete

documents from his computer to avoid having to turn

them over in response to a public records request.

The report noted that the “investigation is still pending.” The

report attached a complete copy of the Cohen affidavit.

In response to the report, the Governor’s office issued a

February 15, 2005, press release (the 2005 Release), which in

relevant part stated:

The State Accident Insurance Fund remains a key

part of Oregon’s future because it’s one of the prin-

cipal competitive advantages we have in growing the

economy and providing jobs to Oregonians,” said

Governor Kulongoski. “If we are to preserve that

future, the public needs to know that SAIF is being

run in an ethical and accountable manner, and the

initial report delivered to me today demonstrates a

significant move in that direction.”

The initial report focuses on administrative opera-

tions and documents findings and recommendations

for actions in four key areas: 1) Board oversight and

transparency; 2) work place diversity; 3) public

records; and 4) contracting. The report also finds that

SAIF is an efficient agency with highly qualified

staff and management teams.

“I appreciate the candor of this report and the work

of the Board of Directors, Interim President Brenda

Rocklin, and the more than 800 employees who help

SAIF carry out its mission everyday,” said the Gov-

ernor. “This report identifies the need for some sig-

nificant changes in how SAIF conducts business on

behalf of the citizens of Oregon and I look forward

to working with the Board, Brenda and the legisla-

TIBBETTS v. KULONGOSKI 6367

ture to make those changes so we can continue to

make progress in strengthening accountability and

transparency in this important state agency.”

...

The initial report to the Governor is available on the

SAIF website at www.saif.com.

In June 2006, the Marion County District Attorney’s Office

reported on the results of the investigation into the miscon-

duct alleged in the Cohen affidavit. The District Attorney’s

Office reported to the media that the state police “conducted

an extensive investigation into the allegations” but “did not

find credible evidence that any individuals, or SAIF as an

entity, intentionally withheld or destroyed public records.”

The report also stated that the investigation had uncovered

some “serious issues regarding the credibility of Mr. Cohen.”

In response to this report, on June 6, 2006, the Governor’s

office issued a press release (the 2006 Release), which stated:

“I am grateful to the Oregon Police and the Marion

County DA for answering my request for a through

investigation of this case. The SAIF Corporation is

critical to Oregon’s economy, because it provides

affordable worker’s compensation coverage to our

state’s employers, benefitting businesses and their

employees.”

“Soon after I asked for the investigation, I made a

change in leadership at SAIF. When I appointed

Brenda Rocklin as interim CEO, I asked her to take

strong measures to restore full accountability and

transparency to the agency, and to put systems in

place to protect public records. She has responded

admirably. Over the next several months, I also

appointed new members to the Board of Directors,

6368 TIBBETTS v. KULONGOSKI

and charged them to support Ms. Rocklin in her

efforts.”

“As the result of these corrective actions, and thanks

to hard work by many people in SAIF, the agency is

now fully accountable to the public and the custom-

ers it serves. I want to assure Oregonians that even

though the DA’s report identified some troubling

behavior, a new culture exists among SAIF’s senior

management and employees—a culture of honesty,

openness, and a commitment to serving the people of

Oregon.”

Since these events transpired, Tibbetts has been unable to

find employment. Thurber has not been able to find “compa-

rable” employment.

Plaintiffs brought this action pursuant to 42 U.S.C. § 1983.

They allege that Defendants SAIF, Brenda Rocklin, and The-

odore Kulongoski each violated Plaintiffs’ Fourteenth

Amendment rights by making stigmatizing statements in the

2005 Release and the 2006 Release (collectively, the

Releases) without providing them with name-clearing hear-

ings. Defendants moved for summary judgment on all claims.

Rocklin and Governor Kulongoski asserted that they are enti-

tled to qualified immunity with respect to the § 1983 claim.

The district court disagreed, concluding that Rocklin and

Governor Kulongoski violated Plaintiffs’ Fourteenth Amend-

ment rights by making stigmatizing statements without pro-

viding them with name-clearing hearings and that Plaintiffs’

rights to these name clearing hearings were clearly established

at the times Rocklin and Governor Kulongoski made their

allegedly defamatory statements. This is an interlocutory

appeal of the district court’s order denying Governor Kulon-

goski’s motion for summary judgment on the ground of quali-

fied immunity.2

2

Rocklin and SAIF are not parties to this appeal.

TIBBETTS v. KULONGOSKI 6369

JURISDICTION AND STANDARD OF REVIEW

This court has jurisdiction under 28 U.S.C. § 1291. We

review a denial of summary judgment on the ground of quali-

fied immunity de novo. KRL v. Estate of Moore, 512 F.3d

1184, 1188 (9th Cir. 2008); Johnson v. County of Los Ange-

les, 340 F.3d 787, 791 (9th Cir. 2003). “Our jurisdiction is

limited to questions of law, and does not extend to qualified

immunity claims involving disputed issues of material fact.”

KRL, 512 F.3d at 1188-89 (citing Jeffers v. Gomez, 267 F.3d

895, 903 (9th Cir. 2001) (per curiam)). Where disputed facts

exist, we assume that the version of the material facts asserted

by Plaintiffs-Appellees, as the non-moving party, is correct.

Id.

DISCUSSION

I

[1] Qualified immunity protects government officials from

“liability for civil damages insofar as their conduct does not

violate clearly established statutory or constitutional rights of

which a reasonable person would have known.” Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity

balances “the need to hold public officials accountable when

they exercise power irresponsibly and the need to shield offi-

cials from harassment, distraction, and liability when they

perform their duties reasonably.” Pearson v. Callahan, 555

U.S. —, 129 S. Ct. 808, 815, 172 L. Ed. 2d 565 (2009).

We analyze Governor Kulongoski’s claim of qualified

immunity under the guidance recently provided by the

Supreme Court in Pearson. Id. Pearson held that “while the

[previously required two-step] sequence set forth [in Saucier

v. Katz, 533 U.S. 194 (2001)] is often appropriate, it should

no longer be regarded as mandatory.” Id. at 818. Accordingly,

“[t]he judges of . . . the courts of appeals should be permitted

to exercise their sound discretion in deciding which of the two

6370 TIBBETTS v. KULONGOSKI

prongs of the qualified immunity analysis should be addressed

first in light of the circumstances in the particular case at

hand.” Id. Under the circumstances of this case, we adopt

Pearson’s more flexible approach and proceed directly to an

analysis of Saucier’s second prong, to determine whether the

right asserted in this case was “clearly established” when the

alleged stigmatizing statements were made.

II

[2] “ ‘[A] liberty interest is implicated in the employment

termination context if the charge impairs a reputation for hon-

esty or morality.” Brady v. Gebbie, 859 F.2d 1543, 1552 (9th

Cir. 1988) (alteration in original) (quoting Matthews v. Har-

ney County, Or., School Dist. No. 4, 819 F.2d 889, 891 (9th

Cir. 1987)). “ ‘To implicate constitutional liberty interests, . . .

the reasons for dismissal must be sufficiently serious to ‘stig-

matize’ or otherwise burden the individual so that he is not

able to take advantage of other employment opportunities.’ ”

Portman v. County of Santa Clara, 995 F.2d 898, 907 (9th

Cir. 1993) (quoting Bollow v. Fed. Reserve Bank of S.F., 650

F.2d 1093, 1101 (9th Cir. 1981)). In Board of Regents v. Roth,

408 U.S. 564 (1972), the Supreme Court held that a public

employer can violate an employee’s rights by terminating the

employee if in so doing, the employer makes a charge “that

might seriously damage [the terminated employee’s] standing

and associations in his community” or “impose[s] on [a termi-

nated employee] a stigma or other disability that foreclose[s]

his freedom to take advantage of other employment opportu-

nities.” Id. at 573.

[3] If, in the context of employment termination, the

employer publicizes a charge that “impairs a reputation for

honesty or morality,” then a liberty interest is implicated and

the employee must be allowed to “refute the stigmatizing

charge.” Mustafa v. Clark County Sch. Dist., 157 F.3d 1169,

1179 (9th Cir. 1998) (per curiam) (internal quotation marks

omitted).

TIBBETTS v. KULONGOSKI 6371

Plaintiffs point to two public statements made by Governor

Kulongoski that allegedly stigmatized them. The first state-

ment is the 2005 Release, issued nineteen days after Plain-

tiffs’ terminations, which noted that “the public needs to

know that SAIF is being run in an ethical and accountable

manner,” and that “the initial report delivered to me today

demonstrates a significant move in that direction.” The press

release further stated that the Governor looked forward to

working with the SAIF Board to “continue to make progress

in strengthening accountability and transparency.” The 2005

Release also stated that the SAIF Interim Report was avail-

able on the SAIF website. (The report included a section

which summarized the Cohen affidavit, including Cohen’s

allegation that Tibbetts had directed improper document

destruction.)

The second allegedly stigmatizing press release, the 2006

Release, was made following the completion of the criminal

investigation into SAIF. The Governor’s press release noted

that he had made a change in leadership at SAIF, asked Rock-

lin to “restore full accountability and transparency to the

agency,” and that “[a]s the result of these corrective actions,

and thanks to hard work by many people in SAIF, the agency

is now fully accountable to the public and the customers it

serves.” It also noted that the Governor wanted to assure Ore-

gonians that “even though the DA’s report identified some

troubling behavior, a new culture exists among SAIF’s senior

management and employees — a culture of honesty, open-

ness, and a commitment to serving the people of Oregon.”

As permitted by Pearson and required by Saucier, we ana-

lyze the merits of the Governor’s qualified immunity claim by

addressing whether the parameters of Plaintiffs’ right to a

name clearing hearing were clearly established at the time of

the Releases. In this instance, such a determination turns on

(A) whether the statements made in the Releases were suffi-

ciently stigmatizing to Plaintiffs to trigger a name-clearing

hearing, (B) whether the allegedly stigmatizing statements

6372 TIBBETTS v. KULONGOSKI

were made in the course of Plaintiffs’ terminations, and (C)

whether the Governor himself altered Plaintiffs’ legal rights

or status. See Campanelli v. Bockrath, 100 F.3d 1476, 1479,

1484 (9th Cir. 1996); see also Gini v. Las Vegas Metro.

Police Dep’t, 40 F.3d 1041, 1044 (9th Cir. 1994).

A

Governor Kulongoski argues that the statements made in

the Releases were not stigmatizing as a matter of law. The

Governor focuses on the fact that the statements “do not iden-

tify plaintiffs, but, instead, refer to practices at SAIF as whole,

and they do not imply that plaintiffs were dishonest and

immoral.”

The Governor cites case law holding that “[o]nly the stigma

of dishonesty or moral turpitude gives rise to a liberty interest;

charges of incompetence do not.” FDIC v. Henderson, 940

F.2d 465, 477 (9th Cir. 1991). While FDIC is a correct state-

ment of the law, it is inapposite to this case. The statements

made in the Releases do not charge incompetence; they speak

of “ethic[s] and accountab[ility],” “strengthening accountabil-

ity and transparency” and, after personnel changes were

made, a “new culture” of “honesty” and “openness” at SAIF.

This case is more analogous to cases where honesty, not

incompetence, has been implicated by stigmatizing state-

ments. See, e.g. Vanelli v. Reynolds Sch. Dist. No. 7, 667 F.2d

773, 777-78 (9th Cir. 1982) (holding that dismissal of high

school teacher on grounds of “immoral conduct and sexual

harassment” implicates liberty interest); Walker v. United

States, 744 F.2d 67, 69 (10th Cir. 1984) (per curiam) (holding

that discharge of Vietnam Veterans’ Readjustment Act

appointee for lying on employment form implicates liberty

interest).

[4] Neither Tibbetts nor Thurber was named personally in

the Releases. The law at the time of the Releases, however,

was clear: stigmatizing statements need not name an

TIBBETTS v. KULONGOSKI 6373

employee to be actionable, so long as the surrounding circum-

stances make clear that the statement makes particular refer-

ence to the employee. See Algarin v. Town of Wallkill, 421

F.3d 137, 139-40 (2d Cir. 2005); Restatement (Second) of

Torts § 564A (“One who publishes defamatory matter con-

cerning a group or class of persons is subject to liability if, but

only if (a) the group or class is so small that the matter can

reasonably be understood to refer to the member, or (b) the

circumstances of publication reasonably give rise to the con-

clusion that there is particular reference to the member.”).

[5] In this case, we express no opinion concerning whether

the statements made in these Releases were stigmatizing as a

matter of law. However, for purposes of our further analysis

in this case only, we will assume, arguendo, that Plaintiffs

were stigmatized by statements in the Releases.

B

[6] We next consider whether the statements in the

Releases were made in the course of Plaintiffs’ terminations.

Our case law holds that “there must be some temporal nexus

between the employer’s statements and the termination.”

Campanelli, 100 F.3d at 1483. The Campanelli court refused,

however, to adopt a bright line rule “that defamatory state-

ments made by an employer any time after the date of termi-

nation are not made ‘in the course of the termination.’ ” Id. at

1482. Instead, the court held that the statements must be “so

closely related to discharge from employment that the dis-

charge itself may become stigmatizing in the public eye.” Id.

Accordingly, we must evaluate whether it was clearly estab-

lished that there was a temporal nexus between Governor

Kulongoski’s two Releases and Plaintiffs’ terminations, or

whether the statements were “too remote in time from the ter-

mination.” Id. at 1483.

[7] The 2006 Release was issued sixteen months after the

Plaintiffs were terminated, and after this lawsuit was initiated.

6374 TIBBETTS v. KULONGOSKI

Campanelli held “that there must be some temporal nexus

between the employer’s statement and the termination” and

that the stigmatizing statements cannot be too remote to be

considered “in the course” of the plaintiff’s termination. Id.

We also note the holdings of Martz v. Incorporated Village of

Valley Stream, 22 F.3d 26, 32 (2d Cir. 1994) (holding that a

statement published five months after the plaintiff’s termina-

tion was not made in the course of dismissal); Hadley v. Du

Page County, 715 F.2d 1238, 1247 (7th Cir. 1983) (holding

that a statement to the press six days after the plaintiff’s ter-

mination was “at the time of” termination, but that a statement

published two years later “was too remote in time to meet the

stigma plus test”); and Ray v. Tennessee Valley Auth., 677

F.2d 818, 824 (11th Cir. 1982) (holding that a six year lapse

is long enough to sever the temporal nexus of statements to

termination of the plaintiff’s employment). We are persuaded

by the reasoning of these out-of-circuit cases, and hold that

sixteen months is far too remote from the terminations to meet

Campanelli’s “temporal nexus” test.

The 2005 Release presents a more difficult question. The

2005 Release was issued nineteen days after Plaintiffs’ termi-

nations. This time frame falls between the week that Campa-

nelli found to satisfy the required “temporal nexus” and the

months and years that Martz, Hadley, and Ray found tempo-

rally insufficient. Governor Kulongoski argues that the “time

interval of several weeks — which is over twice as long as the

period in Campanelli — eliminated any nexus between the

statements and the discharges.” Plaintiffs argue that the termi-

nations, the media coverage afterwards, and the Governor’s

press release afterwards can be seen as “so closely related”

that “the discharge itself may become stigmatizing in the pub-

lic eye.”

[8] At the time the Releases occurred, a reasonable person

in Governor Kulongoski’s position could not have known by

recourse to then-extant case law whether a stigmatizing state-

ment made nineteen days after Plaintiffs’ termination would

TIBBETTS v. KULONGOSKI 6375

violate Campanelli’s “temporal nexus” test. Thus, we con-

clude that the parameters of at least one element required to

secure Plaintiffs’ right to a name-clearing hearing were not

clearly established at the time of the Releases. See Hunter v.

Bryant, 502 U.S. 224, 226 (1991) (per curiam) (noting if the

parameters of the right are not clearly established by case law,

the official is entitled to qualified immunity).

C

Even were we to assume, arguendo, that it was clearly

established that the allegedly stigmatizing statements in the

Releases met the “temporal nexus” requirement of Campa-

nelli, it was not clearly established at the time the Releases

were issued whether the Governor had the ability to alter

Plaintiffs’ legal rights or status sufficiently to meet the

requirements for a Fourteenth Amendment due process viola-

tion.

[9] The Governor contends that even if the statements

could qualify as stigmatizing, the facts show that he did not

terminate Plaintiffs’ employment or otherwise alter Plaintiffs’

legal rights or status; he claims that those actions were taken

by SAIF. As authority for his position, the Governor suggests

we adopt the reasoning of the First Circuit in Hawkins v.

Rhode Island Lottery Comm’n, 238 F.3d 112, 116 (1st Cir.

2001). In Hawkins, the plaintiff, the former director of the

Rhode Island Lottery Commission, contended that the gover-

nor of Rhode Island had made defamatory statements about

him and had worked to accomplish his termination through

his “surrogates” on the Commission. Id. at 115. The governor

of Rhode Island had “publicly claimed a significant role in

ousting [plaintiff].” Id. at 116. The court held that the gover-

nor of Rhode Island did not impose a “plus” on the plaintiff

because, under Rhode Island law, the governor lacked the

authority to terminate the plaintiff’s employment. Id.

[10] The same is technically true here, as Governor Kulon-

goski’s statutory authority over SAIF is limited to appointing

6376 TIBBETTS v. KULONGOSKI

Board members (subject to senate confirmation) and to

removing Board members. Or. Rev. Stat. § 656.751(1) & (3).

The relevant statutes give the governor no role in SAIF

employment decisions. Id.

Plaintiffs argue that, although the Governor did not have

the authority to officially make employment decisions at

SAIF, Governor Kulongoski personally ordered the removal

of Tibbetts and the appointment of Rocklin as the new SAIF

manager. According to SAIF Board members, Governor

Kulongoski threatened their removal if they did not make the

employment decisions he wanted. Plaintiffs argue that they

are entitled to the reasonable inference that the terminations

were made at the instruction, and under the control, of the

Governor.

[11] This circuit has shown considerable flexibility when

evaluating the cause of a deprivation of constitutional rights.

For example, in Johnson v. Duffy, 588 F.2d 740, 743-44 (9th

Cir. 1978), we explained:

Anyone who “causes” any citizen to be subjected to

a constitutional deprivation is also liable. The requi-

site causal connection can be established not only by

some kind of direct personal participation in the

deprivation, but also by setting in motion a series of

acts by others which the actor knows or reasonably

should know would cause others to inflict the consti-

tutional injury.

This statement has been adopted in the context of the Four-

teenth Amendment right to a name-clearing hearing. See Gini,

40 F.3d at 1044. Here, however, although perhaps Governor

Kulongoski “reasonably should [have] know[n]” that his

actions set in motion a series of acts that would cause Plain-

tiffs’ terminations, there is no evidence in the record that

shows that the Governor was aware——or should have been

aware——that, were the Plaintiffs to be terminated, that they

TIBBETTS v. KULONGOSKI 6377

would not receive name-clearing hearings. Johnson, 588 F.2d

at 740. Thus, although this circuit has shown flexibility in

evaluating causation in this context, there is no case law that

clearly establishes the Governor should have been aware that

his actions would deprive Plaintiffs of their rights.

[12] Because we are addressing the “clearly established

rights” prong of Saucier, as permitted by Pearson, we hold

that the Governor’s ability to “cause” Plaintiffs’ terminations

in a Fourteenth Amendment liberty interest context was not

clearly established in this circuit at the time of the Releases.

Accordingly, for this additional reason, we hold that the

parameters of Plaintiffs’ rights as alleged were not clearly

established at the time of the alleged violation and that Gover-

nor Kulongoski should be granted qualified immunity.

CONCLUSION

Although cases need not be “fundamentally similar” in

order to put an official on notice that his conduct violates

established law, Hope v. Pelzer, 536 U.S. 730, 741 (2002), if

the parameters of the right are not clearly established by case

law, the official is entitled to qualified immunity. See Hunter,

502 U.S. at 229 (qualified immunity affords government offi-

cials the benefit of the doubt in close calls, since “officials

should not err always on the side of caution” because they

fear being sued); see also Hill v. Borough of Kutztown, 455

F.3d 225, 244 (3d Cir. 2006) (holding that government offi-

cials should have been granted qualified immunity even when

the court determined that they had violated the plaintiff’s con-

stitutional right to a name-clearing hearing, as the law was not

sufficiently clear on the parameters of the right at the time).

Here, it cannot be said that a reasonable person in Governor

Kulongoski’s position would have known that he was violat-

ing Plaintiffs’ Fourteenth Amendment due process rights

under the circumstances of this case. Even if we assume,

arguendo that the statements in the Releases were stigmatiz-

6378 TIBBETTS v. KULONGOSKI

ing to Plaintiffs, it was not then established whether the stig-

matizing statements satisfied the “temporal nexus”

requirement of Campanelli, nor that the Governor could be

found to have “caused” Plaintiffs’ terminations. Accordingly,

we reverse the district court’s denial of summary judgment to

Governor Kulongoski.

REVERSED and REMANDED with instructions to enter

judgment in favor of Governor Kulongoski.