with whom CUDAHY, Circuit Judge, joins, dissenting.
There is little to add to the majority panel opinion in Perry I, 759 F.2d 1271 (7th Cir.1985), to illustrate why I am compelled to dissent. That opinion was based principally on this Court’s majority opinion in Larry v. Lawler, 605 F.2d 954 (7th Cir.1978). Perry I is also in accord with Owen v. City of Independence, 445 U.S. 622, 633-34, 100 S.Ct. 1398, 1406-07, 63 L.Ed.2d 673, which held that dismissal of a government employee because of an allegedly false statement against him deprived the employee of a protected liberty interest without due process of law. While the en banc majority strives to distinguish Larry on the ground that Larry “had been totally disbarred throughout the government” (p. 9), the effect of the allegedly false FBI report is of course the same here. What government agencies would employ Perry after studying the FBI’s comments?
As contemplated in Perry I, it may of course turn out that the FBI report was accurate, but in granting summary judgment to defendants, the FBI report has to be presumed false. Munson v. Friske, 754 F.2d 683, 690 (7th Cir.1985). Its truth or *1306falsity must be tested on remand,1 but at this juncture plaintiff cannot be deprived of his day in court even though he may later be unable to prevail.
The en banc majority relies particularly on the Carmi and Thompson cases2 where relief was denied to governmental job applicants absent two factors present here, viz., “infringement of a liberty interest such as reputation * * *, [or] impairment of * * * [the applicant’s] ability to get another job” (p. 10). Unlike Perry, Carmi was not maligned and did obtain an apparently suitable job (620 F.2d at 674), whereas Thompson, a black claiming racial discrimination, was denied relief because he was not on the Civil Service eligibility list and because the 1972 Amendments to the Civil Rights Act of 1964 were held not to be given retrospective effect. Neither case involved a false government report that kept the plaintiff from jobs he was seeking. While the majority states that here “The FBI has neither injured Perry’s reputation nor foreclosed his employment opportunities” (p. 11), these are the very issues that should be decided on remand, not here on summary judgment. Surely too this Court should not be deciding that a United States Attorney’s request that Perry be admonished “does not amount to a stigma” (p. 12). Even lay persons would conclude to the contrary! Until there is a hearing before the district court, it cannot be properly said that the FBI has “neither injured Perry’s reputation nor imposed a stigma foreclosing his employment opportunities * * ” (P- 16).
As Judge Bork pointed out in Mosrie v. Barry, 718 F.2d 1151, 1160-61 (D.C.Cir.1983), governmental defamation such as occurred here will constitute deprivation of liberty and give rise to a right to procedural due process if, as here, it impairs one’s ability to take advantage of a legal right “such as a right to be considered for government * * * employment or a right to seek non-government employment * Thus in Bartel v. F.A.A., 725 F.2d 1403, 1415 (D.C.Cir.1984), where Bartel was denied a government job and reemployment at the GS-13 level because of a Federal Aviation Administration official’s defamatory letters about him, the court of appeals held that the “district court must entertain Bartel’s due process claims for damages attributable to wrongful conduct * * *, along with those [claims] for injunc-tive relief,” and that it had wrongly granted summary judgment for defendants.
In his brief before us, Perry has only sought a remand “for factual development” (Br. 9), and his response to the petition for rehearing likewise only requests “an opportunity [on remand] to refute the charge in the [FBI] report and to clear his name” (Response 15). Therefore there is no need for us to “expunge Perry’s allegedly adverse law-enforcement-related record, and then proceed to grant Perry’s request, even if we could, to appoint him to one of the federal law enforcement positions he was denied” (p. 9).
I must also disagree with the concurring opinion. The allegations of the third amended complaint must be taken as true on defendants’ motion for summary judgment. Munson, supra; Ellsworth v. City of Racine, 774 F.2d 182, 184 (7th Cir.1985). Count I charges that the FBI report contains “untrue and malicious information,” that it was “a willful and intentional attempt” by the FBI to deny Perry federal employment, and that the FBI’s “acts, conduct and behavior * * * were done willfully, intentionally and maliciously” (realleged in that Count’s pertinent Second Cause of Action) (R. Item No. 62, pp. 4-5). There is a well-recognized exception to the privilege of publishing employment references when, as here, the false report is made maliciously, i.e., with reckless disregard as to truth or falsity. Gaines v. Cuna Mutual Insur*1307ance Society, 681 F.2d 982, 986 (5th Cir.1982); Miller v. Lear Siegler, Inc., 525 F.Supp. 46, 60 (D.Kan.1981); Zuschek v. Whitmoyer Laboratories, Inc., 430 F.Supp. 1163, 1166 (E.D.Pa.1977), affirmed, 571 F.2d 573 (3d Cir.1978); Restatement of the Law of Torts 2d § 600. Therefore, the privilege does not apply in this case.
Assuming without deciding that the employment-reference privilege applies in constitutional defamation {i.e., “stigma-plus” cases), Perry has not abandoned the charge that the FBI either fabricated or maliciously disseminated the derogatory information about him, as indicated in the concurrence. See plaintiff’s Opposition to Petition for Rehearing 1, 3, 7, 12, 14, 15, which reveals that Perry still contends that the FBI willfully and intentionally {i.e., maliciously)3 disseminated false information about him. Indeed, in its Memorandum in Support of its Motion for Summary Judgment, the FBI admitted that Perry is alleging that the FBI report contained malicious information about him (p. 5). Similarly, appointed counsel for Perry at the oral argument before us never abandoned Perry’s charge that the FBI’s report was false and maliciously disseminated. Such matters were to await proof at trial.
Since the en banc majority has not seen fit to overrule Larry4 that authority requires reversal and remand in accordance with Perry I.
. The stigmatizing statements in the report were denied by plaintiff (D.Ct. 1-15-81 mem. op. 8, pet. for reh. 4).
. Carmi v. Metropolitan St. Louis Sewer District, 620 F.2d 672 (8th Cir.1980), certiorari denied, 449 U.S. 892, 101 S.Ct. 249, 66 L.Ed.2d 117, and Thompson v. Link, 386 F.Supp. 897 (E.D.Mo.1974).
. Allegations of willfulness and intent have been deemed by us as akin to malice, Pape v. Time, Incorporated, 419 F.2d 980, 982 (7th Cir.1969), but Perry’s complaint also specifically alleges malice.
. Larry was followed in Doe v. United States Department of Justice, 753 F.2d 1092, 1113-14 (D.C.Cir.1985); Old Dominion Dairy v. Secretary of Defense, 631 F.2d 953, 966 n. 24 (D.C.Cir. 1980); Jaffe v. Federal Reserve Bank of Chicago, 586 F.Supp. 106, 108-09 (N.D.Ill.1984); Zurek v. Hasten, 553 F.Supp. 745, 747 (N.D.Ill.1982); Blank v. Swan, 487 F.Supp. 452, 455, 456-57 (N.D.Ill.1980).
Bone v. City of Lafayette, 763 F.2d 295 (7th Cir.1985), is not contra, because there the defamation did not affect employability (at p. 298).