Tibbetts v. Kulongoski ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CECIL TIBBETTS and DAVID 
THURBER,
Plaintiffs-Appellees,
v.
THEODORE KULONGOSKI,
individually and in his official No. 07-36067
capacity,
Defendant-Appellant,  D.C. No.
CV-06-00503-ALH
and OPINION
STATE ACCIDENT INSURANCE FUND
CORP., an Oregon corporation;
BRENDA ROCKLIN, individually and
in her official capacity,
Defendants.

Appeal from the United States District Court
for the District of Oregon
Ancer L. Haggerty, District Judge, Presiding
Argued and Submitted
March 4, 2009—Portland, Oregon
Filed May 29, 2009
Before: Susan P. Graber, Raymond C. Fisher and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.
6357
6360 TIBBETTS v. KULONGOSKI
COUNSEL
Hardy Myers, Attorney General, Mary H. Williams, Solicitor
General, and Erin C. Lagesen, Assistant Attorney General,
Salem, Oregon, for appellant Theodore Kulongoski.
TIBBETTS v. KULONGOSKI 6361
Gregory A. Hartman and Aruna H. Masih, Bennett, Hartman,
Morris & Kaplan, LLP, Portland, Oregon, for appellees Cecil
Tibbetts and David Thurber.
OPINION
MILAN D. SMITH, JR., Circuit Judge:
Defendant-Appellant Oregon Governor Theodore Kulon-
goski appeals from the district court’s order denying his
motion for summary judgment on the ground of qualified
immunity. Plaintiffs-Appellees, who are former employees of
the State Accident Insurance Fund, brought this action pursu-
ant to 42 U.S.C. § 1983, alleging, among other claims, that
Governor Kulongoski violated their Fourteenth Amendment
due process rights by making stigmatizing statements about
them in two press releases without providing them name-
clearing hearings.
Because the relevant parameters of a Fourteenth Amend-
ment right to a name-clearing hearing were not clear at the
time of the allegedly stigmatizing statements, we conclude
that a reasonable official in the Governor’s position would not
have been aware of his alleged obligation to provide Plaintiffs
name-clearing hearings. We therefore reverse the district
court and hold that Governor Kulongoski is entitled to quali-
fied immunity in this suit.
Factual and Procedural Background
Plaintiffs Cecil Tibbetts and David Thurber (together,
Plaintiffs) are former managerial employees of Defendant
State Accident Insurance Fund Corporation (SAIF). SAIF is
a part of the executive branch of the State of Oregon but is
organized to function as a public corporation. The Oregon
legislature created SAIF “for the purpose of transacting work-
6362 TIBBETTS v. KULONGOSKI
ers’ compensation insurance and reinsurance business” with
Oregon employers. Or. Rev. Stat. § 656.752(1). SAIF is gov-
erned by a five-member Board of Directors (Board) whose
members are appointed by the Governor of Oregon, Or. Rev.
Stat. § 656.752(1) and (3), and who serve at the Governor’s
pleasure, id. The Board appoints a manager to run SAIF, who
“serves at the pleasure of the board of directors.” Id. Governor
Kulongoski was Governor of Oregon at all times material to
this dispute.
In the time period leading up to the events that are the sub-
ject of this appeal, SAIF was the subject of extensive media
attention because of alleged scandals regarding the practices
of its then-President, Katherine Keene. Charges of ethics vio-
lations had been filed against SAIF for its alleged failure to
report its lobbying expenditures accurately, and a lawsuit had
been filed alleging a willful failure to produce documents in
violation of public records laws. See Oregonians for Sound
Econ. Policy, Inc. v. SAIF, 182 P.3d 895 (Or. Ct. App. 2008)
(hereinafter, OSEP litigation). In December 2003, Keene
resigned from her position as SAIF’s President/Manager.
After Keene’s resignation, Plaintiff Cecil Tibbetts, who had
served as Vice President for Human Resources at SAIF since
November 1, 1995, was appointed to act as SAIF’s Interim
President/Manager by SAIF’s Board. In April 2004, the SAIF
Board responded to Governor Kulongoski’s public demand
for a report regarding some of SAIF’s controversial policies
and practices. In a letter to Governor Kulongoski, the Board
questioned, among other things, SAIF’s relationship with
Associated Oregon Industries, a non-profit business advocacy
group, with which Plaintiff David Thurber, Vice President for
Policy Services at SAIF, was closely associated. The letter
noted that the relationship “has been particularly controversial
to some, and it therefore merits special attention.” Some Ore-
gon senators called for an “independent review” of spending,
and the media reported that the Oregon Government Stan-
dards and Practices Commission had voted to initiate an
TIBBETTS v. KULONGOSKI 6363
investigation into whether SAIF had under-reported the
money it spent to lobby the legislature.
In June 2004, Mark Cohen, a former SAIF employee, filed
an affidavit in the ongoing OSEP litigation which, among
other things, accused Tibbetts of twice having ordered the
destruction of certain records to avoid producing them in the
OSEP litigation. Cohen further alleged that Tibbetts was con-
cealing documents in his office and at his home to avoid dis-
closing them. The contents of the affidavit were covered by
the media. SAIF officials called the allegations “erroneous,
misleading and untrue” and described Cohen as a “disgruntled
former employee who destroyed the documents without their
knowledge.” Tibbetts told a legislative committee that “[he]
never told anyone to destroy documents that should have been
retained.” Governor Kulongoski thereafter issued a prepared
statement to the media, reading:
Unauthorized destruction of public records is against
the law and cannot be tolerated by any public offi-
cial. These allegations are very serious, and I believe
they require immediate investigation. I am asking the
attorney general to ensure there is a thorough investi-
gation.
At the same time, Governor Kulongoski’s spokeswoman
stated to the press that “the governor is not taking a position
on the allegations.”
On August 12, 2004, Governor Kulongoski issued a press
release announcing his intention to appoint Brenda Rocklin to
replace Tibbetts as Interim President/Manager of SAIF. Pre-
ceding the issuance of that press release, Governor Kulon-
goski had explained to Board members that he thought
Rocklin was an appropriate replacement because of “her cred-
ibility as a person that could fix things.” He further told Board
members that he thought that, given its problems, SAIF
required some housecleaning and that Rocklin was the person
6364 TIBBETTS v. KULONGOSKI
who could make that happen. During this conversation, some
Board members reminded Governor Kulongoski that they
alone had the statutory authority to appoint the President of
SAIF. Nevertheless, after discussing the replacement, the
Board voted unanimously on August 12, 2004, to appoint
Rocklin as interim President and CEO.
In a press release following Rocklin’s appointment, Gover-
nor Kulongoski stated that “[f]or months now, I have been
very concerned about management decisions at SAIF,” and “I
have asked Brenda to conduct a top-to-bottom review of SAIF
to make sure it is accountable to the public.” The Governor
further stated that “[t]o preserve [SAIF’s] future, the public
needs to know that SAIF is being run in an ethical and
accountable manner — and the person to lead this effort is
Brenda Rocklin.” According to Rocklin’s deposition testi-
mony, in her discussions with Governor Kulongoski prior to
accepting the position as interim president, the Governor indi-
cated that “he hoped there would be some role for Mr. Tib-
betts at SAIF Corporation, after he was no longer Acting
President,” but “that ultimately [Rocklin] would have to make
that decision.”
According to Board member Jon Egge’s deposition testi-
mony, in November 2004, after Rocklin’s interim appoint-
ment, Governor Kulongoski contacted the SAIF Board and
asked it to call off the search for a permanent CEO for SAIF,
and to appoint Rocklin as permanent CEO. Another Board
member, Mathew Chapman, testified that the Governor told
the Board members that if they did not do so “ASAP,” the
Governor intended to remove them from their positions. At
the Board’s November 2004 meeting, Board member Chap-
man tendered his resignation, explaining that he opposed the
Governor’s efforts to install Rocklin as the permanent CEO.
The Board took no action at the November 2004 meeting to
appoint Rocklin to the permanent position. At or about this
time, Board member Egge testified, Governor Kulongoski
also informed SAIF Board members: “I’ve told [Rocklin] to
TIBBETTS v. KULONGOSKI 6365
fire Cecil Tibbetts if he gets in her way or in any way
impeded what she’s trying to do here, and that goes for any-
body else that gets in [her] way.”
On January 27, 2005, Rocklin asked Tibbetts to resign. Tib-
betts refused, and Rocklin terminated him. On the same day,
Rocklin met with Plaintiff Dave Thurber and asked him to
resign. Thurber agreed. The media contacted Rocklin and
SAIF about the terminations. SAIF declined to elaborate on
the terminations other than to confirm that Tibbetts and Thur-
ber were terminated without severance.1 Media coverage
noted that it was unclear what motivated the firings, but that
they appeared to be a part of the “housecleaning” that the
Governor ordered — and that some Oregon lawmakers
demanded. One article reported that Plaintiff Tibbetts was a
“well-known” figure who, according to his critics, “had a
hand in some of the consultant contracts that brought SAIF
under fire.” Another article mentioned that when Governor
Kulongoski appointed Rocklin to conduct a review of SAIF,
“[t]he Governor said that several controversies at SAIF
prompted him to take action, including complaints about
SAIF’s spending on lobbyists and allegations that SAIF offi-
cials destroyed public records. The axing of Tibbetts and
Thurber trims SAIF’s management team to six members.”
Nineteen days after Plaintiffs’ terminations, SAIF issued its
“Initial Report to the Governor: Review of SAIF Corpora-
tion.” A section of the report dealt with operational deficien-
cies in properly maintaining public records. This section
stated:
Prior to our arrival at SAIF, a former SAIF
employee, Mark Cohen, had alleged in an affidavit
filed in Marion County Circuit Court that he had
been instructed to destroy and conceal SAIF records.
1
Under SAIF’s severance policy, SAIF can deny severance pay to an
employee “terminated for misconduct.”
6366 TIBBETTS v. KULONGOSKI
Specifically, he alleged that, on two occasions, his
supervisor, Cecil Tibbetts, instructed him to delete
documents from his computer to avoid having to turn
them over in response to a public records request.
The report noted that the “investigation is still pending.” The
report attached a complete copy of the Cohen affidavit.
In response to the report, the Governor’s office issued a
February 15, 2005, press release (the 2005 Release), which in
relevant part stated:
The State Accident Insurance Fund remains a key
part of Oregon’s future because it’s one of the prin-
cipal competitive advantages we have in growing the
economy and providing jobs to Oregonians,” said
Governor Kulongoski. “If we are to preserve that
future, the public needs to know that SAIF is being
run in an ethical and accountable manner, and the
initial report delivered to me today demonstrates a
significant move in that direction.”
The initial report focuses on administrative opera-
tions and documents findings and recommendations
for actions in four key areas: 1) Board oversight and
transparency; 2) work place diversity; 3) public
records; and 4) contracting. The report also finds that
SAIF is an efficient agency with highly qualified
staff and management teams.
“I appreciate the candor of this report and the work
of the Board of Directors, Interim President Brenda
Rocklin, and the more than 800 employees who help
SAIF carry out its mission everyday,” said the Gov-
ernor. “This report identifies the need for some sig-
nificant changes in how SAIF conducts business on
behalf of the citizens of Oregon and I look forward
to working with the Board, Brenda and the legisla-
TIBBETTS v. KULONGOSKI 6367
ture to make those changes so we can continue to
make progress in strengthening accountability and
transparency in this important state agency.”
...
The initial report to the Governor is available on the
SAIF website at www.saif.com.
In June 2006, the Marion County District Attorney’s Office
reported on the results of the investigation into the miscon-
duct alleged in the Cohen affidavit. The District Attorney’s
Office reported to the media that the state police “conducted
an extensive investigation into the allegations” but “did not
find credible evidence that any individuals, or SAIF as an
entity, intentionally withheld or destroyed public records.”
The report also stated that the investigation had uncovered
some “serious issues regarding the credibility of Mr. Cohen.”
In response to this report, on June 6, 2006, the Governor’s
office issued a press release (the 2006 Release), which stated:
“I am grateful to the Oregon Police and the Marion
County DA for answering my request for a through
investigation of this case. The SAIF Corporation is
critical to Oregon’s economy, because it provides
affordable worker’s compensation coverage to our
state’s employers, benefitting businesses and their
employees.”
“Soon after I asked for the investigation, I made a
change in leadership at SAIF. When I appointed
Brenda Rocklin as interim CEO, I asked her to take
strong measures to restore full accountability and
transparency to the agency, and to put systems in
place to protect public records. She has responded
admirably. Over the next several months, I also
appointed new members to the Board of Directors,
6368 TIBBETTS v. KULONGOSKI
and charged them to support Ms. Rocklin in her
efforts.”
“As the result of these corrective actions, and thanks
to hard work by many people in SAIF, the agency is
now fully accountable to the public and the custom-
ers it serves. I want to assure Oregonians that even
though the DA’s report identified some troubling
behavior, a new culture exists among SAIF’s senior
management and employees—a culture of honesty,
openness, and a commitment to serving the people of
Oregon.”
Since these events transpired, Tibbetts has been unable to
find employment. Thurber has not been able to find “compa-
rable” employment.
Plaintiffs brought this action pursuant to 42 U.S.C. § 1983.
They allege that Defendants SAIF, Brenda Rocklin, and The-
odore Kulongoski each violated Plaintiffs’ Fourteenth
Amendment rights by making stigmatizing statements in the
2005 Release and the 2006 Release (collectively, the
Releases) without providing them with name-clearing hear-
ings. Defendants moved for summary judgment on all claims.
Rocklin and Governor Kulongoski asserted that they are enti-
tled to qualified immunity with respect to the § 1983 claim.
The district court disagreed, concluding that Rocklin and
Governor Kulongoski violated Plaintiffs’ Fourteenth Amend-
ment rights by making stigmatizing statements without pro-
viding them with name-clearing hearings and that Plaintiffs’
rights to these name clearing hearings were clearly established
at the times Rocklin and Governor Kulongoski made their
allegedly defamatory statements. This is an interlocutory
appeal of the district court’s order denying Governor Kulon-
goski’s motion for summary judgment on the ground of quali-
fied immunity.2
2
Rocklin and SAIF are not parties to this appeal.
TIBBETTS v. KULONGOSKI 6369
JURISDICTION AND STANDARD OF REVIEW
This court has jurisdiction under 28 U.S.C. § 1291. We
review a denial of summary judgment on the ground of quali-
fied immunity de novo. KRL v. Estate of Moore, 512 F.3d
1184, 1188 (9th Cir. 2008); Johnson v. County of Los Ange-
les, 340 F.3d 787, 791 (9th Cir. 2003). “Our jurisdiction is
limited to questions of law, and does not extend to qualified
immunity claims involving disputed issues of material fact.”
KRL, 512 F.3d at 1188-89 (citing Jeffers v. Gomez, 267 F.3d
895, 903 (9th Cir. 2001) (per curiam)). Where disputed facts
exist, we assume that the version of the material facts asserted
by Plaintiffs-Appellees, as the non-moving party, is correct.
Id.DISCUSSION
I
[1] Qualified immunity protects government officials from
“liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of
which a reasonable person would have known.” Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity
balances “the need to hold public officials accountable when
they exercise power irresponsibly and the need to shield offi-
cials from harassment, distraction, and liability when they
perform their duties reasonably.” Pearson v. Callahan, 555
U.S. —, 129 S. Ct. 808, 815, 172 L. Ed. 2d 565 (2009).
We analyze Governor Kulongoski’s claim of qualified
immunity under the guidance recently provided by the
Supreme Court in Pearson. Id. Pearson held that “while the
[previously required two-step] sequence set forth [in Saucier
v. Katz, 533 U.S. 194 (2001)] is often appropriate, it should
no longer be regarded as mandatory.” Id. at 818. Accordingly,
“[t]he judges of . . . the courts of appeals should be permitted
to exercise their sound discretion in deciding which of the two
6370 TIBBETTS v. KULONGOSKI
prongs of the qualified immunity analysis should be addressed
first in light of the circumstances in the particular case at
hand.” Id. Under the circumstances of this case, we adopt
Pearson’s more flexible approach and proceed directly to an
analysis of Saucier’s second prong, to determine whether the
right asserted in this case was “clearly established” when the
alleged stigmatizing statements were made.
II
[2] “ ‘[A] liberty interest is implicated in the employment
termination context if the charge impairs a reputation for hon-
esty or morality.” Brady v. Gebbie, 859 F.2d 1543, 1552 (9th
Cir. 1988) (alteration in original) (quoting Matthews v. Har-
ney County, Or., School Dist. No. 4, 819 F.2d 889, 891 (9th
Cir. 1987)). “ ‘To implicate constitutional liberty interests, . . .
the reasons for dismissal must be sufficiently serious to ‘stig-
matize’ or otherwise burden the individual so that he is not
able to take advantage of other employment opportunities.’ ”
Portman v. County of Santa Clara, 995 F.2d 898, 907 (9th
Cir. 1993) (quoting Bollow v. Fed. Reserve Bank of S.F., 650
F.2d 1093, 1101 (9th Cir. 1981)). In Board of Regents v. Roth,
408 U.S. 564 (1972), the Supreme Court held that a public
employer can violate an employee’s rights by terminating the
employee if in so doing, the employer makes a charge “that
might seriously damage [the terminated employee’s] standing
and associations in his community” or “impose[s] on [a termi-
nated employee] a stigma or other disability that foreclose[s]
his freedom to take advantage of other employment opportu-
nities.” Id. at 573.
[3] If, in the context of employment termination, the
employer publicizes a charge that “impairs a reputation for
honesty or morality,” then a liberty interest is implicated and
the employee must be allowed to “refute the stigmatizing
charge.” Mustafa v. Clark County Sch. Dist., 157 F.3d 1169,
1179 (9th Cir. 1998) (per curiam) (internal quotation marks
omitted).
TIBBETTS v. KULONGOSKI 6371
Plaintiffs point to two public statements made by Governor
Kulongoski that allegedly stigmatized them. The first state-
ment is the 2005 Release, issued nineteen days after Plain-
tiffs’ terminations, which noted that “the public needs to
know that SAIF is being run in an ethical and accountable
manner,” and that “the initial report delivered to me today
demonstrates a significant move in that direction.” The press
release further stated that the Governor looked forward to
working with the SAIF Board to “continue to make progress
in strengthening accountability and transparency.” The 2005
Release also stated that the SAIF Interim Report was avail-
able on the SAIF website. (The report included a section
which summarized the Cohen affidavit, including Cohen’s
allegation that Tibbetts had directed improper document
destruction.)
The second allegedly stigmatizing press release, the 2006
Release, was made following the completion of the criminal
investigation into SAIF. The Governor’s press release noted
that he had made a change in leadership at SAIF, asked Rock-
lin to “restore full accountability and transparency to the
agency,” and that “[a]s the result of these corrective actions,
and thanks to hard work by many people in SAIF, the agency
is now fully accountable to the public and the customers it
serves.” It also noted that the Governor wanted to assure Ore-
gonians that “even though the DA’s report identified some
troubling behavior, a new culture exists among SAIF’s senior
management and employees — a culture of honesty, open-
ness, and a commitment to serving the people of Oregon.”
As permitted by Pearson and required by Saucier, we ana-
lyze the merits of the Governor’s qualified immunity claim by
addressing whether the parameters of Plaintiffs’ right to a
name clearing hearing were clearly established at the time of
the Releases. In this instance, such a determination turns on
(A) whether the statements made in the Releases were suffi-
ciently stigmatizing to Plaintiffs to trigger a name-clearing
hearing, (B) whether the allegedly stigmatizing statements
6372 TIBBETTS v. KULONGOSKI
were made in the course of Plaintiffs’ terminations, and (C)
whether the Governor himself altered Plaintiffs’ legal rights
or status. See Campanelli v. Bockrath, 100 F.3d 1476, 1479,
1484 (9th Cir. 1996); see also Gini v. Las Vegas Metro.
Police Dep’t, 40 F.3d 1041, 1044 (9th Cir. 1994).
A
Governor Kulongoski argues that the statements made in
the Releases were not stigmatizing as a matter of law. The
Governor focuses on the fact that the statements “do not iden-
tify plaintiffs, but, instead, refer to practices at SAIF as whole,
and they do not imply that plaintiffs were dishonest and
immoral.”
The Governor cites case law holding that “[o]nly the stigma
of dishonesty or moral turpitude gives rise to a liberty interest;
charges of incompetence do not.” FDIC v. Henderson, 940
F.2d 465, 477 (9th Cir. 1991). While FDIC is a correct state-
ment of the law, it is inapposite to this case. The statements
made in the Releases do not charge incompetence; they speak
of “ethic[s] and accountab[ility],” “strengthening accountabil-
ity and transparency” and, after personnel changes were
made, a “new culture” of “honesty” and “openness” at SAIF.
This case is more analogous to cases where honesty, not
incompetence, has been implicated by stigmatizing state-
ments. See, e.g. Vanelli v. Reynolds Sch. Dist. No. 7, 667 F.2d
773, 777-78 (9th Cir. 1982) (holding that dismissal of high
school teacher on grounds of “immoral conduct and sexual
harassment” implicates liberty interest); Walker v. United
States, 744 F.2d 67, 69 (10th Cir. 1984) (per curiam) (holding
that discharge of Vietnam Veterans’ Readjustment Act
appointee for lying on employment form implicates liberty
interest).
[4] Neither Tibbetts nor Thurber was named personally in
the Releases. The law at the time of the Releases, however,
was clear: stigmatizing statements need not name an
TIBBETTS v. KULONGOSKI 6373
employee to be actionable, so long as the surrounding circum-
stances make clear that the statement makes particular refer-
ence to the employee. See Algarin v. Town of Wallkill, 421
F.3d 137, 139-40 (2d Cir. 2005); Restatement (Second) of
Torts § 564A (“One who publishes defamatory matter con-
cerning a group or class of persons is subject to liability if, but
only if (a) the group or class is so small that the matter can
reasonably be understood to refer to the member, or (b) the
circumstances of publication reasonably give rise to the con-
clusion that there is particular reference to the member.”).
[5] In this case, we express no opinion concerning whether
the statements made in these Releases were stigmatizing as a
matter of law. However, for purposes of our further analysis
in this case only, we will assume, arguendo, that Plaintiffs
were stigmatized by statements in the Releases.
B
[6] We next consider whether the statements in the
Releases were made in the course of Plaintiffs’ terminations.
Our case law holds that “there must be some temporal nexus
between the employer’s statements and the termination.”
Campanelli, 100 F.3d at 1483. The Campanelli court refused,
however, to adopt a bright line rule “that defamatory state-
ments made by an employer any time after the date of termi-
nation are not made ‘in the course of the termination.’ ” Id. at
1482. Instead, the court held that the statements must be “so
closely related to discharge from employment that the dis-
charge itself may become stigmatizing in the public eye.” Id.Accordingly, we must evaluate whether it was clearly estab-
lished that there was a temporal nexus between Governor
Kulongoski’s two Releases and Plaintiffs’ terminations, or
whether the statements were “too remote in time from the ter-
mination.” Id. at 1483.
[7] The 2006 Release was issued sixteen months after the
Plaintiffs were terminated, and after this lawsuit was initiated.
6374 TIBBETTS v. KULONGOSKI
Campanelli held “that there must be some temporal nexus
between the employer’s statement and the termination” and
that the stigmatizing statements cannot be too remote to be
considered “in the course” of the plaintiff’s termination. Id.We also note the holdings of Martz v. Incorporated Village of
Valley Stream, 22 F.3d 26, 32 (2d Cir. 1994) (holding that a
statement published five months after the plaintiff’s termina-
tion was not made in the course of dismissal); Hadley v. Du
Page County, 715 F.2d 1238, 1247 (7th Cir. 1983) (holding
that a statement to the press six days after the plaintiff’s ter-
mination was “at the time of” termination, but that a statement
published two years later “was too remote in time to meet the
stigma plus test”); and Ray v. Tennessee Valley Auth., 677
F.2d 818, 824 (11th Cir. 1982) (holding that a six year lapse
is long enough to sever the temporal nexus of statements to
termination of the plaintiff’s employment). We are persuaded
by the reasoning of these out-of-circuit cases, and hold that
sixteen months is far too remote from the terminations to meet
Campanelli’s “temporal nexus” test.
The 2005 Release presents a more difficult question. The
2005 Release was issued nineteen days after Plaintiffs’ termi-
nations. This time frame falls between the week that Campa-
nelli found to satisfy the required “temporal nexus” and the
months and years that Martz, Hadley, and Ray found tempo-
rally insufficient. Governor Kulongoski argues that the “time
interval of several weeks — which is over twice as long as the
period in Campanelli — eliminated any nexus between the
statements and the discharges.” Plaintiffs argue that the termi-
nations, the media coverage afterwards, and the Governor’s
press release afterwards can be seen as “so closely related”
that “the discharge itself may become stigmatizing in the pub-
lic eye.”
[8] At the time the Releases occurred, a reasonable person
in Governor Kulongoski’s position could not have known by
recourse to then-extant case law whether a stigmatizing state-
ment made nineteen days after Plaintiffs’ termination would
TIBBETTS v. KULONGOSKI 6375
violate Campanelli’s “temporal nexus” test. Thus, we con-
clude that the parameters of at least one element required to
secure Plaintiffs’ right to a name-clearing hearing were not
clearly established at the time of the Releases. See Hunter v.
Bryant, 502 U.S. 224, 226 (1991) (per curiam) (noting if the
parameters of the right are not clearly established by case law,
the official is entitled to qualified immunity).
C
Even were we to assume, arguendo, that it was clearly
established that the allegedly stigmatizing statements in the
Releases met the “temporal nexus” requirement of Campa-
nelli, it was not clearly established at the time the Releases
were issued whether the Governor had the ability to alter
Plaintiffs’ legal rights or status sufficiently to meet the
requirements for a Fourteenth Amendment due process viola-
tion.
[9] The Governor contends that even if the statements
could qualify as stigmatizing, the facts show that he did not
terminate Plaintiffs’ employment or otherwise alter Plaintiffs’
legal rights or status; he claims that those actions were taken
by SAIF. As authority for his position, the Governor suggests
we adopt the reasoning of the First Circuit in Hawkins v.
Rhode Island Lottery Comm’n, 238 F.3d 112, 116 (1st Cir.
2001). In Hawkins, the plaintiff, the former director of the
Rhode Island Lottery Commission, contended that the gover-
nor of Rhode Island had made defamatory statements about
him and had worked to accomplish his termination through
his “surrogates” on the Commission. Id. at 115. The governor
of Rhode Island had “publicly claimed a significant role in
ousting [plaintiff].” Id. at 116. The court held that the gover-
nor of Rhode Island did not impose a “plus” on the plaintiff
because, under Rhode Island law, the governor lacked the
authority to terminate the plaintiff’s employment. Id.[10] The same is technically true here, as Governor Kulon-
goski’s statutory authority over SAIF is limited to appointing
6376 TIBBETTS v. KULONGOSKI
Board members (subject to senate confirmation) and to
removing Board members. Or. Rev. Stat. § 656.751(1) & (3).
The relevant statutes give the governor no role in SAIF
employment decisions. Id.Plaintiffs argue that, although the Governor did not have
the authority to officially make employment decisions at
SAIF, Governor Kulongoski personally ordered the removal
of Tibbetts and the appointment of Rocklin as the new SAIF
manager. According to SAIF Board members, Governor
Kulongoski threatened their removal if they did not make the
employment decisions he wanted. Plaintiffs argue that they
are entitled to the reasonable inference that the terminations
were made at the instruction, and under the control, of the
Governor.
[11] This circuit has shown considerable flexibility when
evaluating the cause of a deprivation of constitutional rights.
For example, in Johnson v. Duffy, 588 F.2d 740, 743-44 (9th
Cir. 1978), we explained:
Anyone who “causes” any citizen to be subjected to
a constitutional deprivation is also liable. The requi-
site causal connection can be established not only by
some kind of direct personal participation in the
deprivation, but also by setting in motion a series of
acts by others which the actor knows or reasonably
should know would cause others to inflict the consti-
tutional injury.
This statement has been adopted in the context of the Four-
teenth Amendment right to a name-clearing hearing. See Gini,
40 F.3d at 1044. Here, however, although perhaps Governor
Kulongoski “reasonably should [have] know[n]” that his
actions set in motion a series of acts that would cause Plain-
tiffs’ terminations, there is no evidence in the record that
shows that the Governor was aware——or should have been
aware——that, were the Plaintiffs to be terminated, that they
TIBBETTS v. KULONGOSKI 6377
would not receive name-clearing hearings. Johnson, 588 F.2d
at 740. Thus, although this circuit has shown flexibility in
evaluating causation in this context, there is no case law that
clearly establishes the Governor should have been aware that
his actions would deprive Plaintiffs of their rights.
[12] Because we are addressing the “clearly established
rights” prong of Saucier, as permitted by Pearson, we hold
that the Governor’s ability to “cause” Plaintiffs’ terminations
in a Fourteenth Amendment liberty interest context was not
clearly established in this circuit at the time of the Releases.
Accordingly, for this additional reason, we hold that the
parameters of Plaintiffs’ rights as alleged were not clearly
established at the time of the alleged violation and that Gover-
nor Kulongoski should be granted qualified immunity.
CONCLUSION
Although cases need not be “fundamentally similar” in
order to put an official on notice that his conduct violates
established law, Hope v. Pelzer, 536 U.S. 730, 741 (2002), if
the parameters of the right are not clearly established by case
law, the official is entitled to qualified immunity. See Hunter,
502 U.S. at 229 (qualified immunity affords government offi-
cials the benefit of the doubt in close calls, since “officials
should not err always on the side of caution” because they
fear being sued); see also Hill v. Borough of Kutztown, 455
F.3d 225, 244 (3d Cir. 2006) (holding that government offi-
cials should have been granted qualified immunity even when
the court determined that they had violated the plaintiff’s con-
stitutional right to a name-clearing hearing, as the law was not
sufficiently clear on the parameters of the right at the time).
Here, it cannot be said that a reasonable person in Governor
Kulongoski’s position would have known that he was violat-
ing Plaintiffs’ Fourteenth Amendment due process rights
under the circumstances of this case. Even if we assume,
arguendo that the statements in the Releases were stigmatiz-
6378 TIBBETTS v. KULONGOSKI
ing to Plaintiffs, it was not then established whether the stig-
matizing statements satisfied the “temporal nexus”
requirement of Campanelli, nor that the Governor could be
found to have “caused” Plaintiffs’ terminations. Accordingly,
we reverse the district court’s denial of summary judgment to
Governor Kulongoski.
REVERSED and REMANDED with instructions to enter
judgment in favor of Governor Kulongoski.