good morning may please the court i am jeffrey jacobson representing anthony espinosa in this case of like to reserve five minutes for rebuttal it has been forty six years since the supreme court in board of regents versus roth established that a terminated employee has a constitutionally based liberty interest in clearing his name when stigmatizing information regarding the reasons for the terminations are publicly disclosed appellant in this case is seeking judicial recognition that the department of justice must provide due process to a law enforcement officer before it makes the decision to not use the officer as a future witness in under giggly the due process cause it is case of all that stands for that proposition i have found that if i have not found any other judge it is my understanding that in this case was the border patrol or customs and border protection but the department of justice clearly affected the employee in this case not exactly in a reputation a way in other words they made a decision for their own purposes  about whether to use him as a witness and that was their just station it wasn't that they were running around calling him names for telling thing that he did terrible things they just said we're not going to use him as a witness says that no prosecutor and i'm looking at the excerpts or record at fifty five in addition our attorneys are reluctant to work with agents who have displayed such untrustworthiness and lack of judgment had the u s attorney's office simply stopped where it said we made a decision under good leo that were not going to use him in the future that's a reason that he wasn't  impact on his job was that he was going to be able to testify well but a good leo taints alone judge is not in and of itself a complete bar so in other words under giggly zero all the u s attorney's office is saying that we have information that might be disclosed that might have to be disclosed that will likely have to be disclosed that would potentially impeach his testimony or character gig well because the u s attorney's office in this case didn't just give leo taint him it's said with a broad brush we will never use this person ever again as a witness to testify that's what the th actually the fool and the hearing they gave the opportunity to explain the situation they were concerned about the fact that his girlfriend what of that relationship was all about the impact upon his ability to continue to serve in that particular capacity but they gave me the well he gave them they gave them the process the border patrol certainly gave them the process that was due but but mr spinoza did not have the opportunity to address the hard facts of the case because for example he asked for the d h s s a y g file to know specifically what the concern was and he was the night that and in fact the deciding official basically said the underlying facts don't matter simply the u s attorney's office said you can't testify in their face if you know what i'm saying the underlying facts didn't matter what what has harmed was that right so therefore what's the due process problem the due process problem is that the u s attorney's office made that determination without process the u s attorney's office made the gig leo decision but but but are you then you're saying that whenever the u s attorney's office makes a decision based on their assessment of credibility that somebody isn't credible and you then have to have a hearing which i don't think you're saying you're saying it's because it connected up to his employment but the only thing that connected up to his employment was the inability to testify not anything else well what i'm saying judge is that the u s attorney's office oh those law enforcement officers to be in perspective when yes i'm sorry could you be has some liberty interest in being a prospective witness he has a liberty interest in his reputation and again the this case is unique and different because it wasn't just bigly taint it was beyond that it was we're not going to use you as a witness if it was just the gig leo taint alone that would be one taint basically alerts the employer and other defense attorney is another prosecutors that this had this person has they are aware of information that could impeach this person's credibility it's not in of itself an absolute bar to testify the prosecutor in this case went beyond one step in said in addition what we are not anyone is if this isn't hooked up to his employment prospects which is what you seem to be  you know then if you know what i'm somebody else so the government says i'm not going to use as a witness because i don't find you credible i have a right to a hearing by g o j you have a right to a hearing before that decision is made you have conned the government decides not to have somebody as a witness because then they'd find his credibility question so maybe it's easier if i explain it in the terms of this quote in the terms of this case the department of justice did it i'm sorry the department of homeland security office of inspector general did an investigation an internal affairs investigation it took that investigation went to the u s attorney's office shared information with the u s attorney's office in a vacuum in a bubble and the u s attorney's office as a result of that meeting with but the hearing was not on the merits of whether or not a gig leo tain should have issued it was on whether or not you know he should be made as a border patrol officer in light of the fact that he had this relationship with this woman and they decided that they would keep him lloyd but they would no longer live in that house what more would you have accomplished that is so cool and that well judge the that the border patrol did not make the decision based on the underlying conduct the border patrol strickly made the decision because he was unable to testify it said you are unable to testify because the what the  that's what it says maybe i'm wrong but i thought they gave the full opportunity to explain his relationship with this woman and the underlying dynamics he never had the full opportunity he never had the full opportunity in fact he never got a copy of the materials that they that the u s attorney's office  be a witness he had a right to here in the o j o j i don't know what that had to do with whether he was a federal employee or not well it's the liberty interest judge i would agree with you that the property interest is somewhat attenuated in this case because as stigma plus test under but the plus is the employment which is then say he does it is irrelevant essentially well what i'm saying judge is that the u s attorney's office altered his employment status by saying you cannot testify as a witness  and and you know due process is a flexible concept its boundaries are really dependent on the circumstances as you and i would i it's an excellent question judge it's actually more of a pejorative i believe there is a stanford law review article that addresses giggler taint that's not briefed but they a good leo taint is really a pejorative but this court certainly an opportunity to discuss the boundaries of what a prosecutor can and can't do not that that's what this case is really about well what appellate is really seeking is to inject process where none currently exists before that liberty interest can be impugned ok if you could before you believed today give the citation to that article that you mentioned please to the court reporter it please the court my name is kate foss and i represent the department of justice as the questions from your honour's recognized plaintiff has a somewhat confusing argument as to what his interest is here he argues on the one hand that there is a free standing liberty interest to have notice and a chance to respond prior to the prosecutor's office issuing an e uses a witness the department of justice and the u s attorney's offices have a manual that goes sort of generally over some of their concerns but as a matter of course the only issue here is whether the prosecutor's office is entitled in their discretion to decide which witnesses they want to use in a particular case or in any case supposing i mean what the  saying never use the sexpert he's really lousy at cross examination or something it's possible but i'm not aware of it your honor but here in communicating its decision and trying to be close to one of our partner agencies also you know within sort of broader federal government it's identifying that the department of justice is not going to use plaintiff plaintiff as a witness because of concerns and as this court has addressed in three different cases in roe in tello in barnett that decision has been protected by absolute immunity as the type of discretionary decision that is imbued with this judicial process now here because this is a case seeking injunctive relief absolute immunity doesn't apply but the same principles that  absolute immunity also address the separation you know powers issue i'm confused about something and i'd appreciate if you can straighten me out he had a hearing by be employed and they decided that they would remove him from border patrol and to keep  right after he after the gig leo letter his employer provided a proposed removal and gave him notice and the opportunity to respond which he did in writing and or allow the opportunity to respond to the so happened because the employer's position was it didn't make any difference that's correct your honor and that's why here the rovs tests don't apply to this scenario there's no reputational interest that's been damaged the only thing that has been changed is that the u s attorney's office is declining to use him as a witness a letter did saying i say things about him but that was but your honor that letter was not adopted by his employer in their letter in the question that he answered which asked do you have or have you had within the past seven years close and continuing contact suggests that there is also an overall reputational interest that with change but are you is your suggestion that we affirm on the grounds of district court decided that mean you agree that the absolute immunity ground doesn't apply and we would have to strike out new ground with regard to the separation of powers notion is there a reason we should go there as opposed to a good process analysis your honor i think the easiest way is to simply provide that there is no liberty or property interest here he has no right to testify or to be a witness for the u s attorney's office and the door front case is instructive on that where in that case the plaintiffs had been denied a security clearance and the plaintiff tried to sue the executive to challenge her denial of security clearance and said well i can't work in my job because it requires me to have a security clearance they say and the the court there said well because there's no liberty interest or property interest and security clearance there's no interest in having employment that requires it and the same analysis applies here because it's a discretionary decision that can be taken away and there's no unilateral in title meant to it there's no contractual basis it's a lot of what the president whether he has sued the his employees are and they requested a full hearing what you might say who was hearing would be entitled to it your honor i would suggest that the roth hearing would be unnecessary because his in changing his status did not adopt any defamatory statements his employer simply said you can't testify in front of the u s attorney's office and so you can't perform the full and under strict duties of a border patrol agent there's no reputation plus or stigma involved in that the only thing that his employer was saying is that you can't testify here but plaintiff did receive this process would have  opportunity to say you're wrong that none of this of a happened i'm totally in this and this is a big mistake and i'm not being given an opportunity before any agency to really get into the facts that would find me to be not  some opportunity before his employer or the deal jay to be able to come phones you've got it all wrong your honor i would address that no i don't think that there's an opportunity to be able to clear one's name in terms of a credibility determination before the u s attorney's office i think that opens georgia have every time that the u s attorney's office doesn't find someone as the only issue here was the ability to get cox of the if he had the opportunity to leave speak to his employer and the employer past the point at issue and give the opportunity to explore the underlying facts that would be a different type of thing than just saying it doesn't matter whether you're guilty or not guilty you're still not going to have this position there's all the trouble you little your honor it doesn't trouble me simply because he did have the and verbally and in so doing he addressed the underlying issue of the o e m s occasion that essentially what you're saying is that the i mean it's nice to say they're different employers but in fact it's all the federal government so the border patrol you would think would have an interest in i mean they could have looked at one of two ways they could have  said it's none of our business whether the d o j made a terrible mistake with regard to whether this guy could testify where we're just going to take their their their decision as a given or they could have said we're going to find out what really happened here and if we decide that because it does have an impact on his employment status and if we decide that he didn't  security and the department of justice notwithstanding the fact that their missions overlap with some frequency are different executive agencies and fire and i would find it very hard to believe that the the the justice could provide to him is the ability to have him testify in their cases or not there's no name clearing hearing that the department of justice could provide and that's why th our interest with regard to whether you get to testify or not independently now that the fact that it then affection job you're essentially saying it's not that the partner of justice is problem your honor it sometimes appears harsh but the discretion involved in making witness credibility assessments is at the core of the prosecutor's office and plaintiff here is not just seeking notice and a hearing he wants to get into what geo chain knew who the from all of the underlying investigation done by his internal affairs division that's quite a lot of information about an investigation where he ultimately wasn't prosecuted that no one else would be entitled to in this other situation simply because you have someone who was manufacture a liberty interest to get access to that information that's not relevant to the u s attorney's choice into whether or not to let him testify and that's why those relevant but you're  impugn his reputation while there was these underlying not facts that led to his reputation somebody who has such a bad reputation and he can't testify as interviewed reputation that's your conclusion there who is it was your reputation so terrible that we're work at any other place the doesn't require him to testify in front of the u s attorney's office and that is quite a number of jobs and that's why they even that i suppose is somewhat questionable but he goes for apply for a job and i'm not believable that seems to me is going to help him get a job any other job any job well your honor in the most cases when someone gets demoted it can impact negatively their chances to get other jobs but the question is simply whether people are going to ask why and if the reason is because i didn't get along with my boss that's one thing or if the reason is because they didn't need that my job anymore that's another thing but it's the reason is that they thought i was a law or and that doesn't help very much to all and i can certainly understand that your honor but here because the burden of justice is not his employer they can't change his employment status and because there's no liberty or slide constitutional role of that ordinarily you don't have any interest and your reputation as such it's an odd rule but it seems to be there all except in this context consideration the contents of the case file specifically they gave me a letter from the united states attorney and all arguments raised during your reply i did not however consider the underlying investigation done by d h s o i g as the you don't know whether this is a due process right but you could at least argue that then you should go back to the to the it's your obligation if you just cited that the information is wrong to go back to the o j and say you made a mistake here but reason that this is precisely why this case is before this court is because the because the department justice and the department of homeland security did it end around due process i know but but that still doesn't answer my question because the department of homeland security then argues well we didn't consider the underlying that the underlying argument would be but you can't do that under oath you can't not consider it you have to consider it you could have appealed you could have challenged by his employer we did judge we filed an m s p b appeal that was dismissed we filed with the office of special counsel that was dismissed we've exhausted our administrative ram really i mean i would think there's a process you know by which you could have review was of determination as to whether the employer satisfy the wants and that if the court is is going to recognize that that is what is allowed in this case that by the government why that's not helpful is because indorsement that person had a process before the security clearance was revoked and so if mr espinosa had some process notice and an opportunity to respond to the allegation that he lacked candor to d h just to wage jihad before the agency which then decided it wasn't going to go there and if your problem is the stigma plus which is what you're saying that's the