Appendix — Smith v. Lehman

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United States Court of Appeals

FOR THE SECOND CIRCUIT

=

No. 24—August Term, 1982

(Argued September 13, 1982

Decided September 15, 1982)

Docket No. 82-6074

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KENNETH G. SMITH,

Plaintiff-Appellant,

—against—

JOHN LEHMAN, SECRETARY OF THE NAvy, WASHINGTON,

D.C., and the UNITED STATES DEPARTMENT OF THE NAVY,

Defendants-Appellees.

Before:

KAUFMAN, NEWMAN and PIERCE,

Circuit Judges.

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Appeal from a judgment entered on an order of the

United States District Court for the Eastern District of

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New York, Joseph M. McLaughlin, Judge, granting sum-

mary judgment to defendants and dismissing appellant’s

complaint which alleged unconstitutional discharge from

a civilian Navy position.

Affirmed.

--

BARBARA SIMON, Mineola, N.Y. (David S.

Heller, Glenna B. Rubin, Solerwitz, Sol-

erwitz & Leeds, Mineola, N.Y., of Coun-

sel), for Plaintiff-Appellant.

SHIRA RuskAy, Assistant United States Attor-

ney for the Eastern District of New York,

Brooklyn, New York (Edward R. Kor-

man, United States Attorney for the

Eastern District of New York and Miles

M. Tepper, Assistant United States Attor-

ney for the Eastern District of New York,

Brooklyn, New York, of Counsel), for

Defendants-Appellees.

+

KAUFMAN, Circuit Judge:

Smith appeals from Judge McLaughlin’s grant of sum-

mary judgment to defendants, John Lehman, Secretary

of the Navy and The United States Department of the

Navy, and from the dismissal of his complaint which

alleged wrongful termination of federal employment. Be-

cause we agree that appellant has failed to raise a triable

issue of material fact concerning his claim that he was

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deprived unconstitutionally of liberty and property in-

terests, we affirm the judgment of the district court.

Smith was hired by the Naval Investigative Service

(“NIS”) as a special agent on October 6, 1980. Applicable

federal regulations' provided that the first year of his

employment would be a probationary period. Pursuant to

standard security clearance procedures, Smith was re-

quired to complete a written personal history statement

(Form DD-398) which he submitted to the NIS on Octo-

ber 16, 1980. There were two inaccuracies in this stale-

ment.

In response to question #18 which inquires about prior

arrests, Smith wrote the following: “08-01-80 Disorderly

conduct, Albany Police Court, Albany, New York Judge

KEEGAN presided. Case dismissed.” Smith had, in fact,

been arrested while wearing woman’s attire on August I,

1980 in Albany, New York. Although one charge against

him was dropped, Smith was convicted on his plea of

guilty to a charge of disorderly conduct pursuant to N.Y.

Penal Law § 240.20 (McKinney 1980), fined $100 and

given a suspended sentence of 15 days. Also, Smith

answered question 13 concerning his employment history

by stating that he had left his previous position with the

New York State Deputy Attorney General’s Office be-

cause it was “not a permanent agency.” In truth, Smith

was asked to resign when that office learned of his arrest.

Despite Smith’s refusa!, given upon advice of counsel,

to comply with a November 1980 request by the Defense

Investigative Service (“DIS”) for a signed waiver releasing

his records, the DIS discovered the discrepancies between

Smith’s statements in his personal history and the actual

record. On December 9, 1980 the Regional Director of

! 5 C.F.R. § 315.801 ef seq.

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Operations for the NIS attempted to interview Smith

concerning those discrepancies. But Smith, again upon

advice of counsel, refused to comment at that time.

Appellant was discharged on December 12, 1980. He

was informed in writing by the Acting Director of the NIS

that he was removed for “falsification of an official

record.” After seeking reinstatement, Smith was also

notified by the Deputy Assistant Secretary of the Navy in

a letter dated February 19, 1981 that his incorrect state-

ments on Form DD-398 were a “violation of the U.S.

Code” and “inconsistent with the high standards de-

manded of a Naval Investigative Service Special Agent.”

Smith filed suit in the United States District Court for

the Eastern District of New York on April 3, 1981 alleging

that the Navy had violated his constitutional rights and

acted arbitrarily and capriciously in violation of the

Administrative Procedure Act.’ The district court initially

found that 28 U.S.C. § 1331' gave it jurisdiction over

both of these claims.’ The court held further that only

those aspects of Smith’s claims which alleged constitu-

tional violations were not barred by the doctrine of

: See 18 U.S.C. § 1001,

3 5 U.S.C. § 701 et seq.

4 28 U.S.C. § 1331 provides: “The district courts shall have original

jurisdiction of all civil actions arising under the Constitution, laws or

treaties of the United States.”

The district court correctly found that the Administrative Procedure

Act, § U.S.C. § 701 et seq., itself could not serve as a basis for federal

jurisdiction, Califano v. Sanders, 430 U.S. 99, 106 n.6 (1977), Judge

McLaughlin also properly rejected Smith's attempts to base jurisdic-

tion on the Declaratory Judgment Act, 28 U.S.C, § 2201 and the

“Further Relief” statute, 28 U.S.C. § 2202. These statutes furnish

additional remedies but do not confer jurisdiction, See Warner Jenkin-

son Co, v. Allied Chemical Corp., 567 F.2d 184, 186 (2d Cir, 1977).

Smith's reliance for jurisdiction on the federal mandamus statute, 28

U.S.C. § 1361, is similarly inapposite.

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sovereign immunity. Judge McLaughlin then concluded

that Smith had not been deprived of a constitutionally

recognized liberty or property interest.

On appeal Smith argues that the district court erred in

rejecting his claim that the Fifth Amendment gave him

the right to a hearing before he was dismissed from his

job. We agree with Judge McLaughlin that this constitu-

tional claim is sufficiently non-frivolous to create a basis

for federal court jurisdiction pursuant to 28 U.S.C.

§ 1331. See Hagans v. Lavine, 415 U.S. 528 (1974). We

are also inclined to accept the district court’s conclusion

that Smith’s constitutional claims are not barred by the

doctrine of sovereign immunity, Larson v. Domestic &

Foreign Commerce Corp., 337 U.S. 682 (1948), even

where the success of Smith’s claims would require affirm-

ative action on the part of the government.’ This difficult

sovereign immunity question need not be decided, how-

ever, because Smith’s constitutional claims cannot suc-

ceed on the merits.

Smith contends that his Fifth Amendment rights were

violated when he was dismissed without a hearing to

determine the accuracy of his allegedly false statements or

whether these statements were made in good faith. He

argues that the Navy unconstitutionally deprived him of

both liberty and property interests. Judge McLaughlin

properly rejected these arguments.

6 Although the district court found jurisdiction, pursuant to 28

U.S.C. § 1331, for Smith’s claim based on the Administrative Proce-

dure Act, it found that claim barred by the doctrine of sovereign

immunity. Smith does not challenge this finding on appeal, and we

therefore decline to review it.

7 Judge McLaughlin's view that sovereign immunity does not apply in

cases of alleged constitutional violations even where the sovereign is

called upon to take affirmative action was proper. See Hampton v.

Mow Sun Wong, 426 U.S. 88, 93 n.5 (1975).

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Smith had no property interest in continued employ-

ment. Appellant’s actions in falsifying an official record

clearly cast doubt on his fitness as a special investigative

agent; moreover, he received written notice of the reasons

for his separation. Applicable federal regulations provide

that a probationary employee may be terminated upon

notification “in writing as to why he is being separated

and the effective date of the action,” if at any time during

the trial period his “conduct. . . fails to demonstrate his

fitness ... for continued employment.” 5 C.F.R.

§ 315.804. Smith therefore had no statutorily based right

either to continued employment or to contest the Navy’s

allegations at a hearing. The law is clear that the constitu-

tionality of the regulatory scheme which denies proba-

tionary employees the right to a hearing is not subject to a

successful challenge. See Sampson v. Murray, 415 U.S. 61

(1974); Heaphy v. United States Treasury Department,

354 F. Supp. 396, 399-401 (S.D.N.Y. 1973), aff'd, 489

F.2d 735 (2d Cir. 1974). Accordingly, Smith cannot dem-

onstrate a sufficient property interest to trigger due

process protections. See Board of Regents v. Roth, 408

U.S. 564 (1972).

The appellant also argues that he was deprived uncon-

Sstitutionally of a liberty interest." He asserts that the

Navy’s decision to terminate his employment on the

grounds that he “falsified an official record” will become

part of his permanent employment history and that this

will adversely affect his future job prospects. Smith

contends that he should have been afforded a hearing to

determine the accuracy of his statements on Form DD-

8 We note that Smith’s status as a probationary employee did not

diminish his constitutionally recognized liberty interest in protecting

his reputation against the publication of false information by the

Government. See Board of Regents v. Roth, 408 U.S. 564, 573 (1972).

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398. Yet Smith’s chief contention that his false statements

were made in good faith, while relevant to a criminal

prosecution, see 18 U.S.C. § 1001, has no bearing on

whether those statements provided grounds for his ter-

mination. And an accurate reference in his employment

record to the fact of his incorrect statements concerning

his conviction does not impair his liberty interest regard-

less of his alleged good faith in making the statements.

Even if we interpret Smith’s ambiguous argument to

include a claim that the statements in his personal history

were true, that claim would be insufficient to upset Judge

McLaughlin’s grant of summary judgment to the appel-

lees. See Securities and Exchange Commission v. Re-

search Automation Corporation, 585 F.2d 31 (2d Cir.

1978). While we recognize that summary judgment is

inappropriate where a triable issue of material fact exists

concerning the interpretation and possible ambiguity of

private agreements entered into between parties, Heyman

v. Commerce and Industry Insurance Co., 524 F.2d 1317

(2d Cir. 1975), the falsehood of appellant’s statements in

this case is uncontrovertibly established by the public

record of his conviction. Smith cannot, therefore, chal-

lenge the “substantial accuracy” of the Navy’s charges

against him as he is required to do to demonstrate

damage to his reputation. Codd v. Velger, 429 U.S. 624,

628-29 (1977). Accordingly, appellant’s claim that he was

deprived unconstitutionally of a liberty interest is without

merit.

The judgment of the district court is affirmed.

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Judgment

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

CV-81-1023

-

KENNETH G, SMITH,

Plaintiff,

—against—

JOHN LEHMAN, Secretary of the Navy, and THE UNITED

STATES DEPARTMENT OF THE NAVY.

Defendants.

>

A memorandum and order of Honorable Joseph M.

McLaughlin, United States District Judge, having been filed on

February 26, 1982, granting the defendants’ motion for sum-

mary judgment, it is

ORDERED and ADJUDGED that the plaintiff take nothing of

the defendants, and that summary judgment is hereby entered

in favor of the defendants.

RICHARD H. WEARE

Clerk of Court

By: RICHARD C,. HEINEMANN

Richard C, Heinemann

Chief Deputy Clerk

Dated: Brooklyn, New York

February 26, 1982

AY

Memorandum and Order

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

81 Civ. 1023

(McL)

>

KENNETH G., SMITH,

Plaintiff,

—against—

JOHN LEHMAN, Secretary of the Navy, and THE UNITED

STATES DEPARTMENT OF THE NAVY,

Defendant,

>

Appearances

JACK B, SOLEWITZ, ESQ.

170 Old Country Road

Mineola, New York 11501

For Plaintiff

EDWARD R. KORMAN, United States Attorney

(Richard Dolan, Assistant United States

Attorney, Of Counsel)

225 Cadman Plaza East

Brooklyn, New York 11201

For Defendants

McLaughlin, District Judge

Plaintiff brought this action against a federal official and a

federal agency alleging wrongful dismissal from a civilian

position as a Special Agent with the Naval Investigative Service

(“NIS”).' He seeks reinstatement, money damages, and back

pay.

| The position was characterized as a “critical sensitive position. . .

with access to Top Secret material and information,”

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I], BACKGROUND

Plaintiff, who was working for the New York State Deputy

Attorney General's Office as a Special Investigator, applied for

a position with NIS as a Special Agent. He was hired by NIS

on October 6, 1980, after a successful interview and back-

ground investigation. As part of security clearance procedures,

on October 10, 1980, plaintiff completed “DD Form 398”,

which is a detailed statement of personal history. In November

1980, plaintiff was asked to sign a waiver releasing all records

to the Defense Investigative Service (“DIS”). He refused on

advice of counsel.

The DIS investigation revealed what appear to be misleading

or false statements on two distinct parts of DD Form 398.

Plaintiff was told by his supervisor that NIS would undertake

an independent investigation and that plaintiff would be re-

quested to furnish a sworn statement. On December 9, 1980,

the Regional Director of Operations attempted to interview the

plaintiff. Before the Director was able to read plaintiff his

rights, however, plaintiff interjected that, upon advice of

counsel, he would make no statements at that time,

Plaintiff was fired on December 12, 1980. The letter from

the Acting Director of NIS notifying plaintiff of his dismissal

states that he was removed for “falsification of an official

record.”’ On the effective date of termination, plaintiff al-

2 In response to item 18, which inquires into prior arrests, plaintiff

wrote “08-01-80 Disorderly Conduct, Albany Police Court, Albany,

New York Judge KEEGAN presided, Case dismissed.” In fact, plain-

tiff had been arrested on a charge of criminal impersonation, had pled

guilty to the reduced charge of disorderly conduct, was fined, and

given a suspended sentence.

In response to item 13, concerning why he left his job with the New

York State Deputy Attorney General's Office, plaintiff wrote: “Not a

permanent agency.” The Deputy Attorney General's Office, however,

had asked him to resign the day it learned of his arrest.

3 See 18 U.S.C. § 1001, NIS forwarded its file to the United States

Attorney's Office in Philadelphia for its prosecutorial opinion. No

charges were filed.

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legedly expressed a desire to hold a meeting between the parties

and their attorneys. The request was denied. In January, 1981,

plaintiff wrote Edward J. Hidalgo, who was then Secretary of

the Navy, requesting that he be reinstated. The request was

denied with the further finding that the plaintiff's false state-

ment is “inconsistent with the high standards demanded” of

NIS Special Agents. Plaintiff has not been employed since his

discharge from the Navy.

Plaintiff alleges that the information supplied on DD Form

398 was “honest and true” and claims that defendants’ actions

were arbitrary and capricious, were not in accord with unspeci-

fied applicable law and regulations, and deprived him of his

Fifth Amendment right to a hearing. He has not invoked any

specific statutes or regulations in support of his claims. As the

bases for this Court’s jurisdiction, plaintiff alleges that the

action arises under the Constitution and the laws of the United

States and cites the federal question statute (28 U.S.C. § 1331),

the mandamus statute (28 U.S.C. § 1361), the Declaratory

Judgment Act (28 U.S.C. §2201), the “Further Relief” statute

(28 U.S.C. § 2202), and Title 7 of the Administrative Proce-

dure Act (5 U.S.C. § 701, et seqg.). The matter in controversy is

alleged to exceed the sum of $10,000, exclusive of interest and

costs.

The defendants now move for a dismissal of the action, or in

the alternative for summary judgment, on the ground that

because there has been no waiver of sovereign immunity, this

Court lacks subject matter jurisdiction. Plaintiff has failed to

respond directly to the Government’s sovereign immunity de-

fense, arguing only that jurisdiction is established pursuant to

28 U.S.C. § 1331 because plaintiff is entitled to procedural due

process under the Fifth Amendment.

Il. JURISDICTION

Of the five jurisdictional bases alleged by plaintiff, only one,

28 U.S.C. §1331, vests this Court with jurisdiction. The Ad-

ministrative Procedure Act, 5 U.S.C. §§ 701, ef seq., is not

jurisdictional and “does not afford an implied grant of subject

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matter jurisdiction permitting federal judicial review of agency

action.” Califano v. Sanders, 430 U.S. 99, 107 (1977). See

Estate of Watson vy, Blumenthal, 586 F.2d 925, 932 (2d Cir.

1978),

The Declaratory Judgment Act, 28 U.S.C. § 2201, the

“Further Relief” statute, 28 U.S.C. §§ 2202, and the manda-

mus statute, 28 U.S.C, § 1361, do not confer jurisdiction but

merely provide additional remedies where jurisdiction already

exists. See, e.g., Estate of Watson v. Blumenthal, supra, 586

F.2d at 934-35; Warner-Jenkinson Co, vy, Allied Chemical

Corp., 567 F.2d 184, 186 (2d Cir. 1977); Lam Tat Sin vy,

Esperdy, 227 F. Supp. 482 (S.D.N.Y. 1963), aff'd, 334 F.2d 999

(2d Cir.), cert. denied, 379 U.S. 901 (1964). However, because

plaintiff has alleged that defendant’s actions (1) were arbitrary

anc capricious, in violation of the Administrative Prodcedure

Act, and (2) deprived him of his procedural due process rights

under the Fifth Amendment of the Constitution, the Federal

Question statute, 28 U.S.C. § 1331, does conter jurisdiction in

this case. Califano v. Sanders, 430 U.S. at 106-8; Doe v.

United States Civil Service Comm’n, 483 F. Supp. 539, 558

(S.D.N.Y. 1980). At the same time, because the remedies of

reinstatement and damages requested by plaintiff would re-

quire expenditures from the public treasury, (and v. Dollar,

330 U.S. 731, 738 (1947)), and would compel the Government

to act, (Larson v. Domestic & Foreign Commerce Corp., 337

U.S. 682, 704 (1948)), we are faced with the “Procrustean

task” of reconciling myriad sovereign immunity decisions.

Malone v. Bowdoin, 369 U.S. 643, 646 (1962).

Ill. SOVEREIGN IMMUNITY

It is elementary that the United States may not be sued

without its consent. United States v. Mitchell, 445 U.S. 535,

538 (1980); Affiliated Ute Citizens v. United States, 406 U.S.

128, 141 (1972). Consent usually takes the form of an “un-

equivocally expressed” waiver by Congress. United States v.

Mitchell, supra, quoting United States v. King, 395 U.S. 1, 4

(1969). See United States v. Kubrick, 444 U.S. 111 (1979),

Plaintiff, regrettably, has not cited any specific statute that

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waives sovereign immunity. However, there are at teast two

waiver statutes that arguably might apply in this case: Section

702 of the APA and the Federal Question statute itself,

Section 702 provides:

An action in a court of the United States seeking relief

other than money damages and stating a claim that an

agency or an officer or employee thereof acted or failed to

act in an official capacity or under color of legal authority

shall not be dismissed nor relief therein be denied on the

ground that it is against the United States or that the

United States is an indispensable party.

Section 1331 provides:

The district courts shall have original jurisdiction of all

civil actions wherein the matter in controversy exceeds the

sum or value of $10,000, exclusive of interest and costs,

and arises under the Constitution, laws, or treaties of the

United States except that no such sum or value shall be

required in any such action brought against the United

States, any agency thereof, or any officer or employee

thereof in his official capacity.

With respect to claims under the APA for equitable relief,’

the Second Circuit, considered these sections but stated in no

uncertain terms that, althouth there is federal question juris-

diction, the Government may nevertheless invoke the defense

of sovereign immunity. Estate of Watson v. Blumenthal, supra,

586 F.2d at 932; Doe v. Civiletti, 635 F.2d 88, 94 (2nd Cir.

1980); Doe v. United States Civil Service Comm'n, 483 F.

Supp. 539, 560 (S.D.N.Y. 1980). But see Jaffe v. United States,

592 F.2d 712, 718-19 (3d Cir. 1979); Neal v. Secretary of the

Navy, 472 F. Supp. 763, 770-71 (E.D. Pa. 1979), The defen-

dants in this case have invoked the sovereign immunity defense

as to the plaintiff’s claims under the Administrative Produce-

dure Act. This Court, accordingly, must recognize the defense.

4 Under the terms of section 702, claims for money damages under the

APA are expressly barred by the doctrine of sovereign immunity.

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Sovereign immunity, however, is not a defense to plaintiff's

constitutional claims that the Navy violated his right to proce-

dural due process. In Larson v. Domestic & Foreign Com-

merce Corp., supra, 337 U.S. at 689-91, the Supreme Court

carved out an amorphous exception to the severeign immunity

doctrine, stating that it does not bar suits, like this one, against

government officials where “power has been conferred in form

but the grant is lacking in substance because of constitutional

invalidity.’ Id. See Berk v, Laird, 429 F.2d 420, 306 (2d Cir.

1970), cert. denied sub nom, Orlando v, Laird, 404 U.S. 869

(1971); Cortright v, Resor, 325 F. Supp. 797, 813 (E.D.N.Y.),

rev'd on other grounds, 447 F.2d 245 (2d Cir. 1971), cert.

denied sub nom, Cortright v. Froehlke, 405 U.S, 965 (1972),

Thus, sovereign immunity is not a bar to suits against defen-

dants charged with violating the Constitution; and this Court

has jurisdiction under Section 1331 to review the constitu-

tionality of defendants’ conduct. See Hampton v. Mow Sun

Wong, 426 U.S. at 93 n.5; Doe v. United States Civil Service

Comm'n, 483 F. Supp. 539 (S.D.N.Y 1980).

IV. PROCEDURAL DUE PROCESS

Although this Court has jurisdiction to review plaintiff's

procedural due process claims, summary judgment must be

5 Not surprisingly, the Larson opinion has sparked considerable con-

troversy. The Court in footnote 11 complicated the exception by stating

that the “suit may fail” if the relief requested requires affirmative

action by the sovereign, as is the case here. Although the Second

Circuit suggested in 1971 that footnote 11 may describe the current

state of the law, Knight v, New York, 443 F.2d 415, 421 (2d Cir, 1971),

the Supreme Court has applied the exception without reference to the

footnote. See Malone v. Bowdoin, 369 U.S, 643, 648 (1963); Dugan v.

Rank, 372 U.S. 609, 620 (1962). Moreover, in 1975, the Court ex-

pressly approved and affirmed a district court ruling that soverign

immunity was not a defense to an action challenging an allegedly

unconstitutional civil service regulation. Hampton v, Mow Sun Wong,

426 U.S, 88, 93 n.5 (1975).

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granted to the defendants because neither a property interest

nor a liberty interest is implicated in this case.

A. Property Interest

It is axiomatic that an individual has no property interest in

federal employment unless he has a specific entitlement to that

position. Board of Regents v. Roth, 408 U.S. 564, 577 (1972).

Subject to narrow due process limitations, the federal govern-

ment has the right to summarily discharge its employees. See

Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S.

886 (1961). Indeed, “[dJismissal from federal employment is

largely a matter of executive agency discretion. Particularly is

this true during the probationary period.” Toohey v. Nitze, 429

F.2d 1332, 1334 (9th Cir. 1970).

Accordingly, a probationary employee, like the plaintiff, has

no entitlement to continued employment. Procedurally, all a

probationary employee is entitled to is a right to be notified

prior to his termination “in writing as to why he is being

separated and the effective date of the action.” 5 C.F.R.

§ 315.804 (1981).° See Perlongo vy. United States, 566 F.2d 1192

(Ct. Cl. 1977), cert. denied, 435 U.S. 944 (1978). The only

right of appeal is to the Merit Systems Protection Board

(“MSPB”); and this lies only in cases where the probationer

6 There can be no dispute that this regulatory scheme is constitutional,

See Sampson v. Murray, 415 U.S. 61, 80-81 (1979); Jaeger v. Freeman,

410 F.2d 528, 531 (Sth Cir. 1969): Jenkins v. United States Post Office,

475 F.2d 1256, 1257 (9th Cir. 1973); Heaphy v. United States Treasury

Dept., 345 F. Supp. 396, 399-401 (S.D.N.Y. 1973); Christian v. New

York State Dept. of Labor, 347 F. Supp. 1158, 1161 (S.D.N.Y. 1972)

(“Certainly Congress intended that Federal employers should have an

unfetterd right to terminate probationary employees. No termination

hearing is prescribed or required nor should it be.”); Beefson vy.

Hudson, 630 F.2d 622, 626 (8th Cir. 1980) (a probationary employee

“can be dismissed at the virtually unreviewable discretion of his

employee agency for unsatisfactory performance or conduct during the

probationary period”),

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alleges discrimination or that his discharge was not in accord

with proper procedure.’ 5 C.F.R. § 315.806 (1981).

In this case, although he alleges that his answers were honest

and true, .iue plaintiff made statements on his DD Form 398

(while he was a probationary employee) that are contradicted

by publicly available documents and by facts uncovered in the

DIS investigation. This conduct obviously does not accord

with the high standards expected of NIS agents. Moreover,

when provided with an opportunity to explain his answers, he

refused, on advice of counsel.

I find, therefore, that plaintiff was notified and dismissed in

accordance with the procedures required by § 315.804. He was

entitled to no more.

B. Liberty Interest

The Fifth Amendment’s due process clause protects a “lib-

erty interest”; and this encompasses an “individual’s freedom

to work and earn a living.” Bollow v, Federal Reserve Bank of

San Francisco, 650 F.2d 1973, 1100-01 (9th Cir, 1981). How-

ever, an opportunity to be heard is essential only where “a

person’s good name, reputation, honor, or integrity is at stake

becattse of what the government is doing to him.” Board of

Regen's v. Roth, supra, 408 U.S. at 573 quoting Wisconsin v.

Cons’ .atineau, 400 U.S. 433, 437 (1971). In such a case due

nrocess required “an opportunity to refute the charges,” Jd. at

2707, and the purpose is to “provide the person an opportunity

to clear his name.” /d. at 2707 n. 12. See Wisconsin vy.

Constantineau, supra; Codd v, Velger, 429 U.S. 624 (1977).

When a plaintiff’s claim involves “stigmatization” resulting

from termination, a Court will intervene only if the stigmatiz-

ing information is false, (Codd v. Velger, supra, 429 U.S. at

7 Plaintiff has alleged neither ground in this case; and even if he had,

his suit would be dismissed for failure to exhaust his administrative

remedy of appeal to the MSPB.

A-17

627-28), or has been made public by the governmental agency

involved. Bishop v. Wood, 426 U.S. 341, 348 (1970). See

Gentile v. Wallen, 562 F.2d 193, 197 2d Cir. 1977).

There is no claim in this case that the stigmatizing informa-

tion was made public. For that reason alone, plaintiff's action

must be dismissed. Moreover, despite what plaintiff alleges,

there can be no dispute that what he wrote on his DD Form

398, i.e., that his case in Albany had been dismissed (when in

fact he had been fined and given a suspended sentence) was

false. “[I]f the hearing mandated by the Due Process Clause is

to serve any useful purpose, there must be some factual dispute

between an employer and a discharged employee which has

some significant bearing on the employee's reputation.” Codd

v. Velger, 429 U.S. at 627. Wehner vy. Levi, 562 F.2d 1276

(D.D.C, 1977).

In this case, the plaintiff cannot “challenge the substantial

truth” of the NIS charge that he filed a false statement. Thus,

a hearing in this case could only serve to let plaintiff try to

explain away why he wrote the answers he did. Although

plaintiff might demonstrate that it “ ‘might have been all a

mistake . . .” [that] is not enough to raise an issue about the

substantial accuracy of the report.” Codd v. Velger, 429 U.S. at

628 (quoting plaintiff’s excuse in that case).

Whether or not plaintiff receives a hearing, the fact of his

arrest and its disposition will remain publicly available in the

Clerk’s Office in Albany, New York, and in direct contradic-

tion to plaintiff's answer on DD Form 398. In addition, it

bears emphasis that before he was terminated plaintiff was

provided with an opportunity to explain his answers on the DD

Form 398. On advice of counsel, however, he waived that

opportunity. Plaintiff cannot now be heard to demand a

hearing in this Court.

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In sum, the Court finds that no property or liberty interests

are involved in this case and that plaintiff has suffered no due

process deprivation. See Stewart v. Civil Service Comm'n of

the City of New York, N.Y.L.J., February 5, 1982, at 28, col.

1. For all the foregoing reasons, the defendants’ motion for

summary judgment is granted.

SO ORDERED.

Dated: Brooklyn, New York

February 19, 1982

JOSEPH M. McLAUGHLIN

Joseph M. McLaughlin, U.S.D.J.

The Clerk shall make copies of this Order and shall serve

them upon the parties.