Bank of Jackson County v. L. James Cherry Raymond G. Naeyaert

GODBOLD, Senior Circuit Judge,

concurring in part and dissenting in part:

I agree with our decision insofar as it affirms the conclusion reached on summary judgment that plaintiff bank suffered no loss of property interest.

I believe that the liberty interest claim could not properly be denied by a summary judgment and that, in addressing the liberty interest issue, both the district court and this court have read the relevant case law too narrowly.

With respect to the liberty interest claim, the district court held:

Although the broad language of Gonzalez [Gonzalez v. Freeman, 334 F.2d 570 (D.C.Cir.1964) ] implied a deprivation of property basis, more recent cases have held that a government contractor has no constitutionally protected “property” interest in this situation, but in certain circumstances a “liberty” interest may be implicated where the suspension is based on charges of fraud or dishonesty, and some stigmatizing publication occurs. See ATL, Inc. v. United States, 736 F.2d 677, 683 (Fed.Cir.1984); Transco Sec., Inc. v. Freeman, 639 F.2d 318, 321 (6th Cir.), cert. denied, 454 U.S. 820 , 102 S.Ct. 101 , 70 L.Ed.2d 90 (1981); Old Dominion Dairy Products, Inc. v. Secretary of Defense, 631 F.2d 953, 962 *1361 (D.C.Cir.1980). Though plaintiff argues that it was accused of bad faith dealings in this case, the lack of any evidence in the record of outside publication of these accusations, even if they were sufficient to trigger constitutional concerns, destroys any claim of a violated liberty interest. I therefore conclude that plaintiff has neither a property nor liberty interest upon which to base its claim.

The plaintiff bank is a small-town operation, located in Graceville, Florida, a town shown by the 1990 Rand McNally Road Atlas to have a population of 2,918. It is located in Jackson County, a predominately rural county that abuts the Florida-Alabama state line a few miles north of Grace-ville. FmHA notified its county supervisors in Jackson and an adjoining Florida county that it would not guarantee agricultural loans made by the plaintiff bank because of its “bad faith” in a civil dispute between the bank and FmHA over the proceeds of the sale of cattle in which both had an interest. Thus the notice reached the relevant Florida market for agricultural loans made by this rural bank. FmHA’s action in Florida was made known to FmHA in Alabama, which did not decline to guarantee agricultural loans that were made by the bank to farmers across the Alabama state line, a few miles away, because it did not consider the action in Florida a debarment.

In a deprivation of liberty interest case a court necessarily must inquire into what it was that the defendant did or said that adversely affected the plaintiff and what impact the defendant’s statements or actions had on the plaintiff. Bd. of Regents v. Roth, 408 U.S. 564 , 92 S.Ct. 2701 , 33 L.Ed.2d 548 (1972), concerned the refusal of a public university to reemploy a nontenured university instructor. The Court held that a simple refusal to rehire, without more, did not trigger due process requirements. The Court noted however that the charges made were not such as might seriously damage the plaintiff’s standing and associations in his community, and that had the charge done so, “this would be a different case.” It also noted that the stigma or other disability did not foreclose the plaintiff’s freedom to take advantage of other employment activities; for example, plaintiff was not barred from all other public employment in state universities. Again, had this occurred it “would be a different case.”

Roth’s, liberty interest principles have been applied to plaintiffs deprived of access to government contracts or services, in cases referred to by the district court and this court. ATL, Transco, and Old Dominion, supra. The liberty interest of a bidder (and, inferentially, of one denied access to government services) is affected “when that denial is based on charges of fraud or misconduct.” Transco, 639 F.2d at 321 (citing Old Dominion).

There is no issue in this case concerning what FmHA said and did. Both the district court and this court assume that FmHA’s charge that the bank dealt in “bad faith” in the dispute over mortgaged cattle was sufficiently stigmatizing. Indeed any other conclusion would not be justified. Inquiry into the impact of what FmHA said divides into two overlapping inquiries: to whom were the allegations communicated and what were the consequences of the remarks? The district court held that the statements were not made to enough of an audience, i.e., there was no “outside publication.” But the purpose of inquiring into the scope of the audience to whom publication was made is but a part of the inquiry into impact upon the plaintiff. “Outside” versus “inside” are not per se determinative factors but merely aids to analysis in the light of all the circumstances. They are part of the overall inquiry into impact on the plaintiff. The district court erred in treating lack of “outside publication” as the sole basis for decision. The crucial fact is that FmHA’s notice to its supervisors in the bank’s Florida market area created a plenary exclusion from access to FmHA loan guarantees in Florida. That the exclusion was implemented through word to only a few “insiders” does not diminish the impact.

On appeal this court supplements the district court’s conclusion of “inside publication” by noting that FmHA’s charges of *1362 misconduct by the bank were not communicated to other government agencies. But nothing in the summary judgment record supports an inference that this rural bank’s needs for guarantees of agricultural loans could be met by some other government agency. It is not required for an actionable liberty interest claim by the bank that its alleged wrongdoing has been made known to, for example, the Federal Reserve System or the Federal Deposit Insurance Corporation, who have no relation to the function of the FmHA or to the adverse affect on the bank’s market for agricultural loans.

I turn to the inquiry into the consequences of defendant’s statements. The district court did not refer to this quantitative measurement. On appeal this court compares the bank’s summary judgment showing of consequences to the much more serious consequences shown in other cases, and finds them wanting. In Old Dominion the court pointed out that the governmental action effectively put the plaintiff out of business. But this was a factual distinction, a response to the statement in Roth that the plaintiff would have a “different case” if he had been foreclosed from all public employment in state universities. Old Dominion had been shut out of its sole business, supplying dairy products by contracts with the Armed Forces. This factual distinction brought Old Dominion within the “different case” reference in Roth . This distinction did not establish a principle that a deprivation of a liberty interest can only arise when the victim’s business enterprise is wholly destroyed. Of course there must be evidence of injurious consequence to the plaintiff. But once there is a showing of a substantial adverse impact beyond the range of de minimis, a fact-finder may conclude that the liberty interest is adversely affected. Old Dominion, Transco, and ATL are all “total destruction” cases. But they do not establish a principle that a right to recover for injury to one wrongfully excluded from access to government programs exists only when there is total destruction. There is no scorched earth requirement. Rather inquiry must be made in terms of the effect upon the wronged plaintiff’s relevant market' for the government services the access to which plaintiff has lost. This plaintiff lost all access to FmHA loan guarantees in its Florida market by notice given to the persons who controlled that access. This was the only service FmHA had offered to the bank. The bank was entitled to a trial at which it could be determined whether this was a sufficient impact.

None of the cases relied on to affirm the summary judgment denial of the bank’s liberty interest claim is a summary judgment case. Old Dominion was decided after a three-day evidentiary hearing. Transco was a suit for an injunction, and it is obvious from the Sixth Circuit’s opinion that the record was generous. ATL reached the Federal Circuit from an injunction against the Navy granted by the Claims Court in two reported decisions that reveal a substantial record. See 736 F.2d at 679, n. 1 .

The bank is entitled to a trial on its liberty interest claim.