David A. Connelly v. Comptroller of the Currency
876 F.2d 1209
5th Cir.
1989
Check Treatment

*1 drawings specifications changes during the construction

were discoverable legislature conclude that

phase. We 9:2772 in section not intend to establish

did type action.35 period for this ten-year

Moreover, recognizing decisions party’s right to sue an architect

third by negligence caused

economic loss 2762 or application of articles based similar to of this claim is

3500. The nature physician or against a malpractice duty imposed by on a

attorney: it is based plaintiff’s Because the action

law. cognizable under article of the Louisiana Civil

general provision tort pres-

Code, by one-year governed it provided for such actions

criptive period plaintiff’s suit 3492. The

for in article hospital

brought years after several prescribed. completed is therefore

[*] [*] [*] [*] [*] [*] grant of the district court’s

We AFFIRM of the defen-

summary judgment favor

dants. CONNELLY,

David A.

Plaintiff-Appellee, CURRENCY, THE OF

COMPTROLLER al., Defendants-Appellants.

et

No. 87-6187. Appeals, Court of

United States

Fifth Circuit.

July only owners. The applies to actions addressing applicability of Although mean con- 9:2772, § silence about 9:2772 court’s been about had enacted scope section limited earlier, Blaney, of that sidered Coon v. years court in unhelpful to the 1975) and therefore article 3545 (La.Ct.App. Cir. 3d held So.2d 622 plaintiff in period article ten-year prescriptive of former

lations of the Fifth Amendment and Admin- istrative Procedure Act were not sufficient- ly subject clear to offi- cials to liability. individual

BACKGROUND The relevant facts described the dis largely trict court are undisputed.1 Con nelly Comptroller the Currency, 673 F.Supp. 1419, (S.D.Tex.1987). 1422-23 the fall of Connelly signed a contract president become the proposed of a na bank, tional Westwood National Bank in organizers Houston. The bank’s submitted Comptroller name to the of the Curren cy (“Comptroller”) approval for with the application. rest of their The application included a resume Kamenshine, references, and list of Maier, Robert D. Peter D. Biographical “Confidential Cordes, Dept, Justice, John F. Financial Report,” signed by D.C., Jenkins, Connelly.2 Washington, Hays Jr., Houston, Tex., Atty., Asst. U.S. for defen- Oliver, Defendant Arthur a national bank dants-appellants. Dallas, examiner in instructed Oley Marcia Bain, Joan M. Nelkin, Lucci investigate Stuart M. Connelly’s past performance, Nelkin, Houston, Tex., and Nelkin & for for seven years, president of two related plaintiff-appellee. banks in Texas. A review of one bank’s

loan records revealed that Connelly had initiated a number “weak” loans that were on the bank’s “watch list.” In re- sponse request to a information, for more GARZA, JONES, Before JOLLY president bank, parent Fred Judges: Circuit McMahen, telephoned Oley’s supervisor, Mr. JONES, Golden. Judge: expressed EDITH H. McMahen Circuit dissatis- faction administrative abili- At issue is the immunity of ties and did not Connelly recommend for a Comptroller officials who work for the chief position. executive officer These Currency opined and who facts were communicated to Oliver. unqualified pro- to be posed national bank. The district court Oliver then Connelly. interviewed Con- summary judgment denied nelly on the officials’ acknowledged that there had been qualified immunity, defense of problems with some loans and tried to ex- interlocutory appeal. filed this plain Mitchell v. not, however, them. Forsyth, 472 U.S. 86 told that might his nomination jeopar- (1985). reverse, We conclud- dized performance because of his loan Privacy Act does not create McMahen’s unfavorable evaluation. On liability alleged individual and that the vio- the basis of the Oley’s interview and memo- Although Comptroller the district court believed that there responsible reviewing management dispute, proposed were material facts in narrative is national banks. Act, 21-27; Banking See National undisputed. 12 U.S.C. §§ What the district court and Con- Act, Deposit Federal Insurance 12 U.S.C. nelly disputes really assert are factual are dis- requires Comptrol- § 1811-16. Section 1816 putes about whether the law is estab- general ler to posed [pro- consider "the character of lished. management” bank] before he issue banking certificate. liability long as their actions randum, a letter for could rea- Oliver drafted Bodnar, sonably thought Dis- of defendant John have been consistent with signature rights they Administrator to have violat- trict signed the letter Currency. Thus, Bodnar ed.” Id. 107 at 3038. organizers of Westwood informing the prevail, rights that are *3 ap- that their charter would be claimed to been violated must be “ Connelly president. The proved with ‘clearly established’ at the time ac- [the “We are of the letter stated: (citing was taken.” Harlow v. tion] possess qualifica- Connelly Mr. does not 800, 818, Fitzgerald, 457 U.S. 102 S.Ct. required for the of President tions (1982)). 73 L.Ed.2d 396 National Bank ...” of Westwood Anderson, 3038-39, at the Court agree- organizers then cancelled their explained by “clearly what is meant estab- president of ment for to become lished,” using a claimed violation the bank. process example: clause as an Comp- filed this suit standard, operation how- troller, in official Bodnar and Oliver their ever, depends substantially upon the lev- alleges He capacities. individual and generality el of at which the relevant unqualified he was the determination that “legal rule” is to identified. For ex- be Act, (1) Privacy 5 U.S.C. violated ample, right process to due of law is (2) 552a(g)(l), deprived quite clearly established the Due Pro- adequate pro- liberty interests without Clause, cess thus there in sense Fifth Amend- safeguards cedural under the any action that violates that clause, (3) violated ment due (no Clause matter how unclear it be protec- Act’s the Administrative Procedure violation) particular that the action is a actions, against arbitrary agency tion right.... violates a established 706(2)(A),(D).3 The defendants U.S.C. §§ “clearly if But the test complaint to dismiss the for failure moved applied law” were to be level of Treating a claim. the motion to state generality, relationship it no would bear after some lim- summary judgment one for “objective legal to the reasonableness” court denied the discovery, the district ited that is the touchstone of Harlow. Plain- Connelly’s claims. on all three of motion to convert the rule of tiffs would be able motion rejected also the officials’ The court qualified immunity plainly that our cases personal liability. seeking immunity from unqual- virtually into a rule of establish only review this last determination We by alleging liability simply ified violation appeal.4 interlocutory extremely rights. Harlow abstract guarantee from a be transformed would AN I. ANALYZING pleading.... into a rule of immunity DEFENSE IMMUNITY therefore, surprising, It should be that the qualified immu- that our cases establish right to The defendants’ according the official is to have violated nity is to be assessed in a “clearly must have established” Supreme Court been approach articulated rele- particularized, hence more more Creighton, Anderson vant, (1987). sense: The contours 97 L.Ed.2d 523 107 S.Ct. sufficiently clear that a rea- qualified immunity shields must be held that Court damages would understand “from civil sonable government officials official (APA) the basis of the 4. Because we resolve the case on Procedure Act The Administrative defense, Privacy immunity bootstraps qualified and Fifth Amend- we do Act defendants’ claim, asserting agency action was their claim that their determination not address laws. Since Con- in accordance with those not nelly sufficiently adjudicative absolute to invoke allege other a violation of does not immunity v. Econo "quasi-judicial" under Butz regulations, his APA claim must fail statutes or mou, Privacy claims Act and Fifth Amendment if his (1978). fail. doing right. velop what he is violates that discovery after pertaining quali- say that This is not to an official immunity, action is fied Wilson, see Lion Boulos v. protected by (5th Cir.1987); unless Geter, very question previous- action F.2d at the court must be able to unlawful, ly held say been is to plaintiff’s characterize the claim precisely light that in the of preexisting law the as a matter of constitutional law before apparent, (cita- must ruling upon unlawfulness an immunity defense. It is not omitted) added). tions enough that the court concludes that a arguably Rather, violation occurred. Accordingly, as to court must be certain the facts claims, we must determine whether his alleged by plaintiff true, notwithstand- established constitutional ing any credibility disputes with defen- implicated *4 dants, then a violation has occurred. Comptroller’s actions and whether the purpose requiring of careful character- plainly officials knew plaintiff’s ization of claim at the outset of a violating were those interests. qualified immunity analysis is to effectuate summary district court denied goal defense, of that immunity which is judgment against claims suit, just from trial. Mitchell v. appellants in both their individual and offi Forsyth, 472 U.S. at 105 S.Ct. at 2815. capacities by concluding cial Stating plaintiff’s that a claims must be “arguably” had a constitutionally protected precisely characterized does necessarily property interest in his contract with West- easy, make the task because of the nuances organizers, F.Supp. wood’s developed in various areas of genuine, that there was a material factual constitutional law. e.g., Noyola See v. Texas professional reputation issue whether his ept. D Resources, Human 846 F.2d damaged. Specifically, with re of (5th Cir.1988). This exemplifies defense, spect immunity to the the court permeate nuances that process the due seems to have assumed that the existence Nelson, clauses. Mangaroo v. 864 F.2d “arguable” right of an property or liber (5th Cir.1989) (qualified immunity up ty triggered process protections, due for its held procedural claim of pro only deals inadequacy with the of violation). cess Connelly alleged violations “hearing” Connelly. pro afforded Due of “property” his interest in the presidency analysis requires cess first finding a proposed Bank; Westwood National property liberty or interest and then an a “liberty” reputation interest his process assessment of what must attend a ability pursue his as a chief particular deprivation. disagree We must executive; bank and freedom from disclo with implicit assumption the court’s rejection sure of his under the Privacy Act. “arguable” the existence of an We must address in turn any whether may immunity thwart an these upon claims rests such estab defense. lished law that the defendants have forfeit It is failing qualified a common immu- ed their immunity from A suit. nity deciding decisions that courts avoid alleged conclusion that the facts by Connel exactly what might constitutional violation ly could not establish a violation law or plaintiff have occurred if the facts are as a require judg will also alleged. previously required We have ment in the defendants’ favor. allege underlying the facts claimed violation rights of constitutional II. PROPERTY INTEREST with specificity sufficient to demonstrate qualified immunity that defendants’ should simple It is a matter from the stand be revoked. See Geter v. Fortenberry, point that, to say defense (5th Cir.1988); Perez, caselaw, Elliott v. long-established based on a ten (5th Cir.1985). 751 F.2d 1472 government Based on ured employee was denied due facts, those or facts that de- if he was fired without kind of hearing. Regents Roth, Board (1972), the Court held that a property inter 33 L.Ed.2d 548 est was by created “a written contract with (1972). It when, is another matter entirely explicit provision” tenure between the here, right is a contract in plaintiff government and the officials. Id. proposed national bank whose existence There was no “formal understanding” be contingent upon regulatory approval. tween Connelly and the in this contract, sure, had a to be case.6 The two cases cited favorably to neither the venture nor Connelly had an Connelly by the district court are also dis unqualified right to the fulfillment of that tinguishable. In Phillips v. Bureau of contract the granting of a national bank Prisons, (D.C.Cir.1979), charter. The Currency the D.C. Circuit held that Bureau rules possesses powers broad ap- assess each granting prisoners liberal access to created plicant for a national bank terms of legitimate claim of para entitlement for a statutory including criteria financial “[t]he legal who was denied access to federal history bank, and condition of the the ade- prisons to work prisoners on their quacy capital structure, of its its future eases. It does not follow that regula earnings prospects, the general character require tions which the Comptroller to management, its the convenience and scrutinize the prospective needs of the community served bank managers creates a similar entitle *5 bank, and whether corporate or not its ment. That would essentially constitute an powers are consistent with purposes approval entitlement to prospective chapter.” 12 bank U.S.C. 1816 added). managers’ qualifications. See also 12 1814-15. Greene v. U.S.C. McEl §§ Denial of a charter hinge roy, on 360 virtually 1400, 1411, 79 S.Ct. subjective, professionally informed, albeit 3 (1959), L.Ed.2d 1377 dealt person’s with a judgments. It unlikely seems that Connel- property interest in a “licens ly should be able to contest as a breach of ing” decision. Supreme Court as his interest an unfavorable deci- sumed that the revocation of a security sion which resulted clearance effectively disqualified the aero from factors such applicant as the bank’s engineer nautical from future work in his capital structure or the needs of the com- entire field and therefore entitled him to a munity. here, however, The denial depend- predeprivation hearing. Id. upon ed Comptroller’s evaluation of Likewise, Phillips v. 711 Connelly, and directly so threatened his 1217, (5th Cir.1983), F.2d 1221-27 executory contract with Westwood.5 clarified To 490, on rehearing, 724 denied, F.2d cert. try Connelly’s to describe property interest 821, 94, 469 U.S. 105 S.Ct. 83 L.Ed.2d 40 is almost to possibility refute the that it (1984), may licensing be taken as a was so abrogate established as to Phillips alleged the defendants’ that he could immunity. not find a managerial position any savings and loan authority Undeterred lack Vandygriff’s repeated because slander any comparable regulatory setting at the savings him to each and loan to suit, Connelly he filed analogized time applied. which he at 1220 Id. and 1220 n. his property right claimed constitutional 1. This Court found de examination, cases. several On none of facto licensing by the Commissioner of the property right. them establishes Texas his Sindermann, In Perry 593, Savings v. Department 408 U.S. and Loan effectively 601, 2694, 2699, 92 S.Ct. 33 disqualified plaintiff L.Ed.2d 570 any employment Although applicant may distinguish unsuccessful bank Deposit 6. The defendants Federal In Mallen, 230, Corp. hearing v. after surance 486 108 S.Ct. secure denial 1780, charter, (1988) 100 involving as a case prospective of a it is not that a clear suspension the FDIC’s of someone who was president bank could do so alone. 12 C.F.R. serving then of a chartered bank. (1984). § 5.13 challenges never this distinction. Because presidency. 1220, National Bank 1222.7 wood manager. at a bank “arguable,” as right is at best accepted an executive bank- Connelly has conceded, defendants ap- Bank district court the Westwood position since hence, they were plainly he cannot known that rejected, cannot

plication actions amount- infringing defendants’ it. argue of a license revocation ed to a de facto manager.8 as a bank

work III. LIBERTY INTEREST Connelly could be viewed To the extent liber protected Two variations for the Westwood applicant as an submerged interest are ty Comptroller, caselaw before presidency Comptrol that the complaint. asserts He claim. In property interest against his cuts him from effectively barred ler’s action 1090, F.2d Bergland, v. as a in his chosen vocation pursuing work Huffstutler Cir.1979), held that a this court Vandygriff, Phillips v. president. employee had no probationary (“It argument requires no 711 F.2d job, in his he property interest living right to work to show (con any legitimate discharged for may be of the communi occupations in the common v. stitutional) White reason. See also Of freedom very ty is of the essence Management, Personnel fice purpose opportunity that it was denied, 479 U.S. (D.C.Cir.), cert. secure.”) Amendment the [fourteenth] (1986) L.Ed.2d Raich, v. 239 U.S. (citing Truax govern from all (rather exclude White than (1915)). alleg He also 60 L.Ed. 131 government merely “the employment, professional injury to his stigmatizing aes for application particular found that of these analysis, neither reputation. On unsuccessful”). job was particular clearly-established constitu rests claims Connelly has no here hold that We do not tional law. deprivation of supra and McElroy, Even Greene *6 process of without due property interest general right a Vandygriff establish Indeed, recently Eighth Circuit law. by arbi- occupation an unhindered pursue process claim was suffi- a due found that action, cases do these trary government president of alleged by the would-be ciently principle a avail- readily into not translate company who was fired packing a meat deciding the Connelly. Without able FDA, position because with- from that Comptrol- issue, simply note that the we hearing, profes- declared a out Connelly’s evaluation of ler’s commencing FDA justify sionally unfit pursuing entirely him from not disable did Lyng, v. 874 Chernin inspections. meat financial careers. banking or related Cir.1989) Agri- (8th (Secretary of F.2d 501 amount to did Comptroller’s decision not interfere with arbitrarily culture cannot extreme “licensing” in this sense. employment continuing, at-will president’s claim process due Connelly’sreputational Chernin, however, did packer). with meat Vandy In is, however, arguable. even not liability govern- personal assert not 1221, noted that Paul we 711 F.2d at Connelly griff, “clearly had no ment officials. 1155, 693, 47 Davis, 96 S.Ct. v. 424 the West- established” tunity pursue Id. at 227. his livelihood." procedural Phillips a Even managerial county any applicant terminated plaintiff alleged sheriff govern- approved had to membership who association in a wreckers’ question a close agency, it would be ment to tow ve- alone were entitled whose members "clearly right was established" whether public court re- streets. The from the hicles Westwood's reviewed when the that, case, "the but concluded manded August Phillips decided proposal in 1983. was preference engage occupation of in the one’s 15, 1983. Qualified immuni- Id. at 230. is not absolute." issue, opinion but the ty not at Court’s Corley, v. 814 relies on Cowan also asserted even Cowan’s demonstrates (5th Cir.1987), inappo but that case F.2d 223 not streets was from the to tow vehicles 12(b)(6) dismissal reversed site. Court oppor- established. plaintiff denied the “had been where the

1215 (1976), L.Ed.2d 405 “made clear the idea the defendants. inquiry preserved This trial, reputation protected alone is not a for the court when it considers Connel- interest —a must show a ly’s against action the defendants in their stigma infringement an plus of some other capacity. official addition, interest.” Court read V. PRIVACY ACT CLAIM 624, 882, 429 97 Velger,

Codd v. (1977), requiring 51 We reverse the district court’s deni “plaintiff prove stigma [to] al of immunity Pri caused communication.” Id. vacy false Act claim because individuals are not damages liable for under the plain Act. A losing if Connelly’s Even the Westwood may only tiff against file civil actions “the presidency is a sufficient additional agency” for which “the United States” is deprivation rep to come within the rule on 552a(g). liable. 5 U.S.C. See Brown- injury stig utation there has been no false States, Bey 467, v. United 720 F.2d matizing type communication that is (7th Cir.1983) (dismissal of proper constitutionally actionable. This Court has “Privacy private since Act authorizes “stigma” only found sufficient concrete civil actions for provisions violations of its wrongdoing by agency, assertions of an not only against agency, against any rejection job applicant. in its mere individual”); Tennessean, Windsor v. The Compare Huffstutler, 607 F.2d at 1092 155, (6th Cir.1983) (same); 719 F.2d (rather proper than “accuse Huffstutler of Harris, Wren v. 675 F.2d theft,” n. merely ty agency rated his hon (10th Cir.1982); States, Bruce v. United esty “unsatisfactory”) and Dennis v. S (8th Cir.1980). 621 F.2d 916 n. 2 Con High & S Consolidated Rural School Dis sequently, Congress because has created trict, (5th Cir.1978)(mere 577 F.2d no cause of action individual contract) teaching nonrenewal of a violating officials for the Pri Thomas, 660 F.2d White Act, vacy these exposed defendants are Cir.1981) (public lying accusation of on a liability they might no for which assert an job application) and Robinson v. Wichita Noyola defense. See v. Texas Corp., Falls & N. Texas Com. Action Resources, Dept. Human (5th Cir.1975)(public accusation of (5th Cir.1988) (where defendants did vouchers). falsifying travel The letter to violate established first amend applicants the Westwood charter said that: law, summary judgment should have “We are of the that Mr. *7 granted defense). been on possess the does not for the position of President of Westwood National reasons, foregoing For the we RE- opinion Bank ...” The of the judgment VERSE the of the district court representations, contains no false factual respect with to the defendants’ concrete or otherwise.9 immunity defense. THE THAT GARZA,

IV. PROCESS WAS DUE Judge, dissenting. Circuit I respectfully Because we have determined that no must dissent from the liberty established or inter- and the of the It is court. my opinion at in the pursue est was stake evalu- that one’s to Connelly’s qualifications ation of to serve chosen career was still president, applicants pro- as a the are enti- interest entitled to qualified immunity. need arbitrary tled to We tection from or unreasonable interference; go speculate regard further and in this I what was due, fulfilled, majority’s opinion and whether it was in the feel the is incorrect. I investigation performed by majority’s shoddy rather do not take issue here with the Thus, issue whether First Amendment. 9. we do not reach the the expression protected by of their claim, requires which of whether Connel- issues reasoning § on the stigma or prove that she suffered a to or gave him ly’s contract damage which was reputational caused reputa- stigma or he suffered whether The other com- a false communication. injury. tional theory liberty infringe- of pletely different case, majority opin pivotal which The ment, for the order which formed basis distinguish, is Phil adequately ion fails to trial, by the court a termed of a new was Cir. Vandygriff, 711 lips licensing.” Vandygriff, “defacto Phillips interviewed 1983). In that refer used this term to at 1223. court savings and loan with an agents of a in an Vandygriff, while not to the fact that managing offi position as a eye towards a anyone deny Phillips or position official to He never received cer. position, nonetheless had managerial else a the affairs of the irregularities in severe withholding his of political sway that such loan, ultimately resulted savings which the effect of an a recommendation had its officers. of two of in the indictment outright denial. employee time an Phillips, no who such a concluded that court next loan, attempted to find savings and excluding the effect of blanket denial had attempts These employment. other similar savings industry loan Phillips from the a custom in unsuccessful because were manager. Phillips liber- as a This violated man screening prospective industry of interest, of an asserted ty not on the basis Vandygriff, Com employees with agerial upon separately by infringing stigma, but Savings and Loan missioner of the Texas pursue Phillips right to allegedly sus Department. theory occupation his choice. Under this wrongdo kind of Phillips of some

pected Vandy- prove Phillips did not have his recommendation of ing, and withheld false, were griff’s communications ef which had the Phillips employment, (a agent) state Vandygriff’s rather industry. excluding from the fect of unreasonably arbitrarily exclud- actions complaint against the Tex- Phillips filed a profession. chosen Id. at ed him from his Department, Vandy- Savings Loan alleg- defendants griff, and several other development tracing historical claims, infringement among other ing, occupa in one’s chosen engage in violation rights of his constitutional “ tion, requires no the court noted ‘[i]t Phillips’ respect With U.S.C. § right to work argument to show that the claim, jury returned a verdict in living occupations of in the common favor, court the trial overturned very community is of the essence notwithstanding the verdict. judgment opportunity personal freedom and judge for the JNOV was basis purpose [fourteenth] ruling and had reconsidered an earlier ” had (quot Id. at Amendment secure.’ Phillips’ claim for convinced that become Raich, 239 U.S. Truax v. required liberty interest violation (1915)). “This 60 L.Ed. 131 Circuit Vandygriff’s falsity state- prove the he *8 acknowledged prin repeatedly also has no real contention there was Since ments. in liberty interest ciple person to refusal recommend Vandygriff’s occupation.” (citing Fer pursuing an statement, judg- Phillips a false constituted Dis Independent v. Dallas School rell Vandygriff this on issue in favor of Cir.1968); 697, (5th trict, F.2d eyes in of law the proper as a matter 625, Authority, 507 F.2d Hospital v. Shaw trial court. of the Cir.1975); (5th Daly Sprague, v. (5th Cir.1982)). 716, The court Fifth Circuit reversed this appeal, the F.2d On theory of on of this granted a new trial this concluded its holding and Su reasoning liability by noting that these its was that “[u]nder Central issue. cases, it is liberty Fifth Circuit constitutionally protected preme Court and Phillips’ occupa in Phillips’ interest prongs. clear One had two distinct interest of the ambit liberty interest within tion is a “stigma-plus” prong traditional was the

J the fourteenth amendment. Id. central of Vandygriff-was that supplied). one needs to falsity show only under a stigma-plus theory of liberty infringement, In the face of this vivid completely but not under an interference with unambiguous occupa- law, statement of prior theory. tion Under that, this latter majority theory, assert would it is sufficient to protectable liberty did have a show that in the state unreason- occupation ably chosen or president, as a bank arbitrarily it interfered per- with a was not established. I right find this son’s to pursue a occupation. chosen conclusion untenable. plod Rather than The case is also just more than a licensing through a lengthy recitation of the abun case, although I am not sure exactly what dant and perhaps overwhelming precedent distinction the majority trying is establish Supreme from the Court and Fifth Circuit with that characterization. Certainly, Van- which protecta- holds that there is a dygriff licensing elements, involved but so liberty ble interest in pur the freedom to fact, does this case. In the case at hand occupation (even sue one’s chosen if one is presents an even clearer govern- of manager, a bank as the case ment interference than did the Vandygriff illustrates), I myself will content with a In Vandygriff, the alleged state in- brief citation cases, to the more illustrious terference was as a result of the desire on leaving perusal my their interested more part of savings and loan officers to skeptical and/or readers. See Greene v. curry favor Vandygriff, whose official 474, McElroy, 492, 1400, 79 S.Ct. duties did not actually pass allow him on (1959) (unreasonable 3 L.Ed.2d 1377 the merits of positions. candidates for security denial of a clearance ato defense court termed this situation “de facto licens- contractor him denied to hold ing,” basically Vandy- meant that specific private employment and thus inter griff had the persons influence to exclude fered with interests positions banks, from in although pow- protected by Amendment); the Fifth er did not directly derive from his official Examiners, Schware v. Board Bar of duties but rather from his pow- (1957) 77 S.Ct. 1 L.Ed.2d 796 er and However, case, discretion. in this (state person cannot exclude a from the Office is specifically au- practice of law of the Due contravention thorized investigate Process clause Fourteenth Amend proposed officers, reject application ment); Nebraska, Myer 262 U.S. they charter if unqualified. are deemed 67 L.Ed. 1042 effect, they direct (“Without licensing doubt, author- [liberty the fourteenth ity. Although, technically, Comptrol- merely denotes not freedom amendment] ler’s bodily individual, from Office cannot veto an restraint but also contract, deny the individual to rather must engage any approve applica- life....”); occupations whole, common tion for charter as a patently Managers Sosa v. Board Val Verde ridiculous to expect Westwood or other Hospital, Memorial 437 F.2d 173 Cir. blindly bank to submit Connelly’s name as 1971) (exclusion physician hospi they when Comptrol- knew the tal privileges staff also within the falls ler’s Office considered unqualified process). to due reject would therefore application Moreover, that basis. applicant a charter The majority tries to distinguish Vandy usually anxious to avoid the hint of even griff First, point on two bases. out controversy spark a more strin- “may that the case licensing be taken aas *9 gent applica- examination of the Phillips alleged case. charter that he could not tion, great and managerial pains find a thus take position savings in will avoid associating and Vandygriff per- with repeated loan because of s itself controversial against savings Connelly (just slander him to sons such as savings each and as the First, loan applied.” to which and Vandygriff he the “slan loan officers in were anx- aspect irrelevant, der” of the case is please Vandygriff since ious to Mr. and thus thing Phil- in record that tends to that associating the show themselves avoided vice-president a bank lips). being substantially the same as this case distinction between second of a bank. majority is Vandygriff urged and deprived of a Connelly has not been that Lastly, point pass- I like to out in would officer, manager or position as bank majority opinion does not make “Connelly has president. only as a bank sufficiently clear that their banking position accepted an executive Comptroller’s investigators Office application was since the Westwood qualified immunity entitled not af- does hence, argue that he cannot rejected, Connelly’s investiga- fect suit to a de facto amounted actions defendants’ capacities. in tors their official as a to work bank of a license revocation majority opinion ignores the clear issue, deciding manager.... Without Vandy- language implications and of the Comptroller’s eval- simply note that we griff I feel that controls Connelly’s qualifications did not uation us, we, panel, as a the case before prusuing banking him from entirely disable en it unless it is must follow overruled Connelly is careers.” related financial banc. vice-presi- presently employed as above, I For reasons and am majority’s Initially, question I dent. opinion Comptroller’s inves- of the similar: positions are assumption that these tigators did violate a is that are worlds my opinion own right, I dissent the ma- and therefore responsibility, prestige, apart in terms of jority’s holding. my opinion But compensation. banking distinction within degrees of

world, obviously held as the as well to the standard majority, yield must

by the employ are bound we review ruling on a motion as this.

cases such bound to summary judgment, we are non-moving party, Connelly, the

give the inference from every reasonable benefit ANETEKHAI, and Mona Paul pleadings. has the evidence Plaintiffs-Appellants, v. affi- complaint in his submitted that the Houston bank- to the effect davits knit, closely and it is

ing community is AND NATURALIZA IMMIGRATION the charter the reason known widely SERVICE, TION rejected Bank was National for Westwood Defendant-Appellee. This Connelly was nominated. is because & 88-3450. as the result Nos. 88-3191 rejection occurred direct investigation improper of Con- shoddy and Appeals, United States Court by Comptroller’s Of- nelly’s qualifications Fifth Circuit. Fraser investigators. Mr. Lawrence fice stating that Connel- an affidavit submitted July employment ly’s “ability to secure as the

banking industry, particularly bank, has been severely

President of dis-

impaired because Mr. nomination.”

approval of added). allegations are These support a claim of violation

sufficient pursuing

Connelly’s liberty interest occupation.

chosen any- to draw this court’s attention

failed