Codd v. Velger

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 *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. 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. 2 It would also be a departure from Board of Regents v. Roth, 408 U. S. 564, 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 *633 profession. A hearing may establish that such a deprivation of liberty is warranted because the charges are correct. But Bishop v. Wood, 426 U. S. 341, 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 Both plainly states, the Constitution mandates “a full prior hearing.” 408 U. S., at 574 . 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 *634 employment. Paul v. Davis, 424 U. S. 693, 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. 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. 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, 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. 6

*635 Even, if I agreed with the Court that this was the sole purpose of the hearing, I could not agree with its holding that failure to demonstrate falsity is fatal to the employee’s 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. 629. 7 Moreover, failure to provide a hearing might give rise to damages unrelated to the possible outcome of the hearing. 8

*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, 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, 9 I cannot .say that *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. 10 Thus, as far *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 . 11

The Court of Appeals also relied on the nature of the information itself as demonstrating that future release to employers 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. 12 On this record, it cannot be said as a matter of law *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, 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.

Ill

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 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],” 13 and his determination is reviewable in the *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). 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 charges against him. 15

*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. 16 I would remand the case to the Court of Appeals for consideration of this claim.

The Court indicates, ante, at 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, 709-710 (describing Board of Regents v. Roth, 408 U. S. 564 , as involving government “defamation”).

“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, 179 (Douglas, J., concurring).

As I read Part II of Roth, supra, at 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 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 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 574 , that no such stigma may be imposed without a “full prior hearing.”

Similarly, since disclosure of the charges is also part of the deprivation of liberty, Bishop v. Wood, 426 U. S. 341, 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.

The Court states, ante, at 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, 479-480 (1972); Gagnon v. Scarpelli, 411 U. S. 778, 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.

The Court states, ibid., that “the hearing required where a nontenured employee has been stigmatized in the course of a decision to terminate his *635 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 Both 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 573.” Of course, in neither Both nor Bishop did the Court state or imply that a name-clearing hearing was the only ^ remedy mandated by the Constitution.

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 modem 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 pleadings.”

See Judge Tone’s thoughtful discussion of this problem in Hostrop v. Board of Junior College Dist. 515, 523 F. 2d 569, 578-580 (CA7 1975).

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 dis *637 trict 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, 395 (1948).” Zenith Corp. v. Hazeltine, 395 U. S. 100, 123 .

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 *638 factors which made respondent less attractive to employers than other available applicants.

Roth recognizes two types of stigma. See n. 3, supra. First, the State’s action “might seriously damage [the employee’s] standing and associations in his community.” 408 U. S., at 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 “foréelos [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 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.

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.

In Arnett v. Kennedy, 416 U. S. 134 , the employee could be discharged only for “ 'such cause as will promote the efficiency of [the] serv *640 ice,’” id., at 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.

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 Tálamo to determine whether there was a “rational basis” for the police commissioner’s decision to discharge a probationary 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).

Cf. Perry v. Sindermann, 408 U. S. 593 , 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 , 481: But at least respondent would be entitled to notice of the charge against him and an opportunity to respond, if only in writing.

Respondent did not abandon that claim in this Court. The portion of his brief cited by the majority, ante, at 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, 475-476, n. 6 .