Bruce Meyers v. Village of Oxford

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 18a0317n.06

Case No. 17-2169

UNITED STATES COURT OF APPEALS FILED

FOR THE SIXTH CIRCUIT Jun 27, 2018

DEBORAH S. HUNT, Clerk

BRUCE MEYERS, et al., )

)

Plaintiffs-Appellants, ) ON APPEAL FROM THE UNITED

) STATES DISTRICT COURT FOR

v. ) THE EASTERN DISTRICT OF

) MICHIGAN

VILLAGE OF OXFORD, et al., )

)

Defendants-Appellees. )

BEFORE: COOK and DONALD, Circuit Judges; HALE, District Judge.*

HALE, District Judge. Bruce Meyers, Kallie Roesner-Meyers, and Eugenia Calocassides

served as volunteer reserve officers for the Village of Oxford Police Department. They contend

that their reputations were damaged when they were removed from that post, and they sought, but

did not receive, a hearing to clear their names. The district court found that because they were not

paid employees whose employment was terminated, they were not entitled to a name-clearing

hearing. That conclusion was inconsistent with Supreme Court and Sixth Circuit precedent, and

we therefore REVERSE.

I.

The following facts are set forth in the amended complaint and accepted as true for

purposes of our review. See Crosby v. Univ. of Ky., 863 F.3d 545, 549 (6th Cir. 2017), cert. denied,

138 S. Ct. 741 (2018) (citing Courtright v. City of Battle Creek, 839 F.3d 513, 518 (6th Cir. 2016)).

*

The Honorable David J. Hale, United States District Judge for the Western District of

Kentucky, sitting by designation.

Case No. 17-2169

Meyers v. Village of Oxford

Appellants served as reserve officers—a volunteer position—for the Village of Oxford Police

Department. Foreseeing a need for additional patrols, then-Police Chief Michael Neymanowski

took steps to create a horse-mounted unit, of which Appellants would be members.1 On September

15, 2016, Neymanowski sent a letter to the organizers of the Mounted Police Colloquium stating:

My agency is in the process of creating the first Police Reserve Officer[s] Horse

Mounted Unit. The members of this Mounted Unit will consist of Officers Kallie

Roesner, Dr. Bruce Meyers and Eugenia Calocassides. It would be an honor to

have them represent the Oxford Village Police Department for your upcoming

Mounted Police Colloquium.2

Around this time, the Village Manager obtained liability insurance for the horse-mounted unit.

Appellants participated in the Mounted Police Colloquium as representatives of the Village

of Oxford and were successful in several competitions. At the Oxford Village Council’s October

11, 2016 meeting, Neymanowski “presented [Appellants] to the Village Council as members of

the Village’s new Reserve Officer[s] Horse Mounted Unit,” and the Council “publicly expressed

gratitude and approval of [Appellants’] activities.”

Appellants then joined the Michigan Multi-Jurisdictional Mounted Police Drill Team,

again representing the Village of Oxford. When the Multi-Jurisdictional Team was unexpectedly

invited to be a part of the inauguration parade and ceremonies for then-President-elect Trump,

Neymanowski confirmed in a letter to the Multi-Jurisdictional Team that Appellants would

participate, and Appellants “eagerly prepared . . . themselves and their horses to represent the

Village of Oxford and its police department” at the inauguration. After a local newspaper reported

Appellants’ anticipated involvement in the inaugural festivities, however, Village Council

1

Neymanowski’s name is apparently misspelled in the amended complaint.

2

Appellants describe the Mounted Police Colloquium as an annual multi-day event at

Kentucky Horse Park that entails “training and competitions . . . for and by police mounted units”

in “equitation, jumping, crowd control, and sensory techniques.”

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Meyers v. Village of Oxford

members “became unglued by this news” and proceeded at their next meeting to question

Appellants’ “reputation, good name, honor, and integrity . . . even to the point of accusing

[Appellants] of violating the penal law by impersonating police officers.” The Council then voted

to remove Appellants as reserve officers and to issue communications disavowing any Council

approval or authorization of the horse-mounted unit. Appellants were not provided notice and a

hearing prior to the Council’s actions, nor did they receive a name-clearing hearing upon request.

They sued the Village of Oxford, Village Manager Joe Young, Village Attorney Robert Charles

Davis, Village President Sue Bossardet, and acting Village Police Chief Michael Solwold, alleging

violations of procedural due process under the Fourteenth Amendment.

II.

We review a dismissal pursuant to Rule 12(b)(6) de novo, “constru[ing] the complaint in

the light most favorable to the plaintiff[s], accept[ing] all well-pleaded factual allegations in the

complaint as true, and draw[ing] all reasonable inferences in favor of the plaintiff[s].” Crosby,

863 F.3d at 549 (quoting Courtright, 839 F.3d at 518); see id. at 551.

A. Liberty Interest

“The Due Process Clause of the Fourteenth Amendment protects an individual’s liberty

interest in [his] ‘reputation, good name, honor, and integrity.’” Id. at 555 (quoting Quinn v. Shirey,

293 F.3d 315, 319 (6th Cir. 2002)). Appellants allege that they were deprived of this interest

without due process because they were denied a name-clearing hearing. “[W]here a person’s good

name, reputation, honor, or integrity is at stake because of what the government is doing to him,

notice and an opportunity to be heard are essential.” Id. (alteration in original) (quoting Bd. of

Regents v. Roth, 408 U.S. 564, 573 (1972)). However, these protections are available only if the

alleged reputational damage is accompanied by “[s]ome alteration of a right or status ‘previously

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Meyers v. Village of Oxford

recognized by state law,’ such as employment.” Quinn, 293 F.3d at 319 (quoting Paul v. Davis,

424 U.S. 693, 711-12 (1976)).

The district court, relying on the dictionary definition of “employment,” concluded that

because Appellants “were not paid for their service,” they were not employees and thus not entitled

to a name-clearing hearing. In reaching this conclusion, it relied on the test enunciated in Quinn.

Under that test, a plaintiff must allege five factors “to establish that he was deprived of a liberty

interest and entitled to a name-clearing hearing”:

First, the stigmatizing statements must be made in conjunction with the plaintiff’s

termination from employment . . . . Second, a plaintiff is not deprived of his liberty

interest when the employer has alleged merely improper or inadequate

performance, incompetence, neglect of duty or malfeasance . . . . Third, the

stigmatizing statements or charges must be made public. Fourth, the plaintiff must

claim that the charges made against him were false. Lastly, the public

dissemination must have been voluntary.

Crosby, 863 F.3d at 555 (omissions in original) (quoting Quinn, 293 F.3d at 320). The district

court found the third, fourth, and fifth factors to be met but held that the first and second factors

required an employment relationship that does not exist in this case because Appellants’ work was

unpaid.

As evidenced by Quinn, its predecessors, and its progeny, the issue of entitlement to a

name-clearing hearing frequently arises in the employment context. See, e.g., Crosby, 863 F.3d at

555-57; Ludwig v. Bd. of Trs. of Ferris State Univ., 123 F.3d 404, 409-11 (6th Cir. 1997). Both

the Supreme Court and this court have found protected liberty interests in reputation outside that

context, however. In such cases, the alleged defamation still “must be tied to ‘[s]ome alteration of

a right or status previously recognized by state law.’”3 Crosby, 863 F.3d at 555 (alteration in

3

Appellants argue that Roth recognized two situations under which a name-clearing

hearing is required: “when (1) charges are made against an individual which might seriously

damage his standing and associations in the community; or (2) the state imposes on an individual

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Meyers v. Village of Oxford

original) (quoting Quinn, 293 F.3d at 319). For example, in Wisconsin v. Constantineau, 400 U.S.

433 (1971), the Court declared unconstitutional a Wisconsin statute that allowed police to post a

notice forbidding the sale or gift of alcoholic beverages to individuals “who ‘by excessive

drinking’ produce[d] described conditions or exhibit[ed] specified traits, such as exposing

[themselves] or family ‘to want’ or becoming ‘dangerous to the peace’ of the community.” Id. at

434. Because such “posting” “deprived the [plaintiff] of a right previously held under state law—

the right to purchase or obtain liquor in common with the rest of the citizenry,” it “significantly

altered her status as a matter of state law” and “justified the invocation of procedural safeguards.”

Paul, 424 U.S. at 708-09 (discussing Constantineau, 400 U.S. at 437).

The Supreme Court revisited this issue in Goss v. Lopez, 419 U.S. 565 (1975), where the

plaintiffs were students who had been suspended from school without a hearing. The students had

a right under state law to attend public school, the Court held, and thus reputational damage

inflicted in denying that right gave rise to Due Process protections. Id. at 574-75; see Paul, 424

U.S. at 710 (finding conclusion that Fourteenth Amendment requires more than mere defamation

to be “quite consistent” with Lopez, which was then the Court’s “most recent holding in this area”

of law); see also Vitek v. Jones, 445 U.S. 480, 494 (1980) (holding that “the stigmatizing

a stigma or other disability foreclosing his freedom to take advantage of other employment

opportunities.” Appellants purport to rely on “Roth’s first theory”—under which, they claim,

“employment (paid or otherwise) is not a required element.” But the Supreme Court made clear

in a later decision that either “[a] charge . . . that might seriously damage [the plaintiff’s] standing

and associations in his community” or “a stigma or other disability” restricting future employment

must be accompanied by termination of employment or another change in status to be actionable

under the Fourteenth Amendment. Paul, 424 U.S. at 708-10 (quoting Roth, 408 U.S. at 573).

Thus, Appellants do not state a claim for relief merely by alleging that they were subjected to

charges “that might seriously damage [their] standing and associations in [their] community.” Id.

at 709. To hold otherwise would “convert[] every defamation by a public official into a deprivation

of liberty within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment.”

Id. at 702; see also Siegert v. Gilley, 500 U.S. 226, 233 (1991) (“Defamation, by itself, is a tort

actionable under the laws of most States, but not a constitutional deprivation.”).

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consequences of a transfer to a mental hospital for involuntary psychiatric treatment, coupled with

the subjection of the prisoner to mandatory behavior modification as a treatment for mental illness,

constitute the kind of deprivations of liberty that requires procedural protections”).

This court has likewise found a protected liberty interest in reputation in at least one

published decision beyond the employment context. In Mertik v. Blalock, 983 F.2d 1353 (6th Cir.

1993), the plaintiff was not a government employee, but rather an independent contractor who held

“staff privileges” at a city-owned ice rink. Id. at 1356; see id. at 1358. She gave skating lessons

at the rink, contracting directly with her students, who also paid the rink for time spent on the ice

during lessons. Id. at 1356. When city employees forced her off the ice and publicized false

accusations of child sexual abuse against her, Mertik sued, alleging that the government defendants

had deprived her of liberty and property interests without due process. Id. at 1357. After noting

that “the [Supreme] Court has limited the scope of an actionable liberty interest deprivation to

situations involving termination of government employment or the loss of a legal right or status

previously enjoyed under state or federal law,” id. at 1362 (emphasis added) (citing Paul, 424 U.S.

at 710-11), we held that Mertik had adequately alleged a protected liberty interest. Id. at 1364. In

so holding, we “view[ed] the alleged stigmatizing statements . . . as having been made in the

context of the termination of a mutually beneficial business relationship in which the governmental

benefit, the right to use the city’s rink, played an integral role.” Id. at 1363.

Though Mertik predates the five-factor test enunciated in Quinn, this court has consistently

stated that “[s]ome alteration of a right or status ‘previously recognized by state law,’ such as

employment, must accompany the damage to reputation.” Quinn, 293 F.3d at 319 (emphasis

added) (quoting Paul, 424 U.S. at 711-12); see Crosby, 863 F.3d at 555 (“[D]efamation alone is

not enough to trigger this constitutional protection; rather, the alleged damage must be tied to

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‘[s]ome alteration of a right or status previously recognized by state law.’” (second alteration in

original) (quoting Quinn, 293 F.3d at 319)); Bessent v. Dyersburg State Cmty. Coll., 224 F. App’x

476, 480 (6th Cir. 2007) (“Some alteration of a right or status ‘previously recognized by state law,’

such as employment, must accompany [the] damage to reputation.” (quoting Quinn, 293 F.3d at

319)); Satkowiak v. Bay Cty. Sheriff’s Dep’t, 47 F. App’x 376, 379 (6th Cir. 2002) (“[M]ore is

required than simply a state-imposed stigma[;] there must be a state-imposed stigma as well as a

corresponding loss of right or status.” (citing Quinn, 293 F.3d at 319)); Cutshall v. Sundquist, 193

F.3d 466, 479 (6th Cir. 1999) (“The Due Process Clause is implicated only when state conduct

alters ‘a right or status previously recognized by state law.’” (quoting Paul, 424 U.S. at 711)).

Moreover, we have considered a number of non-employment cases in addition to Mertik

without declaring that only terminated employees have a right to a name-clearing hearing.4 For

example, just one month after Quinn, this court decided Med Corp. v. City of Lima, 296 F.3d 404

(6th Cir. 2002), in which the plaintiff ambulance company asserted a due-process violation on the

ground that a proposed suspension of its license “would damage its business reputation and impair

its ability to obtain business in the future.” Id. at 413. There, we stated the first element of the

4

We acknowledge this court’s statement in Ferencz v. Hairston, 119 F.3d 1244 (6th Cir.

1997), that name-clearing hearings are only available to “nontenured public employee[s]” whose

employment has been terminated in connection with “publicly stated reasons that reflect on the

terminated employee’s honesty or integrity.” Id. at 1249; see id. at 1250 (concluding that because

neither plaintiff in Ferencz was a terminated public employee, district court incorrectly based

dismissal on their failure to request a name-clearing hearing). Though one panel of this Court

cannot overturn another’s decision, the above-quoted statement was not necessary to the holding

in Ferencz, see id. at 1250, and was inconsistent with Supreme Court precedent such as

Constantineau and Goss. It thus does not bind us here. See Parents Involved in Cmty. Sch. v.

Seattle Sch. Dist. No. 1, 551 U.S. 701, 737 (2007) (explaining that dicta is not binding); Draw v.

City of Lincoln Park, 491 F.3d 550, 556 (6th Cir. 2007) (“In the Sixth Circuit, prior published

decisions are controlling unless inconsistent with a decision of the United States Supreme Court

or the Sixth Circuit sitting en banc.” (citing Schoenberger v. Russell, 290 F.3d 831, 841 (6th Cir.

2002))).

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five-factor test to require that “the allegedly stigmatizing statements [have been] made in

connection with ‘the loss of a governmental right, benefit, or entitlement’”; we assumed, without

deciding, that this factor was met. Id. at 414 (quoting Mertik, 983 F.2d at 1363). Other cases have

challenged the issuance of a paper license plate following the plaintiff’s boyfriend’s drunk-driving

arrest, public disclosure of the plaintiff’s sex-offender status, statutory labeling of sex offenders as

mentally ill, and release of a police incident report accusing the plaintiff of rape. See Satkowiak,

47 F. App’x at 379; Fullmer v. Mich. Dep’t of State Police, 360 F.3d 579, 580-82 (6th Cir. 2004);

Cutshall, 193 F.3d at 478-79; Dean v. McWherter, 70 F.3d 43, 45 (6th Cir. 1995); Bennafield v.

Canton Police Dep’t, 856 F.2d 192 (6th Cir. 1988) (table). In light of this precedent, as well as

the Supreme Court cases discussed above, we clarify that a plaintiff need not allege an employment

relationship “to establish that he was deprived of a liberty interest and entitled to a name-clearing

hearing.” Crosby, 863 F.3d at 555 (quoting Quinn, 293 F.3d at 320).

The five-factor test that has developed in the employment context can easily be modified

for use in non-employment cases. Indeed, the third, fourth, and fifth factors require no

modification and, as the district court found, are met here: the alleged stigmatizing statements were

made at a public meeting; Appellants claim that the statements are false; and the statements were

voluntarily made public. See id. As to the first factor, the stigmatizing statements must have been

“made in connection with ‘the loss of a governmental right, benefit, or entitlement.’” Med Corp.,

296 F.3d at 414 (quoting Mertik, 983 F.2d at 1363). Second, the statements must accuse the

plaintiff of more than “merely improper or inadequate performance, incompetence, neglect of duty

or malfeasance,” Crosby, 863 F.3d at 555 (quoting Quinn, 293 F.3d at 320); they must be of the

type “that [would] foreclose[] his freedom to take advantage of other employment opportunities.”

Med Corp., 296 F.3d at 414 (alterations in original) (quoting Ludwig, 123 F.3d at 410); cf. Mertik,

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983 F.2d at 1364 (noting that plaintiff claimed to have suffered “loss of employment opportunities

resulting from the stigmatizing effect of being branded a child abuser”). Under this modified test,

Appellants’ complaint is sufficient: the alleged stigmatizing statements (1) were made in

connection with the loss of Appellants’ status as reserve officers for the Village of Oxford Police

Department and (2) accused Appellants of illegally impersonating police officers.

B. Immunity

The district court found in the alternative that the individual-capacity defendants were

entitled to qualified and legislative immunity. Appellants did not present immunity as an issue on

appeal, instead merely asserting in a footnote to the final paragraph of their brief that “[b]y

reversing the dismissal of this lawsuit, it would reverse any issue as legislative immunity [sic] and

qualified immunity which was based on the non-existence of a constitutional right discussed

herein.” In their reply brief, they denied that they had waived the immunity issues but offered no

further argument.

“Issues adverted to in a perfunctory manner, unaccompanied by some effort at developed

argumentation, are deemed waived.” Bickerstaff v. Lucarelli, 830 F.3d 388, 396 (6th Cir. 2016)

(quoting McPherson v. Kelsey, 125 F.3d 989, 995 (6th Cir. 1997)). Unlike qualified immunity,

legislative immunity does not turn on the existence of a constitutional violation, but rather the

nature of the defendants’ actions: “local legislators may invoke legislative immunity to insulate

themselves as individuals from liability based on their legislative activities.” Smith v. Jefferson

Cty. Bd. of Sch. Comm’rs, 641 F.3d 197, 217-19 (6th Cir. 2011) (emphasis removed) (citations

omitted). The district court concluded that the Village Council members’ vote to discontinue the

mounted unit was a legislative act. This conclusion is unaffected by our finding that Appellants’

due-process claim is adequate, and the dismissal of the individual-capacity claims therefore stands.

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III.

For the reasons set forth above, we REVERSE the district court’s decision except as to the

individual-capacity claims and REMAND the case for proceedings consistent with this opinion.

10