                  UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT

                   ____________________________

                           No. 97-20405
                   ____________________________


                      EUGENE L. BARRINGTON,

                                               Plaintiff-Appellee,

                              versus

               TEXAS SOUTHERN UNIVERSITY, ET AL.,

                                                       Defendants,

                          GEORGE YORKE,

                                              Defendant-Appellant.

 ________________________________________________________________

           Appeal from the United States District Court
                for the Southern District of Texas
                            (95-CV-4574)
_________________________________________________________________
                           July 22, 1998

Before BARKSDALE, BENAVIDES, and DENNIS, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:1

     For this interlocutory appeal concerning qualified immunity,

the linchpin is whether the following alleges the violation of a

clearly established constitutional right, the first prong of the

bifurcated test for qualified immunity: that a violation of an

asserted due process property interest in promotion to the position

of associate professor at a college occurs if, after the college

board approves such a promotion for an assistant professor, the

     1
          Pursuant to 5TH CIR. R. 47.5, the Court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
dean of that professor’s department intentionally misinforms him,

because of personal animus, that the promotion has instead been

denied, when the college board, not the dean, is the decision-maker

and the dean’s role is merely to relay the board’s decision to the

assistant professor.

     The district court denied summary judgment for George Yorke on

qualified immunity grounds, Yorke having allegedly intentionally

misinformed Eugene Barrington, because of personal animus, about

his promotion to associate professor.          In so doing, the district

court   held,   by   implication,       that   the   alleged   intentional

misinformation about the promotion could be a violation of a

clearly established constitutional right — specifically, the denial

of Barrington’s due process property interest in the promotion to

the position of associate professor.           Because Barrington failed

to make the requisite allegation of the violation of a clearly

established constitutional right, Yorke is entitled to qualified

immunity.   Therefore, concerning the due process property interest

claim against Yorke, we REVERSE and RENDER.

                                    I.

     The factual background is viewed, of course, in the light most

favorable to Barrington.    E.g., Abbott v. Equity Group, Inc., 2

F.3d 613, 618-19 (5th Cir. 1993).        In 1977, he was hired by Texas

Southern University (TSU) as an assistant professor in its School

of Public Affairs, and was awarded tenure in 1984.        Later that same

year, the School of Public Affairs became the Department of Public




                                    2
Affairs, part of the School of Management.                         During the 1984-85

academic year, Yorke was serving as Dean of that School.

     By letter of 28 February 1985, the Rank, Tenure, Salary, and

Promotion Committee of the Department of Public Affairs advised

Yorke that it recommended Barrington for promotion to associate

professor.      Yorke opposed the recommendation but, pursuant to TSU

rules, forwarded it to the TSU Board of Regents (the Board).

     On 18 April 1985, Barrington was advised by a letter from

Yorke   that,     “[o]n     recommendation        of   the    Administration,         the

[Board],     at      its   April   12,     1985    meeting,         did   not   approve

[Barrington’s] application for promotion to the rank of Associate

Professor”.       The letter also suggested that Yorke would meet with

Barrington      on    9    May   1985    “to   discuss       the    reasons     why   the

Administration did not recommend [his] application”.

     But, Barrington never followed up on the suggested meeting

with Yorke; Barrington now maintains that the meeting “was not

possible nor relevant”.            Barrington points to Yorke’s deposition

testimony, which indicates that Yorke may have been hospitalized at

some point during the Spring of 1985.              Also, around this same time

period, the Department of Public Affairs was moved from the School

of Management to the School of Arts and Sciences; therefore, Yorke

no longer served as Dean of Barrington’s department.

     More than eight years later, in October 1993, another TSU

professor advised Barrington that the minutes of the April 1985

Board meeting reflect that Barrington’s promotion to associate

professor had been approved.


                                           3
     Barrington filed this action in September 1995.                          He presented

claims against the TSU Board and ten individuals in their official

capacity, including the TSU President and Chairman of the TSU

Board, for prospective injunctive relief. Barrington sued Yorke in

his individual capacity, seeking injunctive relief and damages.

Barrington       claimed:       (1)   that,    violative      of    due   process,       all

defendants deprived him of a property and liberty interest; (2)

that all defendants violated his equal protection rights; and (3)

that, in addition, Yorke was liable under Texas law for intentional

infliction of emotional distress and mental anguish.

     The defendants moved under Rule 12(b)(6) to dismiss.                                The

district court granted the motion in part, dismissing the due

process deprivation-of-liberty                claim    and    the   equal      protection

claim.        The court also dismissed two of the official capacity

defendants.           But, the court denied Yorke’s qualified immunity

claim.

     In the defendants’ subsequent motion for summary judgment,

Yorke    again    asserted       qualified        immunity.        In   his    supporting

affidavit,       he    stated     that   his      denial-of-promotion           letter   to

Barrington was the result of a hand-written notation Yorke received

in April 1985 from the TSU Vice-President of Academic Affairs,

Llayron Clarkson, indicating that the Board, during the April

meeting, had decided not to approve Barrington’s promotion.                             This

chain    of    events     was    in   accordance      with    the       TSU    policy    for

communications regarding promotions, which required that the Board

notify Clarkson, who then was to notify Yorke, who, in turn, was to


                                              4
inform   the   applicant.   Clarkson’s       affidavit      supported   Yorke’s

assertions. (Clarkson’s affidavit states also that the designation

in the minutes that Barrington was promoted is the result of a

typographical    error.     Yorke,        however,   does    not   raise   this

contention on appeal.)

     As part of his opposition to summary judgment, Barrington

presented a certified copy of the minutes, showing that he was

promoted to associate professor.            And, Barrington submitted the

affidavit of Winston Webster, a Board member on 12 April 1985,

stating that, “[b]y an unanimous vote, the TSU Board promoted

Eugene Barrington to the rank of Associate Professor on 4/12/85.

Such promotion is binding as TSU Board policy”.               Barrington also

moved for summary judgment on liability.

     The district court denied summary judgment for Barrington. As

for Yorke, the court granted him summary judgment against the

intentional infliction of emotional distress claim, but denied him

summary judgment on the remaining due process (property interest)

claim, concluding that he was not entitled to qualified immunity.

                                     II.

     Yorke filed this interlocutory appeal from the denial of

qualified immunity as to the due process claim.                The sole issue

presented is whether he is entitled to that immunity.

                                     A.

     The denial of summary judgment as to a qualified immunity

claim is immediately appealable, even if certain fact issues exist,

when the ruling determines a question of law.            E.g., Wren v. Towe,


                                      5
130 F.3d 1154, 1157 (5th Cir. 1997) (“A district court’s denial of

summary judgment is not immune from interlocutory appeal simply

because the denial rested on the fact that a dispute over material

issues of fact exists.”) (citation omitted); Coleman v. Houston

Indep. Sch. Dist., 113 F.3d 528, 531 (5th Cir. 1997) (discussing

Behrens v. Pelletier, 516 U.S. 299 (1996)).               In order to entertain

jurisdiction in this case, we must “take, as given, the facts that

the District Court assumed when it denied summary judgment”.

Coleman, 113 F.3d at 531 (internal quotation omitted).

     Accordingly, we have jurisdiction to determine the following

question of law: whether, assuming as correct the facts relied upon

by the district court, Yorke is entitled to qualified immunity

against Barrington’s due process property interest claim.

                                        B.

     Of course, we review a summary judgment de novo, viewing the

evidence in the light most favorable to Barrington.              Abbott, 2 F.3d

at 618-19.        In so doing, we focus on “‘whether there is any

[evidence] upon which a jury could properly proceed to find a

verdict for the party producing it, upon whom the onus of proof is

imposed’”.        Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251

(1986) (citation omitted).        “The mere existence of a scintilla of

evidence     in    support   of   the       plaintiff’s     position   will   be

insufficient; there must be evidence on which the jury could

reasonably find for the plaintiff.”            Id. at 252.     In this regard,

for the denial of

           summary judgment based on qualified immunity,
           we review the evidence in the light most

                                        6
          favorable to the nonmovant, but the plaintiff
          has the burden to come forward with summary
          judgment evidence sufficient to create a
          genuine   fact  issue   as   to  whether   the
          defendant’s conduct was objectively reasonable
          in light of clearly established law.

Pfannstiel v. City of Marion, 918 F.2d 1178, 1183 (5th Cir. 1990).

     Along this line, the bifurcated test for Yorke’s qualified

immunity defense to Barrington’s due process claim is more than

well-established:   (1)   whether,   under   currently    applicable

constitutional standards, Barrington alleged the violation of a

clearly established constitutional right; and (2) if so, whether,

under the clearly established law at the time of the incident,

Yorke’s conduct was objectively unreasonable.     E.g., Siegert v.

Gilley, 500 U.S. 226, 231 (1991); Hare v. City of Corinth, 135 F.3d

320, 325 (5th Cir. 1998); Rankin v. Klevenhagen, 5 F.3d 103, 105

(5th Cir. 1993).

     Barrington’s claim under 42 U.S.C. § 1983 is for violation of

the Due Process Clause of the Fourteenth Amendment and the Fifth

Amendment. His first amended complaint states this claim, in

pertinent part, as follows:

               The acts and omissions of Yorke violated
          Barrington’s constitutional right of due
          process....    The arbitrary and capricious
          outrageous actions by Yorke are shocking to
          the conscience....

          ....

          Barrington will never be able to regain the
          ten years lost because of Yorke’s intentional
          wrongful act denying Barrington’s promotion.

     In his second amended complaint, Barrington expanded on his

allegedly violated property interest:

                                7
               By virtue of tenure granted to Barrington
          by TSU in May 1984, Barrington had a property
          interest in his job. In intentional violation
          of the Fifth and Fourteenth Amendments to the
          Constitution ..., Yorke acted arbitrarily and
          capriciously   under    color   of   law   and
          proximately   deprived   Barrington   of   his
          constitutional   right   of   procedural   and
          substantive due process....    Yorke’s wanton
          acts were oppressively done with malice.

     And, in his summary judgment motion, Barrington claimed in

part:

          Yorke     intentionally,    wrongfully     and
          outrageously advised Barrington on April 18,
          1985, that the promotion was denied. ... Yorke
          acted out of the long existing animus stemming
          from Barrington’s insistence on following the
          wishes of Barrington’s colleagues and refusing
          in 1984 to decline to serve as Department
          Chair as Yorke wanted.

     Yorke’s motion for summary judgment on qualified immunity

grounds asserted that Barrington’s allegations did not constitute

a violation of a clearly established constitutional right.     In

denying the motion, the district court stated:

               Defendants   assert   that   [Barrington]
          fails to establish the violation of any
          clearly established constitutional right. The
          Court previously denied Defendants’ dismissal
          motion on this issue, noting that [Barrington]
          was entitled to pursue a claim for deprivation
          of his due process rights, assuming that
          [Barrington]   could   establish  a   property
          interest in his alleged right to an associate
          professor position in April of 1985.

               Upon review of the evidence submitted,
          the Court finds that a genuine issue exists as
          to whether [Barrington] had a property right
          to an associate professor position as a result
          of the TSU Board meeting of April 12, 1985.

(Citation to record omitted; emphasis added.)



                                8
     Thus, the district court held implicitly that a promotion to

associate professor is a clearly established constitutional right,

presumably as a property interest under the Due Process Clause;

but, that a fact issue remains whether Barrington possessed such a

right and whether that right was violated.   The district court did

not cite any authority in assuming or holding, by implication, that

the alleged intentional misinformation by Yorke regarding the

promotion could constitute the violation of a clearly established

constitutional right.

     But, our court has cautioned against such an approach for

ruling on qualified immunity claims.

               It is a common failing in qualified
          immunity decisions that courts avoid deciding
          exactly what constitutional violation might
          have occurred if the facts are as a plaintiff
          alleged.    We have previously required a
          plaintiff to allege the facts underlying his
          claimed violation of constitutional rights
          with sufficient specificity to demonstrate
          that defendants’ qualified immunity should be
          revoked. ... [T]he court must be able to
          characterize the plaintiff’s claim precisely
          as a matter of constitutional law before
          ruling upon an immunity defense. It is not
          enough that the court concludes that a
          violation arguably occurred.      Rather, the
          court must be certain that if the facts
          alleged by plaintiff are true, notwithstanding
          any credibility disputes with defendants, then
          a violation has clearly occurred. The purpose
          of requiring careful characterization of
          plaintiff’s claim at the outset of a qualified
          immunity analysis is to effectuate the goal of
          that defense, which is immunity from suit, not
          just from trial.

Connelly v. Comptroller of the Currency, 876 F.2d 1209, 1212 (5th

Cir. 1989) (citation omitted) (emphasis in original); Hare, 135

F.3d at 325-26.

                                9
     The holding in Connelly, grounded in Supreme Court precedent

such as Anderson v. Creighton, 483 U.S. 635, 639-40 (1987), was

reemphasized by the Supreme Court in Siegert, 500 U.S. at 231,

which held it improper to assume, without deciding, the preliminary

issue of whether the plaintiff alleged the violation of a clearly

established constitutional right.

          A necessary concomitant to the determination
          of whether the constitutional right asserted
          by a plaintiff is “clearly established” at the
          time the defendant acted is the determination
          of whether the plaintiff has asserted a
          violation of a constitutional right at all.
          Decision of this purely legal question permits
          courts expeditiously to weed out suits which
          fail the test without requiring a defendant
          who rightly claims qualified immunity to
          engage in expensive and time consuming
          preparation to defend the suit on its merits.
          One of the purposes of immunity, absolute or
          qualified, is to spare a defendant not only
          unwarranted liability, but unwarranted demands
          customarily imposed upon those defending a
          long drawn out lawsuit.

Id. at 232 (emphasis added).

     Accordingly, the first prong of our qualified immunity test —

whether Barrington alleged the violation of a clearly established

constitutional right — should be determined as a question of law.

See also Mitchell v. Forsyth, 472 U.S. 511, 526 (1985); White v.

Taylor, 959 F.2d 539, 544 (5th Cir. 1992).       Barrington’s due

process allegation raises two questions relevant to our analysis

under this first prong: (1) whether he alleged the possession of a

clearly established property right; and (2) if so, whether he

alleged that Yorke violated that right.




                                10
                                    1.

     First, Barrington contends that the district court found a

genuine issue of material fact as to whether he established a

property interest in his promotion to associate professor, and

that, therefore, we do not have jurisdiction to review it in this

interlocutory appeal.    See Baulch v. Johns, 70 F.3d 813, 815 (5th

Cir. 1995).   On the other hand, as we stated in Connelly, in which

the district court likewise found that the plaintiff “arguably” had

a constitutionally protected property interest,

            with respect to the immunity defense, the
            court seems to have assumed that the existence
            of an “arguable” right to property ...
            triggered due process protections....      Due
            process analysis requires first a finding of a
            property or liberty interest and then an
            assessment of what process must attend a
            particular deprivation. We must disagree with
            the court’s implicit assumption that the
            existence of an “arguable” property or liberty
            interest may thwart an immunity defense.

876 F.2d at 1212.

     But, we do not reach this property-right issue because, as

noted by Barrington, Yorke does not specifically contest on appeal

that Barrington has a property interest in his promotion by TSU to

associate   professor.    Yorke’s    failure   to   do   so   is   somewhat

perplexing, given that he raised it in district court and that the

district court, in denying his motion for Rule 12(b)(6) dismissal,

invited him “to urge this issue on summary judgment”, at which time

Barrington “will have the burden of establishing a genuine issue of

material fact as to the existence of a property interest”.




                                    11
      In any event, Yorke’s assertion on appeal that Barrington

failed to allege that Yorke violated any federal right, discussed

infra, could be viewed to contest Barrington’s property interest in

the   promotion.      But,    it    is    incumbent      upon    the   appellant      to

explicitly    state   the    issues       on appeal.         See   FED. R. APP. P.

28(a)(6).     Because Yorke has not adequately raised the issue of

whether there is a clearly established property right in the

promotion, we will not address it.              See Hileman v. City of Dallas,

115 F.3d 352, 355 (5th Cir. 1997) (citing Cavallini v. State Farm

Mut. Auto Ins. Co., 44 F.3d 256, 260 n.9 (5th Cir. 1995)).

                                          2.

      The   other   subpart    for       the   first    prong    of    the   qualified

immunity test is whether Barrington alleged that Yorke violated

this putative clearly established constitutional right.                         Yorke

sufficiently      raises     this    issue      on     appeal,     contending       that

Barrington failed to allege that Yorke violated any constitutional

right.      Yorke contends that Barrington alleged only that Yorke

falsely informed Barrington that his promotion was denied; which,

Yorke maintains, is not a violation of a constitutional right.

      “Property     interests,      of    course,      are   not   created     by   the

Constitution.       Rather they are created and their dimensions are

defined by existing rules or understandings that stem from an

independent source, such as state law....” See Board of Regents of

State Colleges v. Roth, 408 U.S. 564, 576 (1972).                      The Court has

found due process property interests violated when, without a fair

hearing, public college professors are dismissed from contractual


                                          12
or tenured employment or even after only being promised continuing

employment.    Connell v. Higginbotham, 403 U.S. 207, 208 (1971);

Slochower v. Board of Higher Ed., 350 U.S. 551 (1956); Wieman v.

Updegraff, 344 U.S. 183 (1952).

     But, this appeal presents a situation different from these

well-established violations of due process property interests.

Barrington    does    not   allege   that    Yorke   somehow   rescinded    the

promotion or made it invalid.        In fact, quite the opposite is true:

Barrington consistently urges that the promotion was valid, and

that Yorke was completely without power or authority to rescind it.

     Barrington cites little authority for the proposition that

intentionally and falsely stating that a promotion was denied

violates clearly established constitutional law. Roth, 408 U.S. at

576-78, which was cited by the district court in its denial of

Yorke’s motion to dismiss, held that a nontenured, state university

professor, who was not rehired at the end of his contractual

employment period, absent any university rules or policies, did not

have a constitutionally-protected property interest in reemployment

requiring a hearing on the decision not to rehire.

     Barrington cites also Ferguson v. Thomas, 430 F.2d 852 (5th

Cir. 1970), in which our court held that a nontenured college

instructor, whose employment contract was not renewed, was not

entitled to    a     rehearing   before     the   college   board   to   present

witnesses who would only enhance the board’s decision to terminate

his employment. Finally, Barrington cites Perry v. Sindermann, 408

U.S. 593 (1972), which held that a state junior college professor,


                                      13
whose    employment    contract       was    not   renewed,    was     entitled    to

procedural due process if he had tenure under the junior college’s

de facto tenure program.

       Needless to say, the above cases concern the procedural due

process involved when employment is terminated.                     Barrington does

not explain their applicability, instead string-citing to Forsyth

v. City of Dallas, 91 F.3d 769, 774 (5th Cir. 1996) (violation of

property right when individuals transferred to less desirable job

in retaliation for exercise of First Amendment rights); Fyfe v.

Curlee, 902 F.2d 401, 404 (5th Cir.) (transfer of teacher to less

desirable job in retaliation for placing her child in all-white

school violated First and Fourteenth Amendments), cert. denied, 408

U.S. 940 (1990); Bickel v. Burkhart, 632 F.2d 1251 (5th Cir. 1980)

(fireman must be made whole because denial of his promotion was in

retaliation    for    exercise    of       protected     speech);    and   Click   v.

Copeland, 970 F.2d 106 (5th Cir. 1992) (property interest violated

when    sheriff’s    deputy     transferred        to   less   desirable     job   in

retaliation for conduct protected by First Amendment). Apparently,

these cases are cited as analogous support for the proposition that

misinforming an individual about a promotion, because of personal

animus,   is   a    violation    of    a    clearly     established    due   process

property right in the position.

       We are far from persuaded by this analogy.               Obviously, there

is a meaningful difference between the instant case and one in

which a defendant affirmatively exercises vested authority to

terminate a plaintiff’s employment position, replacing it with a


                                           14
less       desirable       position,     in        response    to   the   plaintiff’s

constitutionally protected actions.                   Barrington has alleged only

that Yorke, out of personal animus, misinformed him about his

promotion, which had been approved by the Board.                     The sole act of

writing a letter of misinformation about the promotion, which also

asked Barrington to meet with Yorke on 9 May 1985 “to discuss the

reasons       why     the    Administration           did     not   recommend    [his]

application”, had no effect on the promotion qua promotion to

associate professor (the putative clearly established property

interest).      Moreover, despite the invitation to meet with Yorke,

Barrington never inquired into the notice of his promotion-denial.

       Accordingly, we find no support for Barrington’s allegation

that Yorke violated the putative due process right to his property

interest in a promotion to associate professor.                     Again, Yorke did

not, and indeed could not, rescind this putative property interest;

merely      sending    a    letter     that    misinformed      Barrington,     out   of

personal animus, about the status of the promotion did not rescind,

and hence did not violate, any property interest.                   See Siegert, 500

U.S. at 232-35 (holding that, although plaintiff’s allegation “may

be recoverable under State tort law”, it does not constitute the

violation of a constitutional right); Paul v. Davis, 424 U.S. 693,

712 (1976) (finding no due process violation and noting that “the

State may protect against [plaintiff’s alleged] injury by virtue of

its tort law....”).2

       2
          Along this line, Barrington had the opportunity to state
his claims in district court. His tort-claim against Yorke for
intentional infliction of emotional distress was dismissed on the

                                              15
     In short, because Barrington has not alleged the violation by

Yorke of a clearly established constitutional right, our qualified

immunity analysis need proceed no further.   E.g., Baker v. Putnal,

75 F.3d 190, 198 (5th Cir. 1996); see also Connelly, 876 F.2d at

1212 (“A conclusion that the facts alleged by [plaintiff] could not

establish a violation of law or constitutional right will also

require judgment in the defendant[’s] favor.”).

                               III.

     With respect to Yorke’s qualified immunity defense, and for

the foregoing reasons, we REVERSE the denial of summary judgment

against Barrington’s due process property interest claim, and

RENDER judgment for Yorke on that claim.   This case is REMANDED for

further proceedings consistent with this opinion.


                             REVERSED and RENDERED and REMANDED




merits by the district court by summary judgment. Of course, that
decision is not a subject for this qualified immunity,
interlocutory appeal.

                                16
DENNIS, Circuit Judge, specially concurring:

     I do not believe that this case presents any dispute as to a

material   issue   of   fact.   On    the   summary   judgment   evidence

presented, a reasonable trier of fact must conclude that the TSU

Board either did not grant Barrington an associate professorship at

all or that it tentatively voted to do so but either intentionally

or negligently failed to implement its initial vote.       Under each of

these scenarios, no reasonable trier of fact could find that

Barrington ever received a property interest in an associate

professorship from the Board.        Consequently, Barrington has not

stated a claim that his constitutional right safeguarding his

protected property interests was violated.




                                     17
BENAVIDES, Circuit Judge, specially concurring:

        I concur in the result reached by Judges Barksdale and Dennis in their separate opinions. We

have jurisdiction over this appeal and Yo rke is entitled to qualified immunity. I write separately,

however, to explain why I believe these conclusions are correct.

        Yorke appeals from the district court’s order denying his motion for summary judgment on

the basis of qualified immunity. The district court found that a “genuine issue [of material fact] exists

as to whether [Barrington] had a property right to an associate professor position as a result of the

TSU Board meeting of April 12, 1985.” Accordingly, we have jurisdiction to consider whether the

existence of this property right is material to a determination of Yorke’s entitlement to qualified

immunity.

        Whether Barrington has a property interest in his position as an associate professor as well

as his increased salary is immaterial to a finding of qualified immunity in this case Insofar as

Barrington’s complaint states a claim for the violation of his substantive due process right to be free

from the arbitrary deprivation of his employment-related property interests, Yorke is entitled to

qualified immunity on this claim because this right was not clearly established on April 18, 1985. The

Fifth Circuit did not recognize a substantive due process right to be free from arbitrary deprivations

of state-employment-related property interests until 1987. See Honore v. Douglas, 833 F.2d 565,

568-69 (5th Cir. 1987). Further, the aut hority cited by the panel in Honore had not clearly

established this right before April 18, 1985. Thus, the decisions of this circuit do not indicate that

Yorke should have known that his conduct violated Barrington’s substantive due process, as opposed

to state-law, rights. Anderson v. Creighton, 483 U.S. 635, 640 (1987).

        Barrington also contends that Yorke violated his rights to procedural due process. In the

context of public higher education, procedural due process requires onl y that a professor not be

deprived of a property interest without notice and an opportunity to respond. Williams v. Texas Tech

Univ., 6 F.3d 290, 293 (5th Cir. 1993); Honore, 833 F.2d at 568. Yorke’s letter to Barrington met

these requirements because it provided Barrington with notice of the deprivation by informing him

                                                  18
that he had been denied the desired promotion and provided him with an opportunity to respond by

inviting Barrington to meet with Yorke on May 9th “to discuss the reasons why the Administration

did not recommend his application.” Barrington, however, chose not to avail himself of this

opportunity for an informal hearing. Even if Yorke was not available at the appo inted time, the

Mathews v. Eldridge balancing test clearly indicates that Barrington should have sought a meeting

with someone other than Yorke who could have also explained why he was denied the promotion.3

Barrington, however, abandoned the process that was available to him. Thus, Yorke is entitled to

qualified immunity on Barrington’s procedural due process claims because he has not stated a claim

for the violation of his constitutional rights.

        For the foregoing reasons, I concur in the judgment.




          3
             In Mathews v. Eldridge, 424 U.S. 319 (1976), the Supreme Court stated that the
determination of how much process a property interest deserves is based on a balancing of three
factors: 1) the significance of the individual’s property interest; 2) “the risk of an erroneous
deprivation of such interest through the procedures used;” and 3) “the Government’s interest,
including the function involved and the fiscal and administrative burdens that the additional or
substitute procedural requirement would entail.” Id. at 335.
                                                  19
