concluding that liberty interest is deprived if government imposed stigma “so severely impaired one’s ability to take advantage of a legal right, such as a right to be considered for government contracts or employment or a right to seek non-government employment, that the government can be said to have ‘foreclosed’ one’s ability to take advantage of it and thus extinguished the right”
How later courts described this case
- concluding that liberty interest is deprived if government imposed stigma “so severely impaired one’s ability to take advantage of a legal right, such as a right to be considered for government contracts or employment or a right to seek non-government employment, that the government can be said to have ‘foreclosed’ one’s ability to take advantage of it and thus extinguished the right”
- noting unpublished district court decision that transfer of Chief of Homicide Branch to significantly less desirable uniformed position with same salary and rank but with loss of privileges and promotion opportunity is not reduction in rank under District of Columbia law
- explaining that Plaintiff who challenged a report and statements released to the media, must establish “public stigma” in order to proceed with a liberty interest claim
- concluding that lateral transfer within same line of work, with no reduction in rank or pay, did not con- stitute deprivation of liberty
Written by the judges who cited it.
The opinion
GINSBURG, Circuit Judge,
concurring:
In Wisconsin v. Constantineau, 400 U.S. 433, 437 , 91 S.Ct. 507, 510 , 27 L.Ed.2d 515 (1971), the Supreme Court said: “Where 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.” If the Constantineau opinion controlled this case, 1 Mosrie’s complaint could not be dismissed for failure to present a liberty interest sheltered by the due process guarantee.
But five members of the Court “re-rationaliz[ed] .. . earlier cases” 2 in Paul v. Davis, 424 U.S. 693 , 96 S.Ct. 1155 , 47 L.Ed.2d 405 (1976). The Court’s “re-ration *1163 alization” requires us to assume Constantineau turned not on the alleged official assault on the complainant’s reputation, not on the “stigma or badge of disgrace” 3 attending the public listing of complainant’s name as an alcoholic, but on official deprivation of a right “previously held under state law” to buy liquor. 4
Trenchant commentary on Paul v. Davis 5 observes that “in a ‘Constitution for a free people,’ it is an unsettling conception of ‘liberty’ that protects an individual against state interference with his access to liquor but not with his reputation in the community.” 6 Traditionally, the security of one’s reputation has been recognized as a right without which “it is impossible to have the perfect enjoyment of any other advantage or right.” 7 To banish the interest in a person’s good name from the concept of liberty sheltered by due process “stands wholly at odds with our ethical, political, and constitutional assumption about the worth of each individual.” 8
The complainant in Paul v. Davis, like Mosrie here, recited material losses, including serious impairment of his employment opportunities and interference with his ability to purchase goods from merchants in his home community. 9 The two cases, I believe, are not subject to sensible distinction. Until the Court revisits the question whether a person’s good name is a liberty interest, protected by the Constitution against arbitrary government deprivation, we are obliged to follow Paul v. Davis, and its strained reading of earlier decisions. Based on the accurate rendition of Paul v. Davis reasoning in Judge Bork’s opinion, but emphasizing penetrating criticism of the High Court’s opinion, I concur.
. For other opinions close in time to Constantineau consistent with the view that due process secures to the individual an opportunity to clear his or her name when exposed to a reputation-damaging charge by a government official, see Goss v. Lopez, 419 U.S. 565, 574-76 , 95 S.Ct. 729, 736-37 , 42 L.Ed.2d 725 (1975), Board of Regents v. Roth, 408 U.S. 564, 573 , 92 S.Ct. 2701, 2707 , 33 L.Ed.2d 548 (1972), and Jenkins v. McKeithen, 395 U.S. 411, 426-28 , 89 S.Ct. 1843, 1851-52 , 23 L.Ed.2d 404 (1969).
. Monaghan, Of “Liberty” and “Property,” 62 Cornell L.Rev. 405, 424 (1977).
. Constantineau, 400 U.S. at 436 , 91 S.Ct. at 509 (“The only issue present here Is whether the label or characterization given a person by ‘posting,’ ... is to others such a stigma or badge of disgrace that procedural due process requires notice and an opportunity to be heard.”).
. Paul v. Davis, 424 U.S. at 708-09 , 96 S.Ct. at 1164 . But see Shapiro, Mr. Justice Rehnquist: A Preliminary View, 90 Harv.L.Rev. 293, 326 (1976) (“There is not the slightest hint anywhere in the [Constantineau] opinion that the loss of the right to buy liquor was necessary, or even relevant, to the result.”); The Supreme Court, 1975 Term, 90 Harv.L.Rev. 56, 93 n. 44 (1976) [hereafter, 1975 Term] (examination of Wisconsin statutes revealed no provision conferring on the citizenry a right to buy liquor).
. Monaghan, supra note 2, 62 Cornell L.Rev. at 423-29; Shapiro, supra note 4, 90 Harv.L.Rev. at 324-28.
. Monaghan, supra note 2, 62 Cornell L.Rev. at 426; cf. Parratt v. Taylor, 451 U.S. 527 , 101 S.Ct. 1908 , 68 L.Ed.2d 420 (1981) (author of Paul v. Davis recognizes as a deprivation of a constitutionally-protected interest loss through negligence of prison officials of a prisoner’s mail-ordered hobby kit).
. 1 W. Blackstone, Commentaries * 134, quoted in Monaghan, supra note 2, 62 Cornell L.Rev. at 426.
. Monaghan, supra note 2, 62 Cornell L.Rev. at 427. Paul v. Davis, in re-rationalizing earlier cases, does recognize “reputation plus” interests as constitutionally protected. For example, in referring to Board of Regents v. Roth, the Paul v. Davis opinion, 424 U.S. at 709-10 , 96 S.Ct. at 1164 , reasons that an unprotected interest in an untenured position plus an unprotected interest in reputation equals a protected interest. The logic of this analysis is not crystalline. See 1975 Term, supra note 4, 90 Harv.L.Rev. at 93 n. 44.
. See 424 U.S. at 697 ; 1975 Term, supra note 4, 90 Harv.L.Rev. at 100 & n. 85.