Robert Boggs v. John Hoover

FILED
NOT FOR PUBLICATION FEB 04 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ROBERT BOGGS, No. 11-35713
Plaintiff - Appellant, D.C. No. 3:09-cv-00116-ST
v.
MEMORANDUM *
JOHN K. HOOVER; JOHN C.
BRADLEY; CHARLES R. FRENCH;
KATHRYN A. SHORT; AGNES
SOWLE,
Defendants - Appellees,
and
JO’EY STEWART,
Defendant.
Appeal from the United States District Court
for the District of Oregon
Marco A. Hernandez, District Judge, Presiding
Argued and Submitted November 7, 2012
Portland, Oregon
Before: ALARCÓN, McKEOWN, and PAEZ, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Robert Boggs appeals from the district court’s grant of motions to dismiss
and for summary judgment on qualified immunity grounds with respect to five of
the defendants (the “Multnomah Defendants”), and the district court’s grant of a
motion to dismiss with respect to defendant Stewart. Boggs brought claims under
42 U.S.C. § 1983 alleging that the Multnomah Defendants and Stewart violated his
Fourteenth Amendment right to notice and a name-clearing hearing in connection
with the disclosure of his employment records containing allegedly stigmatizing
statements. We have jurisdiction under 28 U.S.C. § 1291. Reviewing de novo, we
affirm.
As a matter of law, it was unclear whether Boggs had a right to the claimed
due process under the circumstances of his termination, thus entitling the
Multnomah Defendants to qualified immunity. There is virtually no agreement on
the start or end date of the temporal nexus required to trigger the procedural
protections of due process. Campanelli v. Bockrath, 100 F.3d 1476 (9th Cir.
1996). Under Cox v. Roskelly, “placement of stigmatizing information in an
employee’s personnel file constitutes publication when the governing state law
classifies an employee’s personnel file as a public record.” 359 F.3d 1105, 1112
(9th Cir. 2004). Here, it is not clear when Boggs’s personnel file became a public
record under Oregon law because that law makes employment records public upon
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resignation but not when there is disciplinary action. Given the uncertainty as to
the status of his withdrawn resignation, which had been secured under the threat of
termination, the prospect of disciplinary action against Boggs lingered. Oregon
law is ambiguous as to whether this sequence of events made Boggs’s personnel
file public and therefore whether “publication” had occurred for Fourteenth
Amendment due process purposes. Boggs’s employment records were not
disclosed following a February 23, 2007 public record request, and it was not until
May 10, 2007, when Boggs filed a civil suit related to his resignation, that the
resignation became final and his employment record definitively classified as a
public record.
Absent clear law on when publication of Boggs’s employment record
occurred, the temporal gap between resignation and publication was too attenuated
to establish the necessary nexus, even construing all inferences concerning dates in
Boggs’s favor, as we must. In Tibbetts v. Kulongoski, we held that a nineteen day
gap was too long to establish the necessary nexus under extant case law in
February 2005 and June 2006, when the alleged violations in that case occurred.
567 F.3d 529, 538 (9th Cir. 2009). Tibbetts remains controlling law because no
new cases were decided on the issue between the time of the alleged violations in
that case and the time of the alleged violation in this case sometime in the first half
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of 2007. Whether we take January 5 or February 5, 2007 as the start date of the
temporal nexus, a period far longer than nineteen days passed before Boggs’s
employment record was clearly public. Qualified immunity was thus properly
granted because Boggs’s right to procedural safeguards was not “clearly
established” and it would not have been “clear to a reasonable officer” that failure
to provide Boggs with notice and a name-clearing hearing was “unlawful in the
situation . . . confronted.” Saucier v. Katz, 533 U.S. 199, 201-02 (2001) (outlining
a two-pronged qualified immunity analysis, the second prong of which requires
that a right be clearly established for an official to be stripped of qualified
immunity protection); Pearson v. Callahan, 555 U.S. 223, 236 (2009) (holding that
district courts have “discretion in deciding which of the two prongs of the qualified
immunity analysis should be addressed first in light of the circumstances in the
particular case at hand”).
The district court erred by considering matters outside the pleadings in
granting defendant Stewart’s motion to dismiss on the basis that she was a clerical
employee. However, “[i]f the decision below is correct,” we “may affirm on any
ground finding support in the record.” Jackson v. Southern California Gas Co.,
881 F.2d 638, 643 (9th Cir. 1989). We affirm the district court’s grant of Stewart’s
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motion to dismiss on the basis of qualified immunity consistent with the legal
analysis above.
AFFIRMED.
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FILED
Boggs v. Hoover, No. 11-35713 FEB 04 2013
MOLLY C. DWYER, CLERK
PAEZ, Circuit Judge, dissenting. U .S. C O U R T OF APPE ALS
I respectfully dissent.
The majority’s judgment rests on an incorrect interpretation of Oregon state
law. The federal constitutional right clearly established by Cox—and the cases Cox
relies on—is that a due process name-clearing hearing is required when placement
of stigmatizing information in a public employee’s personnel file constitutes
publication. 359 F.3d at 1112. “Publication” is determined not by dissemination,
but by whether the governing state law classifies an employee’s personnel file as a
public record. Id. Here, the governing state law clearly classified Boggs’s
personnel file as a public record not subject to any exemptions from disclosure,
and thus it was clearly established that the placement of the stigmatizing report in
his file implicated his liberty interest and triggered his right to due process. Id.; Bd.
of Regents of State Colls. v. Roth, 408 U.S. 564, 573 (1972) (declining to rehire
may be “termination” for liberty interest purposes).
In the context of this case, there are two distinct “clearly established”
questions that must be analyzed sequentially: 1) the clearly established
constitutional right, and 2) whether the governing state law was clearly established
such that officials had notice of whether due process protections were triggered in
a given factual circumstance. Here, the constitutional right at issue is the right to a
name-clearing hearing when placement of stigmatizing information in a public
employee’s personnel file constitutes publication. Cox, 359 F.3d at 1112. Whether
it was clearly established under Oregon’s public records law such that officials
would be on notice that a personnel file was a public record when stigmatizing
information was placed in it is a question of state law.
Oregon law favors disclosure as the rule and classifies an employee's
personnel file as a public record. Although Oregon law recognizes a personnel
discipline exemption from disclosure, under ORS 192.501(12), the exemption does
not apply when a public employee resigns during an employer investigation or in
lieu of disciplinary action. City of Portland v. Rice, 775 P.2d 1371, 1373-74, n.4
(Or. 1989) (“‘Action’ is consistently used to mean the imposition of a disciplinary
sanction, not an investigation of facts which does not . . . directly result in
imposing a sanction. Public records of such an investigation are not exempt from
disclosure.”). Thus, because Boggs resigned from his position, albeit under threat
of termination, there was no exemption from the public disclosure of Boggs’s
records. Id. at 1373-74; ORS 192.490(1). Notably, Defendants later came to the
correct conclusion that Boggs’s personnel file was indeed a public record because
it was not subject to the discipline exemption. Testimony at an evidentiary hearing
in Boggs’s other civil case—permitted as evidence in this case—clearly shows that
2
Defendants Sowle and Hoover were on notice that Boggs’s file and the
investigation report were a public record. Reading the complaint in the light most
favorable to Boggs, he alleged publication of “false, defamatory statements” as
early as February 5, 2007—months before any disclosure to the press, and in
conjunction with his attempt to revoke his forced resignation. A reasonable
inference from this allegation is that by “publication” he meant placement of the
stigmatizing information in his personnel file, which was a public record. Even if
the fact of placement of the stigmatizing information in the file is disputed,
Defendants are not entitled to qualified immunity on those grounds. That is an
issue that should be resolved at trial.
The majority errs in its analysis that Oregon law “makes employment
records public upon resignation but not when there is disciplinary action” and that
Boggs’s employment record was “definitively classified as a public record” on
May 10, 2007, when he filed a civil suit and his resignation “became final.” Mem.
2-3 (emphasis added). Boggs’s record was not a private document that became a
public one by his resignation or by filing his lawsuit. Under Oregon law,
employment records are public by default, subject to certain conditional
exemptions.1
1
The majority also asserts that Oregon law is ambiguous as to whether
Boggs’s record was public given his forced resignation, rejected attempt to
3
The facts alleged in Boggs’s complaint support two distinct violations of
Boggs’s due process rights. The first is the publication of the report by its
placement in Boggs’s personnel file in January or February 2007, in conjunction
with his forced resignation and the county’s refusal to reinstate him. As
demonstrated above, these facts are sufficient to implicate Boggs’s liberty interest
and his clearly established constitutional right to a name-clearing hearing. Cox, 359
F.3d at 1110-12. The second is the widespread dissemination of the stigmatizing
charges after Boggs’s termination via the May 2007 release of his employment
records in response to media requests. I agree with the district court that this later
dissemination warrants a temporal nexus analysis under Campanelli and Tibbetts.
withdraw his resignation, and the lingering “prospect” of disciplinary action. Mem.
3. Oregon law is not ambiguous on this point. See Rice, 775 P.2d at 1373-74.
Indeed, the following paragraph from the Attorney General’s Public Records and
Meetings Manual 41, (2005), served to put public officials faced with a situation
exactly like the one here on notice that Boggs’s personnel file was a public record:
ORS 192.501(12) conditionally exempts: A personnel
discipline action, or materials or documents supporting that action[.]
Only completed disciplinary actions when a sanction is
imposed, and materials or documents that support that particular
disciplinary action, fall within the scope of this exemption. (Citing
Rice, 775 P.2d 1371.) The exemption does not apply when an
employee of a public body resigns during an employer investigation
or in lieu of disciplinary action. The policy underlying this narrowly
construed exemption is to “protect[ ] the public employee from
ridicule for having been disciplined but does not shield the
government from public efforts to obtain knowledge about its
processes.” (Citing id. at 1374, n.5.)
4
But this is not the only set of factual circumstances alleged in Boggs’s complaint,
and Cox makes clear that publication of an employee’s file as a public record
available upon demand—not necessarily dissemination to the media or widespread
public disclosure—is sufficient to implicate a public employee’s liberty interest
and his right to a due process name-clearing hearing. 359 F.3d at 1111-12.
For these reasons, I respectfully dissent. Boggs’s federal constitutional right
to a name-clearing hearing when stigmatizing information was placed in his
personnel file was clearly established as of 2004. Cox, 359 F.3d at 1112. Oregon
public records law was clearly established such that officials had notice that his
personnel file would be public, and thus placement of the stigmatizing information
constituted publication. I would hold that the Defendants are thus not entitled to
qualified immunity.
I would also reverse the district court’s grant of Defendant Stewart’s motion
to dismiss because the district court erred by considering matters outside the
pleadings and because, for the reasons stated above, the decision cannot be
affirmed on the basis of the qualified immunity analysis. Jackson v. S. California
Gas Co., 881 F.2d 638, 642-43 (9th Cir. 1989).
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