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02/01/85 Jane Doe, v. United States Department

February 1, 1985

JANE DOE, APPELLANT

v.

UNITED STATES DEPARTMENT OF JUSTICE, ET AL. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA (CIVIL ACTION NO. 83-1499). 1985.CDC.24

OPINION FOR THE COURT AS TO PARTS I-I

v.

A & V FILED BY CIRCUIT JUDGE WALD. OPINION FOR THE COURT AS TO PART IV.B FILED BY CIRCUIT JUDGE WRIGHT.

OPINION DISSENTING AS TO PART I

v.

B FILED BY CIRCUIT JUDGE WALD. OPINION DISSENTING IN PART AND CONCURRING IN PART FILED BY SENIOR CIRCUIT JUDGE MACKINNON.



Wright and Wald, Circuit Judges, and MACKINNON, Senior Circuit Judges.

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

APPELLATE PANEL:

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WALD

This appeal involves an action brought by a former Department of Justice ("DOJ" or "Department") attorney against the Department and various DOJ officials in their individual and official capacities. On May 26, 1981, the plaintiff, proceeding in this case under the fictitious name of Jane Doe, was discharged from her position as a DOJ attorney amidst charges of unprofessional conduct and dishonesty. After unsuccessfully petitioning the government for a hearing on these allegations, Doe brought suit in district court, claiming that her termination violated Department regulations and that it deprived her of a constitutionally protected liberty interest without due process. The plaintiff also sued several Department officials, in their individual and official capacities, for infringing her liberty interest in reputation without due process. Doe sought reinstatement, back pay and other appropriate relief from the Department; she sought damages from the individual defendants.

Pursuant to the Department's motion under Rule 12 of the Federal Rules of Civil Procedure, *fn1 the district court dismissed the entire complaint for failure to state a claim upon which relief could be granted. See Doe v. United States Dep't of Justice, Civ. 602 F. Supp. 871 (1983) [hereinafter cited as "Opinion"]. Specifically, the district court ruled that the claim against the individual defendants was barred by the relevant statute of limitations, that the Department had not violated any mandatory internal regulations, and that Doe's liberty interest claim against the DOJ must be dismissed for failure to seek the proper remedy. On appeal, Doe challenges each of these rulings. We now affirm the district court's dismissal of Doe's claims against the Department based on internal DOJ regulations. See infra Part II. The panel (Judges Wright and MacKinnon) also affirms the district court's dismissal of Doe's damage action against the individual defendants. See infra Part IV. We conclude, however, that Doe's liberty interest claim against the

From 1974 until her discharge, Doe worked as an attorney in the Lands and Natural Resources Division of the Department. In 1978, she was assigned to the Indian Resources Section of that Division and placed under the supervision of defendants Myles Flint and Rembert Gaddy. In September of 1980, she was chosen to head up a major water rights lawsuits in Cheyenne, Wyoming. On March 18, 1981, Doe received a phone call from Flint's secretary requesting that she attend a meeting at his Washington office in five days. The plaintiff claims that she asked Gaddy and Flint about the subject of the meeting and was told to expect a routine briefing on pending cases. See Plaintiff's Complaint P13, Joint Appendix at 5. At the March 24th meeting, however, Flint charged that Doe had become "loud and disorderly" and had "lost control" of herself in a discussion with another Department attorney involved in the Wyoming litigation. *fn2 He also alleged that, several months earlier, she had consumed beer during a deposition and had encouraged others, including the deponent, to drink. Doe flatly denied both charges and complained that she had not been given the opportunity to review her notes concerning the events in question Id. P16, J.A. at 6.

Approximately one hour later, the plaintiff was summoned to a second meeting with Gaddy, Flint and defendant Anthony Liotta, Acting Assistant Attorney General of the Lands and Natural Resources Division. At that meeting, Flint reiterated the allegations of unprofessional conduct, and Doe again denied the charges. Liotta stated that the Department would have to investigate the allegations and he directed Flint to establish procedures for obtaining statements from those present at the events in question. Id. P17-18, J.A. at 6-7. The plaintiff was also informed at the meeting that defendant Tom Echohawk, a junior attorney assisting Doe in the Wyoming litigation, had provided the initial information to Gaddy.

Flint undertook a further investigation of the two charges over the next few days. *fn3 See Affidavit of Myles E. Flint at P15-17, J.A. 31-33. According to Flint, some of the people he contacted confirmed, at least in part, the allegations, see id. (describing conversations with Echohawk and a government expert witness involved in the Wyoming litigation); others, according to the plaintiff, told Flint that the charges were untrue. See Plaintiff's Complaint P19, J.A. at 7. On March 27, 1981, the Department removed Doe as the head counsel for the Wyoming litigation and reassigned her to Washington pending the outcome of the investigation. Id. P20, J.A. at 7-8. Immediately after the reassignment, several attorneys involved in the Wyoming litigation urged Flint, Gaddy and Liotta to retain Doe on the case, asserting that Doe had not done anything that had interfered with the case or that had hampered the Department's interests. See Afidavit of Myles E. Flint P15, J.A. at 32; Affidvait of Anthony C. Liotta P5, J.A. at 20-21; see also Plaintiff's Complaint § 21, J.A. at 8. According to Gaddy, however, at least one of the attorneys indicated that Doe had indeed used "bad judgment" in the two incidents at issue. See Affidavit of Rembert A. Gaddy, P7, J.A. at 37-38.

No further action was taken until Doe was summoned to a meeting with Flint and Gaddy on May 14, 1981. At that meeting, Flint informed her that the "investigation" was complete and confronted her with affidavits concerning the incidents in question from Liotta, Flint, Gaddy, Echohawk and an expert witness Flint had contacted at the suggestion of Echohawk. Plaintiff's Complaint P22, J.A. at 8-9. Flint then demanded the plaintiff's resignation by May 15 and indicated that, if she refused to resign, she would be terminated and the affidavits placed in her personnel file. Id. Flint also suggested that the investigation and eventual termination decision had been approved by defendant Edward Schmults, Deputy Attorney General. Id. On May 15, Doe requested a three day extension for the resignation decision from Assistant Attorney General Carol Dinkins, also a defendant in this case. Dinkins granted the extension but declined to discuss the merits of the allegations. Id. P23, J.A. at 9. On May 18, Doe, through her attorney, refused to resign and formally requested a hearing at which she could confront her accusers and present evidence that the charges were untrue. Id. P24, J.A. at 9; see also Appellant's Appendix at Exhibit A (letter from plaintiff's attorney to Schmults denying charges and requesting a hearing).

On May 26, 1981, the hearing request was denied and Doe received a formal memorandum of termination. See Memorandum from Edward Schmults to Jane Doe (May 26, 1981), J.A. at 47-48. The memorandum reiterated the original charges and stated that Doe's actions violated the Department's Standards of Conduct, see 28 C.F.R. Part 45 (1984), and the Canons of Ethics of the American Bar Association. The memorandum also stated that "the adverse effect of your conduct on the Department is aggravated . . . because you lied to your [immediate supervisors] by denying that these incidents occurred. Later you also lied to the Acting Assistant Attorney General by denying the same incidents." Memorandum from Edward Schmults to Jane Doe 2 (May 26, 1981), J.A. at 48.

On June 15, 1981 Doe appealed her termination to the Merit Systems Protection Board , requesting, among other things, a hearing concerning the circumstances leading to her removal. The Department actively opposed this appeal, arguing that the MSPB lacked jurisdiction to hear Doe's case because she was a member of the excepted civil service. *fn4 See Reply Brief for the Appellant at Exhibit C (the Department's motion to dismiss Doe's MSPB appeal). An MSPB examiner agreed with the Department and dismissed the appeal for want of jurisdiction, see Jane Doe v. Department of Justice, No. 0607528110628 (July 30, 1981), and the full MSPB later upheld the examiner's dismissal. The plaintiff simultaneously sought redress from the Office of the Special Counsel; on December 8, 1981, that office also declined to investigate the circumstances leading to the termination. See Appellant's Supplemental Appendix (letter from Special Counsel's office declining to investigate Doe's termination).

Doe, proceeding pro se, subsequently filed a complaint in district court alleging that her discharge violated Department regulations and that the termination and surrounding allegations of unprofessionalism and dishonesty infringed her fifth amendment liberty interest in reputation without due process. She also sued the Department supervisors involved in the her discharge, in their individual and official capacities, alleging that they had deprived her of liberty without due process by repeating the allegations to other water-rights lawyers. See Plaintiff's Complaint P28, J.A. at 12. She claimed that the Department's action and the subsequent spreading of the charges by DOJ officials had foreclosed future employment opportunities in her preferred field and had "destroyed her reputation as a competent and capable attorney and as a sober and serious person." Id. She sought reinstatement and back pay from the Department, and Bivens-type *fn5 damages from the individual defendants.

The district court dismissed the entire complaint in a brief memorandum opinion. The court first ruled that the analogous one-year statute of limitations for defamation in the District of Columbia, D.C. Code 12-301(4), should be applied to the claims against the individual defendants. Construing the complaint to allege constitutional defamation on the date of her removal from the Department, nearly two years before the suit was brought, the court ruled that the claims against the individual defendants were barred by the statute of limitations. See Opinion at 2-3. The district court then held that the DOJ regulations cited by the plaintiff provided her with no procedural protections and that Doe was not denied due process in the actual termination decision. See id. at 4-5. The court never ruled on whether the plaintiff had alleged a reputational interest protected by the fifth amendment or whether she was given the process required to protect any such liberty interest. Instead, the district court reasoned that the liberty interest claim against the Department "must fail as a matter of law" because Doe did not request the appropriate relief against the Department, namely a hearing to clear her name. See id. at 5.

We affirm the district court's ruling that the discharge itself did not violate any internal DOJ regulations and that the plaintiff was not entitled to pre-termination process. The record before us with respect to the remaining claims is sparse because Doe's complaint was dismissed before any discovery was taken. From a careful examination of the pleadings and the various motions filed in the trial court, however, we conclude that the district judge erred in dismissing Doe's liberty interest claim against the Department. Finally, the panel concludes that the district court properly interposed the local one-year statute of limitations as a bar to Doe's Bivens action against the individual defendants. II. THE CLAIMS BASED ON DEPARTMENT REGULATIONS

Plaintiff contends that the charges brought against her should have been referred to the Office of Professional Responsibility , the Employee Assistance Program , or both, pursuant to internal DOJ regulations. Both sets of guidelines cited by the plaintiff establish special procedures for dealing with particular kinds of employee problems and misconduct. Courts, of course, have long required agencies to abide by internal, procedural regulations concerning the dismissal of employees even when those regulations provide more protection than the Constitution or relevant civil service laws. See, e.g., Vitarelli v. Seaton, 359 U.S. 535, 79 S. Ct. 968, 3 L. Ed. 2d 1012 (1959); Service v. Dulles, 354 U.S. 363, 1 L. Ed. 2d 1403, 77 S. Ct. 1152 (1957). The guidelines involved in those cases, however, explicitly required agencies to follow elaborate and mandatory pre-termination procedures. The regulation at issue in Vitarelli, for example, required 30 days notice of a proposed discharge, a written statement of the asserted grounds for termination, and a formal, trial-type hearing before a specially constituted hearing board. See Vitarelli, 359 U.S. at 540-46; see also Service, 354 U.S., at 373-76. In sharp contrast, neither the OPR nor the EAP regulations involved in this case create any explicit or formal procedural protection for employees, and neither operates as a mandatory constraint on the Department's actions.

The EAP was established to encourage Department employees with chronic drug, alcohol or emotional problems to seek professional help. See DOJ Order No. 179-1 at 1-2 (May 15, 1978), J.A. at 53-54. The implementing guidelines provide that employees with alcohol or drug related problems are encouraged to seek EAP assistance to overcome their illness and to avoid adverse employment actions in the future. See id. Yet the guidelines themselves disavow any intent to provide job protection to employees whose work performance is suffering as a result of alcoholism or any other condition.

This referral to assistance will in no way affect the processing of a disciplinary action for the employee's misconduct or criminal activities, including removal, if the nature of the offense and the nature of the employee's duties warrant that action.

Id. at 9, J.A. at 60. Moreover, as the district court observed, the plaintiff has consistently denied that she had or has any drinking problem; indeed the Department discharged Doe for alleged unprofessional conduct and dishonesty, not for alcoholism. Accordingly, she cannot rely on the EAP program to challenge her discharge. See Spragg v. Campbell, 466 F. Supp. 658 (D.S.D. 1979) (upholding a federal employee's dismissal for alcohol related misconduct despite the existence of a program similar to the EAP); Allan Vyse, 226 Ct. Cl. 683 (1981) (same).

The regulations creating the Department's OPR, 28 C.F.R. § 0.39 (1984), provide that the OPR shall "receive and review any information or allegation concerning conduct by a Department employee that may be in violation of law, regulations or orders, or of applicable standards of conduct. . . ." Id. § 0.39a(a). They also provide that the OPR shall "make such preliminary inquiry as may be necessary" to determine whether a disciplinary matter should be referred from an employee's immediate supervisor to another DOJ official. Id. § 0.39a(c); see also id. 0.39a(d)(3). The plaintiff contends that the Department violated this mandate because the ORP neither investigated her case nor reviewed the decision made by her direct supervisors.

Doe's reliance on these regulations, however, cannot withstand scrutiny. The ORP regulations explicitly state that the responsibility of investigating employee misconduct and of instituting adverse employment actions remains with the various unit heads within the Department.

Primary responsibility for investigating an allegation of unprofessional conduct that is lodged against an employee of the Department normally shall continue to rest with the head of the office, division, bureau, or board to which the employee is assigned, or with the head of its internal inspection unit, or, if the conduct appears to constitute a violation of law, with the head of the agency having jurisdiction over the subject matter involved.

Id. §§ 0.39d(a), (b); see also id. § 0.39a(a) (stating that the OPR does not preempt the primary responsibility of internal inspection units within the Department). The regulations nowhere assert that the OPR has exclusive or even mandatory jurisdiction to investigate charges such as those involved in this case. *fn6 Nor do the regulations grant employees any right to appeal disciplinary investigations or decisions to the OPR.

At best, then, the OPR is intended to supplement, not to supplant, existing investigative procedures. The OPR rules were not, in any event, adopted to provide procedural protections to DOJ employees. Rather, the rules were intended to benefit the Department as a whole by "establish[ing] procedures for the disclosure of information evidencing misconduct by Department employees. . . ." 45 Fed. Reg. 27754 (April 24, 1980); see 28 C.F.R. § 0.39a(b) (1984). Although an agency is ordinarily bound by its own procedural rules, it is also within the agency's discretion to modify or waive those "rules not intended primarily to confer important procedural benefits upon individuals in the fact of otherwise unfettered discretion. . . ." American Farm Lines v. Black Ball Freight Service, 397 U.S. 532, 539, 25 L. Ed. 2d 547, 90 S. Ct. 1288 (1970). Moreover, even assuming that the OPR was required to act in this case, its sole function would have been to report the matter to a senior Department official. See 28 C.F.R. § 0.39(a)(1) (1984). Flint's investigation and Doe's actual discharge were in fact reviewed and approved by Deputy Attorney General Schmults, one of the "independent" senior officers identified for referral in the OPR regulations. See id. § 0.39a(d)(3). *fn7

The district court therefore correctly held that neither the OPR regulations nor the EAP guidelines constrained the Department's ability to terminate Doe. And if the plaintiff cannot challenge her actual termination under Department Regulations, *fn8 her claim for reinstatement must fail. Doe's back pay claim presents a somewhat more difficult problem. On the one hand, we believe that Doe cannot seek back pay if she cannot challenge her actual discharge. As a member of the excepted civil service, Does enjoyed no statutory entitlement to her position with the Department; similarly, the Department was not procedurally constrained by the civil service laws or any other regulations in its actual decision to terminate Doe. If her claims based on the OPR and EAP guidelines fail, then, she cannot challenge her removal from the Department; *fn9 she cannot therefore claim any right to continued compensation that would entitled her to relief under the Back Pay Act. See 5 U.S.C. § 5596(b)(1); Crimaldi v. United States, 651 F.2d 151 (2d Cir. 1981).

Nonetheless, although no party has raised any question concerning the jurisdiction of this court to hear Doe's appeal, Judge MacKinnon's dissent does so now at the eleventh hour. Hence, we briefly consider and reject his challenge based on the Federal Courts Improvements Act of 1982, Pub. L. 97-164, 96 Stat. 25 (codified in scattered sections of 28 U.S.C.). That Act provides that the United States Court of Appeals for the Federal Circuit shall have exclusive jurisdiction over an appeal from a district court if the district court based its jurisdiction "in whole or in part" on 28 U.S.C. § 1346. See 28 U.S.C. § 1295(a)(2). Section 1346(a)(2), in turn, confers concurrent jurisdiction in district court and the Claims Court for civil actions against the United States based on the Constitution, acts of Congress or agency regulations for amounts not exceeding $10,000. See 28 U.S.C. § 1346(a)(2). Jurisdiction for those monetary claims against the United States exceeding $10,000 lies exclusively with the Claims Court. See 28 U.S.C. § 1491.

In this case, Doe appended a claim for back pay to her more central constitutional claims. Although Doe did not specify the precise amount of the back pay she sought, we conclude that her complaint should be read to seek more than $10,000 in back pay because Doe, a GS-14 attorney earning approximately $45,000 a year, was discharged over two years before she brought this lawsuit and alleges that she has not been able to secure comparable employment in her field. See Plaintiff's Complaint P12, 29, J.A. at 4, 12. Accordingly, it appears that the district court lacked jurisdiction over her back pay claim under 28 U.S.C. § 1346. The district court dismissed the entire reinstatement-related claim for failure to state a claim upon which relief cloud be granted. We are confident that this is precisely the route that the Claims Court and the Federal Circuit would have taken had Doe brought her back pay claim there. See, e.g., Biagioli v. United States, 2 Cl. Ct. 304 (1983); cf. United States v. Connolly, 716 F.2d 882, 886-88 (Fed. Cir. 1983), cert. denied, 465 U.S. 1065, 104 S. Ct. 1414, 79 L. Ed. 2d 740 (1983). We therefore affirm the dismissal for jurisdictional reasons as well as those stated by the district court.

Although in another case, the district court's lack of jurisdiction over the back pay claim might present a question of whether it also lacked jurisdiction to hear the closely-related reinstatement claim, see, e.g., Giordano v. Roudebush, 617 F.2d 511, 514-15 (8th Cir. 1980), we believe that it would confound common sense and judicial economy to address that complex issue at this juncture where the underlying claim for reinstatement so clearly lacks merit. We therefore invoke Supreme Court precedent which permits us, in exceptional cases, to defer the resolution of a difficult jurisdictional issue where the decision on the merits is clearly foreordained whatever the jurisdictional outcome. See Secretary of Navy v. Avrech, 418 U.S. 676, 41 L. Ed. 2d 1033, 94 S. Ct. 3039 (1974) (per curiam); cf. National Juvenile Law Center, Inc. v. Regnery, 238 U.S. App. D.C. 61, 738 F.2d 455, 466-67 (D.C. Cir. 1984) (per curiam); see also Wilson v. Turnage, 243 U.S. App. D.C. 10, 750 F.2d 1086 (D.C. Cir. 1984) (Tamm, J., Joined by Edwards and Mackinnon JJ.) (remanding for an award of attorney's fees under a Back Pay Act claim without considering whether the district court had jurisdiction over the claim, which exceeded $10,000).

We also conclude that the back pay claim does not create any jurisdictional impediment to our review of Doe's more central constitutional claims. Section 1346, of course, would not under any circumstances deprive a district court of jurisdiction to consider Doe's Bivens action, which does not involve a claim against the United States, or her claim for equitable relief under the Constitution in the form of a name-clearing hearing. See infra pp. 37-41. Those claims do not in any way implicate reinstatement or back pay and they unquestionably fall within the district courts' general federal question jurisdiction. See 28 U.S.C. § 1331. Similarly, where the district court's jurisdiction could not have been based "in whole or in part" on 28 U.S.C. § 1346, see 28 U.S.C. § 1295(a)(2) -- as it could not have been here -- nothing in the Courts Improvements Act or its legislative history precludes this court from considering Doe's appeal of the remaining non-monetary claims. See S. Rep. No. 275, 97th Cong., 2d Sess. 19-20 (1982) (noting that litigants should not be allowed to create or deny federal court jurisdiction through subsidiary claims and that federal courts must "ensure the integrity" of appellate jurisdiction under the act by separating substantial from frivolous claims). We therefore affirm the district court's dismissal of the reinstatement claim for failure to state a claim upon which relief can be granted and we affirm its implicit dismissal of the back pay claim for jurisdictional reasons as well as those relied upon the district court. III. THE LIBERTY INTEREST CLAIM AGAINST THE DEPARTMENT

A motion to dismiss for failure to state a claim upon which relief can be granted is generally viewed with disfavor and rarely granted. See 2A Moore's Federal Practice § 12.08 (2d ed. 1948 & Supp. 1984). For the purposes of such a motion, the factual allegations of the complaint must be taken as true, and any ambiguities or doubts concerning the sufficiency of the claim must be resolved in favor of the pleader. See Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1979); Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); Sinclair v. Kleindienst, 229 U.S. App. D.C. 13, 711 F.2d 291, 293 (D.C. Cir. 1983); Riegle v. Federal Open Market Committee, 211 U.S. App. D.C. 284, 656 F.2d 873, 877 (D.C. Cir.), cert. denied, 454 U.S. 1082, 70 L. Ed. 2d 616, 102 S. Ct. 636 (1981); Shear v. National Rifle Ass'n of America, 196 U.S. App. D.C. 344, 606 F.2d 1251, 1253 (D.C. Cir. 1979). In particular, "a complaint should not be dismissed for failure to state a claim unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his [or her] claim which would entitle him [or her] to relief." Conley, 355 U.S. at 455-56; See Hughes v. Rowe, 449 U.S. 5, 10, 66 L. Ed. 2d 163, 101 S. Ct. 173 (1980).

The district court dismissed Doe's claim that the Department violated her fifth amendment interest in reputation for failure to state a claim solely on the ground that doe did not seek the appropriate remedy. See Opinion at 5-6. We not vacate this aspect of the district court's Rule 12 dismissal. We further hold that Doe's discharge amidst allegation of unprofessionalism implicates a constitutionally protected liberty interest in reputation and that, if those allegations were publicly disclosed, she is entitled to an opportunity to clear her name.

A. The Limits on Rule 12 Dismissals

The district court did not reject Doe's version of the Department's actions which, she argues, deprived her of a liberty interest in reputation without due process. Instead, the court concluded that, if her professional reputation was stigmatized by the discharge, the well-settled remedy "mandated by the Due Process Clause of the [Fifth] Amendment is an 'opportunity to refute the charge.'" Codd v. Velger, 429 U.S. 624, 627, 51 L. Ed. 2d 92, 97 S. Ct. 882 (1977) (quoting Board of Regents v. Roth, 408 U.S. 564, 573, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1971)); see Opinion at 5. This conclusion is unassailable. Doe's liberty interest implicates her post-employment reputation rather than any right to continued employment with the Department; if Doe can demonstrate that the DOJ harmed her professional standing without providing the proper procedural protections, her remedy is a "name-clearing" hearing. See Codd, 429 U.S. at 627; Roth, 408 U.S. at 573; Wehner v. Levi, 183 U.S. App. D.C. 328, 562 F.2d 1276; 1279 (D.C. Cir. 1972); Campbell v. Pierce County, 741 F.2d 1342, 1344 (11th Cir. 1984); In Re Selcraig, 705 F.2d 789 (5th Cir. 1983); Dennis v. S & S Consolidated Rural High School Dist., 577 F.2d 338, 344 (5th Cir. 1978) ("The purpose of the due process hearing to which [the plaintiff] was entitled was not to afford an opportunity to recapture his previous employment but simply to clear his name."); Harper v. Blumenthal, 478 F. Supp. 176, 177 (D.C. Cir. 1979).

Despite its apparent conclusion that Doe had alleged fact sufficient to entitle her to a Codd hearing, however, the district court dismissed the plaintiff's liberty interest claim against the Department.

Plaintiff does not allege that she ever requested a hearing to clear her name and does not seek one by this complaint. Absent a denial of such a request no violation of due process can be demonstrated, Arnett [v. Kennedy, 416 U.S. 134,] 157,

Opinion at 6. *fn10 We find this statement an insufficient ground for dismissal for two reasons. First, the district court evidently concluded that Doe never requested a hearing to clear her name from the Department. The pleading discloses no basis for this conclusion. Indeed, Doe's complaint explicitly states that she "requested a hearing and an opportunity to present favorable evidence [to Department officials] showing that the alleged incidents of misconduct were not true. . . ." Plaintiff's Complaint P24, J.A. at 19. Taken as a whole, moreover, the complaint certainly avers that the plaintiff sought, but was systematically denied, an opportunity to address the charges that resulted in her dismissal and stigmatized her professional reputation. The district court was obliged to accept these allegations as true for the purposes of a Rule 12(b)(6) motion.

Second, the district court assumed that the claim must be dismissed because Doe's complaint did not explicitly seek a name-clearing hearing. See Brief for Appellees at 30-31 (urging this interpretation of th district court's holding). Yet there can be little doubt that the thrust of Doe's complaint is that the Department's allegations and the discharge have damaged her professional reputation and that she has never been given the opportunity to refute the charges in any orderly way. Her complaint clearly indicates that she sought some kind of hearing from the Department, See Plaintiff's Complaint P24, 28, J.A. 9, 12, and her prayer for relief seeks "such other and further relief as the court may deem necessary and appropriate." Plaintiff's Prayer for Relief P3, J.A. at 16. Courts are traditionally encouraged to adjudicate the basic legal claim, even where the plaintiff has failed to seek the precisely correct relief but has instead relied on a general request for "other appropriate relief." See e.g., Pickus v. U.S. Board of Parole, 165 U.S. App. D.C. 284, 507 F.2d 1107, 1110 (D.C. Cir. 1974); cf. Fed. R. Civ. P. 54(c) ("every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.") The liberal reading of complaints required under rule 12(b)(6) thus minimally requires that Doe be permitted to amend her complaint in order to seek a Codd hearing. See generally 5 C. Wright & A. Miller, Federal Practice and Procedure § 1357 (1969 & Supp. 1983) (collecting cases); 2A Moore's Federal Practice P12.08 (2d ed. 1948 & Supp. 1984) (same).

Moreover, it need not appear that the plaintiff can obtain the specific relief demanded as long as the court can ascertain from the fact of the complaint that some relief can be granted. See 5 Wright & Miller § 1357 at 602 & n.77.

When a motion to dismiss a complaint is made, . . . the clear and long-accepted meaning [of Rules 54(c) and 12] is that a complaint should not be dismissed for legal insufficiency except where there is failure to state a claim on which some relief, not limited by the request in the complaint, can be granted.

Norwalk CORE v. Norwalk Redevelopment Agency, 395 F.2d 920, 926 (2d Cir. 1968) (footnote omitted) (emphasis in original); see Kahan v. Rosenstiel, 424 F.2d 161, 174 (3d Cir.), cert. denied, 398 U.S. 950, 26 L. Ed. 2d 290, 90 S. Ct. 1870 (1970); Logan v. General Fireproofing Co., 521 F.2d 881, 884 n.3 (4th Cir. 1971); Sapp v. Renfroe, 511 F.2d 172, 176 n.3 (5th cir. 1975). A district court should not grant a Rule 12(b)(6) motion to dismiss for failure to seek the technically appropriate remedy when the availability of some relief is readily apparent on the fact of the complaint. *fn11

Here, the complaint and the motion for dismissal clearly demonstrated the Doe could prove a set of facts that would entitle her to some from of relief -- namely a hearing to clear her name. The proper course of action at that point was to grant the plaintiff leave to amend her complaint in order to seek such a hearing or to read such a hearing request into the prayer for "other appropriate relief." We therefore vacate the district court's dismissal of Doe's reputational liberty interest claim against the Department for failure to seek the appropriate remedy.

B. Doe's Liberty Interest in Reputation.

By dismissing Doe's liberty interest claim against the Department on technical grounds, the district court avoided the prickly question of whether the DOJ's actions infringed Doe's constitutionally protected liberty interest in professional reputation. Taking the plaintiff's factual allegations as true, we now find that the stigmatizing nature of the Department's charges, her discharge, and the subsequent foreclosure of future employment opportunities, including government job opportunities, combined to deprive Doe of a constitutionally protected liberty interest in reputation without due process. *fn12

The district court rightly noted that:

A government employee's liberty interest are implicated where in terminating the employee the government "make[s] any charge against him that might seriously damage his standing and associations in the community" or "impose[s] on his a stigma or other disability that foreclose[s] his freedom to take advantage of other employment opportunities." Board of Regents v. Roth, 408 U.S. 564, 573, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972).

Opinion at 5; see also Bishop v. Wood, 426 U.S. 341, 348-49, 48 L. Ed. 2d 684, 96 S. Ct. 2074 (1967). In Roth, the Court ruled that the mere failure to rehire a non-tenured teacher did not carry such a stigma. But the Roth Court observed that an individual's liberty interest is impaired when the government acts to injure his or her good name, reputation, honor or integrity, or imposes a stigma that effectively forecloses his or her future employment opportunities. See Roth, 408 U.S. at 573. In Paul v. Davis, 424 U.S. 693, 47 L. Ed. 2d 405, 96 S. Ct. 1155 (1976), the Court went on to require some tangible alternation of a "status" -- in addition to an injury to reputation -- before a liberty interest will be recognized. We conclude that Doe states a claim under the fifth amendment because her discharge from the Department and her effective loss of future government employment opportunities constitute the tangible alteration of a governmental status required by Paul, and the Department's charges of unprofessionalism and dishonesty impose the type of stigma recognized by Roth.

First, Doe does not present the "reputation alone" case precluded by Paul. In Paul, the plaintiff challenged the circulation by local police of a flyer describing "active shoplifters" bearing the plaintiff's name and picture. The Court held that the plaintiff's charge that the flyer had defamed him, "standing alone and apart from any other governmental action with respect to him," did not state a claim for relief under section 1983, see 42 U.S.C. § 1983, and the fourteenth amendment. See Paul, 424 U.S. at 694. *fn13 After reviewing its prior ...


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