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NOT FOR PUBLICATION FEB 04 2013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 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. Roskelly, “placement of stigmatizing information in an

employee’s personnel file constitutes publication when the governing state law

classifies an employee’s personnel file as a public record.” 359 F.3d 1105, 1112

(9th Cir. 2004). Here, it is not clear when Boggs’s personnel file became a public

record under Oregon law because that law makes employment records public upon

2 resignation but not when there is disciplinary action. Given the uncertainty as to

the status of his withdrawn resignation, which had been secured under the threat of

termination, the prospect of disciplinary action against Boggs lingered. Oregon

law is ambiguous as to whether this sequence of events made Boggs’s personnel

file public and therefore whether “publication” had occurred for Fourteenth

Amendment due process purposes. Boggs’s employment records were not

disclosed following a February 23, 2007 public record request, and it was not until

May 10, 2007, when Boggs filed a civil suit related to his resignation, that the

resignation became final and his employment record definitively classified as a

public record.

Absent clear law on when publication of Boggs’s employment record

occurred, the temporal gap between resignation and publication was too attenuated

to establish the necessary nexus, even construing all inferences concerning dates in

Boggs’s favor, as we must. In Tibbetts v. Kulongoski, we held that a nineteen day

gap was too long to establish the necessary nexus under extant case law in

February 2005 and June 2006, when the alleged violations in that case occurred.

567 F.3d 529, 538 (9th Cir. 2009). Tibbetts remains controlling law because no

new cases were decided on the issue between the time of the alleged violations in

that case and the time of the alleged violation in this case sometime in the first half

3 of 2007. Whether we take January 5 or February 5, 2007 as the start date of the

temporal nexus, a period far longer than nineteen days passed before Boggs’s

employment record was clearly public. Qualified immunity was thus properly

granted because Boggs’s right to procedural safeguards was not “clearly

established” and it would not have been “clear to a reasonable officer” that failure

to provide Boggs with notice and a name-clearing hearing was “unlawful in the

situation . . . confronted.” Saucier v. Katz, 533 U.S. 199, 201-02 (2001) (outlining

a two-pronged qualified immunity analysis, the second prong of which requires

that a right be clearly established for an official to be stripped of qualified

immunity protection); Pearson v. Callahan, 555 U.S. 223, 236 (2009) (holding that

district courts have “discretion in deciding which of the two prongs of the qualified

immunity analysis should be addressed first in light of the circumstances in the

particular case at hand”).

The district court erred by considering matters outside the pleadings in

granting defendant Stewart’s motion to dismiss on the basis that she was a clerical

employee. However, “[i]f the decision below is correct,” we “may affirm on any

ground finding support in the record.” Jackson v. Southern California Gas Co.,

881 F.2d 638, 643 (9th Cir. 1989). We affirm the district court’s grant of Stewart’s

4 motion to dismiss on the basis of qualified immunity consistent with the legal

analysis above.

AFFIRMED.

5

FILED

Boggs v. Hoover, No. 11-35713 FEB 04 2013

MOLLY C. DWYER, CLERK

PAEZ, Circuit Judge, dissenting. U .S. C O U R T OF APPE ALS

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 (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 2) whether the governing state law was clearly established

such that officials had notice of whether due process protections were triggered in

a given factual circumstance. Here, the constitutional right at issue is the right to a name-clearing hearing when placement of stigmatizing information in a public

employee’s personnel file constitutes publication. Cox, 359 F.3d at 1112. Whether

it was clearly established under Oregon’s public records law such that officials

would be on notice that a personnel file was a public record when stigmatizing

information was placed in it is a question of state law.

Oregon law favors disclosure as the rule and classifies an employee's

personnel file as a public record. Although Oregon law recognizes a personnel

discipline exemption from disclosure, under ORS 192.501(12), the exemption does

not apply when a public employee resigns during an employer investigation or in

lieu of disciplinary action. City of Portland v. Rice, 775 P.2d 1371, 1373-74, n.4

(Or. 1989) (“‘Action’ is consistently used to mean the imposition of a disciplinary

sanction, not an investigation of facts which does not . . . directly result in

imposing a sanction. Public records of such an investigation are not exempt from

disclosure.”). Thus, because Boggs resigned from his position, albeit under threat

of termination, there was no exemption from the public disclosure of Boggs’s

records. Id. at 1373-74; ORS 192.490(1). Notably, Defendants later came to the

correct conclusion that Boggs’s personnel file was indeed a public record because

it was not subject to the discipline exemption. Testimony at an evidentiary hearing

in Boggs’s other civil case—permitted as evidence in this case—clearly shows that

2 Defendants Sowle and Hoover were on notice that Boggs’s file and the

investigation report were a public record. Reading the complaint in the light most

favorable to Boggs, he alleged publication of “false, defamatory statements” as

early as February 5, 2007—months before any disclosure to the press, and in

conjunction with his attempt to revoke his forced resignation. A reasonable

inference from this allegation is that by “publication” he meant placement of the

stigmatizing information in his personnel file, which was a public record. Even if

the fact of placement of the stigmatizing information in the file is disputed,

Defendants are not entitled to qualified immunity on those grounds. That is an

issue that should be resolved at trial.

The majority errs in its analysis that Oregon law “makes employment

records public upon resignation but not when there is disciplinary action” and that

Boggs’s employment record was “definitively classified as a public record” on

May 10, 2007, when he filed a civil suit and his resignation “became final.” Mem.

2-3 (emphasis added). Boggs’s record was not a private document that became a

public one by his resignation or by filing his lawsuit. Under Oregon law,

employment records are public by default, subject to certain conditional

exemptions.1

1 The majority also asserts that Oregon law is ambiguous as to whether Boggs’s record was public given his forced resignation, rejected attempt to

3 The facts alleged in Boggs’s complaint support two distinct violations of

Boggs’s due process rights. The first is the publication of the report by its

placement in Boggs’s personnel file in January or February 2007, in conjunction

with his forced resignation and the county’s refusal to reinstate him. As

demonstrated above, these facts are sufficient to implicate Boggs’s liberty interest

and his clearly established constitutional right to a name-clearing hearing. Cox, 359

F.3d at 1110-12. The second is the widespread dissemination of the stigmatizing

charges after Boggs’s termination via the May 2007 release of his employment

records in response to media requests. I agree with the district court that this later

dissemination warrants a temporal nexus analysis under Campanelli and Tibbetts.

withdraw his resignation, and the lingering “prospect” of disciplinary action. Mem. 3. Oregon law is not ambiguous on this point. See Rice, 775 P.2d at 1373-74. Indeed, the following paragraph from the Attorney General’s Public Records and Meetings Manual 41, (2005), served to put public officials faced with a situation exactly like the one here on notice that Boggs’s personnel file was a public record: ORS 192.501(12) conditionally exempts: A personnel discipline action, or materials or documents supporting that action[.] Only completed disciplinary actions when a sanction is imposed, and materials or documents that support that particular disciplinary action, fall within the scope of this exemption. (Citing Rice, 775 P.2d 1371.) The exemption does not apply when an employee of a public body resigns during an employer investigation or in lieu of disciplinary action. The policy underlying this narrowly construed exemption is to “protect[ ] the public employee from ridicule for having been disciplined but does not shield the government from public efforts to obtain knowledge about its processes.” (Citing id. at 1374, n.5.)

4 But this is not the only set of factual circumstances alleged in Boggs’s complaint,

and Cox makes clear that publication of an employee’s file as a public record

available upon demand—not necessarily dissemination to the media or widespread

public disclosure—is sufficient to implicate a public employee’s liberty interest

and his right to a due process name-clearing hearing. 359 F.3d at 1111-12.

For these reasons, I respectfully dissent. Boggs’s federal constitutional right

to a name-clearing hearing when stigmatizing information was placed in his

personnel file was clearly established as of 2004. Cox, 359 F.3d at 1112. Oregon

public records law was clearly established such that officials had notice that his

personnel file would be public, and thus placement of the stigmatizing information

constituted publication. I would hold that the Defendants are thus not entitled to

qualified immunity.

I would also reverse the district court’s grant of Defendant Stewart’s motion

to dismiss because the district court erred by considering matters outside the

pleadings and because, for the reasons stated above, the decision cannot be

affirmed on the basis of the qualified immunity analysis. Jackson v. S. California

Gas Co., 881 F.2d 638, 642-43 (9th Cir. 1989).

5 6