Batiste v. Burke

Decision Date12 November 1984
Docket NumberNo. 84-3292,84-3292
Citation746 F.2d 257
PartiesMilton BATISTE, Plaintiff-Appellant, v. Paul V. BURKE, Defendant-Appellee. Summary Calendar.
CourtU.S. Court of Appeals — Fifth Circuit

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 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 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. One facet of Batiste's argument reiterates the allegation that Burke knew or had reason to know that the arrest record was false. The issue, thus framed, was one of law, clearly within the province of summary judgment procedure. Harlow, 457 U.S. at 818-19, 102 S.Ct. at 2738-39. If the trial court found that the law was not clearly established at the time of the alleged violation, discovery need not have begun and summary judgment properly issued. Id. 3

Batiste cites only one case for the proposition that an official's reliance on arrest records in refusing to employ the arrestee violates due process when the arrestee is not given a prior hearing. In Hampton v. Mow Sun Wong, 426 U.S. 88, 96 S.Ct. 1895, 48 L.Ed.2d 495 (1976), the Court held that a Civil Service Commission regulation barring aliens from employment in the federal civil service violated the Fifth Amendment by depriving non-citizens of liberty without due process. The Court held that the national interests allegedly justifying the regulation were not the proper concerns of the Civil Service Commission (as opposed to Congress or the Executive) even if they outweighed "the impact of ... rule on the millions of lawfully admitted resident aliens." 426 U.S. at 116, 96 S.Ct. at 1911.

Whatever the intricacies of Hampton's effects on the substantive constitutional relationships before us, we think it is beyond cavil that Hampton fails to announce "clear" limits on the aspects of personal history and employability that a federal official may consider in making hiring decisions. Much less, we think, does Hampton address the use of arrest records in such decisions. Hampton involved the Commission's use of a written regulation which foreclosed millions of aliens from federal employment. Although, in his brief, Batiste conclusorily attempts to raise Burke's decision to the level of a "broad-based" hiring policy, he failed to allege or argue below that such a policy exists. Nor did he refer us to any such written regulation or even assert that a similar oral policy or practice could have been proved had he been permitted to adduce evidence. Moreover, even if such a policy were shown to exist, Batiste has utterly failed to elucidate, nor can we discover, a sufficient similarity either in source or scope between an arrest-record policy and a regulation barring millions of noncitizens from federal employment. Finally, Batiste could not point us to any national or individual interest implicated herein even approaching in magnitude those which the Hampton court balanced. See 426 U.S. at 102-104, 96 S.Ct. at 1905 (balancing individual interest in not being excluded from "employment in a major sector of the economy," when such individuals are already handicapped by language and cultural barriers, against national interests in employee loyalty and encouragement of naturalization). In short, Hampton establishes no clear "relevant legal standard" which could have guided Burke in his evaluation of would-be employees. Harlow, 457 U.S. at 819, 102 S.Ct. at 2739.

Burke himself has cited precedent which addresses the use of arrest records in employment evaluations. Far from clearly establishing the right Batiste claims, the cases permit a significant degree of play in the considerations which may validly inform an employer's decision. In Webster v. Redmond, 599 F.2d 793 (7th Cir.1979), the most closely analogous case the court held that a state school board did not impair a teacher's liberty interest when it considered his prior arrest and circumstances surrounding it in declining to promote him to principal. The board was free to consider the arrest without giving the teacher a hearing because the teacher continued to be free to seek other forms of employment and because his reputation had not been damaged since the board had not publicly revealed the reasons for declining to promote him. In so holding, the court drew on the liberty interest analysis employed in Board of Regents v. Roth 4 and Bishop v. Wood. 5 Although Webster, Roth and Bishop were all decided under the Fourteenth Amendment rather than the Fifth Amendment, it is clear that both Amendments require the same analysis, Buckley v. Valeo, 424 U.S. 1, 93, 96 S.Ct. 612, 670, 46 L.Ed.2d 659 (1976), and that Fifth Amendment scrutiny is, if anything, less demanding than that under the Fourteenth Amendment. Hampton, 426 U.S. at 100, 96 S.Ct. at 1903.

We can only conclude that if an employee may be properly refused a promotion on the basis of the circumstances surrounding an arrest as well as on the basis of the arrest itself, it follows that a mere applicant may properly be refused initial employment on the basis of a record which showed four arrests. 6 However, regardless of our view of the constitutional propriety of Burke's actions, no defensible argument can be made that the cases announce a "clearly established constitutional or statutory right" such as that claimed by Batiste. 7

The fundamental reason the Harlow Court abandoned the subjective prong of the official immunity defense was to "avoid excessive disruption of government and [to] permit the resolution of many insubstantial claims on summary judgment." Harlow, 457 U.S....

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