BOWEN v. STATE, S-11737 (Alaska 3-7-2007)
Supreme Court No. S-11737.Supreme Court of Alaska.
March 7, 2007.
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, John Suddock, Judge. Superior Court No. 3AN-93-5009 CI.
Robert C. Erwin, Robert C. Erwin, LLC, Anchorage, for Appellant.
Richard W. Postma, Jr., Assistant Attorney General, Anchorage, and David W. Márquez, Attorney General, Juneau, for Appellee.
Before: BRYNER, Chief Justice, MATTHEWS, EASTAUGH, FABE, and CARPENETI, Justices.
MEMORANDUM OPINION AND JUDGMENT[fn*] I. INTRODUCTION
Gary Bowen served as a staff judge advocate in the Alaska Air National Guard on active guard/reserve (AGR) orders. By order of the governor, the Department of Military and Veteran Affairs (DMVA) terminated Bowen’s AGR tour on the basis of three acts of misconduct. Because he was not provided with a pretermination hearing,Page 2
Bowen challenged his termination on due process grounds. Superior Court Judge Karen L. Hunt found that the state had unconstitutionally impaired Bowen’s property interest in full severance pay. On appeal, we affirmed this holding, but in addition concluded that Bowen had a liberty interest in his reputation and that this interest had been unconstitutionally impaired by the state’s stigmatizing discharge.[fn1]
We remanded Bowen’s case to the superior court in 1998 with instructions to order the DMVA to hold a pretermination hearing.[fn2]
In 2003 Bowen moved for the superior court to “set a hearing on the issue of damages suffered by Gary Bowen for wrongful termination and the refusal of the State of Alaska to either reinstate Gary Bowen or to pay his salary and benefits for the period of time from his termination until today’s date.” In a series of three carefully considered orders, Superior Court Judge John Suddock denied Bowen’s motion. The court noted that the state had not complied with our mandate to hold a hearing, but concluded that there was nothing to be gained by ordering the DMVA to conduct a hearing. In Judge Suddock’s view, separate proceedings by a United States Air Force Officer Efficiency Board had afforded Bowen with an adequate opportunity to clear his name; the Board had substantiated one of the state’s charges of misconduct and thereby independently eliminated Bowen’s right to full severance and back pay. Bowen appeals.
Because we believe that the superior court’s orders correctly resolved the bulk of the claims that Bowen raises in this appeal, we adopt the court’s orders and setPage 3
out the relevant portions of each below.[fn3] We then add some brief discussion addressing each of Bowen’s major points.
II. SUPERIOR COURT ORDERS
Judge Suddock resolved the issues raised by Bowen’s motion on remand in orders issued on July 12, August 25, and November 1, 2004.
A. July 12 Order
ORDER I. INTRODUCTION Pursuant to the court’s request, the parties have briefed the issue of Plaintiff’s entitlement to a pretermination hearing and to back pay. The State raises issues of waiver, laches, and res judicata, and argues that a different hearing satisfied, de facto, the Supreme Court’s mandate for a pretermination hearing. Plaintiff argues that the provided hearing was insufficient, and that a hearing limited to evidence of pretermination conduct is due.
II. FACTS AND PROCEEDINGS Plaintiff, Gary Bowen, was terminated from his position as an active duty attorney advisor for the Alaska Air National Guard, in 1993, based on three allegations of insubordination. He appealed to the Superior Court, alleging a failure to provide him with a pretermination hearing. When he was upheld by Judge Hunt, the State appealed. The Alaska Supreme Court affirmed the requirement of a pretermination hearing in 1998, and the matter was remanded to the State of Alaska, Department of Military and Veteran’s Affairs (“DMVA”) for further proceedings. State, Dep’t of Military Veterans Affairs v. Bowen, 953 P.2d 888, 891 (Alaska 1998).Page 4
The original grounds for termination as an active duty attorney advisor were three in number. Post-termination, Major Bowen engaged in conduct that led to six additional charges of insubordination. His superiors initiated an “Officer Efficiency Board” hearing to address all charges, to ascertain whether he could remain a reserve officer (the hearing had nothing to do with his prior active duty termination, although it addressed the same original three grounds). Major Bowen was afforded military counsel, and he had the opportunity to testify, to present witnesses, and to confront and cross-examine witnesses. The board affirmed one of the three original grounds, as well as all six additional grounds for termination of reserve status, on July 12, 1994. The latter grounds included an allegation that he had engaged in disorderly conduct on March 12, 1994, at the National Guard Armory, after which he was arrested by civilian police, removed, and charged with criminal trespass. Another allegation recited “insubordinate, violent, and disrespectful behavior toward a superior officer.” Based upon the Officer Efficiency Board’s findings of fact, the reviewing Chief of Military Justice found, on March 3, 1995:
Even allowing for the strength of conviction Major Bowen may have held in his views of the issues in dispute, nothing excuses — nor could ever justify — his utterly shameful conduct throughout these episodes. This West Point graduate’s complete abdication of military bearing and professionalism has led to the Board’s inevitable, yet necessary, conclusions and recommendations.
Following the Supreme Court’s decision ordering a pretermination hearing dated February 13, 1998, Major Bowen wrote DMVA requesting reinstatement, on March 13, 1998. On June 17, 1998, Major Bowen wrote DMVA, demanding damages in the amount of $1,054,445. Major Bowen indicated his intent to pursue this result through further litigation with the Air Force.Page 5
Major Bowen alleges that the DMVA continued after the remand to deny him his pretermination hearing. The State presents no evidence to the contrary. On the current record, the inference is that DMVA unilaterally decided it was excused from compliance with the literal mandate of the Supreme Court to hold a pretermination hearing; that it did not apply to the superior court to establish the Officer Efficiency Board as de facto compliance; and that it did not formally notify Major Bowen in writing of DMVA’s resolution of this matter.
Meanwhile, the superior court’s file in the administrative appeal from DMVA to Judge Hunt was closed and microfilmed. Judge Hunt retired. Five and one half years after the Supreme Court’s decision, Major Bowen filed a motion under the 1993 superior court appellate case number, styled “Motion to Set Hearing to Determine Damages,” alleging that DMVA had ignored the Supreme Court’s mandate. The State’s response initially endorsed a remand to DMVA to establish damages. Subsequently, the State moved to dismiss on grounds of res judicata, because Major Bowen had filed and lost a number of subsequent lawsuits in divergent forums. This court denied the latter motion, and requested briefing on the issue of whether the Officer Efficiency Board hearing de facto complied with the Supreme Court’s remand.
III. DISCUSSION A. THE DEFENSE OF LACHES IS NOT AVAILABLE TO THE STATE.
The State argues that Major Bowen should be barred by the equitable doctrine of laches, because he waited too long to seek his relief. Since it appears that the DMVA did not in good faith comply with the mandate of the Supreme Court, it does not come to this court with the clean hands it needs to assert an equitable defense.Page 6
B.THE OFFICER EFFICIENCY BOARD PROVIDED AN ADEQUATE EVIDENTIARY HEARING.
Judge Hunt wrote, “Bowen does not argue that he has been deprived of a property interest in continued employment, but rather that he has been deprived of a vested property interest in full severance pay.” She cited United States ex rel. Karr v. Castle, 746 F. Supp. 1231 (D. Del 1990), for the proposition that active National Guard personnel do not have a property interest in completing an assigned tour of duty. She found he possessed a property interest in severance pay sufficient to require a due process termination hearing before such pay could be forfeited.
In State, Department of Military Veterans Affairs v. Bowen, 953 P.2d 888, 891 (Alaska 1998), the Supreme Court affirmed “that his property interest in full severance pay entitled him to a hearing before his severance pay could be reduced,” but reversed Judge Hunt’s determination that Bowen’s reputation interest did not itself justify a hearing. The Court deemed the issue of continued employment to be moot, in light of its other holdings. Id. at 901 n. 19. It remanded the matter for a pretermination hearing.
Under all the circumstances, it is clear to this court that the Officer Efficiency Board sufficed as a constitutionally adequate opportunity for Major Bowen to clear his name and obtain his severance pay. He had the benefit of counsel and confrontation, the right to call witnesses, a three-officer hearing panel which arrived at a unanimous conclusion, a six-volume transcript, and a formal legal review procedure. He was exonerated on two of the three grounds originally advanced for his termination. That the hearing was conducted by reserve officers rather than the DMVA is of no significance, given the intimate symbiotic relationship of DMVA with the reserves, and the mixed lines of authority and regulation. By all objective measures, Major Bowen was afforded a richer panoply of due process rights than would have been required for a timely administrative pretermination hearing conducted by DMVA.Page 7
Major Bowen objects that the Officer Efficiency Board considered post-termination misconduct, as well as the three originally cited misconduct allegations. These were his failure to clarify upon request allegations of personal financial impropriety, failure to properly document a leave, and substandard provision of legal services amounting to dereliction of duty. The Officer Efficiency Board upheld the first ground, and all six post-discharge grounds. There is no question that the ensemble of upheld charges richly merited the sanction of reduced severance pay.
Major Bowen has not meaningfully briefed the issue of after-acquired evidence of post-discharge misconduct, beyond a cursory reference that the allegations for termination from the United States Reserves were more extensive than those in the active duty Air National Guard matter.
In McKennon v. Nashville Banner Publishing Co., 513 U.S. 352 (1995), the plaintiff alleged that her employer terminated her in violation of the Age Discrimination in Employment Act. During the plaintiff’s deposition, the employer learned that while she was still employed, she had improperly copied and removed confidential documents. The Court concluded that this after-acquired evidence of employee on-the-job conduct that would have led to termination had the employer been aware of it, did not preclude recovery, but was relevant to the issue of remedy.
Since McKennon, only a few courts have analyzed whether the McKennon rationale should apply to post-termination misconduct as well. In Sellers v. Mineta, 358 F.3d 1058, 1064 (8th Cir. 2004), the court held that post-termination conduct is relevant in determining the availability and extent of the remedy, and noted:
Our conclusion that an employee’s post-termination conduct can, in some circumstances, limit an employee’s remedies for a wrongful discharge is not a new one. For example, we have previously concluded that aPage 8
terminated employee could forfeit the remedy of reinstatement under the National Labor Relations Act where he threatened his supervisors post-discharge. . . . We have also concluded that front pay would be unavailable where the plaintiff’s own post-termination conduct prevented reinstatement. (Citations and internal quotations omitted.)
Here, Major Bowen’s post-termination conduct was so flagrantly insubordinate that reinstatement, had the Officer Efficiency Board addressed that issue, would scarcely have been conceivable. It is now appropriate to consider that conduct in determining whether Major Bowen was guilty of misconduct meriting severance pay reduction. The one sustained pretermination instance of insubordinate behavior, an important matter relating to Major Bowen’s security clearance, and the six relatively flagrant post-termination instances, convince this court that a denial of full severance benefits, based on pre-and post-termination misconduct, is justified. No useful purpose would be served by a remand to re-plow the evidence, ten years after the fact.
C. MAJOR BOWEN IS NOT ENTITLED TO BACK PAY
An award of back pay for the period between a premature firing and the issuance of an administrative decision after a curative hearing is the normal remedy for failure to provide a pretermination hearing. Storrs v. Municipality of Anchorage, 721 P.2d 1146 (Alaska 1986); North Slope Borough v. Barraza, 906 P.2d 1377 (Alaska 1995).
The State argues that Major Bowen waived the remedy of back pay by not explicitly requesting it from Judge Hunt. The State equates Judge Hunt’s finding that Bowen failed to argue he had a protected property interest in continued employment, with a finding that back pay was inappropriate. Judge Hunt made no explicit ruling on that issue.Page 9
Major Bowen did not seek reinstatement from Judge Hunt. She ruled that reinstatement was not possible under federal law, and Major Bowen did not appeal this aspect of her ruling. Thus, it is the law of the case that reinstatement was not an available remedy. The relief sought by Major Bowen was limited to full severance pay, plus vindication of his reputation.
Under normal circumstances, if an employee is fired without being afforded a due process hearing, the very propriety of the termination is in doubt until the hearing is held. It is thus appropriate to deem that the employment relation continues until the hearing is held, with a concomitant right to back pay to that date. This right to back pay tends to discourage employers from prematurely terminating employees before they have a full opportunity to explain themselves.
The termination of Major Bowen is distinguishable, however. There was no “constitutionally unlawful dismissal” within the meaning of Storr v. Municipality of Anchorage, supra, at 1151. Major Bowen had no property interest in continued employ, because an active duty officer can be terminated at any time for any reason. The Supreme Court only granted him a hearing as to the issues in which he had a property interest, i.e., severance pay and reputational interest.[fn4] Since he did not seek, and was not entitled to, a hearing on the issue of reinstatement, it seems to this court illogical to deem him to be a constructive employee from the date of termination to the date of the de facto termination hearing before the Officer Efficiency Board. Therefore, he is not entitled to an award of back pay for that time period.Page 10
IV. CONCLUSION The state’s laches defense to Major Bowen’s claim fails, based on the DMVA’s own questionable conduct. Nonetheless, the Officer Efficiency Board hearing served as a de facto termination hearing, which satisfied the mandate of the Supreme Court. No further hearing is required. Major Bowen’s pre-and post-termination conduct, taken together or separately, justifies partial forfeiture of his severance benefit. He was afforded an adequate opportunity to defend his reputation at the Officer Efficiency Board hearing. He is not entitled to back pay. Major Bowen’s motion for a further hearing, and for damages, is denied.
B. August 25 Order
ORDER ON MOTION FOR RECONSIDERATION The court issued an order dated July 12, 2004, denying back pay to Plaintiff from the time of his termination until the date of the Officer Efficiency Board hearing. Plaintiff now moves for reconsideration, on the ground that the court improperly relied on the fact that Major Bowen did not plead for money damages in his administrative appeal to the superior court, Judge Hunt. He also argues that the court misconceived the law in a way that is not clear after several readings of the petition.
The court did not deny back wages because of any failure to plead them to Judge Hunt. Rather, the court reasoned that the holding of Storrs v. Municipality of Anchorage, 721 P.2d 1146, 1151
(Alaska 1986), that a failure to hold a pretermination hearing entitles a fired employee to back pay, simply does not apply to the present situation. Other than a passing reference to Storrs, Major Bowen fails to address the court’s rationale for denying him back pay.
Judge Hunt found that Major Bowen did not argue that he had a property interest in continued employ, and that under federal law active duty military reservists are terminable at will. Major Bowen appealed that aspect of her decision, but the Supreme Court deemed the point to be moot. MajorPage 11
Bowen was seeking a hearing to litigate severance pay and his reputation, and the Supreme Court gave him this relief. The Supreme Court saw no point in resolving the property interest in continued employment issue, because Major Bowen was not seeking continued employ, and was getting his hearing.
Major Bowen now seems to be saying that he had a property interest in continued employment sufficient to trigger the remedy of back pay, even though he was not seeking reinstatement from Judge Hunt.
Major Bowen was terminable at will. He was terminated. He then sought a hearing from Judge Hunt to recover full severance pay and to restore his reputation, but not to be reinstated. The military held a de facto pretermination hearing, and he was found guilty of pre-and post-termination misconduct justifying his removal from reserve status. The question becomes, does such a person in such a circumstance qualify for back pay under the holding of Storrs and precursor cases?
Mr. Storrs was a discharged police officer who filed suit against a city for reinstatement and back pay. The Supreme Court held that “a public employee ordinarily has the right to an adversarial hearing before he may be effectively dismissed.” Id. at 1150. The court reiterated its prior holdings that a “constitutionally unlawful termination,” cured by a post-termination curative hearing, triggers back pay. Id. at 1151.
What constitutes a “constitutionally unlawful termination?” In McMillan v. Anchorage Community Hospital, 646 P.2d 857 (Alaska 1982), a physician had summarily been denied hospital privileges based on disruptive behavior. The Supreme Court engaged in a balancing analysis, and held that summary termination prior to a hearing may be justified if the employer’s interest is important and outweighs the potential for damage to the employee’s interest. Thus, while a clear danger to patientPage 12
safety justified a summary pre-hearing suspension, mere disruptiveness did not. The circumstances are important.
In Nichols v. Eckert, 504 P.2d 1359 (Alaska 1973), the Court held that an employee who could only be terminated for cause was entitled to a pretermination hearing; the Court distinguished the situation of at-will employees, without clearly holding that they never qualified for such a hearing.
Judge Hunt held that any active duty officer is an at-will employee under federal law. Major Bowen was not entitled to reinstatement, and he did not seek it. He was not prejudiced by his summary termination in any manner analogous to the prejudice suffered by an employee disputing the grounds for his termination and seeking continued employ. He could, and did, adequately litigate his reputation interest and his property interest in severance pay post-termination, without prejudice from the fact of termination itself.
Major Bowen was terminated effective May 20, 2003. On June 5, 1993, he engaged in disrespectful, violent and insubordinate acts towards a superior officer, as subsequently determined by the Officer Efficiency Board. It seems to this court that the Department of Military and Veterans Affairs ought not to be required to retain such an officer on active duty pending a hearing, when it has the absolute right to terminate the officer without cause in any event, and in light of the military’s high interest in discipline and morale.
While our Supreme Court in State, Department of Military Veterans Affairs v. Bowen, 953 P.2d 888 (Alaska 1998), ordered that Major Bowen be afforded a pretermination hearing, it does not necessarily follow that the ancillary remedy of back pay is required. It appears to this court that Major Bowen is not similarly situated with the police officer Storrs, surgeon McMillan, or a tenured teacher, and is not entitled to back pay on the facts presented.Page 13
C. November 1 Order
ORDER REGARDING BACK PAY The court previously ruled that Major Bowen was not entitled to back pay for the period between his termination and his hearing before an Officer Efficiency Board, which served as a de facto
pretermination hearing. Since the parties had not focused on the back pay issue in the briefing, the court allowed a final round of briefing on that point. Major Bowen engaged in mission creep in his briefing, but did address the back pay issue.
The court is not persuaded to change its mind. Major Bowen’s case is distinguishable from those cases announcing the general principle that persons unconstitutionally denied pretermination hearings are entitled to back pay. He was never entitled to a hearing on reinstatement, and thus it is not appropriate to deem him a constructive employee while he awaited a hearing limited to the issues of severance pay entitlement and vindication of reputation. Further, his post-termination conduct was such that continued employ became inconceivable. This court believes that back pay under these circumstances is not justified, and declines to order it.
Bowen presents six issues for review in this appeal.
Issue 1: Did the trial court follow the mandate found in the opinion of the Alaska Supreme Court in State, Department of Military VeteransAffairs v. Bowen, 953 P.2d 888 (Alaska 1998)?
Response: Yes. We concluded our opinion in Bowen’s first appeal by ordering the superior court to remand to the DMVA with instructions to hold a pretermination hearing.[fn5] The record reveals that on March 25, 1998, Judge Hunt followed our commandPage 14
and remanded Bowen’s case “to the State Dep[artment] of Military Affairs for compliance with the Supreme Court Decision.”
Ruling on Bowen’s later-filed motion, Judge Suddock merely concluded that no hearing to set damages was necessary because the Officer Efficiency Board had independently eliminated Bowen’s potential entitlement to full severance or back pay, and had already provided Bowen with a sufficient opportunity to clear his name. Our opinion in Bowen’s first appeal did not require Judge Suddock to order the DMVA to conduct a hearing that could serve no beneficial purpose.
Issue 2: Was the termination hearing conducted by the United States Air Force to discharge Appellant Bowen a proper termination hearing required of the Alaska National Guard?
Response: Bowen’s appeal does not require us to address this question. Judge Suddock ruled that the Air Force’s Officer Efficiency Board hearing provided Bowen with an adequate opportunity to rebut the state’s three charges of preterminationPage 15
misconduct, and that ordering the DMVA to hold a pretermination hearing at this date could serve no useful purpose. We agree with these conclusions and need not decide whether the Officer Efficiency Board could, in the first instance, have served as an adequate substitute for state process.
Separately, Bowen argues that it was unfair for the O fficer Efficiency Board to simultaneously consider both the original grounds for his termination and the Air Force’s several allegations of post-termination misconduct. We find no merit in this argument. The Officer Efficiency Board’s consideration of Bowen’s post-termination misconduct does not appear to have resulted in any prejudice to Bowen, and Bowen has presented no evidence of bias.
Issue 3: Did the trial court err as a matter of law in holding that a proper termination hearing had been held in this case?
Response: The superior court did not hold that Bowen had received a “proper termination hearing.” It held that no purpose would be served by now ordering the DMVA to hold a hearing. We agree with that conclusion.
Issue 4: Did the trial court err as a matter of law in ignoring the decision of Judge Hunt as the law of the case, that no hearing by the United States could be undertaken until the termination from the National Guard had been properly concluded?
Response: Judge Hunt did not enjoin Bowen’s federal proceedings. The language from Judge Hunt’s opinion cited by Bowen makes no mention of an injunction:
The Department argues that the application of state law to AGR termination procedures may result in the “unworkable situation of leaving an individual in a position for which the individual is no longer eligible.” However, state procedural requirements do not affect the substantive grounds for termination. Likewise, requiring additional procedural protections before an individual may be discharged for cause under ANGR 35-03 will not create a conflict because there isPage 16
still only one termination process. Only after DMVA discharges an AGR employee for cause under ANGR 35-03 will federal recognition be in jeopardy under ANGR 35-03, 6-5(e) (providing that AGR personnel should be considered for discharge processing from the Air National Guard upon discharge for cause).
Issue 5: Did the trial court err as a matter of law in holding that Appellant Bowen was not entitled to back pay from the date of his termination from the National Guard until the date of a pretermination hearing ordered by the Alaska Supreme Court?
Response: No. As the superior court noted, Bowen served in an at-will position[fn6] and had no property interest in continued employment.[fn7]
In Bowen’s first appeal, we ruled that Bowen had a property interest in full separation pay and a liberty interest in his reputation that made his termination on grounds of misconduct improper in the absence of a pretermination hearing.[fn8] But we expressed no opinion regarding the propriety of a back pay remedy and believe that the superior court properly denied Bowen’s late request for back pay in this case.[fn9]Page 17
Bowen also argues that Judge Suddock improperly concluded that Bowen’s post-termination misconduct eliminated his entitlement to damages. Judge Suddock did note that Bowen’s post-termination misconduct made Bowen’s reinstatement “inconceivable,” but his conclusion that Bowen was not entitled to back pay did not depend on this finding — Judge Suddock had already concluded that back pay was not an appropriate remedy because Bowen’s position in the active guard/reserve was an at-will position.
Issue 6: Did the trial court err as a matter of law in holding that Appellant Bowen was not entitled to a further hearing on damages?
Response: No. Bowen did not file a motion to hold the state in contempt, or seek to have the court impose any penalties on the state; he merely requested a hearing to determine what damages were owed to him. The superior court correctly concluded that Bowen is not owed any damages.
For these reasons, we AFFIRM the superior court’s judgment.
[fn*] Entered pursuant to Appellate Rule 214.
[fn1] State, Dep’t of Military Veterans Affairs v. Bowen,953 P.2d 888, 898, 901 (Alaska 1998).
[fn2] Id. at 901.
[fn3] The superior court’s orders have been edited to conform with our technical and stylistic rules. Some internal citations have been omitted.
[fn4] This statement was partially inaccurate. We determined in Bowen’s first appeal that Bowen had a property interest in his severance pay and a liberty interest in his reputation. See Bowen, 953 P.2d at 898,891.
[fn5] In full, we concluded:
For the reasons set out above, we AFFIRM the superior court’s determinations that Alaska courts have jurisdiction of this dispute, that Bowen was a state employee, that the Alaska Personnel Act did not apply to him, and that his protected property interest in full severance pay was violated without due process under the Alaska Constitution. We therefore AFFIRM the superior court’s order reversing the DMVA’s decision to terminate Bowen’s employment without first giving him a pretermination hearing, and we AFFIRM the superior court’s determination that a trial de novo is not required. Having concluded that Bowen had a liberty interest in his reputation under the Alaska Constitution, we REVERSE that portion of the superior court’s opinion which held to the contrary. We REMAND the matter to the superior court for remand to the DMVA for a pretermination hearing.
Id. at 901.
[fn6] Bowen argues that his position was not at-will because “he had been appointed by the Governor of Alaska to be a full time national guard officer . . . for a period of five years.” Bowen fails to mention, however, that the special order that appointed Bowen to his AGR position explicitly stated that Bowen could be “sooner relieved” of his AGR duties by any “competent authority.”
[fn7] Cf. United States ex rel. Karr v. Castle, 746 F. Supp. 1231, 1240
(D. Del. 1990) (holding that national guard employee serving in the active guard/reserve program did not have a property interest in completing an assigned tour of duty). See also Revelle v. Marston,898 P.2d 917, 925 n. 14 (Alaska 1995) (“At-will employment does not create a constitutionally protected property interest.”).
[fn8] Bowen, 953 P.2d at 898, 900-01.
[fn9] Cf. Lee v. United States, 32 Fed. Cl. 530, 546 (1995):
The Supreme Court has stated that the Due Process Clause requires notice and an opportunity to be heard when a liberty interest is violated. See Board of Regents v. Roth, 408 U.S. 564, 573
(1972) (“Where a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential.”). The purpose of that hearing, however, is to give the person an opportunity to clear his name, and the Court has not said it necessarily requires anything more, i.e., reinstatement and back pay. . . . In this case, if in fact Mr. Lee’s liberty interest has been violated, he may only be entitled to a hearing regarding removal of the stigmatizing material; he is not entitled to reinstatement and back pay.
(Some citations omitted.)