Cory Hall v. City of Newport News

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-1653

CORY M. HALL,

Plaintiff – Appellant,

CITY OF NEWPORT NEWS; JAMES D. FOX, Chief of Police
Officially and Individually; JOE MOORE, Assistant Chief of
Police Officially and Individually; NEIL A. MORGAN,
Assistant City Manager/Acting City Manager Officially and
Individually; RANDY HILDEBRANDT, Former City Manager
Officially and Individually,

Defendants – Appellees.

Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Rebecca Beach Smith,
District Judge. (4:09-cv-00136-RBS-DEM)

Argued: September 22, 2011 Decided: March 14, 2012

Before MOTZ, GREGORY, and SHEDD, Circuit Judges.

Affirmed in part and reversed and remanded in part by
unpublished per curiam opinion. Judge Gregory wrote an opinion
concurring in part and dissenting in part.

ARGUED: Oldric Joseph LaBell, Jr., Newport News, Virginia, for
Appellant. Stanley Graves Barr, Jr., KAUFMAN & CANOLES, PC,
Norfolk, Virginia, for Appellees. ON BRIEF: R. Johan Conrod,
Jr., KAUFMAN & CANOLES, PC, Norfolk, Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

Cory Hall appeals the district court’s order dismissing his

Amended Complaint for failure to state a claim upon which relief

can be granted. See Fed. R. Civ. P. 12(b)(6). For the reasons

set forth below, we affirm in part and reverse in part.

In his Amended Complaint against the City of Newport News

(the “City”) and the City’s Police Department (the

“Department”), Hall alleges the following facts, which we accept

as true for purposes of this opinion. See Erickson v. Pardus,

551 U.S. 89, 94 (2007). Hall was a police officer with the

Department. In November 2006, Hall was fired after the Chief of

Police sustained the following disciplinary charges against him:

improper procedure, untruthfulness during the course of an

investigation, excessive use of force, and improper or unlawful

arrest.

Hall appealed his discharge to the City’s grievance panel.

The panel conducted a hearing and issued a decision dismissing

three of the four disciplinary charges against Hall and reducing

the charge of untruthfulness during the course of an

investigation to negligent record-keeping. In addition, the

panel directed Hall’s reinstatement as a police officer.

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Thereafter, the City exercised its right to remand the

decision to the panel for reconsideration. Although the panel

affirmed its previous decision, the Department did not reinstate

Hall. Hall then brought an action in state court seeking

implementation of the panel decision. Although that court

directed the Department to reinstate Hall, the Department still

refused. Thereafter, Hall filed a motion with the state court

to compel his reinstatement. After a hearing on that motion,

the Department finally reinstated Hall in December 2008.

When Hall returned to work, the Department assigned him to

a civilian position in the Records Bureau and stripped him of

his law enforcement powers and status as a police officer.

Additionally, the City and Department records still contain the

original disciplinary charges against Hall. These records do

not reflect that the grievance panel dismissed three of the four

disciplinary charges and reduced the fourth.

II.

In response to both the delay and the terms of his

reinstatement, Hall brought this action pursuant to 42 U.S.C. §

1983, alleging three due process violations: (1) a violation of

his procedural due process right to have a hearing at a

meaningful time; (2) a deprivation of his liberty interest in

his reputation and occupation without due process of law; and

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(3) a deprivation of his property interest in his position as a

police officer without due process of law. The defendants moved

to dismiss Hall’s claims pursuant to Rule 12(b)(6) for failure

to state a claim. The district court granted the motion and

dismissed Hall’s case on all counts. 1

We review de novo an order dismissing a claim under Rule

12(b)(6). See Duckworth v. State Admin. Bd. of Election Laws,

332 F.3d 769, 772 (4th Cir. 2003). To survive a Rule 12(b)(6)

motion, a plaintiff must allege enough facts “to raise a right

to relief above the speculative level” and must provide “enough

facts to state a claim to relief that is plausible on its face.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

In Count I, Hall alleges that the delay in his

reinstatement constitutes a deprivation of property without due

process of law pursuant to Cleveland Bd. of Educ. v. Loudermill,

470 U.S. 532, 547 (1985) (“At some point, a delay in the post-

termination hearing would become a constitutional violation.”).

The district court found that Hall had not satisfied the

Loudermill standard for an unconstitutional delay because, other

1
Hall’s Amended Complaint lists three causes of action.
However, on appeal, Hall has only challenged the district
court’s dismissal of Counts I and II. Therefore, Hall has
abandoned any challenge as to the dismissal of Count III. See
Tucker v. Waddell, 83 F.3d 688, 690 n.1 (4th Cir. 1996).

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than the delay itself, he alleged no facts suggesting that the

delay was “unreasonably prolonged.” Additionally, the court

found that a significant portion of the alleged delay was

attributable to either standard procedural delays or to Hall’s

failure to file the suit to enforce the grievance panel decision

at an earlier time. After having the benefit of oral argument

and carefully reviewing the briefs, record, and controlling

legal authorities, we find no reversible error in the district

court's disposition of this issue. Accordingly, we affirm the

dismissal of Count I based substantially on the reasoning of the

district court. See J.A. 136-142 (opinion granting Defendants’

Motion to Dismiss). 2

In Count II, Hall alleges that his personnel records

continue to contain the original disciplinary charges against

2
The dissent believes the City committed a constitutional
violation by delaying its compliance with the grievance panel’s
decision. To the extent a post-hearing delay could give rise to
actionable conduct, that situation does not exist here. First,
the decision of the panel is not self-enforcing. See Newport
News, Virginia, Code of Ordinances § 2-186(b)(5)(g)(“If either
party refuses to implement a panel decision, the other party may
petition the Circuit Court of Newport News to enforce the
decision.”). When a party decides not to abide by a panel
decision, the law provides for a state court enforcement action.
See Va. Code Ann. § 15.2-1507(A)(11). Second, Hall could have
eliminated much, if not all, of any unreasonable delay by simply
initiating his state court enforcement action sooner. At oral
argument, Hall admitted a more timely course of action was
available to him.

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him despite the grievance panel decision dismissing three and

reducing one of those four charges. Therefore, Hall claims that

the defendants violated his liberty interest in his reputation

and occupation by maintaining inaccurate personnel records on

these charges. “To state this type of liberty interest claim

under the Due Process Clause, a plaintiff must allege that the

charges against him: (1) placed a stigma on his reputation; (2)

were made public by the employer; (3) were made in conjunction

with his termination or demotion; and (4) were false.” Sciolino

v. City of Newport News, Va., 480 F.3d 642, 646 (4th Cir. 2007).

The district court found that Hall pled facts sufficient to

support all but the third Sciolino element. As the defendants

have not challenged the district court’s findings as to the

other three elements, the only issue on appeal is whether Hall

has satisfied that Sciolino element – which is “a public

employer’s stigmatizing remarks must be made in the course of a

discharge or significant demotion.” Ridpath v. Bd. of Governors

Marshall Univ., 447 F.3d 292, 309 (4th Cir. 2006)(internal

citations omitted). In Ridpath, we adopted the following

definition of significant demotion: “[A]n offer of a job far

beneath the one he had, where being so demoted is to be as

effectively excluded from one’s trade or calling as by being

thrown out on the street.” Id. at 314 (finding the compliance

director’s reassignment outside the athletics department “was a

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significant demotion to a position outside his chosen field,

rendering it tantamount to an outright discharge”).

Hall alleges that although he has been reinstated as a

Department employee, he has a civilian position and is no longer

a “certified law-enforcement officer” with the police power to

make stops, issue summons and warrants, and make arrests. Am.

Compl. ¶¶ 38, 43. Accordingly, Hall alleges that the Defendants

have made him “something other that [sic] a police officer.”

Am. Compl. ¶ 38. Therefore, taking these allegations as true,

Hall’s reinstated position within the Department effectively

excludes him from his trade or calling as a police officer.

Because this is sufficient under Ridpath to qualify as a

significant demotion, Hall has properly alleged a deprivation of

his liberty interest in his reputation and occupation.

III.

For the foregoing reasons, we affirm the dismissal of Count

I and reverse the dismissal of Count II. Accordingly, we remand

this case to the district court for proceedings consistent with

this opinion.

AFFIRMED IN PART AND
REVERSED AND REMANDED IN PART

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GREGORY, Circuit Judge, concurring in part and dissenting in
part:

Although I concur in Parts I and II.B of the opinion

reversing the dismissal of Hall’s liberty interest claim, I am

compelled to dissent from Part II.A. Because Hall has alleged

facts sufficient to support a claim for an unconstitutional

obstruction that resulted in a delay of his reinstatement, I

would reverse the district court’s dismissal of Count I as well.

This case is unique because, unlike the typical post-

termination procedural due process claim, Hall does not allege

that he was denied a hearing or that he experienced an

unreasonably prolonged delay before receiving a decision from

the grievance panel proceedings. He was granted a grievance

hearing and received a decision in his favor that was final and

binding under Virginia law and City ordinances. Instead, Hall

alleges that the City willfully refused to comply with the panel

decision and that this deliberately obstructive behavior

constituted a deprivation of property without due process.

No precedent directly addresses the question of when a

failure to implement a final decision rises to the level of a

constitutional violation. In Cleveland Bd. of Educ. v.

Loudermill, the Supreme Court set out the scope of pre-

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termination procedures that are due to public employees and also

addressed the question of delay in post-termination hearings

that could rise to the level of a constitutional violation. 470

U.S. 532, 547 (1985). There, the Court indicated that “[a]t

some point, a delay in [a] post-termination hearing would become

a constitutional violation,” but that in order to state a claim

for this type of constitutional deprivation, a plaintiff must

allege facts beyond the delay itself that might suggest the

delay is “unreasonably prolonged.” Id. However, Loudermill

does not directly address a delay in the implementation of a

final and binding decision that results from such procedures.

Nor does it address, as here, “delay” that is the direct

consequence of a municipality’s willful refusal to comply with a

final and binding decision.

The majority is correct that a claim for delay cannot be

based solely on the standard time that elapses throughout the

chronology of the proceedings. Nor can it be based on a “delay”

in requesting court action external to the procedure to force

compliance. Had this been the sum of Hall’s allegations, his

claim for delay would not survive. It was not. Instead, Hall

alleged that his delayed reinstatement was the direct

consequence of obstructive conduct: the City’s willful refusal

to comply with the final and binding grievance decision. The

City conceded the truth of this allegation in oral argument:

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The Court: You get the final decision after it
has gone back to remand to the panel,
right? And the City gets it back,
and you say well we couldn’t keep
appealing within the City government
because the result would have been
the same. So why didn’t you then put
him back -– follow what the order was
of the panel?

City: For the same reasons that were
asserted when the matter was remanded
to the panel, and that is that the
decision was contrary to policy and
law.

The Court: But you had lost that.

City: That’s correct.

. . .

The Court: Did you have a right to go to this
implementation process and ask for
non-implementation?

City: No we could not do that. We did not
have that right.

The Court: Did you have a right to go to some
sort of state court and say this was
bizarre and outrageous and that you
shouldn’t be forced to do this?

City: We did not have that right.

. . .

The Court: You’re saying that you just said, “We
will let you force me to do it?”
That was the legal advice?

City: Given the fact that the City had no
other alternative that is exactly the
position it was in.

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Willful refusal to abide by a final and binding order

because you do not agree with the decision is not standard

procedural delay. It is categorically unreasonable and, in

certain circumstances, could amount to an obstruction of

justice. Under these facts, a delay inevitably ensues as the

direct consequence of the City’s deliberately obstructive

conduct. It cannot be that this otherwise unreasonable delay in

compliance –- one that is not the result of standard procedural

delay -- is cured or without consequence because there exists a

possibility of some separate enforcement action external to the

procedure to force compliance. Applying this logic, the final,

binding, and self-effectuating nature of panel decisions

evaporates, and the City can always delay implementation until,

as here, the prevailing officer can afford to utilize an

enforcement procedure or otherwise abandons his right to

reinstatement.

What’s more, today’s majority gives the City every

incentive to do just that as no circumstances exist where the

City could be susceptible to a claim for unreasonable delay in

reinstatement under the majority’s analysis. The time it takes

a prevailing officer to initiate an external enforcement

procedure will always overlap with the City’s deliberate delay.

To characterize this overlapping period of time only as the

officer’s “delay” in requesting court action to force compliance

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–- a period for which unreasonable delay claims cannot be based

–- effectively immunizes the City from liability for its part in

forcing the delay by refusing to abide by the final and binding

decision and eliminates any consequences that would deter such

deliberately obstructive behavior in the future –- namely,

nominal damages and attorney’s fees.

II.

Cory M. Hall, a police officer decorated with commendations

including Police Officer of the Year and a Medal for Valor, has

experienced what no officer in the City of Newport News has ever

had to endure: a willful refusal by the City to comply with a

final and binding decision ordering his reinstatement. Once

that decision was reached, the City was required to reinstate

Hall. The majority incorrectly assumes that the period between

the binding grievance panel decision and Hall’s initiation of

the state court enforcement action eliminates the relief he is

due for the City’s egregious actions. For these reasons, I

respectfully dissent from Part II.A.