Anthony Espinosa v. MATTHEW G. WHITAKER, Acting Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANTHONY ESPINOSA,
Plaintiff-Appellant,
v.
MATTHEW G. WHITAKER, Acting
Attorney General,
Defendant-Appellee.
No. 17-15900
D.C. No.
4:15-cv-00324-FRZ-BGM
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Frank R. Zapata, District Judge, Presiding
Argued and Submitted December 18, 2018
San Francisco, California
Before: GOULD and BERZON, Circuit Judges, and BLOCK,** District Judge.
Anthony Espinosa (“Espinosa”) appeals the dismissal of his First Amended
Complaint alleging that the Department of Justice (“DOJ”) violated his Fifth
Amendment due process rights when it sent Espinosa’s employer—the Department
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Frederic Block, United States District Judge for the
Eastern District of New York, sitting by designation.
FILED
JAN 4 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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of Homeland Security (“DHS”)—a letter stating that it would no longer use
Espinosa as a witness in future criminal prosecutions. Because Espinosa has not
pleaded an interest protected by the Fifth Amendment, we affirm.1
The requirements of due process apply only when a liberty or property
interest protected by the Fifth Amendment has been impaired. See Bd. of Regents
of State Colleges v. Roth, 408 U.S. 564, 569 (1972). Where there is no such
protected interest, no process is due under the Constitution.
Espinosa has not pleaded a constitutionally protected due process interest.
First, Espinosa has no protected interest in serving as a witness in criminal
prosecutions. “[A] benefit is not a protected entitlement if government officials
may grant or deny it in their discretion.” Town of Castle Rock v. Gonzales, 545
U.S. 748, 756 (2005). Whether Espinosa will be called to testify in federal criminal
prosecutions is well within the discretion of federal prosecutors. See Roe v. City &
Cty. of S.F., 109 F.3d 578, 584 (9th Cir. 1997). Espinosa therefore cannot claim
that DOJ improperly denied him the right to testify because he has no such right.
Nor does due process protect Espinosa from reputational damage by DOJ,
which is not his employer. Under Roth, a government employee can claim a
protected interest if the government (1) impugns the employee’s “good name,
1 Because we affirm the district court on the grounds that Espinosa has failed
to state a constitutionally protected due process interest, we do not decide whether
DOJ is entitled to absolute immunity from suit.

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reputation, honor, or integrity”; (2) or imposes “a stigma or other disability that
foreclose[s] his freedom to take advantage of other employment opportunities.”
408 U.S. at 574. However, “the defamation had to occur in the course of the
termination of employment.” Paul v. Davis, 424 U.S. 693, 709 (1976); see also
Siegert v. Gilley, 500 U.S. 226, 234 (1991) (holding that an individual had no due
process interest in challenging his former government employer’s negative
employment reference after he was not hired by a prospective government
employer because of that reference).
In this case, DOJ was not Espinosa’s employer and therefore did not damage
Espinosa’s reputation in the course of terminating his employment. DOJ sent DHS
a letter communicating its decision not to use Espinosa as a witness in future
prosecutions, reasoning that, if it did so, it would be required to disclose
Espinosa’s relationship with an alleged narcotics trafficker pursuant to Giglio v.
United States, 405 U.S. 150 (1972). The letter also accused Espinosa of
“untrustworthiness and lack of judgment.” As a result of the letter, DHS demoted
Epinosa from his role as a Lead Border Patrol Agent. Espinosa submitted written
and oral responses to DHS contesting the demotion, but DHS made the decision to
demote him without considering the factual basis underlying his disqualification
from serving as a witness. However, we have no occasion to decide whether

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Espinosa would have a claim under Roth against DHS, as the agency is not a party
to this suit.
AFFIRMED.

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