Christopher A. Sciolino v. City of Newport News, Virginia

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 CHRISTOPHER A. SCIOLINO,
Plaintiff-Appellant,
v.
CITY OF NEWPORT NEWS, VIRGINIA; No. 05-2229 
DENNIS A. MOOK, Individually and
as Chief of Police for the City of
Newport News,
Defendants-Appellees. 
Appeal from the United States District Court
for the Eastern District of Virginia, at Newport News.
Raymond A. Jackson, District Judge.
(CA-04-68-4)
Argued: November 28, 2006
Decided: March 12, 2007
Before WILKINSON, MOTZ, and GREGORY, Circuit Judges.
Vacated and remanded by published opinion. Judge Motz wrote the
opinion, in which Judge Gregory joined. Judge Wilkinson wrote a dis-
senting opinion.
COUNSEL
Thomas Allan Dyar, LAW OFFICE OF REID H. ERVIN, P.C., Nor-
folk, Virginia, for Appellant. R. Johan Conrod, Jr., KAUFMAN &
CANOLES, P.C., Norfolk, Virginia; Allen Link Jackson, Chief Dep-

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uty City Attorney, CITY ATTORNEY’S OFFICE FOR THE CITY
OF NEWPORT NEWS, Newport News, Virginia, for Appellees.
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
A former probationary city police officer brings this action pursu-
ant to 42 U.S.C. § 1983 (2000). He asserts that when discharging him,
the city placed in his personnel file false information damaging to his
good name without granting him a name-clearing hearing, and so
deprived him of liberty rights without due process of law. Because the
former employee did not allege facts asserting a likelihood that pro-
spective employers or members of the public would see the damaging
information, the district court did not abuse its discretion in dismiss-
ing the employee’s complaint. However, when the district court
denied the employee’s motion to amend his complaint in order to
meet this standard, the court did abuse its discretion. Accordingly, we
vacate the judgment and remand for further proceedings consistent
with this opinion.
I.
In May 2002, the Newport News Police Department hired Christo-
pher Sciolino as a police officer. Sciolino began an eighteen-month
probationary period during which he was not entitled to any depart-
mental grievance rights. On June 26, 2003, the Acting Chief of Police
Carl Burt placed Sciolino on administrative duty, asserting that
Sciolino had advanced the odometer of his police cruiser approxi-
mately 10,000 miles, ostensibly to get a new car sooner. Sciolino
denied these charges. On September 26, 2003, Chief of Police Dennis
Mook, acting on behalf of the department, terminated Sciolino’s
employment by letter, accusing him of deliberately destroying city
property by advancing the odometer. Sciolino alleges that the depart-
ment placed the letter in his personnel file.
On June 2, 2004, Sciolino brought this action against the City of
Newport News and Chief Mook (in both his individual and official
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capacity). The City and Chief Mook (hereafter collectively "the City")
moved to dismiss Sciolino’s first amended complaint for failure to
state a claim. The district court granted the motion, holding that in
order to give rise to a due process claim, a plaintiff must allege facts
asserting that damaging and false charges in his personnel file were
likely to be disseminated to prospective employers or members of the
public.
After dismissal, Sciolino moved to file a second amended com-
plaint, assertedly to satisfy this standard. The district court denied
Sciolino’s motion to amend. Sciolino appeals both the order dismiss-
ing the case, and the order denying his motion to file an amended
complaint.
II.
Sciolino contends that by placing false charges in his personnel
file, which "may be available" to prospective employers, the City
deprived him of Fourteenth Amendment liberty interests — in his rep-
utation and his ability to obtain future employment — without grant-
ing him a name-clearing hearing. Like the district court, we believe
that in order to state a claim under the Due Process Clause, a plaintiff
must allege a likelihood that prospective employers will inspect his
personnel file. Accordingly, the district court did not abuse its discre-
tion in dismissing Sciolino’s first amended complaint.
A.
Although Sciolino, as a probationary employee, has no protected
"property" interest in his employment with the City, a public
employer cannot deprive a probationary employee of his "freedom to
take advantage of other employment opportunities." Bd. of Regents of
State Colls. v. Roth, 408 U.S. 564, 573 (1972). For this reason, a
Fourteenth Amendment "liberty interest is implicated by public
announcement of reasons for an employee’s discharge." Johnson v.
Morris, 903 F.2d 996, 999 (4th Cir. 1990).
Sciolino’s claim thus arises from the combination of two distinct
rights protected by the Fourteenth Amendment: (1) the liberty "‘to
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engage in any of the common occupations of life,’" Roth, 408 U.S.
at 572 (quoting Meyer v. Nebraska, 262 U.S. 390, 399 (1923)); and
(2) the right to due process "[w]here a person’s good name, reputa-
tion, honor, or integrity is at stake because of what the government
is doing to him," Wisconsin v. Constantineau, 400 U.S. 433, 437
(1971); see also Paul v. Davis, 424 U.S. 693, 701 (1976) (explaining
that an individual’s liberty interest in his reputation is only sufficient
"to invoke the procedural protection of the Due Process Clause" if
combined with "some more tangible interest[ ] such as employment").1
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. See Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 167,
172 n.5 (4th Cir. 1988).
At this stage, the only element seriously at issue2 is the second, the
1Relying solely on a letter written by Chief Mook, the City argues that
Sciolino received the required "notice and opportunity to be heard" prior
to his discharge. In that letter, Mook wrote to Sciolino, "On September
16, 2003, I met with you in accordance with City Policy to provide you
the opportunity to respond to the allegation against you . . . ." The refer-
enced meeting may have afforded Sciolino all the process to which he
would be due; we simply do not know that at this early stage. Sciolino
alleges that the City denied him "procedural rights, including a hearing"
and "a forum in which he would have had the opportunity to clear his
name." To determine whether the process given Sciolino suffices, a court
must assess the three factors enumerated by the Supreme Court in
Mathews v. Eldridge, 424 U.S. 319, 335 (1976). Applying the Mathews
test in a similar context in Boston v. Webb, 783 F.2d 1163, 1166 (4th Cir.
1986), we upheld a process by which the individual, on two occasions,
was given adequate notice, allowed to testify and present witnesses, and
was represented by counsel. The record in this case is not sufficiently
developed to make this sort of evaluation. Viewing the pleadings in the
light most favorable to Sciolino, as we must at this stage, we cannot now
hold that the meeting referred to in Mook’s letter fulfilled the require-
ments of the Due Process Clause.
2The City also briefly contends that Sciolino’s first amended complaint
did not allege the first element, i.e., that the charges against Sciolino do
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requirement that the charges have been "made public" — or that there
has been a "public disclosure." See Bishop v. Wood 426 U.S. 341, 348
(1976). Sciolino alleges in his first amended complaint that his file
"may be available" to prospective employers. Quoting our decision in
Ledford v. Delancey, 612 F.2d 883, 886-87 (4th Cir. 1980), he argues
that a plaintiff satisfies the dissemination element if he alleges that his
personnel file "‘may be the subject of inspection by prospective
employers.’" Brief of Appellant at 9 (emphasis added by Appellant).
In contrast, the City contends that a plaintiff must allege a specific
incident of "actual publication" of the personnel file to state a claim.
Brief of Appellees at 19. The district court selected an intermediate
standard, holding that to state a claim the plaintiff must allege a "like-
lihood of dissemination" of the false charges to prospective employers.3
not rise to the level of "‘imply[ing] the existence of serious character
defects such as dishonesty or immorality.’" Brief of Appellees at 8 (quot-
ing Robertson v. Rogers, 679 F.2d 1090, 1092 (4th Cir. 1982)). We dis-
agree. In Robertson, we held that "[a]llegations of incompetence" alone
could not give rise to a protected liberty interest. 679 F.2d at 1092. But
"we have distinguished statements that imply . . . serious character
defects from statements that simply allege ‘incompetence.’" Ridpath v.
Bd. of Governors Marshall Univ., 447 F.3d 292, 308-09 (4th Cir. 2006).
We have noted that "charges of . . . Department regulation violations that
‘smack of deliberate fraud’ and ‘in effect allege dishonesty’" clearly
meet the Robertson standard and give rise to a constitutional claim. Id.
(quoting McNeill v. Butz, 480 F.2d 314, 319-20 (4th Cir. 1973)). The
City’s charge here that Sciolino falsely advanced the odometer, thus
deliberately destroying city property in violation of a Department regula-
tion, implies "the existence of serious character defects such as dishon-
esty or immorality." Robertson, 679 F.2d at 1092. Accordingly,
Sciolino’s first amended complaint sufficiently alleged this element of
the cause of action.
3The City’s argument that Sciolino cannot possibly meet any public
disclosure standard because his personnel file is protected from dissemi-
nation by a state statute — the Government Data Collection and Dissem-
ination Practices Act, Va. Code Ann. §§ 2.2-3800 to 2.2-3809 (West
2004) — ignores the allegation in Sciolino’s complaint that in practice
the City discloses these files, and is belied by the City’s admission that
its own "official Police Department policy . . . authorizes" the police
department to respond to an inquiry from a prospective employer by
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B.
Although they emphasize different portions of Bishop and Ledford,
each side contends that these cases dictate the standard it espouses.
Actually, neither case does so.
In Bishop, the Supreme Court considered the case of a discharged
city police officer who sued his former employer contending that false
charges accompanying his discharge "deprived him of an interest in
liberty protected by" the Due Process Clause, even though his
employer had not "public[ly] disclose[d] the reasons for the dis-
charge." 426 U.S. at 343, 348. The Court held that the employer’s
explanation could not "properly form the basis for a claim that peti-
tioner’s interest in his good name, reputation, honor, or integrity was
thereby impaired" because, since the explanation had not been made
public, even if false it would have had "no different impact on his rep-
utation than if [it] had been true." Id. at 348-49 (internal quotation
marks omitted). Bishop thus holds that a purely private communica-
tion of the reasons for an employee’s termination cannot form the
basis for a due process claim, because there is no possibility of the
allegation affecting the individual’s Fourteenth Amendment liberty
interests.
We then took up the question, in Ledford, of whether "false infor-
mation contained in [a discharged probationary employee’s] person-
nel file has impaired his ability to procure other employment." 612
F.2d at 885. The district court had granted the public employer sum-
mary judgment, reasoning that "[t]he mere fact that an employer may
revealing the employee’s "reason for leaving" the department. Brief of
Appellees at 18 n.4. Moreover, this city policy allows the police depart-
ment to reveal additional information "if the employee’s history could
place the requesting agency in a high liability situation," id. — presum-
ably the case with an employee who has deliberately destroyed govern-
ment property. At oral argument the City again conceded that "under
certain circumstances there is some dissemination" by it of an employ-
ee’s personnel file. Thus, the City admits not only that it is legally autho-
rized to share personnel files with prospective employers, but also that
it is its practice to do so in some circumstances.
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communicate with prospective employers as to the asserted reasons
for nonretention does not . . . rise to the level of an infringement of
liberty." Quoted in Brief of Appellant at 16, Ledford, 612 F.2d 883
(4th Cir. 1980), 1977 WL 203837. We reversed, holding that a public
employee "does have a protected right with respect to the contents of
his personnel file when that file may be the subject of inspection by
prospective employers." Ledford, 612 F.2d at 886. We explained that
this standard had been satisfied because "one may fairly infer that the
plaintiff has alleged that certain false information has been circulated
and will continue to be circulated to prospective employers." Id. at
886-87. We did not hold that a plaintiff must allege actual dissemina-
tion of the information to a particular prospective employer, only that
in the case before us "one may fairly infer" that the plaintiff had
alleged actual dissemination.4 And we immediately reiterated that a
"[p]laintiff has a right that his personnel file contain no substantially
false information . . . when that information is available to prospective
employers." Id. at 887 (emphasis added).
Not only do neither Bishop nor Ledford resolve the question before
us, but also the cases from our sister circuits articulate varying stan-
dards as to the meaning of public disclosure. Some courts hold that
a personnel file containing the stigmatizing statement must actually
have been disseminated to a potential employer. See Johnson v. Mar-
tin, 943 F.2d 15, 16-17 (7th Cir. 1991); cf. Burton v. Town of Little-
ton, 426 F.3d 9, 15 n.5 (1st Cir. 2005) (noting that to prove
dissemination a "plaintiff must marshal sufficient evidence to support
a conclusion that any of the prospective employers requested, or that
4It is not entirely clear from our opinion in Ledford, but the briefs in
that case reveal that the plaintiff did, in fact, allege that his file had actu-
ally been disseminated to prospective employers. The plaintiff contended
"that he was denied positions with at least three other local governmental
agencies specifically because" the damaging information in his personnel
file was disseminated to them. Brief of Appellant at 16, Ledford, 612
F.2d 883 (4th Cir. 1980), 1977 WL 203837. Thus, our holding in Ledford
is only that a plaintiff who has alleged actual dissemination does have a
constitutional claim. Ledford does not reach the question before us —
whether less than actual dissemination can provide the basis for a consti-
tutional claim — but the statements in Ledford quoted above and infra
n.5 suggest that something less than actual dissemination does suffice.
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the defendants divulged, information regarding the circumstances sur-
rounding [her] termination" (internal quotation marks omitted) (alter-
ation in original)). Others hold that the mere "presence" of
information in a personnel file, without more, is insufficient to require
due process. Hughes v. City of Garland, 204 F.3d 223, 228 (5th Cir.
2000); Copeland v. Philadelphia Police Dep’t, 840 F.2d 1139, 1148
(3d Cir. 1988). Still others require only that the file "would be avail-
able to prospective employers," Clark v. Mann, 562 F.2d 1104, 1116
(8th Cir. 1977); that there must be a "possibility" that potential
employers will see the information, Bailey v. Kirk, 777 F.2d 567, 580
n.18 (10th Cir. 1985) (citing Burris v. Willis Indep. Sch. Dist., 713
F.2d 1087, 1092 (5th Cir. 1983)); or that the "presence of stigmatizing
information" in a personnel file was part of the public record and so
could be obtained by prospective employers, even though it had not
been disseminated to any particular employer, Buxton v. City of Plant
City, 871 F.2d 1037, 1045-46 (11th Cir. 1989). The Second Circuit
requires, as the district court did here, a likelihood that the files would
be seen by potential employers. See Brandt v. Bd. of Coop. Educ.
Servs., 820 F.2d 41, 44-45 (2d Cir. 1987) ("[T]he public disclosure
requirement has been satisfied where the stigmatizing charges are
placed in the discharged employee’s personnel file and are likely to
be disclosed to prospective employers.").
C.
Although neither Bishop nor Ledford resolves what a plaintiff must
allege to meet the "public disclosure" requirement, the Supreme Court
has provided helpful guidance as to what the Due Process Clause
requires.
First, of course, the Court instructed in Bishop that the Due Process
Clause "is not a guarantee against incorrect or ill-advised personnel
decisions" and that the Constitution should not "penalize forthright
and truthful communication between employer and employee."
Bishop, 426 U.S. at 350, 349. For this reason, we agree with the dis-
trict court that a plaintiff must allege more than the "mere presence"
of stigmatizing charges that "may be available" to prospective
employers. If we were to adopt the "may be available" standard, even
if there was just a small chance that any prospective employer could
inspect the file, or an uncertainty as to whether the former employer
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would ever make the file available, a plaintiff would still have a cause
of action. But in those cases, the plaintiff would be unlikely to be
deprived of future employment or to have his reputation tarnished.
Accordingly, to the extent that there is just a slight possibility that
stigmatizing charges in a personnel file could be available to prospec-
tive employers, the Constitution does not recognize the deprivation of
a liberty interest.
Although we conclude that a plaintiff must allege more than that
his file "may be available" to a prospective employer, we also reject
the City’s contention that a plaintiff must allege a specific instance of
actual dissemination. Under the City’s proposed standard, even if a
plaintiff alleged a likelihood that prospective employers would see the
false and stigmatizing charges in his file, he would not have a cause
of action. Such an approach would be contrary to the requirements of
the Fourteenth Amendment. A public employer who fires (or refuses
to rehire) an employee in a manner that sullies the employee’s good
name and restricts his future employment opportunities deprives him
of important liberty interests protected by the Fourteenth Amendment.
See Roth, 408 U.S. at 573. When a plaintiff alleges that his termina-
tion is based on false, stigmatizing charges that are likely to be
inspected by prospective employers, he states a claim that the govern-
ment has deprived him of these liberty interests.
If prospective employers are likely to see the stigmatizing allega-
tions, an employee must choose between finding future employment
and protecting his reputation by not applying for jobs (and thus not
risking the release of the stigmatizing allegations). Requiring a plain-
tiff to "wait until he actually loses some job opportunities" would
"place him between the devil and the deep blue sea." Brandt, 820 F.2d
at 45 (internal quotation marks omitted) (adopting the likelihood stan-
dard). If a plaintiff must allege a specific instance of actual dissemina-
tion to a prospective employer, he would not be "as free as before to
seek another job." Bishop, 426 U.S. at 348 (quoting Roth, 408 U.S.
at 575 (internal quotation marks omitted)).
In situations like that at hand, the constitutional harm "is not the
defamation" itself; rather it is "the denial of a hearing at which the
dismissed employee has an opportunity to refute the public charge."
Cox v. N. Va. Transp. Comm’n, 551 F.2d 555, 558 (4th Cir. 1976).
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If an allegation of actual dissemination were required, the information
would have already been communicated to a potential employer, the
employee’s job opportunities foreclosed, and his reputation damaged
before any possibility for a name-clearing hearing. Further, a require-
ment that an employer need only provide a name-clearing hearing if
it actually disseminates the employee’s personnel file to a specific
prospective employer would be virtually impossible to enforce. Most
job applicants will never know whether a prospective employer
decides against hiring them because of false damaging charges in a
personnel file, or for other reasons, and would not even know if the
prospective employer has learned of the charges. Therefore, a require-
ment that a plaintiff must allege actual disclosure to a particular pro-
spective employer would undermine the liberties protected by the
Fourteenth Amendment.
For these reasons, we believe the district court selected the appro-
priate standard. A plaintiff need not allege that his file has actually
been disseminated to particular prospective employers. But, he must
allege more than that his file "may be available" to them. We thus
hold that an employee must allege (and ultimately prove) a likelihood
that prospective employers (i.e., employers to whom he will apply) or
the public at large will inspect the file.
A plaintiff can meet this standard in two ways. First, the employee
could allege (and ultimately prove) that his former employer has a
practice of releasing personnel files to all inquiring employers. Sec-
ond, the employee could allege that although his former employer
releases personnel files only to certain inquiring employers, that he
intends to apply to at least one of these employers. In either case, he
must allege that the prospective employer is likely to request the file
from his former employer.5 The likelihood standard protects the
5We note that our statements in Ledford, 612 F.2d at 886-87, that the
plaintiff had a constitutional claim when his personnel file "may be the
subject of inspection" by or "is available" to prospective employers, do
not conflict with our holding here. Stating that a file "may be the subject
of inspection" by or "is available" to prospective employers implies that
employers will have the ability to inspect the file if they so choose; it
does not speak to the probability that they will do so. In fact, given that
employers typically request information or files of prospective employ-
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employee’s constitutional liberty interests but does not unduly inter-
fere with the employer’s personnel administration. It imposes no
"enormous costs," post at 26, because an employer need only grant a
name-clearing hearing if it will make false damaging charges about
a former employee available to those likely to request the informa-
tion, e.g., future employers to whom the employee will apply.6
Sciolino’s first amended complaint did not meet this standard
because it alleged only that his file with the charges "may be available
to prospective employers." We thus affirm the district court’s order
dismissing his complaint.
III.
Sciolino also appeals the district court’s order denying his Rule
15(a) motion to file a second amended complaint — one that he
intended to state a claim that would satisfy the likelihood of dissemi-
nation standard.
Sciolino’s Rule 15(a) motion accompanied a Rule 59(e) motion to
alter or amend the judgment of dismissal. The district court applied
the appropriate standard in denying the Rule 59(e) motion because
Sciolino did not identify an intervening change in controlling law,
newly discovered evidence, a clear error of law, or the necessity for
prevention of manifest injustice. See Hutchinson v. Staton, 994 F.2d
1076, 1081 (4th Cir. 1993). The district court, however, erroneously
ees, our language in Ledford points to the likelihood of dissemination
standard. The likelihood standard requires a plaintiff to allege that the
personnel file is available to prospective employers, and that those pro-
spective employers not only have permission to, but are likely to, inspect
the file.
6Indeed, rather than there being "little that state and local governments
will be able to do to avoid litigation" under our holding, post at 26-27
(emphasis added), there is little they must do: refrain from memorializing
false and stigmatizing charges while dismissing an employee; or, if they
do level such charges, provide a name-clearing opportunity; or, if they
do not want to provide this opportunity, keep the false stigmatizing alle-
gations private.
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applied this same standard — rather than the standard for consider-
ation of Rule 15(a) motions — to Sciolino’s motion to amend his
complaint.
Under Rule 15(a), after filing a first amended complaint by right,
a plaintiff may subsequently amend his complaint only with permis-
sion from the court. Still, Rule 15(a) instructs that leave to amend
"shall be freely given when justice so requires." As our en banc court
has recently explained, "[t]his liberal rule gives effect to the federal
policy in favor of resolving cases on their merits instead of disposing
of them on technicalities." Laber v. Harvey, 438 F.3d 404, 426 (4th
Cir. 2006) (en banc). For this reason, "[w]e have interpreted Rule
15(a) to provide that ‘leave to amend a pleading should be denied
only when the amendment would be prejudicial to the opposing party,
there has been bad faith on the part of the moving party, or the
amendment would have been futile.’" Id. (quoting Johnson v.
Oroweat Foods Co., 785 F.2d 503, 509 (4th Cir. 1986)). And, we
have held that "a post-judgment motion to amend is evaluated under
the same legal standard as a similar motion filed before judgment was
entered — for prejudice, bad faith, or futility." Id. at 427.
There is no reason why allowing Sciolino to amend his complaint
would prejudice the City, and there is no evidence of bad faith. Nor
would amendment be futile. Sciolino’s proposed second amended
complaint alleges that it is the practice of the Newport News Police
Department to disseminate former employees’ personnel files to
"[l]ocal and regional police departments, specifically including, and
by way of example, the police departments of the cities of Suffolk and
Hampton." Although the complaint does not explicitly state that
Sciolino has applied to these particular employers, reading the com-
plaint "liberally in favor of the plaintiff," Anderson v. Found. for
Advancement, Educ. and Employment of Am. Indians, 155 F.3d 500,
505 (4th Cir. 1998) (citing Fed. R. Civ. P. 8; Conley v. Gibson, 355
U.S. 41, 45-46 (1957)), as we must, the complaint must be construed
to assert that Sciolino intends to apply to these local and regional
police departments. To succeed, of course, Sciolino must prove that
a prospective employer to whom he will apply is likely to inspect the
false allegations in his personnel file; but allowing Sciolino to amend
his complaint would not be futile. Accordingly, the district court
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abused its discretion in denying Sciolino’s motion to amend his com-
plaint.7
IV.
We thus chart a middle ground, adopting neither the position
favored by Sciolino nor that espoused by the City. We believe that
this approach best accords with the limited, but important, liberty
interests at issue here and the Fourteenth Amendment’s guarantee that
the government will not deprive an individual of any liberty right
"without due process."
Although our approach is a modest one, our distinguished col-
league dissents vehemently and at considerable length. But stripped
of professorial musings on questions not at issue here and repeated
misstatements of our holding,8 the dissent’s disagreement with us
7A "district court may not grant" a post-judgment motion to amend a
complaint "unless the judgment is vacated pursuant to Rule 59(e)."
Laber, 438 F.3d at 427. Although denial of a Rule 59(e) motion may oth-
erwise be appropriate, when a district court "abuse[s] its discretion in
denying a motion to amend," this provides "sufficient grounds on which
to reverse the district court’s denial of a Rule 59(e) motion." Id. at 427-
28 (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). We therefore
vacate the district court’s judgment denying Sciolino’s Rule 59(e)
motion as well.
8For example, the dissent philosophizes on the merits of federalism
principles and state tort law remedies, with which no one disagrees, and
bemoans the asserted burdens that the Supreme Court has held the Con-
stitution imposes on public employers, burdens that no lower court can
question. The dissent also repeatedly suggests that we hold that a liberty
interest can be "infringed by a letter in a file drawer," post at 18; see also
id. at 15, 19, 20, 22, and 24. Of course, this is not so. What we in fact
hold is that in order to state a liberty interest, an individual in Sciolino’s
position must allege that, in connection with his discharge, his former
employer has leveled against him false, stigmatizing charges that are
likely to be disseminated.
The dissent also incorrectly suggests (apparently to strike down a
strawman, post at 29) that we posit that it would create an unfair burden
if a "former employee might have to seek discovery in order to be certain
that he had a cause of action." See id. at 27. Actually, we have not so
much as mentioned discovery burdens, because we believe constitutional
requirements, not "practical problems" and other "matters of policy," are
paramount here. Cf. id. at 16, 23, 23-27.
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devolves to a single contention. The dissent believes that a plaintiff
in Sciolino’s position has no right to an opportunity to clear his name
when a former employer has dismissed him from his job and made
false, stigmatizing allegations that are likely to be seen by future
employers.
Tellingly, in support of its position the dissent can proffer only that
the Supreme Court has "refused to find a constitutional interest" in the
"consequences that might flow from employees’ terminations or the
records pertaining to them." Post at 22 (emphasis added). This con-
tention avails the dissent not at all, for it is both irrelevant and inaccu-
rate. The dissent’s contention is irrelevant because Sciolino’s claim
arises from his termination and the "records pertaining to" it. It is
inaccurate because when a plaintiff alleges, as Sciolino has, that the
"records pertaining to" his termination might seriously damage his
standing in the community, the Supreme Court (contrary to the dis-
sent’s contention) has in fact been willing "to find a constitutional
interest" in the "consequences that might flow from . . . the[se]
records." Post at 22. Indeed, in Roth itself, on which the dissent heav-
ily relies, the Court explained that if, in connection with an adverse
employment decision, the state "ma[d]e any charge against [an
employee] that might seriously damage his standing and associations
in his community," then "due process would accord an opportunity to
refute the charge." Roth, 408 U.S. at 573.
So it is here. In so holding we are neither "predict[ing] future
harms," post at 21, nor "reasoning from the remedy . . . back to the
creation of a constitutional wrong," id. at 27-28. Rather, we are sim-
ply recognizing a present harm: the failure to provide a name-clearing
hearing when an employee faces a restriction on future employment
and the sullying of his good name as prospective employers learn of
false, stigmatizing allegations regarding the reasons for his termina-
tion. The meaningful opportunity to be heard to which Sciolino is
entitled in these circumstances is not a remedy but a right that "due
process . . . accord[s]." Roth, 408 U.S. at 573.9
9Moreover, contrary to the dissent’s suggestion, post at 20, 27-28, a
plaintiff need not have suffered the full consequences of the deprivation
of his liberty to have rights under the Due Process Clause, or standing
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To be sure, Sciolino is not entitled to many of the rights afforded
some public employees (e.g. those protected by tenure or contract),
but when dismissed from public employment even a probationary or
at-will employee is entitled to take with him his good name. Long ago
the Supreme Court determined that when "the State attaches ‘a badge
of infamy’ to the citizen, due process comes into play." Constan-
tineau, 400 U.S. at 437. Fundamental to due process is an opportunity
to be heard — "an opportunity which must be granted at a meaningful
time." Armstrong v. Manzo, 380 U.S. 545, 552 (1965). An opportu-
nity to clear your name after it has been ruined by dissemination of
false, stigmatizing charges is not "meaningful."
V.
For the foregoing reasons we vacate the judgment of the district
court, and remand for further proceedings consistent with this opin-
ion.
VACATED AND REMANDED
WILKINSON, Circuit Judge, dissenting:
The majority holds that a document in a government file drawer
can violate a constitutional liberty interest in reputation and future
employment. It holds in particular that the Newport News Police
Department may have deprived former probationary employee Chris-
topher Sciolino of "life, liberty, or property" by explaining in a letter
to Sciolino himself that Sciolino’s employment was being terminated
due to alleged misconduct and then placing the letter in its files. So
to sue. Thus, for example, revocation of a prisoner’s "good time" is a
deprivation of liberty that gives rise to due process rights even though it
"very likely, does not then and there work any change in the conditions
of his liberty." Wolff v. McDonnell, 418 U.S. 539, 560-61 (1974). Indeed,
"the right to be heard before being condemned to suffer grievous loss of
any kind, even though it may not involve the stigma and hardships of a
criminal conviction, is a principle basic to our society." Joint Anti-
Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 168 (1951) (emphasis
added).
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mistrustful is the majority of state and local governments that it
extends the Fourteenth Amendment to forbid actions that unpredict-
able courts predict create a "likelihood" of future harm. In this
respect, as in others, the majority fails to grapple with the many prac-
tical problems of its holding.
My fine colleagues also contend that Newport News has made
"charge[s] against [Sciolino] that might seriously damage his standing
and associations in his community." Maj. Op. at 14 (quoting Roth,
408 U.S. at 573). This implies that the city has gone public in some
fashion. See Bishop v. Wood, 426 U.S. 341, 348 (1976) (requiring that
information concerning discharge be "made public" to infringe consti-
tutional interest). Newport News has done nothing of the sort. It has
done nothing but keep its own record, which it must do if it is not to
act arbitrarily and if it is to protect itself from future litigation. Thus
to say that Newport News has somehow jeopardized the plaintiff’s
standing in the community is a complete mischaracterization of the
city’s conduct. There is no contention — much less evidence — that
Newport News made the letter public or sent the letter to any future
employer. In fact, the majority’s "likelihood" standard concedes as
much. Newport News has caused the plaintiff no reputational harm.
It has acted in a way that would avoid causing the plaintiff reputa-
tional harm, so it has not deprived anyone of any Fourteenth Amend-
ment interest.
I would not create a constitutional cause of action out of record-
keeping functions. I respectfully dissent from the majority’s departure
from constitutional text and Supreme Court precedent, a departure
that extends judge-made law over routine aspects of the employment
relationship in every state and local government in our circuit.
I.
There is at least one thing upon which the majority and I can agree:
The circuits are split as to whether stigmatizing allegations can
deprive a former government employee of a constitutional liberty
interest before the allegations are disseminated to prospective
employers or others.
The First and Seventh Circuits have written that such statements
can only deprive a former government employee of a liberty interest
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when the allegations are publicly disseminated. See Johnson v. Mar-
tin, 943 F.2d 15, 16-17 (7th Cir. 1991); Burton v. Town of Littleton,
426 F.3d 9, 17 (1st Cir. 2005); Wojcik v. Mass. State Lottery Comm’n,
300 F.3d 92, 103 (1st Cir. 2002). The Third Circuit has suggested the
same, in my view, by stating that a plaintiff "must produce evidence
that the reason for his termination was made public by the city" and
rejecting a plaintiff’s argument that he had been deprived of liberty
because future disclosure was likely. Copeland v. Philadelphia Police
Dep’t, 840 F.2d 1139, 1148 (3d Cir. 1988).
The Second and Tenth Circuits have written, in contrast, that stig-
matizing allegations can deprive a person of a liberty interest even if
the allegations have not been publicly disclosed. The Second Circuit
held in Brandt v. Board of Cooperative Educational Services that a
liberty interest is implicated "where the stigmatizing charges are
placed in the discharged employee’s personnel file and are likely to
be disclosed to prospective employers." 820 F.2d 41, 45 (2d Cir.
1987) (emphasis added). The Tenth Circuit also recognized a claim
based upon statements that the plaintiff did not allege went beyond a
government employer’s own offices. Bailey v. Kirk, 777 F.2d 567,
580 n.18 (10th Cir. 1985).
Other circuits do not fit neatly into these two camps. The Eighth
Circuit has suggested that a claim would lie if a plaintiff established
that a record "would be available to prospective employers," Clark v.
Mann, 562 F.2d 1104, 1116 (8th Cir. 1977) (emphasis added), but
suggested in another case that information must be disclosed before
it could give rise to a cause of action, Merritt v. Reed, 120 F.3d 124,
126 (8th Cir. 1997).
The Fifth Circuit’s cases also seem to be in some internal tension.
The court appears to have sanctioned claims based upon the possibil-
ity that allegations would be disclosed in the future, writing that an
ex-employee could establish deprivation of a liberty interest by show-
ing "that his employer has made or is likely to make the allegedly stig-
matizing charges public in any official or intentional manner." In re
Selcraig, 705 F.2d 789, 796 n.6 (5th Cir. 1983) (emphasis added;
internal quotations omitted). Yet a subsequent court rejected a plain-
tiff’s likelihood-of-dissemination theory, equating it with an argument
that "the mere presence" of stigmatizing allegations in a personnel file
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was sufficient to create a triable issue of fact. Hughes v. City of Gar-
land, 204 F.3d 223, 228 (5th Cir. 2000).
Finally, other circuits have recognized liberty claims when authori-
ties lacked the power to keep statements confidential because person-
nel files were publicly available under state law, but have not
addressed whether predictions of dissemination would suffice in the
absence of such statutes. See Cox v. Roskelley, 359 F.3d 1105, 1110-
12 (9th Cir. 2004); Buxton v. City of Plant City, 871 F.2d 1037, 1042-
46 (11th Cir. 1989).
Thus to say there is a circuit split is at once true and not indicative
of the full extent of the problem. Whether a liberty interest is
infringed by a letter in a file drawer has generated answers with
shades and permutations that mock the clarity law must provide for
human conduct.
II.
A.
While both the majority and I recognize the circuits’ division, we
diverge after that. Our disagreements run first to the treatment of con-
stitutional text and structure. The majority appears to regard the con-
flicting circuit court rulings as a menu from which to select the
standard of liability that it believes would amount to the best policy.
It concludes that a terminated public employee may raise a Fourteenth
Amendment claim based upon stigmatizing information in govern-
ment personnel files even if the charges have never been made public,1
so long as the plaintiff alleges "a likelihood that prospective employ-
ers . . . or the public at large will inspect the file" at some point in
the future. Maj. Op. at 10. I reject this conclusion because far from
authorizing the creation of such an interest, constitutional text and
Supreme Court precedent foreclose both the holding in this case and
the approach used to reach it.
1The plaintiff may have made the allegations against him publicly
available by filing his lawsuit, but the Supreme Court has held that self-
generated exposure in litigation does not give rise to a constitutional
claim. Bishop v. Wood, 426 U.S. 341, 348-49 (1976).
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While the rights of public employees may be protected in many
different ways, the text of the Fourteenth Amendment does not permit
the recognition of a liberty interest in not having stigmatizing infor-
mation on file. By declaring that no state shall "deprive any person
of life, liberty, or property, without due process of law," the amend-
ment permits judicial oversight of government procedures relating
only to actions that "deprive" persons of interests within the named
categories of "life, liberty, or property" — categories that are "not
infinite." Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 570
(1972).
The Fourteenth Amendment did reorder the relationship of the fed-
eral and state governments in fundamental respects, but it did not dis-
place state law as a residual protector of many interests the Fourteenth
Amendment did not enumerate. Holdings that would "mandat[e] judi-
cial oversight of communications between and among government
employees and their superiors in the course of official business" can
lead to "permanent judicial intervention in the conduct of governmen-
tal operations to a degree inconsistent with sound principles of feder-
alism and separation of powers." Garcetti v. Ceballos, ___ U.S. ___,
126 S. Ct. 1951, 1961 (2006). In light of the amendment’s text and
the federal structure, the Supreme Court has held that loss of reputa-
tion, government employment, and diminished professional prospects
rise to the level of Fourteenth Amendment deprivations only under
limited conditions that the majority disregards.
To begin with, it is undisputed that as a probationary employee the
plaintiff has no Fourteenth Amendment property interest in a govern-
ment job itself. As a result, all agree, he had neither a right to a hear-
ing before the termination of his employment nor a right to know the
reasons for his dismissal. Bishop, 426 U.S. at 348. The loss of a gov-
ernment job and a filed record detailing the reasons for that loss are
obviously no small matter. But the Constitution cannot possibly rem-
edy every wrong experienced in life or for that matter every wrong
experienced at the hand of some public entity. So the question must
be where constitutional law properly leaves off and where statutory
and common law remedies kick in. The question must be asked: the
Fourteenth Amendment cannot be read to displace state remedial
mechanisms by rendering the Constitution "a font of tort law to be
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superimposed upon whatever systems may already be administered by
the States." Paul v. Davis, 424 U.S. 693, 701 (1976).
While it is constitutionally safeguarded in some instances, "reputa-
tion" is neither listed nor enumerated in the Fourteenth Amendment
as a protected interest or right. There is no basis to elevate reputa-
tional harm above others into a constitutional interest because "[t]he
words ‘liberty’ and ‘property’ as used in the Fourteenth Amendment
do not in terms single out reputation as a candidate for special protec-
tion over and above other interests that may be protected by state
law." Id. A claim based upon stigmatizing government statements can
therefore arise neither alone nor in the abstract. Rather, because repu-
tation is indistinguishable from a multitude of personal, dignitary, and
proprietary interests that state courts and legislatures may deem wor-
thy of protection, the cases establish that neither the harms from the
loss of at-will employment nor the harms from stigmatizing informa-
tion rise by themselves to the level of constitutional harm. Id.; Roth,
408 U.S. at 575. It is only when termination is combined with stigma-
tizing disclosures that the resulting harm is of constitutional magnitude.2
The majority’s conception of Fourteenth Amendment deprivation
is as flawed as its discussion of Fourteenth Amendment interests. The
plaintiff has not yet been deprived of an interest in his reputation,
because the reasons for his dismissal evidently remain in a govern-
ment file. Moreover, the liberty "to engage in any of the common
occupations of life" posited in Meyer v. Nebraska, 262 U.S. 390, 399
(1923), has not been infringed where the employer has neither made
any information public nor shared information with a future
employer. In short, the plaintiff has suffered no deprivation of reputa-
tion or of his ability to pursue other jobs.
2The majority contends that a failure to adopt its likelihood standard
would strip the Due Process Clause of its historic function in providing
pre-deprivation hearings. Maj. Op. 14-15 n.9. A pre-deprivation hearing,
however, is mandated only when a public entity is proposing to deprive
an individual of a constitutionally protected right or interest, and, even
in such circumstances, a pre-deprivation hearing may not always be
required. See, e.g., Parratt v. Taylor, 451 U.S. 527, 540-41 (1981). Here,
the City of Newport News is not proposing such an action, and it is
improper to subject a public entity to suit purely on the basis of a record-
keeping function.
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The majority nevertheless holds that the Constitution can be vio-
lated if it finds "a likelihood" of future disclosure and reputational
harm. Maj. Op. at 10. The Constitution does not give courts the power
to predict future harms and declare the Constitution violated before
the possible harms transpire. The text makes it actionable for states
to "deprive" a person of "life, liberty, or property," but not to create
a "likelihood" of such a deprivation. Whether the majority addresses
Fourteenth Amendment "interests" or "deprivations," it has done vio-
lence to our constitutional text and reordered our constitutional struc-
ture. The upshot is to federalize myriad aspects of the local
employment relationship without any pretense of democratic sanction.
B.
If there was room for doubt about this matter, the Supreme Court
eliminated it in Bishop v. Wood, 426 U.S. 341 (1976). Bishop directly
took up the question of when allegations of employee misconduct in
connection with a termination implicate a Fourteenth Amendment
interest. The plaintiff alleged that a police department deprived him
of liberty when it terminated his employment and provided him with
false and stigmatizing reasons for his discharge that might "severely
damage his reputation in the community." Id. at 347. The Supreme
Court found that in the absence of disclosure, the employer had
caused no constitutional harm. Since the explanation of the plaintiff’s
discharge "was not made public" before the plaintiff disclosed the
allegations through his own lawsuit, the Court wrote that the explana-
tion "cannot properly form the basis for a claim that petitioner’s inter-
est in his ‘good name, reputation, honor, or integrity’ was thereby
impaired." Id. at 348 (emphasis added; footnote omitted). The Four-
teenth Amendment was not implicated, the Court concluded, by "the
discharge of a public employee whose position is terminable at the
will of the employer when there is no public disclosure of the reasons
for the discharge." Id. (emphasis added). To like effect is Codd v.
Velger, which summarized the cases on constitutionally mandated
hearings by noting, "Only if the employer creates and disseminates
a false and defamatory impression about the employee in connection
with his termination is such a hearing required." 429 U.S. 624, 628
(1977) (emphasis added).
The majority acknowledges the binding precedent on this matter,
as it must, but seems inexplicably puzzled by the Supreme Court’s
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plain language. The Supreme Court has used the words "made public"
and "public disclosure" to describe the threshold of constitutional
harm, but the majority writes that Bishop did not "resolve the ques-
tion" of what a plaintiff must allege to meet this requirement. Maj.
Op. at 7; see also Maj. Op. at 8. This observation wishes for ambigu-
ity where there is none. To "make public" means "to cause to become
known generally" just as "disclosure" entails "exposure" or "revela-
tion," and the majority cites no alternative definition or use that calls
into doubt the meanings familiar to schoolchildren. The Random
House Dictionary of the English Language 562, 1562-63 (2d ed.
1987). As the Seventh Circuit has written, adopting a "likelihood of
disclosure" standard for liability based upon stigmatizing personnel
records requires "[d]efining ‘public disclosure’ in a way which
encompasses ‘no public disclosure’" — "an exercise we choose not
to embrace." Martin, 943 F.2d at 17.
Perhaps in recognition of these problems, the majority casts about
for other possible injuries on which it can hang judicial intervention,
seizing upon a potential indirect consequence of virtually any
employee’s termination. It writes that a former employee might fear
that prospective employers would make inquiries about his past job
performance and might limit his job search as a result. See Maj. Op.
at 9. Although these possible chilling effects are the only harm that
a plaintiff could be said to have suffered from a letter in a file, my
colleagues would evidently not require a plaintiff to plead or prove
that he suffered even this indirect injury.
Moreover, this attenuated consequence cannot rise to the level of
a constitutional deprivation, because injuries that are more serious and
direct do not warrant constitutionalization. Roth, Bishop, and Paul did
not reject Fourteenth Amendment claims because of blindness to the
negative professional or reputational consequences that might flow
from employees’ terminations or the records pertaining to them — the
cases explicitly recognized such consequences. See Roth, 408 U.S. at
574 n.13; Paul, 424 U.S. at 701. They nevertheless refused to find a
constitutional interest because the text and structure of the Fourteenth
Amendment set too high a bar.
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III.
A.
Even if judges were somehow set free to prescribe policy uncon-
strained by text or precedent, a lively debate might ensue over
whether the majority view is suitably wise. My friends make a case
that it is, but as with most matters of policy, there exist two sides.
First, slighting the principle that "[t]he federal court is not the
appropriate forum in which to review the multitude of personnel deci-
sions that are made daily by public agencies," Bishop, 426 U.S. at 349
(footnote omitted), widens the gap between public and private
employees. The majority observes that a former government
employee who feared the release of stigmatizing allegations might
feel obligated to "choose between finding future employment and pro-
tecting his reputation by not applying for jobs." Maj. Op. at 9.
That is all well and good, but these are the precise harms that every
person terminated from employment may experience. While the pro-
hibitions on state action in the Fourteenth Amendment will always
necessitate some differences in treatment between public and private
employees, the majority’s standard as to likelihood of harms drives
a wedge between these two groups of workers to an extent that many
lawmakers might find both divisive and unpalatable. Whether widen-
ing the gap in our country between private and public employees is
desirable is at least an arguable point, as is whether the majority’s
approach leaves two groups with very different remedies for compa-
rable harms without compelling reason.
Second, the broad power that the majority claims over personnel
matters invades an area in which state and local officials are often bet-
ter equipped than judges to make decisions. Whether benefits of accu-
racy and fairness justify the costs of particular procedural safeguards
is not a question that can be answered in the abstract and for all time.
Leaving the analysis to democratically responsive local authorities
where the Constitution’s text does not permit judicial involvement
makes it possible to strike balances suited to local needs and facili-
tates adaptation to changing circumstances and new insights.
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For example, in permitting liability based upon a letter in a person-
nel file, the majority may make government processes less fair and
more arbitrary by "penaliz[ing] forthright and truthful communication
between employer and employee." Bishop, 426 U.S. at 349. The
majority makes it costlier to institute systems of progressive disci-
pline that require documentation of misdeeds and take into account
past conduct in imposing penalties, even though such systems may
benefit both employers and employees. Furthermore, if a government
employee is terminated, he may ask for a reason and his employer
may consider it to be in the interests of fairness to provide an explana-
tion even when there is no legal obligation to do so. But when courts
open governments to liability because they provide such reasons, gov-
ernment employers may simply stop giving them: "where there was
no constitutional requirement for the state to do anything," Judge
Friendly has written, "the state would merely opt to give no reasons
and the employee would lose the benefit of knowing what might
profit him in the future." Russell v. Hodges, 470 F.2d 212, 217 (2d
Cir. 1972). Tenured employees, of course, are entitled not simply to
know the reasons for their dismissal but to challenge them through
hearings, see, e.g., Roth, 408 U.S. at 576-77, and it seems anomalous
to require the provision of reasons to tenured employees while dis-
couraging the provision of reasons to untenured ones.
Even with respect to untenured employees, some acts of documen-
tation may not be wholly voluntary, and as a result, the majority’s
new threat of liability may place governments between a rock and a
hard place. Procedural and substantive limits on employee discipline
are common subjects of collective bargaining, and union agreements
may therefore require documentation of the reasons for dismissals.
See Ann C. Hodges, The Interplay of Civil Service Law and Collec-
tive Bargaining Law in Public Sector Employee Discipline Cases, 32
B.C. L. Rev. 95, 104-07 (1990). Governments may also record these
reasons in order to defend themselves in the event that a former
employee claims a dismissal was based upon race, sex, or some other
impermissible consideration. Under Title VII of the Civil Rights Act
of 1964, for example, once an employee presents a prima facie case
of unlawful discrimination — a showing that is "not onerous" to make
— the defendant "must clearly set forth, through the introduction of
admissible evidence" the "legitimate, nondiscriminatory reason" for
its challenged action. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S.
24 SCIOLINO v. CITY OF NEWPORT NEWS

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248, 253, 255, 254 (1981). This leaves governments with little choice
but to document the reasons for major personnel actions, and it is odd,
to say the least, to make such records necessary and in the next breath
open governments up to liability on the basis of the same documents.
B.
The practical problems with the majority’s approach do not end
there. It is no answer to say state and local governments need only
avoid constitutional infractions to avoid being found in violation of
the Fourteenth Amendment because under the majority’s vague stan-
dard, this is more easily said than done. The majority imposes an
amorphous overlay upon an area of the law where balancing tests
already leave state and local governments uncertain about the nature
of their obligations. Government employers already face a difficult
predictive calculus in establishing procedures to govern actions that
indisputably deprive citizens of liberty or property, since the proce-
dures required depend upon judicial balancing of
[f]irst, the private interest that will be affected by the official
action; second, the risk of erroneous deprivation of such
interest through the procedures used, and the probable value,
if any, of additional or substitute procedural safeguards; and
finally, the Government’s interest, including the function
involved and the fiscal and administrative burdens that the
additional or substitute procedural requirement would entail.
Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
The standard of liability is vague in a second important respect.
Employers face additional uncertainty over whether countless person-
nel documents generated in the course of government operations
"imply the existence of serious character defects," and could therefore
implicate a constitutional interest if disclosed. Robertson v. Rogers,
679 F.2d 1090, 1092 (4th Cir. 1982). Adverse personnel actions are
by definition taken on the basis of unfavorable assessments, and the
majority provides little guidance for gauging which of these assess-
ments are sufficiently unflattering to qualify as actionable.
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And the majority now adds a third level of uncertainty: Govern-
ment employers will have to predict whether a court would find a
"likelihood" that even confidential documents would be disclosed in
the future. This vague standard imposes enormous costs even when
government conduct is found to be blameless, because uncertainty
over its application will give rise to litigation in the absence of harm.
This case perfectly illustrates the degree to which the majority’s
standard will put governments at the mercy of litigants no matter how
careful the governments’ conduct. Newport News must have imag-
ined it would not be drawn into court under a likelihood-of-
dissemination standard: The city concluded that disclosure of the
plaintiff’s personnel files would be not merely against its own policies
but prohibited by law under all but specified circumstances. Under
Virginia’s Government Data Collection and Dissemination Practices
Act, a government agency may "disseminate only that personal infor-
mation . . . necessary to accomplish a proper purpose of the agency."
Va. Code Ann. § 2.2-3803(1). City policy accordingly forbids disclo-
sure of the reasons for an employee’s termination except when failure
to disclose the reasons to a requesting government agency could place
the requestor in a high liability situation. Indeed, the district court
agreed that state law would prohibit disclosure of Sciolino’s person-
nel files. Yet neither of these facts saves the city from litigation —
and perhaps liability — under the majority’s "likelihood" view. See
Maj. Op. at 5-6 n.3. It is hard to see how almost any statement will
not be fodder for litigation under this approach.
Nor can a city avert litigation by offering generous procedural
rights because as this case shows, a plaintiff can still enmesh the gov-
ernment in litigation by alleging that yet more safeguards are
required. In this case, before Police Chief Mook dismissed Sciolino
from his probationary position and wrote him a letter documenting
findings of misconduct, Mook met with Sciolino to explain the
charges and offer the opportunity to respond. Although the majority
concedes that the meeting "may have afforded Sciolino all the process
to which he would be due," it keeps the city in court in order to keep
its own options open, writing that "[t]he record in this case is not suf-
ficiently developed" to assess the adequacy of the procedural safe-
guards "at this early stage." See Maj. Op. at 4 n.1. As this case
illustrates, there is little that state and local governments will be able
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to do to avoid litigation over even meritless claims under the unas-
certainable standards the majority imposes.
Finally, it bears repetition that this whole area reflects a tension
between two competing and legitimate interests. On the one hand,
there is the interest of the employee in avoiding any negative conse-
quences from stigmatizing accounts of his job performance. On the
other, there is the employer’s interest in documenting serious
employee misconduct and in holding open the prospect of honest and
accurate communications between employers about prospective hires
who have serious character defects or have even engaged in criminal
misdeeds. Where there has been a deprivation of a constitutional
interest, Matthews requires that courts strike the balance between
these considerations. Where, as here, there has been no loss of reputa-
tion and indeed no deprivation of any interest rising to constitutional
magnitude, legislatures and state governments remain free to balance
the employee’s interests against the need for maintaining records that
will facilitate accurate decision-making. Where the most the public
employer has done is put a letter in a file, the balancing of the inter-
ests falls to legislatures and not to the courts.
C.
My colleagues evidently impose this vague and burdensome stan-
dard for constitutional liability because they are troubled that if
municipal liability could arise only if allegations were disseminated,
courts would be restricted in their ability to rework government pro-
cedures until after reputational harm occurred. The majority finds this
limitation too great to countenance: "If an allegation of actual dissem-
ination were required, the information would have already been com-
municated to a potential employer, the employee’s job opportunities
foreclosed, and his reputation damaged before any possibility for a
[judicially ordered] name-clearing hearing." Maj. Op. at 10. In addi-
tion, a former employee might have to seek discovery in order to be
certain that he had a cause of action, because he might not know
before filing suit whether personnel information had been communi-
cated to members of the public. Maj. Op. at 10.
This reasoning is flawed in several ways. It utilizes a dangerous
and forbidden mode of judicial interpretation, reasoning from the
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remedy that judges wish to provide back to the creation of a constitu-
tional wrong. This transforms the Due Process Clause from a protec-
tion of a named set of rights into a roving commission to rework state
and local governments in the manner that judges deem optimal by
finding "rights" when necessary. The Supreme Court has confronted
and rejected this judicial approach, writing repeatedly that under the
Due Process Clause, "The categories of substance and procedure are
distinct." See Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532, 541
(1985). The first step in a due process inquiry must be to determine
"whether the nature of the interest is one within the contemplation of
the ‘liberty or property’ language of the Fourteenth Amendment,"
with courts proceeding to assess the adequacy of process only if so.
Morrissey v. Brewer, 408 U.S. 471, 481 (1972); see also Loudermill,
470 U.S. at 541. Roth unambiguously rejected a remedy-first
approach, finding that a district court erred when it engaged in such
reasoning. See 408 U.S. at 569-71.
Moreover, the limitation on judicial power that the majority finds
so troubling is a premise of our constitutional system that has served
us well for centuries. The majority writes as though it would be
remarkable and regrettable that the plaintiff would have to wait until
he suffered reputational harm before claiming that his constitutional
rights had been violated, but under the conception of the judicial role
embedded in our Constitution, a case must involve actual or imminent
injury to even be justiciable. Compare Maj. Op. at 9 ("Requiring a
plaintiff to wait until he actually loses some job opportunities would
place him between the devil and the deep blue sea") (internal quota-
tions omitted) with, e.g., City of Los Angeles v. Lyons, 461 U.S. 95,
101-02 (1983) ("The plaintiff must show that he has sustained or is
immediately in danger of sustaining some direct injury as a result of
the challenged official conduct and the injury or threat of injury must
be both real and immediate, not conjectural or hypothetical.") (inter-
nal quotations omitted). I am not certain that even the requirements
of standing are satisfied in this case: A plaintiff may have a cause of
action based upon a "likelihood" of future disclosure under the major-
ity’s theory, even if the plaintiff is not in immediate danger of reputa-
tional harm or other constitutionally cognizable injury.3 Proceedings
3The plaintiff’s dismissal itself cannot be the source of his claimed
injury because it is undisputed that an untenured probationary employee
has no constitutional interest in his government job. See supra at 19.
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in the absence of injury exceed our judicial authority and add unnec-
essary litigation costs to state and local government budgets.
Nor is it at all remarkable or unique that a potential plaintiff may
not have all facts surrounding a possible violation of his constitutional
rights before filing suit. While the majority evidently finds unaccept-
able the Supreme Court’s requirement that statements be "made pub-
lic" in order to give rise to liability because it believes that this
requirement makes due process protections "virtually impossible to
enforce," see Maj. Op. at 10, plaintiffs often do not have all the
knowledge necessary to prove their causes of action before filing suit.
If they did, there would be no need for the many provisions in the
Federal Rules governing the conduct of discovery. See, e.g., Fed. R.
Civ. P. 11(b)(3), 26-37. The majority’s standard would not obviate the
need for this discovery. To the contrary, plaintiffs will be required to
undertake more extensive discovery and seek the testimony of a
greater array of officials now that their cases turn not upon the simple
question of whether files have been released but upon the speculative
question of whether there exists a likelihood that they would be at
some time in the future.
The majority need not fear that state and local governments will
run riot in the absence of its novel constitutional doctrine. The elected
branches have compelling reasons to safeguard citizens’ reputational
interests absent the strong medicine of judicial oversight of their inter-
nal workings. They are accountable to constituents and often answer-
able to public employee unions; indeed, they have been providing
mechanisms to vindicate reputational interests through causes of
action such as defamation since long before the Constitution was
invoked for this purpose. Many governments have added to these pro-
tections through civil service systems, which "typically restrict the
public employer’s discretion to discharge and to impose other serious
discipline, such as demotion and suspension," and often allow dis-
missed employees to challenge the reasons for a dismissal through an
appeals process. Hodges, supra, at 103.
Indeed, a government’s own effective functioning is served by pro-
cedures to ensure that employee morale remains high and that good
employees are not lost due to dismissal based upon inaccurate reports.
An "actual dissemination" standard for constitutional liability itself
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creates incentives to institute procedural protections before the fact.
Even when government actors have not made personnel reports pub-
lic, agencies that wish to reserve the right to disseminate in the future
would be well advised to hold hearings when all parties relevant to
allegations of misconduct are available and their memories are fresh.
Under an actual dissemination standard, however, the judgment about
future likelihood would be reserved to the actor most capable of mak-
ing it — the entity that might disseminate the allegedly stigmatizing
statements — and courts would not be drawn into wholly hypothetical
disputes about the precise level of name-clearing process required in
light of the injurious effects of disclosures that may never occur.4
IV.
The Due Process Clause preserves essential freedoms, but it may
also tempt judges to overrun their role in order to impose their own
conceptions of justice on state and local governments. There is room
for constitutional standards in this area, as the Supreme Court has
made clear. But placing states and localities at constitutional risk for
performing record-keeping functions goes much too far. By over-
constitutionalizing public employee relationships, as the majority
does here, courts diminish the role of all the other participants in this
field and assume that neither employers, nor employees and their rep-
resentatives, nor state law rights and remedies can fairly be trusted to
reach just resolutions. The Supreme Court has sought to avoid the
danger of over-constitutionalizing in its own procedural due process
cases. When Roth rejected a professor’s claim that he should be pro-
4Even under the majority’s likelihood-of-dissemination standard, I
would affirm the disposition below. Once judgment had issued, the dis-
trict court did not abuse its discretion in denying the plaintiff’s motions
under Rule 59(e) and Rule 15(a) to reopen his case and to amend his
complaint for a second time. While amendment is permitted when, prior
to discovery, a plaintiff "merely adds an additional theory of recovery to
the facts already pled," Laber v. Harvey, 438 F.3d 404, 427 (4th Cir.
2006) (en banc), or when we overrule a precedent that governed the
plaintiff’s claim at the time of filing, id. at 428, neither circumstance is
present here. The district court therefore did not abuse its discretion by
giving weight to the interests of finality shared by the defendants and the
judicial system itself.
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vided a hearing to contest his termination, the Supreme Court
explained,
Our analysis of the respondent’s constitutional rights in this
case in no way indicates a view that an opportunity for a
hearing or a statement of reasons for nonretention would, or
would not, be appropriate or wise in public colleges and uni-
versities. For it is a written Constitution that we apply. Our
role is confined to interpretation of that Constitution.
408 U.S. at 578-79 (footnoted omitted).
The majority fails to heed those words. It creates a nebulous new
right whose contours assure nothing but the presence of continued liti-
gation and the permanence of judicial oversight. Such are the costs of
neglect of text and structure. Whether the majority’s views are wise
I am content to leave to others, but for reasons stated, I would affirm
the district court.
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