Judge Wilkinson Discusses Split Re Whether Stigmatizing Allegations Against Former Government Employee Is Actionable Prior to Dissemination

Per Judge Wilkinson, dissenting, in Sciolino v. City of Newport News, Va., --- F.3d ----, 2007 WL 726740 (Mar. 12, 2007):

The circuits are split as to whether stigmatizing allegations can deprive a former government employee of a constitutional liberty interest before the allegations are disseminated to prospective employers or others.

The First and Seventh Circuits have written that such statements can only deprive a former government employee of a liberty interest when the allegations are publicly disseminated. See Johnson v. Martin, 943 F.2d 15, 16-17 (7th Cir.1991); Burton v. Town of Littleton, 426 F.3d 9, 17 (1st Cir.2005); Wojcik v. Mass. State Lottery Comm'n, 300 F.3d 92, 103 (1st Cir.2002). The Third Circuit has suggested the same, in my view, by stating that a plaintiff “must produce evidence that the reason for his termination was made public by the city” and rejecting a plaintiff's argument that he had been deprived of liberty because future disclosure was likely. Copeland v. Philadelphia Police Dep't, 840 F.2d 1139, 1148 (3d Cir.1988).

The Second and Tenth Circuits have written, in contrast, that stigmatizing allegations can deprive a person of a liberty interest even if the allegations have not been publicly disclosed. The Second Circuit held in Brandt v. Board of Cooperative Educational Services that a liberty interest is implicated “where the stigmatizing charges are placed in the discharged employee's personnel file and are likely to be disclosed to prospective employers.” 820 F.2d 41, 45 (2d Cir.1987) (emphasis added). The Tenth Circuit also recognized a claim based upon statements that the plaintiff did not allege went beyond a government employer's own offices. Bailey v. Kirk, 777 F.2d 567, 580 n. 18 (10th Cir.1985).

Other circuits do not fit neatly into these two camps. The Eighth Circuit has suggested that a claim would lie if a plaintiff established that a record “ would be available to prospective employers,” Clark v. Mann, 562 F.2d 1104, 1116 (8th Cir.1977) (emphasis added), but suggested in another case that information must be disclosed before it could give rise to a cause of action, Merritt v. Reed, 120 F.3d 124, 126 (8th Cir.1997).

The Fifth Circuit's cases also seem to be in some internal tension. The court appears to have sanctioned claims based upon the possibility that allegations would be disclosed in the future, writing that an ex-employee could establish deprivation of a liberty interest by showing “that his employer has made or is likely to make the allegedly stigmatizing charges public in any official or intentional manner.” In re Selcraig, 705 F.2d 789, 796 n. 6 (5th Cir.1983) (emphasis added; internal quotations omitted). Yet a subsequent court rejected a plaintiff's likelihood-of-dissemination theory, equating it with an argument that “the mere presence” of stigmatizing allegations in a personnel file was sufficient to create a triable issue of fact. Hughes v. City of Garland, 204 F.3d 223, 228 (5th Cir.2000).

Finally, other circuits have recognized liberty claims when authorities lacked the power to keep statements confidential because personnel files were publicly available under state law, but have not addressed whether predictions of dissemination would suffice in the absence of such statutes. See Cox v. Roskelley, 359 F.3d 1105, 1110-12 (9th Cir.2004); Buxton v. City of Plant City, 871 F.2d 1037, 1042-46 (11th Cir.1989).

Thus to say there is a circuit split is at once true and not indicative of the full extent of the problem. Whether a liberty interest is infringed by a letter in a file drawer has generated answers with shades and permutations that mock the clarity law must provide for human conduct.