Petition for Writ of Certiorari — Michael Erwine, Petitioner v. Churchill County, Nevada, et al.

No. _________

================================================================================================================

In The

Supreme Court of the United States

---------------------------------♦--------------------------------MICHAEL ERWINE,

Petitioner,

v.

CHURCHILL COUNTY, NEVADA,

CHURCHILL COUNTY SHERIFF BENJAMIN TROTTER,

Respondents.

---------------------------------♦--------------------------------On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

---------------------------------♦--------------------------------PETITION FOR A WRIT OF CERTIORARI

---------------------------------♦--------------------------------LUKE BUSBY

Counsel of Record

LUKE ANDREW BUSBY, LTD.

316 California Avenue

Reno, Nevada 89509

(775) 453-0112

luke@lukeandrewbusbyltd.com

Counsel for Petitioner

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTION PRESENTED

Conflicting with Codd v. Velger, 429 U.S. 624, 628

(1977), that a hearing is required if false and defamatory information is disseminated in connection with

the termination of a public employee, the Ninth Circuit

concluded in Blantz v. California Dep’t of Corr. & Rehab., Div. of Corr. Health Care Servs., 727 F.3d 917, 925

(9th Cir. 2013) that to state a viable “stigma-plus” procedural due process claim, a plaintiff must also show

“effective exclusion” from a profession, meaning the

stigmatizing statements effectively bar her from all

employment in her field.

The question presented is:

To state a viable “stigma-plus” claim, must a plaintiff prove as a matter of fact “effective exclusion” from

a chosen profession?

ii

PARTIES TO THE PROCEEDING

Michael Erwine (“Mr. Erwine”) was the plaintiffappellant below.

Churchill County (“the County”), a political subdivision of the State of Nevada, and Churchill County

Sheriff Benjamin Trotter were the defendants-appellees below.

STATEMENT OF RELATED PROCEEDINGS

Erwine v. Churchill Cty., No. 3:18-cv-00461-RCJWGC, U.S. District Court for the District of Nevada.

Judgment entered March 9, 2022.

Erwine v. Cty. of Churchill, No. 22-15358, US

Court of Appeals for the Ninth Circuit. Judgment entered March 7, 2023.

iii

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................

v

PETITION FOR WRIT OF CERTIORARI ...........

1

OPINIONS BELOW.............................................

1

JURISDICTION ...................................................

1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED...........................................

2

INTRODUCTION ................................................

2

STATEMENT OF THE CASE..............................

4

I.

II.

FACTS........................................................

4

A. THE FRAMING AND FIRING OF MR.

ERWINE ...............................................

4

PROCEEDINGS BELOW ..........................

9

A. THE DISTRICT COURT, CONFOUNDED BY “DISCORD” IN THE

NINTH CIRCUIT’S CASE LAW SURROUNDING PROCEDURAL DUE

PROCESS CLAIMS, ISSUES SUMMARY JUDGMENT AGAINST MR.

ERWINE BASED ON BLANTZ ..........

9

B. BLANTZ IS APPLIED TO MR. ERWINE

AT THE NINTH CIRCUIT ON HIS

APPEAL ............................................... 10

REASONS FOR GRANTING THE PETITION ... 12

I.

IN THE NINTH CIRCUIT STIGMAPLUS IS NOT ENOUGH—IN EVERY

OTHER CIRCUIT, IT IS ............................ 12

iv

TABLE OF CONTENTS—Continued

Page

A. IT IS FIRMLY ESTABLISHED THAT

AMERICANS MAY NOT BE SUBJECT TO OFFICIAL STIGMATIZATION WITHOUT DUE PROCESS—

EXCEPT IN THE NINTH CIRCUIT .... 12

B. THE NINTH CIRCUIT’S “EFFECTIVE EXCLUSION” RULE IN BLANTZ

VIOLATES STARE DECISIS—AND

COMMON SENSE ............................... 13

II. BLANTZ EFFECTIVELY EXCLUDED

EMPLOYMENT RELATED STIGMA-PLUS

CLAIMS IN THE NINTH CIRCUIT............ 20

CONCLUSION .......................................................

23

APPENDIX

Memorandum, United States Court of Appeals

for the Ninth Circuit (Mar. 7, 2023) ................ App. 1

Order, United States District Court, District of

Nevada (Mar. 9, 2022) ...................................... App. 6

Judgment, United States District Court, District of Nevada (Mar. 9, 2022) ........................ App. 34

Order, United States District Court, District of

Nevada (Sep. 7, 2021)..................................... App. 36

Order, United States Court of Appeals for the

Ninth Circuit (Apr. 25, 2023) ......................... App. 64

Memorandum (Mar. 4, 2022) ............................. App. 65

v

TABLE OF AUTHORITIES

Page

CASES

Bank of Jackson Cty. v. Cherry, 966 F.2d 1406

(11th Cir. 1992)........................................................14

Blantz v. California Dep’t of Corr. & Rehab., Div.

of Corr. Health Care Servs., 727 F.3d 917 (9th

Cir. 2013) ................................ 2, 3, 9-11, 13-17, 19-22

Board of Regents v. Roth, 408 U.S. 564, 92 S. Ct.

2701, 33 L. Ed. 2d 548 (1972) ............ 3, 12, 13, 16-18

Brady v. Gebbie, 859 F.2d 1543 (9th Cir. 1988) ..........10

Brandt v. Bd. of Coop. Educ. Servs., Third Supervisory Dist., 820 F.2d 41 (2d Cir. 1987) ...................14

Buxton v. Plant City, 871 F.2d 1037 (11th Cir.

1989) .................................................................. 13, 19

Campbell v. District of Columbia, 126 F. Supp.

3d 141 (D.D.C. 2015) ......................................... 19, 22

Codd v. Velger, 429 U.S. 624 (1977) ............................12

Colaizzi v. Walker, 542 F.2d 969 (7th Cir. 1976) ........18

Correia v. Jones, 943 F.3d 845 (8th Cir. 2019) ...........18

Dennis v. S & S Consol. Rural High Sch. Dist.,

577 F.2d 338 (5th Cir. 1978) .............................. 17, 18

Egge v. Cty. of Santa Clara, No. 17-cv-02842BLF, 2018 U.S. Dist. LEXIS 76984 (N.D. Cal.

May 7, 2018) ............................................................21

Fowler v. United States, 633 F.2d 1258 (8th Cir.

1980) ........................................................................14

vi

TABLE OF AUTHORITIES—Continued

Page

Frazier v. City of Fresno, No. 1:20-cv-01069DAD-SAB, 2022 U.S. Dist. LEXIS 70312 (E.D.

Cal. Apr. 15, 2022) ...................................................21

Gillum v City of Kerrville, 3 F.3d 117 (5th Cir.

1993) ........................................................................17

Hill v. Borough of Kutztown, 455 F.3d 225 (3d

Cir. 2006) .................................................................17

Hinkle v. White, 793 F.3d 764 (7th Cir. 2015).............14

Howes v. N.M. Dep’t of Health, No. CIV 21-0263

JB/SCY, 2023 U.S. Dist. LEXIS 16010 (D.N.M.

Jan. 31, 2023) ..........................................................22

Ludwig v. Bd. of Trustees of Ferris State Univ.,

123 F.3d 404 (6th Cir. 1997) ....................................14

Mathews v. Eldridge, 424 U.S. 319 (1976)..................13

McDonald v. Wise, 769 F.3d 1202 (10th Cir.

2014) ........................................................................18

Monell v. Department of Social Services of City

of New York, 436 U.S. 658 (1978) ..............................9

Neu v. Corcoran, 869 F.2d 662 (2d Cir. 1989) .............17

O’Donnell v. Barry, 331 U.S. App. D.C. 272, 148

F.3d 1126 (1998) ......................................................14

Osollo v. Darling-Hammond, No. 2:16-cv-03045SJO (SHK), 2018 U.S. Dist. LEXIS 105082

(C.D. Cal. Feb. 27, 2018) ..........................................21

Paul v. Davis, 424 U.S. 693 (1976) ............ 11, 12, 14, 15

Printup v. Dir., Ohio Dep’t of Job & Family

Servs., 654 F. App’x 781 (6th Cir. 2016) ..................18

vii

TABLE OF AUTHORITIES—Continued

Page

Ramos v. Louisiana, 140 S. Ct. 1390 (2020)...............13

Ridpath v. Bd. of Governors Marshall Univ., 447

F.3d 292 (4th Cir. 2006) ...........................................14

Schwake v. Ariz. Bd. of Regents, 821 F. App’x 768

(9th Cir. 2020)..........................................................20

Sciolino v. City of Newport News, Va., 480 F.3d

642 (4th Cir. 2007) ...................................................17

Sipes v. United States, 744 F.2d 1418 (10th Cir.

1984) ........................................................................14

Stretten v. Wadsworth Veterans Hosp., 537 F.2d

361 (9th Cir. 1976) ...................................................16

Tibbetts v. Kulongoski, 567 F.3d 529 (9th Cir.

2009) ........................................................................10

Unger v. Nat’l Residents Matching Program, 928

F.2d 1392 (3d Cir. 1991) ..........................................14

Valmonte v. Bane, 18 F.3d 992 (2d Cir. 1994) .............17

Ventetuolo v. Burke, 596 F.2d 476 (1st Cir. 1979) .......14

Walsh v. Hodge, 975 F.3d 475 (5th Cir. 2020) ............14

Watson v. City of Henderson, No. 2:20-cv-01761APG-BNW, 2021 U.S. Dist. LEXIS 182001 (D.

Nev. Sep. 23, 2021) ..................................................22

Winslow v. FERC, 587 F.3d 1133 (D.C. Cir. 2009) .......22

Wisconsin v. Constantineau, 400 U.S. 433 (1971)........12

viii

TABLE OF AUTHORITIES—Continued

Page

Woodley v. City of Portland, No. 3:22-cv-423-SI,

2022 U.S. Dist. LEXIS 205972 (D. Or. Nov. 14,

2022) ........................................................................20

Zhang v. Cty. of Monterey, 804 F. App’x 454 (9th

Cir. 2020) .................................................................20

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. XIV .................... 2, 4, 10, 12, 18, 23

U.S. Const. art. III, § 1 ................................................23

STATUTES

28 U.S.C. § 1254(1) ........................................................1

42 U.S.C. § 1983 ........................................................ 2, 9

1

PETITION FOR WRIT OF CERTIORARI

Michael Erwine respectfully petitions for a writ

of certiorari to review the judgment of the Court of

Appeals for the Ninth Circuit.

---------------------------------♦---------------------------------

OPINIONS BELOW

The March 9, 2022, opinion of the District Court

is reported at Erwine v. Churchill Cty., No. 3:18-cv00461-RCJ-WGC, 2022 U.S. Dist. LEXIS 41542 (D.

Nev. Mar. 9, 2022) (Pet. App. 6)

The March 7, 2023, unpublished memorandum of

the Court of Appeals for the Ninth Circuit is reported

at Erwine v. Cty. of Churchill, No. 22-15358, 2023 U.S.

App. LEXIS 5395 (9th Cir. Mar. 7, 2023). (Pet. App. 1)

---------------------------------♦---------------------------------

JURISDICTION

The Ninth Circuit entered judgment on March 7,

2023. Mr. Erwine thereafter filed a timely petition for

panel rehearing and/or en banc rehearing, which the

court denied on April 25, 2023. Erwine v. Cty. of

Churchill, No. 22-15358, 2023 U.S. App. LEXIS 10042

(9th Cir. Apr. 25, 2023) Pet. App. 64. This Court has jurisdiction under 28 U.S.C. § 1254(1).

---------------------------------♦---------------------------------

2

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

The Due Process Clause of the Fourteenth Amendment provides, “nor shall any state deprive any person

of life, liberty, or property, without due process of

law[.]” U.S. Const. amend. XIV.

42 U.S.C. § 1983 provides in relevant part:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen

of the United States or other person within

the jurisdiction thereof to the deprivation of

any rights, privileges, or immunities secured

by the Constitution and laws, shall be liable

to the party injured in an action at law, suit in

equity, or other proper proceeding for redress. . . .

---------------------------------♦---------------------------------

INTRODUCTION

This case raises important questions relating to

the viability of any stigma-plus claim by public employees in the Ninth Circuit. Since the decision in

Blantz v. California Dep’t of Corr. & Rehab., Div. of

Corr. Health Care Servs., 727 F.3d 917, 925 (9th Cir.

2013) (hereinafter “Blantz”), all such claims in the

Ninth Circuit have been effectively excluded.

Mr. Erwine’s reputation and career as a police officer have been destroyed for having recorded in

3

writing that he was concerned about the way that an

inmate was being treated at the Churchill County Jail,

in Fallon, Nevada. Erwine simply noted his concerns

on his work computer. In response, Churchill County

Sheriff Benjamin Trotter destroyed Mr. Erwine’s reputation and ability to gain employment as a police officer by lodging career destroying accusations at

Erwine, without giving Erwine notice or an opportunity to clear his name before the information was

placed into his file and published. Police officers cannot

be expected to record or report the misconduct of fellow

officers if in response they will lose their jobs and have

their reputations destroyed by ambush without protection of their basic due process rights by the federal

courts.

The Ninth Circuit’s ruling in Blantz violates stare

decisis and has created an effective circuit split. It

wrongly requires stigma-plus plaintiffs to prove that

they are “effectively excluded” and entirely unemployable in their chosen profession, notwithstanding if they

squarely meet the elements of both “stigma” and

“plus,” as described by every other circuit court of appeals and this Court in the touchstone case Bd. of Regents v. Roth, 408 U.S. 564, 566, 92 S. Ct. 2701, 2703

(1972).

Requiring an employee to prove “effective exclusion” after the fact, as a matter of fact, in order to present a viable stigma-plus claim, defeats the purpose of

due process. Due process provides an employee with a

meaningful opportunity have knowledge of and to refute the charge at a name clearing hearing, before that

4

information may irrevocably ruin the employee’s career and reputation.

The Court should grant certiorari to examine

whether the Ninth Circuit has set such a rigorous criterion for stigma-plus claims by public employees that

it is impossible to satisfy, undermining this Court’s

previous rulings that recognize stigma-plus procedural

due process claims when there is a risk of the government depriving an individual of their professional livelihood in violation of the 14th Amendment’s due

process protections.

---------------------------------♦---------------------------------

STATEMENT OF THE CASE

I.

FACTS

A. THE FRAMING AND FIRING OF MR.

ERWINE

Between December 9, 2015 and October 10, 2016,

Churchill County employed Erwine in the capacity of

Detention Deputy Sheriff at the Churchill County Jail.

Sheriff Trotter constructively discharged Erwine on

October 10, 2016.

On Saturday, October 8, 2016 Mr. Andrew Beaulieu was being held in a security cell at the Churchill

County Jail for punching a slot machine at a casino in

Fallon, Nevada. The security cell was padded and had

no sink or toilet, just a drain on the floor. By the time

Erwine came on shift, Beaulieu had been in the security cell and requesting water and medical attention

for hours. When Erwine approached Beaulieu, he was

5

informed by Beaulieu and later confirmed during review of surveillance footage that every time Beaulieu

would make a request, the grave shift deputy would

flush the drain in Beaulieu’s cell making Beaulieu’s request inaudible over the flushing noise. Erwine gave

Beaulieu water and medical attention for his hand and

then wrote what he heard and observed on a document

on his computer, so that he could discuss the treatment

of Beaulieu with his supervisor at a later time.

The next day, Sunday, October 9, 2016, during Erwine’s dayshift, Churchill County Deputy Jabines had

dropped a container of miscellaneous tools and other

items inside of a booking cage. Included in these items

were screwdrivers and other sharp instruments. Deputy Jabines asked an inmate, Matthew Maes, to come

into the booking cage with her and Erwine and pick up

the tools. Erwine felt that bringing in an inmate to pick

up the sharp instruments created a dangerous situation for everyone involved, i.e. to have an inmate come

into the booking cage to pick up items which could be

easily used as weapons. When Maes came into the

cage, Erwine positioned himself between Maes and the

control panel of the facility. Erwine was in an uncomfortable position with Maes being only a few feet away

from Erwine and backed into a corner. Erwine removed

his taser from its holster and held it in his hand with

the taser pointed to the ground. Erwine removed the

cartridge from the taser due to the close proximity of

inmate Maes to both Erwine and Deputy Jabines, who

was also in the case. Maes cleaned up the items and

left the cage without incident.

6

On October 10, 2016, Erwine was called into a

meeting with Sheriff Trotter and was told that he

would either resign, keep his vacation and sick pay, or

he would be fired, and would receive nothing. Unbeknownst to Erwine, after firing Erwine Sheriff Trotter

placed a memorandum in Erwine’s employee file that

contained stigmatizing statements about the incidents

with Beaulieu and Maes, dated October 10, 2016. The

memorandum contains false allegations about the

Beaulieu incident, that Erwine was encouraging Beaulieu to sue Churchill County, and concluded that Erwine engaged in “unprofessional behavior,” that he

created liability for Churchill County, that he discredits Churchill County and the entire profession of law

enforcement, that Erwine violated “behavior standards,” and that Erwine’s behavior was “extremely disturbing and disappointing.” (Pet. App. 65). Trotter also

accused Erwine of misconduct related to the incident

with Mr. Maes. Trotter alleged that Erwine engaged in

“conduct unbecoming a deputy” and an “unjustifiable

use of force” against Maes. Id.

According to Beaulieu, Erwine did nothing to encourage Beaulieu to file a lawsuit against Churchill

County. Matthew Maes, Erwine’s supposed victim of

the use of force incident referred to in Sheriff Trotter’s

October 16, 2016, Memorandum, testified that the idea

that Erwine used excessive force on him was untrue,

and that “it never happened.” When shown Sheriff

Trotter’s Memorandum describing Deputy Jabines’ account of what happened in the case with Erwine, Maes

stated that it appeared to him that Jabines may be

7

trying to set up Erwine because Jabines’ description of

what happened was so inaccurate. Maes also testified

that Jabines told him that Erwine was fired because

he was a rat.

In responses to requests for admission Churchill

County admitted the following facts surrounding Erwine’s termination: Erwine was provided with no written notice that he had been accused of misconduct

before Erwine executed a letter of separation on October 10, 2016; Erwine was not afforded a hearing before

Erwine executed a letter of separation on October 10,

2016; Sheriff Trotter authored the October 10, 2016

Memorandum; Sheriff Trotter placed the October 10,

2016 Memorandum into Erwine’s personnel file; The

October 10, 2016 Memorandum was not provided to

Erwine before the letter of separation was executed by

Erwine; and the October 10, 2016 Memorandum was

never shown to Erwine before it was placed in his personnel file.

After Erwine’s discharge from the Churchill

County Sheriff ’s Office, Erwine tried to get another job

as a police officer. He was rejected for employment by

multiple police agencies for failing to pass background

investigations.

For example, on January 17, 2017, Erwine received a letter from the Washoe County Sheriff informing him that, “ . . . the Sheriff ’s Office has determined

that you do not meet the established standards for a

position as Deputy Sheriff and therefore you have not

been selected at this time.” Churchill County admitted

8

that the October 10, 2016 Memorandum, in addition to

Erwine’s entire personnel file, was shared with the

Washoe County Sheriff ’s Office.

Erwine also sought a job as a police officer at the

Las Vegas Metropolitan Police Department (“LVMPD”).

Erwine’s background investigation file from LVMPD

contains a note from the investigator Scott Olsen indicating that Olsen had a telephone conversation with

Sheriff Trotter regarding Erwine’s employment with

Churchill County. Sheriff Trotter indicated to Olsen

that Erwine was terminated because he initiated an

unauthorized investigation that was beyond his duties

and that Erwine was sympathetic to an inmate who

was looking to file a lawsuit against Churchill

County—reiterating the gist of the false claim in the

October 10, 2016 Memorandum. Olsen concludes his

notes by stating that Erwine’s actions make him unsuitable for employment with LVMPD, referring to

what Sheriff Trotter said.

On February 7, 2017, Erwine received an email

from Las Vegas Metropolitan Police in response to his

application informing him, “ . . . based on review of

your background history, you will no longer be considered for the position(s) of Police Recruit C 16-001 November with the Las Vegas Metropolitan Police

Department. Candidate does not meet LVMPD hiring

standards based on Employment History” and “You are

not eligible to apply with LVMPD for any position indefinitely.”

9

Prior to leaving Churchill County, Erwine had

never failed a background investigation or been denied

a law enforcement position because of background related issues.

Erwine requested and received a copy of his employee file from Churchill County on April 13, 2018,

and first became aware of the existence of Trotter’s

memorandum and was shocked to discover the false

allegations leveled against him for the first time so

long after he left employment there.

II.

PROCEEDINGS BELOW

A. THE DISTRICT COURT, CONFOUNDED

BY “DISCORD” IN THE NINTH CIRCUIT’S CASE LAW SURROUNDING

PROCEDURAL DUE PROCESS CLAIMS,

ISSUES SUMMARY JUDGMENT AGAINST

MR. ERWINE BASED ON BLANTZ

Mr. Erwine filed two federal claims, a procedural

due process liberty interest claim against Sheriff

Trotter under 42 U.S.C. § 1983, and a derivative claim

under Monell v. Department of Social Services of City

of New York, 436 U.S. 658 (1978), against Churchill

County on the same grounds.

On March 9, 2022, the District Court granted summary judgment against Mr. Erwine on his federal law

causes of action.

The District Court noted:

There is some discord in caselaw regarding

the required criteria that constitute a

10

sufficiently stigmatizing statement. There is a

line of cases in which statements that “impair[ ] a reputation for honesty or morality”

are found to be sufficient in themselves. E.g.,

Tibbetts v. Kulongoski, 567 F.3d 529, 535-36

(9th Cir. 2009) (quoting Brady v. Gebbie, 859

F.2d 1543, 1552 (9th Cir. 1988)). However, in

Blantz v. California Dep’t of Corr. & Rehab.,

Div. of Corr. Health Care Servs., 727 F.3d 917,

925 (9th Cir. 2013), the Circuit stated: ‘[T]he

liberty interests protected by the Fourteenth

Amendment are implicated only when the

government’s stigmatizing statements effectively exclude the employee completely from

her chosen profession. Stigmatizing statements that merely cause “reduced economic

returns and diminished prestige, but not permanent exclusion from, or protracted interruption of, gainful employment within the

trade or profession” do not constitute a deprivation of liberty.

Pet. App. 19

The District Court held that “ . . . Blantz is the appropriate standard for this case and that no reasonable

juror could find that Plaintiff was effectively excluded

from employment in his chosen profession.” Pet. App. 31.

B. BLANTZ IS APPLIED TO MR. ERWINE

AT THE NINTH CIRCUIT ON HIS APPEAL

Mr. Erwine appealed the District Court’s rulings

to the Ninth Circuit. In a March 7, 2023 Memorandum

11

opinion, the Ninth Circuit held that, “[T]o state a viable “stigma-plus” due process claim, Erwine must show

that the allegedly stigmatizing statements in the Trotter Memorandum were the cause of his loss of employment opportunities in his chosen profession as a law

enforcement officer.” Pet. App. 2. The Ninth Circuit further held that, “Erwine has failed to put forth evidence

showing that the Trotter Memorandum was the cause

of his inability to find employment as a police officer in

the State of Nevada—outside of the tribal police

force—after his resignation.” Pet. App. 2.

The Ninth Circuit noted that this Court has clarified that stigma to reputation alone without “more tangible interests such as employment” is insufficient “to

invoke the procedural protection of the Due Process

Clause,” citing Paul v. Davis, 424 U.S. 693, 701 (1976).

Id. Applying Blantz, the Ninth Circuit held that “[s]tigmatizing statements that merely cause ‘reduced economic returns and diminished prestige . . . ‘ do not

constitute a deprivation of liberty.” Id. at 3-4.

Mr. Erwine then petitioned the Ninth Circuit for

panel rehearing or en banc rehearing, which was denied on April 25, 2023. Pet. App. 64.

---------------------------------♦---------------------------------

12

REASONS FOR GRANTING THE PETITION

I.

IN THE NINTH CIRCUIT STIGMA-PLUS IS

NOT ENOUGH—IN EVERY OTHER CIRCUIT, IT IS

A. IT IS FIRMLY ESTABLISHED THAT

AMERICANS MAY NOT BE SUBJECT

TO OFFICIAL STIGMATIZATION WITHOUT DUE PROCESS—EXCEPT IN THE

NINTH CIRCUIT.

For two generations, American law has expressly

protected public employees’ liberty interest in being

free from official stigmatization without basic due process. “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.” Wisconsin v. Constantineau, 400 U.S.

433, 437 (1971). Basic procedural due process must be

provided where a charge that an employee is dishonest

or immoral is made in connection with termination.

Bd. of Regents v. Roth, 408 U.S. 564, 566 (1972).

In 1976, this Court held that reputational harm

alone does not trigger a right to procedural due process, but if coupled with a concurrent loss of employment, the 14th Amendment requires a “name clearing”

hearing under the “stigma-plus” doctrine. Paul v. Davis, 424 U.S. 693, 712 (1976). One year later, in Codd v.

Velger, 429 U.S. 624, 628 (1977), this Court unequivocally held that a hearing is required if false and defamatory information is disseminated in connection with

the termination of a public employee.

13

“The fundamental requirement of due process is

the opportunity to be heard at a meaningful time and

in a meaningful manner.” Mathews v. Eldridge, 424

U.S. 319, 333 (1976). Since the information within an

employee’s file can be examined years after it is initially stored, the act of filing the information serves as

its official publication for the purpose of ensuring the

employee’s right to due process. “Protection of the due

process name clearing right cannot be effectively afforded any other way.” Buxton v. Plant City, 871 F.2d

1037, 1045 (11th Cir. 1989).

B. THE NINTH CIRCUIT’S “EFFECTIVE

EXCLUSION” RULE IN BLANTZ VIOLATES STARE DECISIS—AND COMMON

SENSE

Stare decisis enhances the fairness and reliability

of the judicial process and “ ‘permits society to presume

that bedrock principles are founded in the law rather

than in the proclivities of individuals, and thereby contributes to the integrity of our constitutional system of

government, both in appearance and in fact.’ ” Ramos

v. Louisiana, 140 S. Ct. 1390, 1411 (2020) (Kavanaugh,

J., concurring).

The “effectively exclude” language in Blantz is an

artifact of Ninth Circuit law only, as every other circuit

court utilizes less stringent requirements for making a

stigma-plus claim that flow directly from language in

Bd. of Regents v. Roth, 408 U.S. at 573, holding that any

charge “that might seriously damage standing and

14

association in the community” or impose stigma or

other disability that forecloses freedom to take advantage of other employment opportunities implicates

protected liberty interests. See Ventetuolo v. Burke, 596

F.2d 476, 482-83 (1st Cir. 1979), Brandt v. Bd. of Coop.

Educ. Servs., Third Supervisory Dist., 820 F.2d 41, 43

(2d Cir. 1987), Unger v. Nat’l Residents Matching Program, 928 F.2d 1392, 1396 (3d Cir. 1991), Ridpath v.

Bd. of Governors Marshall Univ., 447 F.3d 292, 307

(4th Cir. 2006), Walsh v. Hodge, 975 F.3d 475, 483 (5th

Cir. 2020), Ludwig v. Bd. of Trustees of Ferris State

Univ., 123 F.3d 404, 410 (6th Cir. 1997) (“An injury to

a person’s reputation, good name, honor, or integrity

constitutes the deprivation of a liberty interest when

the injury occurs in connection with an employee’s termination”), Hinkle v. White, 793 F.3d 764, 769 (7th Cir.

2015), Fowler v. United States, 633 F.2d 1258, 1262 (8th

Cir. 1980), Sipes v. United States, 744 F.2d 1418, 1422

(10th Cir. 1984), Bank of Jackson Cty. v. Cherry, 966

F.2d 1406 (11th Cir. 1992), and O’Donnell v. Barry, 331

U.S. App. D.C. 272, 148 F.3d 1126, 1140 (1998).

The Blantz standard creates a consequentialist

approach to addressing stigma-plus claims in the employment context where no other circuit court or this

Court has done the same. The Ninth Circuit ruled that

Mr. Erwine, as matter of law, may only pursue a

“stigma-plus” claim if Mr. Erwine shows a causal relationship between his inability to secure a job and the

stigmatizing statements at issue, citing Paul v. Davis,

424 U.S. at 701. Pet. App. 2. The standard described in

Paul v. Davis is much less stringent than as described

15

by the Ninth Circuit, and only requires a “tangible

loss” coupled with defamation of a public employee to

state a claim. 424 U.S. at 701. Here, Erwine’s “tangible

loss,” that triggers procedural due process protections

was losing his job at Churchill County coupled with

Sheriff Trotter’s accusations involving Erwine’s reputation for honesty or morality.

Earlier in this case and before granting summary

judgment against Mr. Erwine, when Mr. Erwine moved

for summary judgment on his claims, the District

Court issued an Order on September 7, 2021 in which

it denied summary judgment in Mr. Erwine’s favor and

found that: “At least some of the statements in the

memo are more than mere accusations of incompetence and go towards morality.” Pet. App. 55.

Six months later, on March 9, 2022, the District

Court issued the Order subject to review by this Court

in which the District Court ruled that “ . . . no reasonable juror could conclude that the statements of Defendants impugned Plaintiff ’s character for honesty

and morality.” Pet. App. 31. The District Court explained this discrepancy in its Order in footnote 9 and

explained that its assessment of the facts in the case

differed in the two orders because of the standards at

issue. Pet. App. 29.

Prior to issuance of the decision in Blantz in 2013,

Ninth Circuit case law did not require a terminated

public employee to also show that stigmatizing statements are the cause of a subsequent inability to obtain

employment for due process protections to be

16

triggered. The ruling in Blantz using the “effective exclusion” language cites to the Ninth Circuit’s holding

in Stretten v. Wadsworth Veterans Hosp., 537 F.2d 361

(9th Cir. 1976) at 925. Before Blantz, the Ninth Circuit

concluded in Stretten v. Wadsworth that the decision

about whether a statement is stigmatizing should be

drawn on the basis of the nature of the charge used as

a grounds for termination and not the actual consequences of the charge. The “effectively exclude” language articulated in Blantz is construed by the Ninth

Circuit to require a plaintiff to also show actual and

complete exclusion from a field of employment is such

an extreme aberration from historical notions surrounding due process that this Court should examine

it.

In contrast to Blantz, the following decisions made

by the other circuit courts of appeals are consistent

with the holding in Board of Regents v. Roth, 408 U.S.

564, 573, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972). These

decisions establish that when an employee is terminated and stigmatizing information regarding the

reasons for the termination is publicly disclosed, the

terminated employee possesses a constitutionally protected liberty interest in clearing their name. Moreover, these decisions assert that the failure to provide

a “name-clearing” hearing in such a situation constitutes a violation of the due process clause. No other circuit court of appeal imposes an additional requirement

to show “effective exclusion” as required in the Ninth

Circuit.

17

“[D]efamation is not by itself a deprivation of a liberty interest unless coupled with the termination of

government employment . . . ” Valmonte v. Bane, 18

F.3d 992, 1000 (2d Cir. 1994) quoting Neu v. Corcoran,

869 F.2d 662, 667 (2d Cir. 1989).

In Hill v. Borough of Kutztown, 455 F.3d 225, 238

(3d Cir. 2006), the Third Circuit held: “The creation and

dissemination of a false and defamatory impression is

the ‘stigma,’ and the termination is the ‘plus.’ When

such a deprivation occurs, the employee is entitled to a

name-clearing hearing.”

In Sciolino v. City of Newport News, Va., 480 F.3d

642, 646 (4th Cir. 2007), the Fourth Circuit held that to

state a valid stigma-plus claim a plaintiff must allege

that the charges against him: (1) placed a stigma on

his reputation; (2) were made public by the employer;

(3) were made in conjunction with his termination or

demotion; and (4) were false.

In Gillum v City of Kerrville, 3 F.3d 117, 121 (5th

Cir. 1993), the Fifth Circuit held that a liberty interest

due process claim is made where defamatory charges

were made against a public employee in connection

with discharge.

In Dennis v. S & S Consol. Rural High Sch. Dist.,

577 F.2d 338, 343 (5th Cir. 1978), the Fifth Circuit

concluded, inapposite of Blantz, that an additional element requiring foreclosure of all employment opportunities does not follow from this Court’s decision in

Roth: “Although the Court in Roth stated that a liberty

interest might be implicated where the stigma inflicted

18

upon an employee ‘foreclosed his freedom to take advantage of other employment opportunities,’ 408 U.S.

at 573, 92 S. Ct. at 2707, it never intimated that such

foreclosure was an indispensable element in demonstrating a liberty interest.” Id. quoting Bd. of Regents

v. Roth, 408 U.S. at 573.

In Printup v. Dir., Ohio Dep’t of Job & Family

Servs., 654 F. App’x 781, 787 (6th Cir. 2016), the Sixth

Circuit held that a constitutional injury occurs when a

plaintiff loses their job in connection with a stigmatizing statement without due process of law—no subsequent deprivation is required to give rise to a claim.

In Colaizzi v. Walker, 542 F.2d 969, 973 (7th Cir.

1976), the Seventh Circuit held: “stigma to reputation

accompanied by a failure to rehire (or, a fortiori, by a

discharge) states a claim for deprivation of liberty

without due process within the meaning of the Fourteenth Amendment.”

In Correia v. Jones, 943 F.3d 845, 848 (8th Cir.

2019), the Eighth Circuit held the right to a nameclearing hearing is triggered where a “public employer

makes stigmatizing allegations, in connection with the

employee’s discharge, in any official or intentional

manner.”

In McDonald v. Wise, 769 F.3d 1202, 1214 (10th

Cir. 2014), the Tenth Circuit held the plaintiff was deprived of a liberty interest in their good name and reputation without due process when a city made public

the fact that they were terminated for serious

19

misconduct without affording the plaintiff an opportunity to clear their name.

In Buxton v. Plant City, 871 F.2d 1037, 1038 (11th

Cir. 1989), the Eleventh Circuit held that placing stigmatizing information in a public employee’s personnel

file constitutes publication sufficient to implicate liberty interests requiring protection through procedural

due process of law proceedings.

In Campbell v. District of Columbia, 436 U.S. App.

D.C. 339, 348, 894 F.3d 281, 290 (2018), The D.C. Circuit held that if stigmatizing statements have the

broad effect of precluding a plaintiff from their chosen

career, they are sufficient to prove a stigma-plus claim.

The requirement in Blantz for a stigma-plus plaintiff to show effective exclusion defies common sense for

varying reasons: (1) Demonstrating that one has been

effectively barred from all employment in their field

requires proving a negative—that no opportunities exist—which is practically impossible; (2) Stigmatizing

actions by the government might not result in total exclusion from a field for reasons completely unrelated to

the statements, as in Mr. Erwine’s case, where he was

able to get a job with a tribal agency that could not access his employment file from Churchill County; (3)

The full impact of stigmatizing statements might not

be immediate. The individual might initially find work,

but over time, as stigmatizing information spreads, opportunities may cease to exist; and (4) It permits the

government to make damaging statements and accusations without facing due process consequences

20

unless the victim can demonstrate complete professional ruin, and by then, its too late for due process to

accomplish anything.

II.

BLANTZ EFFECTIVELY EXCLUDED EMPLOYMENT RELATED STIGMA-PLUS

CLAIMS IN THE NINTH CIRCUIT

In each case which relies on the relevant holding

in Blantz, requiring a showing of effective exclusion,

the same pattern emerges, i.e. a Plaintiff ’s claim fails

because they cannot show that the stigmatizing statements at issue “effectively exclude” the plaintiff from

an entire field of employment.

In Zhang v. Cty. of Monterey, 804 F. App’x 454, 456

(9th Cir. 2020) the Ninth Circuit affirmed summary

judgment citing Blantz since the plaintiff was able to

find work in her field four months after her termination.

In Schwake v. Ariz. Bd. of Regents, 821 F. App’x

768, 770-71 (9th Cir. 2020) the Ninth Circuit affirmed

dismissal citing Blantz holding that a plaintiff failed

to show that any stigmatizing statements that university officials made about him effectively excluded him

completely from his chosen profession.

In Woodley v. City of Portland, No. 3:22-cv-423-SI,

2022 U.S. Dist. LEXIS 205972, at *12-13 (D. Or. Nov.

14, 2022) (the District Court described the standard

in Blantz requiring a showing that a plaintiff is

21

completely foreclosed from all employment in the relevant field as “demanding” and dismissed).

In Osollo v. Darling-Hammond, No. 2:16-cv-03045SJO (SHK), 2018 U.S. Dist. LEXIS 105082, at *55-56

(C.D. Cal. Feb. 27, 2018), the District Court determined

that despite the plaintiff being terminated based on

publicly disclosed accusations of sexual misconduct,

the plaintiff did not satisfy the standard established in

the Blantz case.

In Egge v. Cty. of Santa Clara, No. 17-cv-02842BLF, 2018 U.S. Dist. LEXIS 76984, at *13-14 (N.D. Cal.

May 7, 2018), a physician was terminated and subsequently defamed after she complained that her supervisor failed to report a child abuse case which resulted

in the death of the child. The District Court ruled that

because the physician was able to gain part time employment in another part of the state, she could not

show, “ . . . that she is effectively barred from all employment in her field, only employment in her preferred geographic locale.” Id.

In Frazier v. City of Fresno, No. 1:20-cv-01069DAD-SAB, 2022 U.S. Dist. LEXIS 70312, at *24 (E.D.

Cal. Apr. 15, 2022), the District Court rejected the

plaintiff ’s liberty interest claim under Blantz, ruling

that government-issued stigmatizing statements only

impact liberty interests if they completely prevent the

plaintiff from working in their field.

Since issuance of the Blantz decision in 2013, the

undersigned counsel has been unable to find a single

case in the Ninth Circuit where a public employee’s

22

stigma-plus due process claim survived dismissal or

summary judgment where the “effective exclusion”

analysis was conducted by the Court. In Watson v. City

of Henderson, No. 2:20-cv-01761-APG-BNW, 2021 U.S.

Dist. LEXIS 182001, at *34 (D. Nev. Sep. 23, 2021), a

plaintiff ’s claim did not pass the “effectively exclude”

test, but the plaintiff was granted leave to amend to

identify the purported stigmatizing statements. The

only two cases that cite or mention Blantz that the undersigned counsel located did survive summary judgment or dismissal are outside of the Ninth Circuit: In

Campbell v. District of Columbia, 126 F. Supp. 3d 141,

154-55 (D.D.C. 2015) the district court cited Blantz

but held that because the plaintiff proffered evidence

that as a result of the circumstances of her termination

she was unable to secure employment for a two year

period she created a genuine issue of material fact as

to her deprivation of her liberty interest. In Howes v.

N.M. Dep’t of Health, No. CIV 21-0263 JB/SCY, 2023

U.S. Dist. LEXIS 16010, at *216 n.47 (D.N.M. Jan. 31,

2023), the District Court recognized the standard in

Blantz as “stricter” and concluded that without further

guidance from the Supreme Court or the Tenth Circuit

requiring “permanent exclusion” from future employment opportunities, the Court was unwilling to apply

the Blantz standard of permanent foreclosure.

In creating the “demanding standard” in Blantz,

the Ninth Circuit undermined this Court’s rulings related to stigma-plus claims, violating stare decisis.

See Winslow v. FERC, 587 F.3d 1133, 1135 (D.C. Cir.

2009): “Vertical stare decisis—both in letter and in

23

spirit—is a critical aspect of our hierarchical Judiciary

headed by ‘one supreme Court.’ ” (quoting U.S. Const.

art. III, § 1). Further, the Ninth Circuit’s standard in

Blantz operates to create manifest 14th Amendment

violations in the Ninth Circuit, as illustrated in the

cases cited above, by removing any consequences associated with a denial of procedural due process lest a

stigma-plus plaintiff prove the impossible—that every

conceivable employer has rejected the plaintiff from

employment in their chosen field.

---------------------------------♦---------------------------------

CONCLUSION

A circuit court of appeals may not obliterate an

entire category of constitutional claim established by

this Court by creating an additional and impossible to

meet standard—and this is precisely what occurred

here. This Court should grant certiorari to provide clarity and consistency in the application of this important

area of Constitutional law.

Respectfully submitted,

LUKE BUSBY

Counsel of Record

LUKE ANDREW BUSBY, LTD.

316 California Avenue

Reno, Nevada 89509

(775) 453-0112

luke@lukeandrewbusbyltd.com

Counsel for Petitioner

JUNE 2023.