Robert Boggs v. John Hoover

MEMORANDUM *

Robert Boggs appeals from the district court’s grant of motions to dismiss and for *669 summary judgment on qualified immunity grounds with respect to five of the defendants (the “Multnomah Defendants”), and the district court’s grant of a motion to dismiss with respect to defendant Stewart. Boggs brought claims under 42 U.S.C. § 1988 alleging that the Multnomah Defendants and Stewart violated his Fourteenth Amendment right to notice and a name-clearing hearing in connection with the disclosure of his employment records containing allegedly stigmatizing statements. We have jurisdiction under 28 U.S.C. § 1291 . Reviewing de novo, we affirm.

As a matter of law, it was unclear whether Boggs had a right to the claimed due process under the circumstances of his termination, thus entitling the Multnomah Defendants to qualified immunity. There is virtually no agreement on the start or end date of the temporal nexus required to trigger the procedural protections of due process. Campanelli v. Bockrath, 100 F.3d 1476 (9th Cir.1996). Under Cox v. Roskelley, “placement of stigmatizing information in an employee’s personnel file constitutes publication when the governing state…

dissenting.

I respectfully dissent.

The majority’s judgment rests on an incorrect interpretation of Oregon state law. The federal constitutional right clearly established by Cox — and the cases Cox relies on — is that a due process name-clearing hearing is required when placement of stigmatizing information in a public employee’s personnel file constitutes publication. 359 F.3d at 1112. “Publication” is determined not by dissemination, but by whether the governing state law classifies an employee’s personnel file as a public record. Id. Here, the governing state law clearly classified Boggs’s personnel file as a public record not subject to any exemptions from disclosure, and thus it was clearly established that the placement of the stigmatizing report in his file implicated his liberty interest and triggered his right to due process. Id.; Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 573 , 92 S.Ct. 2701 , 33 L.Ed.2d 548 (1972) (declining to rehire may be “termination” for liberty interest purposes).

In the context of this case, there are two distinct “clearly established” questions that must be analyzed sequentially: 1) the clearly established constitutional right, and…

FILED

NOT FOR PUBLICATION FEB 04 2013

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

ROBERT BOGGS, No. 11-35713

Plaintiff - Appellant, D.C. No. 3:09-cv-00116-ST

v.

MEMORANDUM *

JOHN K. HOOVER; JOHN C.

BRADLEY; CHARLES R. FRENCH;

KATHRYN A. SHORT; AGNES

SOWLE,

Defendants - Appellees,

and

JO’EY STEWART,

Defendant.

Appeal from the United States District Court for the District of Oregon Marco A. Hernandez, District Judge, Presiding

Argued and Submitted November 7, 2012 Portland, Oregon

Before: ALARCÓN, McKEOWN, and PAEZ, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Robert Boggs appeals from the district court’s grant of motions to dismiss

and for summary judgment on qualified immunity grounds with respect to five of

the defendants (the “Multnomah Defendants”), and the district court’s grant of a

motion to dismiss with respect to defendant Stewart. Boggs brought claims under

42 U.S.C. § 1983 alleging that the Multnomah…