Bishop v. Tice

Decision Date16 May 1980
Docket NumberNo. 79-1607,79-1607
Citation622 F.2d 349
PartiesRoger BISHOP, Appellant, v. Robert C. TICE, Jr., Individually and in his official capacity as Regional Administrator, Occupational Safety and Health Administration, United States Department of Labor; Joe Ansley, Individually and in his official capacity as Regional Auditor, Occupational Safety and Health Administration, United States Department of Labor; and John Miles, Individually and in his official capacity as Regional Auditor, Occupational Safety and Health Administration, United States Department of Labor, Appellees.
CourtU.S. Court of Appeals — Eighth Circuit

James F. O'Hara, Little Rock, Ark., for appellant.

Terry L. Derden, Asst. U. S. Atty., Little Rock, Ark., argued, George W. Proctor, U. S. Atty. and Kenneth F. Stoll, Asst. U. S. Atty., Little Rock, Ark., on brief, for appellees.

Before GIBSON, Senior Circuit Judge, and HEANEY and STEPHENSON, Circuit Judges.

STEPHENSON, Circuit Judge.

In this diversity action, Roger Bishop appeals from the dismissal of his complaint against three employees of the federal government. The complaint alleged, inter alia, that defendants had coerced Bishop into abandoning his job as a federal safety engineer by threatening to lodge false criminal charges against him. The district court 1 held that the complaint failed to state a claim upon which relief could be granted. We reverse, holding that Bishop has stated actionable damage claims for denial of procedural due process, for contractual interference, and for fraud and deceit.

I. Background

According to the complaint, Bishop and the three defendants were employees of the Occupational Safety and Health Administration (OSHA), an agency of the federal government. Bishop was a "career status" safety engineer, defendants Joe Ansley and John Miles were regional auditors, and defendant Robert C. Tice was regional administrator. The alleged incident occurred in Little Rock, Arkansas, and the parties agree Arkansas law applies. The gravamen of the complaint, which in this posture of the case we must take as true, states as follows:

7. In early February, 1975 (1976?), Defendant Ansley and Defendant Miles visited the (Little Rock) office of O.S.H.A. purportedly for the purpose of conducting an audit of local operations. The true purpose behind the visit of Defendants Ansley and Miles was to force two resignations in the Little Rock office in order that these positions could be filled at the direction of Defendant Tice.

8. On or about February 10, 1976, Plaintiff was called into the office of Mr. James Brown, Area Director (of the Little Rock office). In the presence of Mr. Brown and other witnesses whose names are unknown at present, Defendants Ansley and Miles stated that Mr. Tice wanted Plaintiff's resignation. Defendants Ansley and Miles further stated that in the event that Plaintiff did not choose to resign, all three Defendants would proceed to lodge criminal charges against Plaintiff. When questioned by Plaintiff, Defendants Ansley and Miles refused to state the nature, much less the details, of the charges with which Plaintiff was accused. Plaintiff's request for ten days to reach a decision on the matter was denied after Defendants Ansley and Miles spoke with Defendant Tice (who was in Dallas) over the telephone. Defendants Ansley and Miles told Plaintiff he had one hour to make up his mind and that Plaintiff could not leave the room. Plaintiff's request to consult an attorney was similarly denied. Plaintiff was thus forced to resign his position.

9. Since the date of his resignation, Plaintiff (has) repeatedly requested from Defendant Tice a statement of the reasons why the Defendants forced him to resign. On June 15, 1977, Mr. Ronald Gaswirth, Regional Solicitor promised that he would provide Plaintiff's attorney with a list of reasons within "ten days". Defendant Tice and Mr. Gaswirth have failed and refused to honor their agreement. After numerous requests, Plaintiff has not been provided any statement in support of Defendant's action.

The theories of recovery asserted in the complaint were (1) defamation, (2) deprivation of liberty and property without due process, (3) contractual interference, and (4) conspiracy to defraud and deceive.

Bishop first sued the defendants in both their official and their individual capacities. The initial complaint sought reinstatement, back pay, additional compensatory damages, and punitive damages. Bishop's amended and substituted complaint, against the defendants as individuals only, dropped the request for reinstatement and back pay but continued the request for damages.

The district court granted defendants' motion, under Fed.R.Civ.P. 12(b)(6), to dismiss the amended complaint in its entirety. The court's first holding, not disputed on appeal, was that Bishop's common law defamation claim was barred by a one-year statute of limitations, Ark.Stat.Ann. § 37-201. 2 In addition, the court held there was no constitutional claim for damages arising from defamation because damage to reputation alone "does not raise a denial of liberty issue within the meaning of the due process clause of the Fifth Amendment, Paul v. Davis, 424 U.S. 693 (, 96 S.Ct. 1155, 47 L.Ed.2d 405) (1976)," Bishop v. Tice, No. LR-C-77-310, slip op. at 2 (E.D.Ark. June 7, 1979). The court also dismissed Bishop's claim for deprivation of employment rights and his claim for contractual interference, explaining that

(t)he plaintiff's remedy for an adverse act of an agency administrator relating to his employment rights, such as a forced resignation, is under his contract, see Kuhn v. National Association of Letter Carriers, Branch 5, 528 F.2d 767 (8th Cir. 1976). * * * The plaintiff here has not alleged that he has exhausted his administrative remedies, a necessary step before relief relating to his employment rights can be sought in the courts. See, e.g., Pascal v. United States, 543 F.2d 1284 (Ct.Cl.1976); 25 A.L.R.Fed. 443, 454.

Id. Finally, the court held that Bishop's fraud and deceit claim, to the extent it was distinguishable from his other claims, was insufficient because the complaint did not assert that defendants had falsely represented their intent to lodge criminal charges. 3

On appeal, Bishop argues the complaint states a cause of action for damages under three theories: (1) defendants arbitrarily deprived Bishop of employment rights, his reputation as a good civil servant, and his right to seek administrative redress, giving Bishop an action in damages for infringement of his Fifth Amendment right to due process; (2) defendants fraudulently represented that they would lodge criminal charges against Bishop if he did not resign, giving Bishop an action for fraud and deceit; (3) defendants' threats were unjustified and prevented Bishop from performing his employment contract, giving Bishop an action for tortious interference with prospective contractual advantage. The defendants, beyond disputing these assertions, argue they enjoy absolute immunity from any liability on Bishop's state law claims (theories (2) and (3) above). We shall examine these contentions in sequence.

II. The Due Process Claim

To determine whether a complaint states an actionable claim for damages under the Constitution, we must look to see if (1) the complaint asserts a constitutionally protected right, and (2) the complaint states a cause of action for damages that asserts that right. Davis v. Passman, 442 U.S. 228, 234, 99 S.Ct. 2264, 2271, 60 L.Ed.2d 846 (1979).

A. Constitutionally Protected Right

The Fifth Amendment forbids the federal government to deprive a person of liberty or property without due process of law. Bishop's complaint invokes the amendment as authority to recover damages against the defendants for the loss of his job, for mental anguish, and for his inability to re-secure federal employment, all on the basis that defendants arbitrarily deprived him of (1) employment rights and his good reputation as a civil servant, and (2) his right to seek administrative redress for his ouster. 4 We shall refer to these claims as Bishop's substantive due process and procedural due process claims, respectively. As to either claim, Bishop must, to assert a constitutionally protected right, allege (a) governmental action to his detriment, and (b) implication of either a property interest or a liberty interest. We conclude that these requirements have been satisfied.

The government contends that the complaint, against the defendants as individuals and not in their official capacity, fails to allege governmental action. We disagree. First, suing an individual in his capacity as an officer of government, while necessary to secure relief from the government, is not indispensable to an allegation of governmental action. An individual officer of government may be personally liable for damages for actions that have deprived the plaintiff of his constitutional rights. See, e. g., Butz v. Economou, 438 U.S. 478, 485, 98 S.Ct. 2894, 2900, 57 L.Ed.2d 895 (1978); Scheuer v. Rhodes, 416 U.S. 232, 238, 94 S.Ct. 1683, 1687, 40 L.Ed.2d 90 (1974); 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); Monroe v. Pape, 365 U.S. 167, 172, 81 S.Ct. 473, 476, 5 L.Ed.2d 492 (1961). Second, although defendants' alleged actions were private in nature in the sense that any private individual could threaten to lodge criminal charges, 5 the complaint fairly implies that defendant Tice directed defendants Ansley and Miles to make their threats through an exercise of his official authority as OSHA regional administrator. The complaint therefore alleges that Bishop sustained his damages through governmental action. See Adickes v. S. H. Kress & Co., 398 U.S. 144, 152, 90 S.Ct. 1598, 1605, 26 L.Ed.2d 142 (1970); Jennings v. Shuman, 567 F.2d 1213, 1220 (3d Cir. 1977); McNally v. Pulitzer...

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