Codd v. Velger

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 Part I of his dissent, 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, 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,” 1 ante, at 628, has he “raise [d] an issue *630 about the substantial accuracy of the report” in question. 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 270-271, n. 21; Mt. Healthy City Board of Ed. v. Doyle, ante, at 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 3 or no compensable injury, since, even had the *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.

The Court fortunately makes clear that it is not calling for an *630 “overly technical application of the rules of pleading.” Ante, at 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 628.

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 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.

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 pretermi *631 nation 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, 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.