Lead Opinion
This case involves a municipal employee’s complaint that his lateral transfer and public criticism of his performance by supervisory officials deprived him of a liberty interest and thereby gave rise to due process rights that were not accorded him prior to the adverse actions. Relying principally on Paul v. Davis,
I.
In the spring of 1979, appellant Arif H. Mosrie (plaintiff below) was commanding officer of the Homicide Branch of the Criminal Investigations Division of the District of Columbia Metropolitan Police Department. He had pursued a plainclothes ca
In mid-March 1979, a union representative complained to Jefferson that Trussell was interfering with the work of officers in the Homicide Branch. Jefferson contacted Trussell indirectly and was told that nothing was amiss. Jefferson also had at least two conversations with Mosrie prior to mid-April. Mosrie informed Jefferson that, although there was some dissatisfaction in the Homicide Branch, morale problems were under control. Mosrie had told his officers that what they regarded as interference was management prerogative.
The officers of the Homicide Branch did not remain quiet for long. On April 26, Trussell transferred Lieutenant Raymond Pierson, an officer in the Homicide Branch, to a uniformed position. He did this with Jefferson’s knowledge and consent but without informing Mosrie, who was Pier-son’s direct supervisor. The members of the Homicide Branch strongly disapproved of the transfer. They brought their union into the dispute. On several occasions in the days following April 26, Mosrie told his officers that the transfer had been ordered by the Chief of Police and so was not open to union discussion. He directed his officers not to protest. The union nonetheless sought to discuss the transfer with Trussell and Jefferson, both of whom refused on the ground that the matter was closed and was not the union’s business.
Early on May 1, Mosrie heard of the union’s efforts. A bit later that day, Trussell called Mosrie into his office to insist on his support. Mosrie then told his officers that the matter was closed because, as he had learned a few days earlier, Pierson had decided to retire rather than to accept the transfer. In mid-afternoon, two union representatives handed Mosrie a memorandum, signed by almost all of the officers in the Homicide Branch, complaining in sharp terms of Pierson’s transfer. They asked Mosrie to forward the memorandum to Jefferson. Mosrie asked the union representatives to withdraw the document, to think again about sending it, and to return the next day. They agreed.
The following day, May 2, Mosrie told the union representatives that he would not forward the memorandum to Jefferson. That afternoon, though, the union was able, through the intercession of someone on Mayor Barry’s staff, to talk with Jefferson. Though informed of the memorandum, Jefferson did not ask to see it. Rather, he agreed to meet with the Homicide Branch on May 7 — he planned to be out of town for several days before then — and asked that a list of specific grievances be drawn up for that meeting. Homicide Branch officers, without Mosrie present, met on May 3 to prepare the requested list.
By May 5, someone had given the list to the Washington Post, which ran a story about the entire affair on the front page of its Sunday, May 6, edition. The article reported the union’s initially unsuccessful efforts to discuss the matter with Jefferson and quoted statements by Lt. Pierson that criticized Jefferson for not taking investigative and corrective action sooner than he did. When Jefferson returned to town on May 6, he read the article and became angry; Pierson’s statements upset him most of all.
Early on Monday, May 7, Jefferson met with Mosrie. He demanded the memorandum of May 1 and criticized Mosrie for not forwarding it to him earlier. At his meeting with the Homicide Branch later that day, Jefferson was given the list of specific grievances that he had requested. The list named Mosrie, without his knowledge, as a witness to an alleged racial slur by Trussell. Jefferson gave Trussell a copy of the list to afford him an opportunity to respond. Shortly thereafter, Jefferson received a telephone call from Mayor Barry. He told Barry that he would investigate the matter
On May 8, Jefferson decided to convene a panel of three persons to conduct the investigation. He told Mayor Barry of this decision. Barry asked to be kept informed of the investigation’s progress and conclusions so that he could consider taking appropriate action. The same day, Jefferson met with the members of the panel. He gave them the list of grievances and instructed them to concentrate on the racial matter first. He also told them that he was surprised, in light of his several conversations with Mosrie, that the situation had reached the point it had. In addition, he told the panel of Mosrie’s failure to forward the May 1 memorandum to him.
When the panel began its proceedings on May 9, it called Mosrie to testify and asked him for his copy of the May 1 memorandum. The panel told him that it was investigating allegations against Trussed. It did not tell him that it was investigating Mosrie’s own conduct. Nor did the panel inform Mosrie that he could present his own evidence or seek legal assistance. In his testimony on May 9, however, and again in testimony on May 22, Mosrie discussed his several conversations with Jefferson, the number of which (two or three) was a subject of dispute.
The panel gave Trussed many procedural protections it did not give Mosrie. It told Trussed of the charges against him, gave him an opportunity to respond to them, allowed him to present his own evidence, and permitted him to consult with counsel. It also listened to suggestions that the panel pursue certain evidentiary leads as wed as to arguments and a summation. On one occasion, Trussed and the panel met privately and off the record.
On May 11, Trussed, through his lawyer, told Jefferson of an alleged anonymous telephone cad in which Mosrie was accused of misusing the Department car assigned to him. Jefferson referred the charge to the Internal Affairs Division (IAD). On May 14 or 15, Trussed contacted the IAD to make further allegations of misconduct on the part of Mosrie and others. When the IAD expressed hesitancy to investigate the additional charges, Trussed complained to Jefferson, who ordered the IAD to consider the new charges along with the old. The panel was aware of the IAD investigations.
The panel completed its investigation of the alleged racial slur in late May 1979. It recommended issuance to Trussed of a written reprimand. At about the same time, Jefferson wrote to Mayor Barry that he intended to issue Trussed a Letter of Prejudice and to reassign Trussed, a reassignment that would be “temporary” and “non-punitive.” The panel completed the remainder of its investigation and delivered its final report to Jefferson by early August.
On August 14, 1979, the press reported that the panel had recommended a transfer of Mosrie from his command of the Homicide Branch. (It remains unknown how the press obtained the information.) Two days later, Mosrie, who by this time had counsel, delivered a letter to Jefferson asking him not to take any steps to implement the recommendation or to take any other adverse action without providing specified due process protections. In particular, Mosrie requested that he be given the panel’s report and access to the record of its proceedings; that he be informed of the accusations against him, the names of his accusers, and the authority relied on by Jefferson in convening the panel; and that he be afforded an opportunity to introduce evidence, to cross-examine witnesses, and to present argument before the panel. Mosrie delivered a copy of the letter to Mayor Barry and asked him to consult with Jefferson about the requests for process.
Jefferson decided to announce his and Mayor Barry’s decision at a news conference to be held on August 31. Despite the scheduling of the news conference, and despite the fact, as the district court found, that “[t]he final decision concerning the action to be taken with respect to plaintiff Mosrie was made by defendants on August 27, 1979,” Jefferson wrote a letter to Mosrie’s counsel on August 30 stating that no final decision had been made concerning Mosrie and that his requests for due process were therefore premature. Mayor Barry, who was given a copy of this letter for his signature but who did not sign it until September 7, read the letter to Mosrie’s counsel.
On the morning of August 31, 1979, appellee Jefferson held the news conference as scheduled. He handed out the panel report, a minority panel report, his transmittal memorandum to Mayor Barry, and a press release announcing his decisions. Later that day, he distributed a press release from Mayor Barry endorsing his actions. Various statements in the distributed documents form the basis of Mosrie’s lawsuit.
The panel report says that Mosrie’s transfer was being recommended principally for his failure to forward the May 1 memorandum to Jefferson. The report states that Mosrie did not “decisively approach, and deal with, the expressed discontentment of the detectives.” The panel found that, although Mosrie was aware of his detectives’ discontent, he “elected neither to directly involve himself in defusing the brewing upheaval, nor even to indirectly alert other appropriate officials.... He, instead, after procrastinating for a day, chose to return the [May 1] Memorandum to his vociferous detectives.... ” The panel characterized these actions as a “dereliction of command obligations.” It also concluded that Mosrie’s statements to Jefferson in early April 1979 that morale problems within the Homicide Branch were under control constituted “specific deception.” In addition, the panel report contains the obscure and unexplained statement that Mosrie’s “personal affairs have escalated to the point that he cannot be reasonably expected to effectively handle them and simultaneously provide the Homicide Branch the attention its members will need.”
The panel’s minority report likewise characterizes Mosrie’s actions as “derelictions of command obligations.” It further states that these derelictions required Mosrie’s transfer “minimally.” Jefferson’s transmittal memorandum, moreover, expressly, but without explanation, refers to the “matters now pending in the Internal Affairs Division,” stating that his concurrence in the panel’s recommendations was not based on any judgment about those matters. Finally, Jefferson’s memorandum contains the accusation, mentioned above, that Mosrie’s statements to him had been “deceptive and misleading.”
When Jefferson completed his remarks at the news conference, Mosrie asked if he could speak. Jefferson told him to go through proper channels and left the meeting. Mosrie then went to the podium and told the press that he had not seen all the documents Jefferson had handed out but that he had not been deceptive and misleading. A police officer thereupon approached Mosrie to tell him that Jefferson had or
For several days following the news conference, the press ran stories on the affair. The local newspapers and television stations reported Mosrie’s transfer and the reasons for it given in the documents released at the news conference. Thus, in particular, the press disseminated the characterization of Mosrie as “deceptive and misleading.”
On September 9, 1979, Mosrie was transferred from the Homicide Branch to the Sixth District of the Metropolitan Police Department. He retained his.rank as captain and his base salary. Moreover, his place in the Department’s organizational structure remained roughly the same, and he still had some management responsibilities and potential for promotion. The formal comparability of Mosrie’s old and new positions, however, mask significant differences in their real desirability.
Thus, whereas members of the Homicide Branch are plainclothes officers, members of the Sixth District wear uniforms. The Homicide Branch is considered an elite unit, whereas the Sixth District is viewed within the Police Department as a “dumping ground.” Mosrie, when transferred to the Sixth District, lost such privileges as use of an official car for private as well as official purposes, a clothing allowance, opportunities for compensatory time-off, city-wide law enforcement responsibilities, and normal business hours of work. Although he remained a captain, Mosrie had very limited law-enforcement responsibilities in his new position because he was the fifth captain in a district that normally had four. Perhaps most important, Mosrie’s opportunities for promotion were severely curtailed: of the eight commanding officers of the Homicide Branch from 1962 to 1979, all but Mosrie and the two who retired in the position were promoted to the grade of Inspector; and by the time of the trial in this case, ten captains junior to Mosrie had been promoted to the grade of Inspector, among them Mosrie’s successor at the Homicide Branch. Promotion to the grade of Inspector results in a salary increase of $4,000 per year and in higher retirement pay.
Subsequent to the transfer and news conference, Mosrie suffered losses as well in several outside business interests, though the district court said — without elaboration — that it was “unclear” whether those losses were caused by the transfer and public criticism or by the Internal Affairs Division investigation. First, prior to August 31,1979, Mosrie had been a paid lecturer for the Law Enforcement Assistance Administration, the International Association of Chiefs of Police, and the Drug Enforcement Administration, earning altogether about $600 per year. After that date, he was not again invited to lecture by these organizations. Second, prior to August 31, Mosrie was a paid instructor on law enforcement for the University of Maryland. After that date, the University three times refused to retain him, resulting in a loss of $500 in fees. Finally, Mosrie owned a company that provided training for security guards. The receipts of that company diminished significantly — by perhaps $5,000 — in the year following August 31, 1979.
Appellant Mosrie brought suit against appellees Jefferson and Barry on August 29, 1980. His complaint described the events leading up to the press conference and his transfer much as we have recounted them; that is, his factual allegations were very close to the facts ultimately found by the district court. Mosrie claimed that his transfer and public criticism by appellees deprived him of “property and rights” without due process of law. He sought compensatory and punitive damages under 42 U.S.C. § 1983 (Supp. V 1981) for this alleged fifth amendment violation.
After trial, the district court rejected appellant’s claims. The district court first
II.
Appellant Mosrie does not challenge the holding of the district court that he had no property interest in his Homicide Branch position that entitled him to due process protections before being transferred. See Appellant’s Reply Brief at 4. He claims, however, that the district court erred in holding that he had not been deprived of a liberty interest when he was “publicly stigmatized by what Jefferson released to the media on August 31, 1979.” Appellant’s Brief at 37 (footnote omitted).
The issues of immunity and of a constitutional liberty interest in this case cannot be addressed separately. Under Harlow v. Fitzgerald,
In this case the threshold immunity question is whether it was clearly established in 1979 that appellant had a liberty interest of which appellees deprived him. Our conclusion that current law accords appellant no such liberty interest requires affirmance of the district court’s judgment on the merits. Since our analysis makes clear that the
As all parties agree, appellant’s claim that he was deprived of a liberty interest is governed chiefly by the Supreme Court’s decision in Paul v. Davis,
First, that financial harm is caused by government imposed stigma does not transform an interest in reputation into a liberty interest. Paul v. Davis stated the question presented as “whether respondent’s charge that petitioners’ defamation of him, standing alone and apart from any other governmental action with respect to him, stated a claim for relief under 42 U.S.C. § 1983 and the Fourteenth Amendment.”
To accept appellant’s argument would be to ignore the Court’s own statement of its holding, a statement evidently made in the awareness that financial loss may be caused by defamation. It would also be to read the case as having turned on the happenstance that the plaintiff failed to allege monetary damages flowing from his defamation. The plaintiff in Paul v. Davis did, however, allege serious impairment of his future employment opportunities as well as of his ability to enter and shop in local stores.
As the Supreme Court recently explained, “liberty interests protected by the Fourteenth Amendment may arise from two
Interests that qualify as liberty interests “attain this constitutional status by virtue of the fact that they have been initially recognized and protected by state law.”
Since reputation alone does not constitute a liberty interest, we must ask whether appellees’ actions deprived appellant of some other interest that rises to constitutional status. We must ask, that is, whether the interests of appellant that were harmed as a result of appellees’ actions were recognized and protected by District of Columbia law and were officially removed from that recognition and protection. Paul v. Davis’s analysis of prior cases helps explain the meaning of the requirement of official removal of legal protection of an interest.
United States v. Lovett,
The Paul v. Davis majority summed up its reading of these cases as follows:
The Court has recognized the serious damage that could be inflicted by branding a government employee as “disloyal,” and thereby stigmatizing his good name. But the Court has never held that the mere defamation of an individual, whether by branding him disloyal or otherwise, was sufficient to invoke the guarantees of procedural due process absent an accompanying loss of government employment.
Wisconsin v. Constantineau,
the governmental action taken in that case deprived the individual of a right previously held under state law — the right to purchase or obtain liquor in common with the rest of the citizenry. “Posting,” therefore, significantly altered her status as a matter of state law, and it was that alteration of legal status which, combined with the injury resulting from the defamation, justified the invocation of procedural safeguards.
the defamation had to occur in the course of the termination of employment. Certainly there is no suggestion in Roth to indicate that a hearing would be required each time the State in its capacity as employer might be considered responsible for a statement defaming an employee who continues to be an employee.
It was against this background review of cases that Paul v. Davis formulated its rule that deprivation of liberty must involve a removal, extinguishment, or significant alteration of an interest recognized
The several relevant cases decided by this court illustrate the meaning of the Paul v. Davis conception of liberty. In Conset Corp. v. Community Services Administration,
The harms suffered by appellant in this case do not meet the Paul v. Davis requirement of loss of a government position or change in legal status. Appellant was merely transferred laterally, not discharged from government employment or demoted in rank and pay. To find the lateral transfer a deprivation of liberty would be inconsistent with Paul v. Davis’s repeated emphasis on “loss of government employment.”
The harm suffered by appellant to his outside business interests likewise cannot qualify as a deprivation of liberty because it does not amount to a change in legal status, the “other governmental action” required, when there is no loss of government employment, to transform a defamation into a deprivation of liberty. All that appellant has shown — assuming that we reject the district court’s doubts about appellant’s proof that his outside business losses were caused by appellees’ challenged actions, see note 4 supra — is that he earned less money in his security-advice business than he had prior to his being publicly criticized and that several institutions for which he had been a lecturer no longer asked him to serve in that capacity. Appellant has not proven or even alleged that he had been deprived of a legal right to engage in an occupation or to seek any particular position. The reaction of others to unfavorable publicity about a person is not, within the meaning of Paul v. Davis, a change in legal status imposed by the government officials who generated the publicity. As Justice Jackson said, “[tjhese, however, are sanctions applied by public disapproval, not by law.” Joint Anti-Fascist Refugee Committee v. McGrath,
The judgment of the district court is
Affirmed.
Notes
. The district court found that the panel did not consider the IAD investigations in reaching its conclusions about Mosrie, but the deleted footnote 14 of the panel report, which was attached to the text’s statement that Mosrie’s “personal situation” had become serious, might well have been about the IAD investigations. See p. 1155 infra.
. The district court found Mosrie’s “management responsibilities, duties and promotional potential” after his transfer comparable to those before. In light of the evidence in the record, we read this statement as a conclusion about formal duties and potential.
. The district court also found that “Barry had no personal involvement in the facts giving rise to [Mosrie’s] claim.” In light of our disposition of the other issues, we need not address appellant’s contention that this finding is clearly erroneous.
. If appellant means to claim a deprivation of a property as well as a liberty interest from the combination of stigmatizing comments and the consequent injuries he alleges, we think our analysis of the liberty-interest claim also disposes of any property-interest claim.
. The district court expressed doubt that appellant had proved causation. Seepp. 1156-1157 supra. We assume arguendo in the remainder of this opinion that appellant adequately proved the causal connection.
. It might be thought possible to read Paul v. Davis as holding not that the plaintiff had no liberty interest but that he had not been deprived of what liberty interest he had because state tort-law remedies were still available. That reading would not be correct. Cf. Parratt v. Taylor,
. We do not discuss these cases for their holdings. Some, such as Wieman v. Updegraff,
. Of course, we assume nothing about what such rights can be found in federal or in state law.
. In rejecting a prisoner’s argument that he had a state-created liberty interest in not being transferred to an out-of-state prison, the Supreme Court recently stated:
[A] State creates a protected liberty interest by placing substantive limitations on official discretion. An inmate must show “that particularized standards or criteria guide the State’s decisionmakers.” If the decisionmaker is not “required to base its decisions on objective and defined criteria,” but instead “can deny the requested relief for any constitutionally permissible reason or for no reason at all,” the State has not created a constitutionally protected liberty interest.
Olim v. Wakinekona,
Concurrence Opinion
concurring:
In Wisconsin v. Constantineau,
But five members of the Court “re-rationaliz[ed] .. . earlier cases”
Trenchant commentary on Paul v. Davis
The complainant in Paul v. Davis, like Mosrie here, recited material losses, including serious impairment of his employment opportunities and interference with his ability to purchase goods from merchants in his home community.
. For other opinions close in time to Constantineau consistent with the view that due process secures to the individual an opportunity to clear his or her name when exposed to a reputation-damaging charge by a government official, see Goss v. Lopez,
. Monaghan, Of “Liberty” and “Property,” 62 Cornell L.Rev. 405, 424 (1977).
. Constantineau,
. Paul v. Davis,
. Monaghan, supra note 2, 62 Cornell L.Rev. at 423-29; Shapiro, supra note 4, 90 Harv.L.Rev. at 324-28.
. Monaghan, supra note 2, 62 Cornell L.Rev. at 426; cf. Parratt v. Taylor,
. 1 W. Blackstone, Commentaries * 134, quoted in Monaghan, supra note 2, 62 Cornell L.Rev. at 426.
. Monaghan, supra note 2, 62 Cornell L.Rev. at 427. Paul v. Davis, in re-rationalizing earlier cases, does recognize “reputation plus” interests as constitutionally protected. For example, in referring to Board of Regents v. Roth, the Paul v. Davis opinion,
. See