However, many agencies, especially state and local government agencies, do not do a great job at building records, so the agency will not be able to show in the record their justification for the action.
This may get your client a second chance or a settlement.
Predicates to a Hearing
Who is constitutionally eligible for a hearing?
Due process only applies to actions by the government.
Only government employees have a constitutional right to a hearing and due process.
State rights are defined by the state laws and constitutions, not the US constitution, and can be broader than the US rights.
States cannot provide less than the US Constitutional minimum due process.
The US Constitution does not apply to private employers.
The states and congress can create statutory rights to employment due process for private employees.
While we do not talk about “standing” for a hearing, there must be facts at issue to get a hearing.
As Matthews will later make clear, hearings are not an abstract right that everyone gets when the government does something to them. If there are not facts at issue, then there is nothing for the claimant to contest during the hearing.
Why were there no facts at issue in Codd v. Velger, 429 U.S. 624 (1977) (suicidal policeman)?
The facts can be facts in mitigation, which can include the factfinder’s evaluation of the claimant.
Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532, 542- 544 (1985)
“Even where the facts are clear, the appropriateness or necessity of the discharge may not be; in such cases, the only meaningful opportunity to invoke the discretion of the decisionmaker is likely to be before the termination takes effect.”
The limit on Loudermill is that the factfinder has to have the discretion to change the decision based on facts in mitigation.
The most basic factual question in an employment case is whether the employee has any expectation of continued employment.
Under the old Bitter with the Sweet doctrine, there were no hearing because there was no expectation of continued employment.
Modern cases reject this simplistic analysis, but the employee still has to show a reasonable expectation of continued employment.
Perry v. Sinderman, 408 U.S. 593 (1972)
Taught for 10 years
University policy was to not fire without cause after 7 years
Fired without cause
What process did he want?
Why was the university policy on continued employment critical?
Good name in man and woman, dear my lord,
Is the immediate jewel of their souls.
Who steals my purse steals trash; 'tis something, nothing;
'Twas mine, 'tis his, and has been slave to thousands;
But he that filches from me my good name
Robs me of that which not enriches him,
And makes me poor indeed.
Othello Act 3, scene 3, 155–161
Wisconsin v. Constantineau, 400 U.S. 433 (1971)
A state law required the posting of the names of “public drunkards” at places where alcoholic beverages are sold
Did plaintiff concede that he was a public drunkard?
Had there been an adjudication to determine his status?
What would be the fact at issue?
What did the United States Supreme Court say the state should have provided him?
How was the impact of this case and following case limited, as compared to what happens in the current electronic world?
Paul v. Davis, 424 U.S. 693 (1976)
Note that this is the same term as Matthews – think about whether they are related when we read Matthews.
What link between the firing and the reputational injury was the court looking for when it created the "stigma plus" category?
Did the old employer fire him?
Why did the court say the employer fired him?
So what was injured?
How is this like Paul v. Davis?
What would be plaintiff's alternative remedy?
How is this at issue in the recent military mass murder by a military psychiatrist case?
Melissa was charged with plagiarism but was not provided any due process protections.
Fearful of a lawsuit, the law school did not expel her, but upon her graduation it sent a letter to the State Board of Bar Examiners informing the Board that Melissa had “engaged in plagiarism in Legal Writing during her first year.”
Have her due process rights been violated under Siegert?
What is damaged?
Is the law school ruling that she cannot take the bar?
Is this fair?
What is her remedy?
Codd v. Velger, 429 U.S. 624 (1977)
Plaintiff claimed that putting information about his suicide attempt in his personnel file damaged his reputation and made it impossible for him to find other employment as a policeman.
He did not have an employment claim because he was a probationary employee/
Why the appeals court say that the employer could not assume that on one know about the information in the personnel file.
The lower court reversed, finding there was stigma, raising the issue of whether there should be a hearing to if there was a dispute about what is put in the file.
This is dicta, since the case was decided on other grounds by the United States Supreme Court:
“Nowhere in his pleadings or elsewhere has respondent affirmatively asserted that the report of the apparent suicide attempt was substantially false.” at 627
Melissa is charged with plagiarism, expelled from law school without a hearing, and the plagiarism is entered on her transcript.
She sues, saying this injury to reputation rises to the level of violation of her liberty interests.
The law school say that the transcript is confidential and no one will see it unless she releases it.
How would you argue that it is unreasonable to assume that she can keep the transcript secret?
Homeland Security and the CIA
One of the big fights over the Homeland Security Bill was its limitation of employee hearing rights
National security agency personnel are subject to firing without stated cause and get no hearing.
The Homeland Security Act extends the definition of a national security job to many more employees, who thus lose civil service protection
What is an example of a substantive due process question from a United States Supreme Court case?
How does it differ from procedural due process?
What is a "taking" under the Takings Clause of the Constitution?
What due process is required?
What about compensation?
What is a regulatory taking?
Why isn’t compensation required in most cases where regulations reduce the value of property, such as designating private property endangered species habitat and thus limiting the uses to which it can be put?
Is it a taking when the postman runs over your dog or hits your car? Explain.
Explain the “facts at issue” predicate for a hearing.
Why do we have hearings?
Are you entitled to a hearing just to tell your story?
Why didn’t the suicidal policeman get a hearing?
Even if the basic facts are not in issue, what does Loudermill tell us about facts in mitigation and explanation?
When are mitigation and explanation relevant?
Why weren’t they relevant for the suicidal policeman?
What problems might this cause for the university?
What is stigma+?
What do these cases tell us about why a university should not comment on the failure to renew the contract of a professor?
How can you screw up a proper firing and end up paying damages for injuring the employee?
Why did the court find that putting reasons dismissal in the suicidal policeman’s his employment file meant that it was public?
Was it defamation?
What if government employer gives an employee a bad recommendation that causes him to lose a subsequent job?
Is this stigma+?
What would the employee have to show to get stigma+?
What do you tell your employer client about what goes in recommendation letters? (Assume it wants to give as much information to the next employer as they can, without violating the employee’s rights.)
What are examples of liberty interests?
Privacy as a protected liberty interest:
How did the court change its analysis between the drunkard and the shoplifter cases?
How do the "perverts R us" WWW site cases modify this? (Connecticut Dept. of Public Safety v. Doe, 123 S.Ct. 1160, (2003); Smith v. Doe, 123 S.Ct. 1140 (2003)
How were the facts determined in the perverts R us cases?
Why does this undermine the basis for demanding a hearing?