Maurice M. Larry v. Ray E. Lawler, Leland L. Walton, Jayne B. Spain, Lt. Andolsek, Robert E. Hampton

WOOD, Uрon completion investigation, Circuit Before SWYGERT EAST, Larry with Judge.** provided Commission summa- Senior District Judges, and Disclosed ry entitled “Information Inves- Judge. District EAST, Senior Larry” into the of Maurice tigation Case explanation. and invited comments M. Maurice Plaintiff-appellant Larry’s employ- The information concerned order court’s the district (Larry) appeals relationships history, his with co- ment granted 1976 which May entered on workers, record, his and arrest summary motion for defendants-appellees’ relating to his use of alcohol.1 judgment. Shortly thereafter, Larry responded in employ- for ineligible rated Larry was denying writing allеgations, to all the sev- government by the Civil ment in the findings explaining the and the eral of oth- an unsuccessful After Service Commission. requested hearing ers. He also an oral and Febru- on appeal concluded administrative upon to access the information which the ary 14, Larry § filed this U.S.C. decision, including Commission based its its Act) naming (Administrative suit Procedure considering Larry’s After sources. re- Com- and Civil Service hearing the officers sponse, applica- the Commission rated the defendants, prh (Commission) as missioners ineligible “unsatisfactory tion of because manner in which alleging that the marily employment discharges from reсord em- ultimate deci- reached its Commission ployment and use [Larry’s] habitual of in- of the Due Proc- a violation sion.constituted toxicating beverages to excess.”2 The ef- Amendment. We ess of the Fifth Clause Larry fect of this finding is to bar from and remand. summary judgment vacate the obtaining employment any capacity in with THE BEFORE COMMIS- PROCEEDINGS period up the federal for a of SION: years.3 to three Larry applied to the January appealed

On then the decision to the requesting placed on the Commission to be United States Civil Service Commission eligible applicants Authority, list for Employee Appeals again of Federal agencies and hearing consideration various an oral and the requesting addition- departments govern- within Additionally, the federal al information. he reiterated 731.301, required by ment. As concerning investigative 5 C.F.R. his contentions § back- findings. Commission conducted standard A final administrative decision ground ap- investigation appeal to and denying determine was rendered con- plicant’s “qualifications suitability conduct, for performance cluding Larry’s competitive service.” past employment and termination from ** East, “specific United § Honorable William G. Senior C.F.R. 731.202 lists numerous Judge Oregon, may for States District the District fаctors” that be used in the determination eligibility. sitting by designation. Among those considered suffi- eligibility (b)(1) support cient to a denial of prior employ- “Delinquency or misconduct investigator’s report (edited conceal to (b)(5) intoxicating ment” “Habitual use identities) summary which com- beverages to excess.” piled given was not to until after the completed. proceedings administrative It were § 3. 5 C.F.R. 731.303. Debarment. “When a is, therefore, consequence of no in the determi- person disqualified any reason named in supplied case nation of this that he was later 731.202, Commission, discretion, in its § may report. with the deny person ap- examination position pointment competitive peri- to a for a provides “Subject 2. 5 C.F.R. 731.201 to § years od of not more than three from the date [Suitability Subpart Rating C of this Actions] expi- disqualification. determination On part may deny applicant the Commission debarment, person period ration of the examination, deny eligible appointment, appointed has been debarred not be who agency appointee instruct an to remove an any position competitive service until when the Commission this action determines appointment his fitness for has been redeter- promote efficiency will of the service.” mined the Commission.” however, question, prived liberty property. him of neither nor “raise some tended to indeterminate, liberty, In of the nature of incompatibility” relative to its discussion court stated: performance. with suitable attempted “While not this COURT DISTRICT PROCEEDINGS: liberty define with exactness the complaint three count the dis- guaranteed re- the term has alleged an deni- trict court unconstitutional ceived much consideration and some process, arbitrary, capricious, al of due definitely things included have been Commission, action by unauthorized doubt, stated. it Without denotes findings unsupported by the evidence. The merely bodily freedom from restraint but granted appellees’ district court motion for con- also of the individual to right judgment summary on all three counts. tract, engage of the common life, acquire occupations useful AND DISCUSSION CONCLUSIONS: knowledge, marry, to establish a home that as an he Larry applicant, contends children, bring up worship to God to all the should been allowed examine have the according to dictates of his own con- underlying the Commission’s alle- evidence science, generally enjoy to priv- those and that gations against him he should ileges long recognized es- ... as hеaring an oral in order to granted been orderly pursuit sential to of happiness the effectively to rebut adverse allow him Meyer Nebraska, free men.” Further, he contends that evidence. 625, 626, [43 eligibility ruling stigmatized adverse L.Ed.2d In a a Constitution for 1042]. has barred him from all federal him and free people, there can be no that doubt for employment up years. to three meaning “liberty” must be broad argues such a denial that action amounts to indeed. Id. at 92 S.Ct. at 2706. process guaranteed by of due the Fifth Amendment. The court suggested a two-pronged liberty Initially, interest. liberty may be addressing In a claim an unconsti implicated charges if against leveled process, procedural tutional denial of due employee “might which seriously damage step analysis. ‍‌‌‌​‌​​​‌​‌​‌​​‌​‌​​​‌‌​‌‌‌‌‌‌‌​​‌‌‌‌‌​‌​​‌‌‌‌‌‌‍Initially, we a two undertake his standing and associations in his commu Larry’s it must whether in be determined nity,” gives and the court as an example to constitutionally terest rises the level of a accusations of dishonesty or immorality. protected “liberty” “property” or interest. Id. at 92 S.Ct. at 2707. The court recognizable If a property liberty there is or continued case, such a process due “[i]n stake, weigh interest at then we must would an opportunity accord to refute competing intеrests of the individual charge University before officials.” Id. in order to reach a resolu Government tion of what is due. explained liberty court Secondly, the State, making abridged a whether also be if “the de- In determination of im- process require- clining re-employ respondent, the Fifth due Amendment’s posed stigma a applied, disability ments are to be “we must look not on him or other ‘weight’ but the nature of the his freedom to take foreclosed advan- Regents tage employment opportunities. interest at stake.” Board of of other Roth, 564, 571, 2701, 2706, State, example, any The for did not invoke Roth, regulations bar respondent L.Ed.2d a non-tenured from all a university, alleged public employment teacher at state his due other in state universi- process rights so, this, again, were violated when the ties. it be a Had done would provide deprived school failed to different For not him with state- case. be ‘[t]o only present government ment or it hearing of reasons when de- certainly year opportunity clined to renew his one The but of future for it contract. 573-74, Supreme injury held that no con- no small there was Id. at (Emphasis added). stitutional violation because de- 92 nonrenewal S.Ct. at as only injury suffered implicated when interest is liberty naturе stigma ais action government the result of He has exactitude. with to define difficult reputation. damage or and abusive drunkenness with charged prior of our for the Commission’s have in a number behavior, While we a basis as negative eligi- frequently drastic pointed cases out the denial, the effect may result “stigma” him from all federal which effect of the is to bar finding bility in a job government of the sector from defamation significant employment, contexts, cases does line of The Com- this years. variety of market, to three up reputa- proposition will findings not establish that its out points mission tangi- alone, some more apart from available to tion are made public made be employment, is ei- as ble interests such a need to know only on agencies various by itself suf- “property” “liberty” government is ther However, federal basis. protec- procedural ficient to invoke agencies and many different composed of Clause. At tion of the Due Process obtain the which could all of departments, added). (Emphasis at 1161. circumstances.4 various under stigmatized effect, Larry has been has, In Davis, in addition to the Unlike government. entire throughout the tangible stigma, suffered infliction of a to work opportunity of the deprived He is considera- being loss in foreclosed any branch any capacity for a sub- tion for government. stantial time. of foreclosures Roth not all has cautions that be remembered It must deprivation of lib- a particular position opportunities establish merely been denied 2701. The 570, 92 S.Ct. totally erty. has 408 U.S. at he government; within the court stated: employment for from all

debarred us, clearly Jackson stat- As Justice all that years. the record before up to three [O]n was not appears respondent in Anti-Fascist Com- is that ed in his concurrence 185, 123, university. It McGrath, year 71 for one 341 U.S. rehired at one mittee suggest fаr to (1951), concept a case in too 817 stretches the 95 L.Ed. S.Ct. were, “liberty” of organizations deprived that a person is petitioner which the job rehired in one simply is not hearing, declared to be when he without notice or to seek as before only of but remains as free deprived not disloyal: “To be at 2708. 92 fu- another. At employment but of present government certainly is no small for it opportunity ture Walker, 492 in Adams This court employment so injury when 1974), (7th dealt with 1003 Cir. F.2d opportunity.” dominates the field of when the process of due alleged violation the chairman removed case Paul v. Governor of Illinois Supreme The recent Although no viola Davis, 47 of a state commission. 96 S.Ct. 424 U.S. established, the process was (1976), not eliminate the tion of due L.Ed.2d 405 does of what liberty is illustrative language inter- court’s analysis need for an process violation: a due liberty interest is not would be considered est. that a Davis held suitability, 27, 1975), security (Aug. Fed.Reg. clearance or access 4. 40 investiga- personnel loyalty governing States Government. to the United the disclosure of records, provides part: tion response agency, to its Routine uses of maintained h. To a Federal records letting system including categories request, users and the with the in connеction license, purposes contract, grant, of these of such uses: The contents aof or the issuance requesting agency, and used records and files be disclosed or other benefit as follows: is relevant extent the information employees designated agency’s a. To officers and necessary requesting de- agencies departments of the Feder- other cision on matters. Government, and District of Columbia al previously has It should be noted Government, having interest in the indi- grants. recipient such contracts been the including purposes, employment vidual for weighs We plaintiff governmental are satisfied that has failed interest in sum- adjudication.” to state a claim under either branch of mary Goldberg v. Kelly, 397 liberty 254, 262-63, 1011, 1018, the Roth test. An unelaborated charge of “incompetence, neglect duty (1970). L.Ed.2d 287 and malfeasance in office” is of a differ- approach This recently been refined / magnitude ent order of charges than Eldridge, Mathews v. dishonesty, immorality, disloyalty, Com- (1976), 47 L.Ed.2d 478 which lays munism, activities, subversive alcoholism three elements to be considered in a out or narcotics violations. . And governmental determination pri- nothing complaint even remotely vate interests affected. suggests legal employ- barrier to future prior decisions indicate that identi [O]ur analogous ment to denial of admission to specific fication of the dictates of due bar, disqualification govern- all process generally requires consideration ment . . At 1008- first, of three distinct factors: pri vate interest that will be affected Treusdell, See Mazaleski v. U.S.App. action; second, official the risk of an D.C. F.2d We hold that deprivation erroneous of such interest loss of future opportunities through used, procedures and the coupled stigma with the now burdening probable value, any, if of additional or Larry amounts to a opportu- foreclosure of procedural safeguards; substitute and fi reaching nities level “liberty” of a inter- nally, interest, the Government’s includ est to be afforded protection constitutional ing the function involved and the fiscal through process. due administrative burdens the addi We now turn question of what tional procedural require or- substitute process is due. 334-35, ment would entail. At very nature of due negates at 903. any concept of inflexible uni- Examining separately, these factors we versally applicable to every imaginable find private first that the interest affected situation. Larry’s is loss of all future of what [Consideration due оpportunities with the federal process may require under any given set period for a up years.5 of to three He also of circumstances begin ‍‌‌‌​‌​​​‌​‌​‌​​‌​‌​​​‌‌​‌‌‌‌‌‌‌​​‌‌‌‌‌​‌​​‌‌‌‌‌‌‍must with a deter- asserts reputation that his has been dam- mination of the precise nature of the aged and appellees have caused a government function involved as well as stigma to his ineligibility attach in that of private interest that has been af- rating charged him with “abusive treat- by

fected governmental action. Cafete- associates,” your colleagues ment of and ria 886, Workers McElroy, 895, v. and labeled him an “habitual and excessive 81 1743, S.Ct. 1748, 1749, 6 L.Ed.2d 1230 user оf intoxicants.” There is no doubt as (1961). to severity of these Commission find- “The extent procedural which ings. due publication While we note that the of process must be recipient afforded the is the unsuitability ratings findings and is not by influenced extent which he may widespread as as in Wisconsin v. Consta nti grievous loss,’ be ‘condemned to neau, suffer 433, 507, Joint 400 91 U.S. S.Ct. 27 L.Ed.2d Refugee Anti-Fascist Committee (1971), v. 515 posted where a notice was in all McGrath, 123, 341 168 U.S. liquor 95 given state stores that a [71 individual (1951) (Frankfurter, J., L.Ed. drinker,” concur- was “excessive 817] there still is the ring), depends upon and recipi- whether the possibility of substantial dissemination. ent’s avoiding interest in loss out- (See p. 958). supra, footnote at Supreme recognized wrongful deprivation 5. As the important in Fusari v. is an Steinberg, 379, 389, 419 U.S. 95 assessing impact factor in of official action (1975), possible length L.Ed.2d 521 private “the of on the interests.” third is a consideration The element pro administrative

Secondly, Math The of the Government’s interest. risk always some of an is ceeding, there among the includes ews formulation particularly This is decision. erroneous to be considered interests Government’s here, the used as where, information as true and and fiscal “the function involved decision the basis of the Commission’s additional administrative burdens reliability whose or from а source comes requirement procedural would or substitute by the veracity brought question into is 335, 96 S.Ct. at 903. 424 U.S. at entail.” completion of the investi Upon applicant. very has sub Manifestly, the Government Larry a sum gation, the Commission sent assuring a correct deter stantial interest inviting gathered of mary suitability for an applicant’s mination of Larry requests made several his comment.6 the Commission is and employment, attempt learn to the Commission responsibility assuring of charged with the specif accusers the identities of his applicants “promote the effi that all will re his The Commission ics of misconduct. 731.201. ciency of the serviсe.” C.F.R. § give dates fused to name sources or Sampson Murray, Supreme Court misconduct, although places of claimed 937, 949-950, “co-residents, as informants were identified (1974), probationary where L.Ed.2d super former co-workers dismissal, challenged her reiterat employee field adverse informa visors.” Thus the rule that ed “the well-established information was tion as as favorable well traditionally granted Government Larry’s inquiry narrowed somewhat ‘dispatch its in the widest latitude preparation gathering of information affairs,’ own internal Cafeteria Workers response of his Commission. McElroy, 367 U.S. [81 clear-cut straightforward avоided denial meth ...” One L.Ed.2d 1230] alcoholism, stressing charges to assure od the Commission utilized man. did changed he had become a He background in high is standards a routine however, deny, charges.7 the other He also Much infor vestigation applicants. all denying submitted statements by associates associates gained past is mation confidentiality. charges tending promises some estab employers on give such unable to good lish his character. Commission Were the seminar, meeting portion some but no one summary been to 6. A informa- addressed acquired concerning specifically tion or when.” Commission knew wherе Additionally, use of alcohol. It stated: “The Com- on was asked to comment following mission has received the information: his termi- evidence that one of the reasons you knowledge job co- that “[t]here as “Persons who nation from former co-workers/employment by your you resident and former evidence of abusive treatment advise, supervisors variously, you that colleagues for within the Center and associates continuing drinking problem Studies, personal had a and have including threats of Urban user of a habitual and excessive intoxi- harm.” past years cants the to Infor- over five date. frequently you oрportunity mation that indicates are in an for notice and 7. The reason stag- stigmatization state charge of intoxication and have been seen response and the is when gering opportunities ‍‌‌‌​‌​​​‌​‌​‌​​‌​‌​​​‌‌​‌‌‌‌‌‌‌​​‌‌‌‌‌​‌​​‌‌‌‌‌‌‍under tthe influence of alcohol [sic] is foreclosure “ ’ many point you on occasions the where to charge opportunity the to refute ‘an barely are able to stand. You have been person oppor- provide an .to the ‘. [and] ” your apartment’s observed in residence vicin- Velger, tunity 429 his name.’ Codd v. to clear ity your sipping bag. paper At from a em- 882, 884, 624, 627, 92 97 51 L.Ed.2d U.S. ployments, you reputatiоn being had Roth, (1977), Regents quoting 408 Board drunk, you came to the office under the n.12, 2701, 564, L.Ed.2d 573 & 92 S.Ct. 33 U.S. occasions, many of alcohol on influence (1972). Despite Larry’s deni- the fact that 548 your smell on of alcohol breath. Your inebri- times, als, specific, are than he does at less distracting per- ation was noticeable and to of Codd where it was run afoul held office, you surly, sons were often report allege falsity damaging of a failure and rude obnoxious to others. You were hearing to a under was fatal claim for a frequently absent or late and often unreacha- Process Clause. Due personnel, claiming you blе had office

961 U.S., S.Ct., confidentiality, investiga- Kelly, 397 at assurances 268-269 at [90 might difficulty encounter more in es- (footnote omitted), tors 25 L.Ed.2d 287] tablishing the information.8 needed they given meaning- insure that opportunity ful present their case. Certainly, calling for an any procedure Eldridge, Mathews v. 424 U.S. 348- hearing providing oral or confrontation 893, 909, 96 S.Ct. 47 L.Ed.2d 478 would increase the and cross-examination (1976). fiscal burdens on administrative “It is an Unfortunately, opportunity which grant due to the un- must be Commission. ed record, meaningful at a meaning time and in a developed state of the we are unable ful Manzo, Armstrong manner.” to determine to what extent the Govern- 545, 552, 1187, 1191, 14 U.S. ment’s burden would increase in re- L.Ed.2d this (1965). It gard. job remains the of the courts give “to general content to that principle A balance must be struek that will ac- by balancing the Government’s competing commodate various interests. against asserted interests those of the [indi We reiterate the wise admonishment of Arnett v. Kennedy, vidual].” Mr. Justice Frankfurter that differences 1633, 1673, 40 L.Ed.2d 15 origin and function of administra- (1974) (Marshall, J., dissenting). In reach agencies “preclude tive wholesale trans- ing the ultimate balance leading to a deter plantation trial, procedure, of the rules of due, mination process of what is helpful it is and review which have evolved from the to examine procedural safeguards called history experience of courts.” FCC for in similar circumstances involving pro Co., Broadcasting v. Pottsville rights. tected 437, 441, 84 L.Ed. [60 656] At one end spectrum of the Goldberg judicial model of an eviden- which dealt with attempted an tiary hearing is termination required, neither a nor Court, welfare effective, pf benefits. The holding even the most method of deci- pre-termination evidentiary sionmaking hearing in all circumstances. The es- required, emphasized sence that “the requirement of due is the crucial factor in present this context —a factоr not person jeopardy that “a of serious loss government given] against notice the case case of the blacklisted him [be ‍‌‌‌​‌​​​‌​‌​‌​​‌​‌​​​‌‌​‌‌‌‌‌‌‌​​‌‌‌‌‌​‌​​‌‌‌‌‌‌‍contractor, opportunity discharged government to meet it.” Joint em- Anti- McGrath, ployee, U.S., taxpayer Fascist Comm. v. tax exemp- denied a at S.Ct., tion, 171-172 virtually anyone govern- at else L.Ed. whose [71 817] (Frankfurter, J., concurring). mental All that is entitlements are ended —is that ter- necessary is pending be tai- mination of aid resolution of a lored, light made, the decision to controversy eligibility be may deprive over capacities “the eligible circumstances of recipient vеry .means those who are to be Goldberg heard” v. which to live while he waits.” At express opinion investigator 8. We notify everyone do not now on wheth- that the must in er in the context of provided, terviewed that all information 'includ prohibits, the Due Process ing Clause identity, even in the the source’s be disclosed to showing cause, good fact of a upon request. agent nondisclo- the individual his “The sure of the aspect Commission’s may promise sources. One confidentiality requested by if the question of this which source, was neither briefed nor notify and in his discretion the source argued scope before this Court touches оn the may confidentiality that he where the Privacy of the Act of agent U.S.C. 552a et necessary §§ feels is that such notification seq. court, In the district the Commission ar- Additionally, pledges to secure information.” gued its that refusal to reveal the sources used confidentiality may Implic of not be assumed. investigation justified by 5 U.S.C. regulation required finding it in such a is the of 552a(k)(5). provides excep- § This section good necessary prerequisite cause as a for the general requirement tion to the Act’s that granting confidentiality. Cf. McNeill v. government agencies permit an individual ac- Butz, (4th 1973). 480 F.2d Cir. No agency’s containing cess to the reсords infor- finding by such was made the district court. provides mation about him. 5 C.F.R. 736.103 § Hence, on infringement the liber- original). ble loss. Find- (Emphasis 1018. at such as alia, ty process claims submissions involved due that ing, inter “[w]ritten deprivation most than recipients, for serious option Larry’s is a more are an unrealistic court as by attainment neces- the ow- given recognition the educational who lack that effectively and who cannot sary to write ing suspended students. the assistance,” (at 269, 90 professional obtain balance, note we that reaching In the held that in order 1021) the Court S.Ct. at availa- various alternative error, recipi- minimizе the such risk hearing com- a full range ble. The includes hearing were entitled to an oral includ- ents and cross-examina- plete with confrontation ing right to confront and cross-examine sources, tion; a list supplying witnesses. statements; very a de- to their addition repre- end is spectrum The other yet places summary giving dates tailed recognize impor- sented cases that names; and, lastly, revealing short of interest, yet tance of the individual’s do to the recapitulation supplied ap- summary range procedural the full due afford pellant here. process protections to the individual when struck the In effect the Commission balanced with asserted the Government’s making only the sum balance in favor interest. Illustrative of such cases is Goss require mary The Commission’s available. Lopez, response to a ment make his that (1975), public L.Ed.2d 725 where school stu- liberty inter his constitutional challenge of of due deprived process dents were held writing tyr est in smacks of administrative were they suspended when school for may anny. suggestion tyranny only up days hearing. to ten without a In this discerning judicial evalu be alleviated context, precautions “rudimentary interest; is, governmental ation of the against (at findings” unfair or mistaken burdens that fiscаl and administrative 740) required by at 95 S.Ct. the Due require procedural or substitute additional Process of oral or Clause consist written assume, arguendo, ments would entail. We denied, the charges, notice of and if appli thousands of the Commission has explanation of the adverse evidence and a jobs per year, cants for governmental for explain. chance to statutory which the Commission has stop construing We short Due command to screen and reach determi Process require, countrywide, Clause to also suitability. Yet we assume nation of hearings in connection with short need for thou has a Government suspensions must afford student govern individuals qualified sands of counsel, opportunity to secure confront year. The Commis positions per mental supporting witnesses cross-examine denying applicants to avoid sion’s chore is charge, his own to call witnesses to process supplying while due constitutional verify his version of the incident. Id. at qualified force to fill the Govern labor 583, 95 at administra ment’s needs without excessive One of court’s concerns was that “[i]f outlay. tive and fiscal burden recorded, charges sustained those could above, re- As the Commission’s stated seriously damage the students’ quirement only written re- allowing opportunities higher later education and may which sponse to adverse employment.” at S.Ct. at 736.9 Id. year well trigger three debarment While the loss students process. The by appli- a denial of due speculative, the loss suffered amount present tangi- is a as well as the district court’s cants such as administrative 41 L.Ed.2d 295 At 9. Another recent situation in which the Su- prison procedure preme due a issue was the followed dis- held that liberty necessarily ciplinary hearings, protected of which did not interest determination prisoner’s date. include and cross-examination affected the releasе confrontation McDonnell, be found in can Wolff v. WOOD, Jr., records silent as to what fiscal HARLINGTON factual Circuit Judge, dissenting. burdens the Govern- and administrative if the Commission ment would face were Though has majority fairly opinion required provide alternative issues, considered the I must respectfully determining govern- suitability before my judgment, dissent. In was there no employment. mental plaintiff failure of due afforded as job applicant. We upon believe it incumbent the Com- specifically Plaintiff by was advised factually mission to meet the third factor writing given oppor- Commission and by determining through regulation policy or tunity to respond to cеrtain adverse infor- concept its procedural pro- of the additional during mation collected course tections, if any, granted which can be with- investigation. That concerned out excessive administrative burdens and Larry’s Comprehensive termination from outlays. fiscal concept Such administrative Planning, Health Inc. because of excessive can judicially then be upon tested ade- absenteeism; (nonrenewal) the termination quate record. Larry’s by University contract concerned, far Larry So as is the three Illinois; Circle, Chicago because of substand- year its debarment now servеd avowed ard work abusive and treatment and purpose reapply. is and he free to Yet associates; colleagues threats to his reality is a hard master standing and the nature and rather frequency Larry’s ex- Larry’s administrative conclusion of unfit- tensive arrest/conviction record between is two August 1974; ness an automatic call of strikes May 1962 and and informa- against tion from picks up bag neighbors, super- him before he even his co-workers indicating visors of bats. was habitual servation should be vacated and the cause remanded time and to the Commission for with government].’ Bishop those decisions must be reаched consistent such App.D.C. L. nel in which Ed.2d “Our necessarily a limited one . our decisions that are compliance ^[341] Constitution.” legitimate court is to review the at expense, 684] of administrative at 349 and in the interests of con porting 562 F.2d at 722. To assure the salutary proscriptions . [, role the summary judgment in a case further multitude Mazaleski, made . . appropriate Wood, daily Nevertheless, proceedings. such . supra, 183 U.S. . . ‘The by judicial person as this forum [the tation of rests for convictions. He endeavored to er, co-worker, neighbor, though he submitted some unsworn state- ments ness past in advance drunkenness since refоrmed. opinion adverse information up, It was as excessive user five allegation, only therein by affidavits from sets forth the full did not drunkenness, years. being several former associates. found allegation stated, Larry. a drunk. directly deny Footnote He away, the Commission after claiming that he had admitted several ar- and other arrests ‍‌‌‌​‌​​​‌​‌​‌​​‌​‌​​​‌‌​‌‌‌‌‌‌‌​​‌‌‌‌‌​‌​​‌‌‌‌‌‌‍and intoxicants over the It which was 6 of the he had the but without anyone former scope the drunken- be summed explain majority supplied employ- else, repu- sup- al- considering Larry’s its information and re- Accordingly, summary judgment sponses unsatisfactory employment that his entered cоurt district is vacated record and habitual excessive use of intoxi- the cause is remanded to the district court cating disqualified beverages him fed- for immediate remand Commission Regu- eral under Civil Service expungement of the record of Maurice finding fairly lations. That arrived at Larry. M. justified. fully public is entitled to JUDGMENT VACATED AND CAUSE public servants adequately without REMANDED. shortcomings. demonstrated notice given sufficient advance

Larry was sufficient information with

of the adverse responses, respond. His

opportunity to ex- apparent admission of

apart from evasive, merely self- drinking,

cessive were unconvincing. The in-

serving or otherwise

dividual sources of the Commission infor- specifically identified to

mation were not

Larry, employers were named and other but as co-

sources were identified references

residents, su- co-workers

pervisors. Persons in those classes with

personal knowledge Larry’s work and

personal habits did not need be individu- reasonably He be ex-

ally identified. could they

pected to know who or others those sought He them

classes were. could allegations allega-

out to refute the if the deny did not

tions were refutable. As he allegations,

the drunkenness names of parties supplying that information were event immaterial. require

To more of the

considering job applicants, its numerous I

believe, impose impractical would

unnecessary burden. I would not disturb

the Commission’s judgment exercise of its discretion, and would affirm. BRITANNICA, INC.,

ENCYCLOPAEDIA Services, Library

and Britannica Home

Inc., Petitioners, COMMISSION,

FEDERAL TRADE

Respondent.

No. 76-1477. Appeals,

United States Court of

Seventh Circuit.

Argued Feb. 1977. Aug.

Decided

Case Details

Case Name: Maurice M. Larry v. Ray E. Lawler, Leland L. Walton, Jayne B. Spain, Lt. Andolsek, Robert E. Hampton

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Aug 18, 1978

Citation: 605 F.2d 954

Docket Number: 76-1747

Court Abbreviation: 7th Cir.