746 F.2d 257 (5th Cir. 1984), 84-3292, Batiste v. Burke

Docket Nº:84-3292
Citation:746 F.2d 257
Party Name:Milton BATISTE, Plaintiff-Appellant, v. Paul V. BURKE, Defendant-Appellee.
Case Date:November 12, 1984
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 257

746 F.2d 257 (5th Cir. 1984)

Milton BATISTE, Plaintiff-Appellant,

v.

Paul V. BURKE, Defendant-Appellee.

No. 84-3292

United States Court of Appeals, Fifth Circuit

November 12, 1984

Page 258

Joseph W. Thomas, New Orleans, La., for plaintiff-appellant.

John Volz, U.S. Atty., Ruth Morris Force, Asst. U.S. Atty., McGlinchey, Stafford, Mintz & Cellini, New Orleans, La., Eric Jay Scharf, Washington, D.C., for defendant-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before WILLIAMS, JOLLY, and HILL, Circuit Judges.

ROBERT MADDEN HILL, Circuit Judge:

Milton Batiste brings this action against Paul V. Burke, the Sectional Center Manager/Postmaster in the New Orleans Branch of the United States Postal Service, complaining that Burke's decision not to hire Batiste violated his constitutional right to due process. The trial court granted summary judgment in favor of Burke on the ground that he is entitled to official immunity from suit for the conduct in question. We affirm.

In April 1982, Batiste approached the United States Postal Service in search of employment. He was interviewed for the position of mail clerk but was told that the Postal Service would notify him at a later date as to the status of his application. When, several months later, Batiste had not been contacted, he returned to inquire after his application. He was told, apparently by Burke, that he would not be hired because an official record supplied by the city of New Orleans disclosed that Batiste had been arrested four times.

Denying the accuracy of the report, Batiste brought this action seeking $100,000 in damages allegedly suffered as a result of Burke's decision. Batiste alleged that Burke's reliance on the arrest record in denying Batiste employment without first giving him an "opportunity to clear his name" or to respond to the record deprived him of liberty without due process of law under the Fifth Amendment. Batiste prayed for damages for this deprivation under the theory first announced in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and later applied to the Fifth Amendment in Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979).

Burke, before answering, moved the court to dismiss the action for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Burke urged two grounds for dismissal: first, that Batiste's complaint did not state a claim under the Bivens doctrine and, second, that Burke was entitled to the affirmative defense of qualified official immunity under Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). 1 Attached to the motion

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was a photocopied excerpt from the Personnel Operations Handbook of the Postal Service which describes the duties and authority of the Postmaster in making employment decisions. Burke presented this excerpt as evidence that he had acted within the scope of his discretionary authority, a precondition for entitlement to the official immunity defense where the defendant official "exercise[s] an exceedingly broad range of discretion" in discharging his duties. Douthit v. Jones, 619 F.2d 527, 534 (5th Cir.1980) (comparing the showing required of a prison official who, generally, wields broad discretion with that required of a police officer who, generally, has only narrow discretion). Given this, Burke argued, he was entitled to immunity because his actions violated no "clearly established statutory or constitutional [right] of which a reasonable person would have known." Harlow, 457 U.S. at 818, 102 S.Ct. at 2738.

Batiste responded to the motion, arguing as to the affirmative defense of immunity only that his constitutional rights were, in fact, clearly established. He did not dispute the fact that Burke acted within the scope of his discretion.

The trial court granted Burke's motion, converting it sua sponte to a motion for summary judgment under Fed.R.Civ.P. 56 since the court considered material outside the pleadings, namely, the Personnel Handbook excerpt, in arriving at its decision. 2 The court found, apparently, that there was no material factual issue as to whether Burke acted within the scope of his discretion and concluded that the constitutional right to which Batiste had laid claim was not clearly established under Harlow.

On appeal Batiste seeks reversal of the trial court's judgment on the same ground on which he opposed Burke's motion, i.e., that his constitutional right (presumably,

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the right to be given a hearing before being refused employment based on an arrest record) was clearly established such that Burke should be charged with knowledge of it...

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