Christopher A. Sciolino v. City of Newport News, Virginia Dennis A. Mook, Individually and as Chief of Police for the City of Newport News

2364, III. Cоnclusion Humphrey, 512 U.S. (1994), him required 129 L.Ed.2d 383 Although the District Court erred when termination” of his a “favorable obtain sponte, it dismissed claims sua Abbas’s proceedings prior to prison disciplinary would be futile to vacate the District in a section challenging proceedings Court’s order and remand the case (4) action;5 prison because the further proceedings because Abbas had disciplinary charges brought officials false meaningful notice and a opportunity to be him filing him from against prevent tolling arguments heard on his in the dis-

federal claim. appeal, trict court and on and because his law, New York the doc Under tolling arguments are without merit. The tolling equitable or es- equitable trines of decision of District Court is therefore “may to defeat a statute toppel be invoked AFFIRMED. plaintiff of limitations defense when the fraud, misrepresentations by was induced filing timely to refrain from deception

or (State Holy action.” Doe v. See Vatican 793, 794,

City), 17 A.D.3d 793 N.Y.S.2d 565 (internal

(N.Y.App.Div.2005) quotations Post,

omitted); Kotlyarsky v. New York 195 Misc.2d 757 N.Y.S.2d Christopher SCIOLINO, A. (N.Y.Sup.Ct.2003). diligence “Due on the Plaintiff-Appellant, part plaintiff bringing ac [an] tion,” however, is an essential element of See, Holy equitable relief. 17 A.D.3d at NEWS, CITY OF NEWPORT VIRGI- 565. The 793 N.Y.S.2d bears NIA; Mook, Individually Dennis A. showing the burden of that the action was City and as Chief of Police for the brought period within a reasonable time Newport News, Defendants-Appellees. giving equitable after the facts rise to the tolling equitable estoppel claim “have No. 05-2229. If operational.”

ceased to be Id. Appeals, United States Court of any cannot acts defen “articulate[ ] Fourth Circuit. prevented timely dants that [him] commencing suit” then he has “failed to Argued Nov. 2006. showing meet burden of [his] [he was] Decided March wrongfully induced defendants not to such, commence suit.” Id. As even if we agree

were to with Abbas he was the “fraud,

victim misrepresentations or de

ception,” any Abbas has failed to show that prevented

of those circumstances him from

timely filing complaint. tolling Abbas’s

arguments are thus without merit. acknowledged years

5. Abbas has this Court almost three before the statute any clarified confusion about the Heck rule in of limitations for Abbas’s earliest section 1983 Haubert, (2d Cir.1999). Jenkins v. 179 F.3d 19 expired. claim Moreover, the Jenkins decision issued on June Dyar, Allan Law Office of Reid

Thomas Ervin, P.C., Norfolk, Ap- Virginia, for H. Jr., Conrod, Kaufman & R. pellant. Johan Norfolk, Cañóles, P.C., Allen Virginia; Jackson, City Attorney, Deputy Link Chief City of New- City Attorney’s Office for News, News, Virginia, for port Newport Appellees. WILKINSON, MOTZ, and

Before GREGORY, Judges. Circuit by published Vacated remanded Judge opinion, MOTZ wrote the opinion. joined. Judge Judge in which GREGORY dissenting opinion. wrote WILKINSON OPINION MOTZ, DIANA GRIBBON Circuit Judge. city officer probationary police

A former to 42 brings pursuant this action U.S.C. § He asserts that when dis- moved to dismiss Sciolino’s first amended him, city placed person- complaint in his charging for failure to state a claim. The damaging motion, false information to his granted nel file district court holding granting name without him a name- good give that in order to process rise to a due clearing hearing, deprived claim, and so him of facts assert- liberty rights process without due of law. ing that damaging chаrges and false in his Because the former did not al- personnel likely file were to be disseminat- asserting pro- a likelihood that lege facts prospective employers ed to or members spective employers or members of the public. damaging would see the informa- dismissal, After Sciolino moved to file a tion, the district court did not abuse its second amended complaint, assertedly dismissing in the employee’s discretion satisfy this standard. The district court However, when the complaint. district denied Sciolino’smotion to amend. Scioli- employee’s court denied the motion to no appeals both the order dismissing the in complaint amend his order to meet this case, denying and the order his motion to standard, the court did abuse its discre- file an complaint. amended Accordingly, judgment

tion. we vacate the proceedings and remand for ‍‌​‌‌​‌​​​‌​​​‌‌​​​‌‌‌‌​‌‌​​‌‌‌‌‌‌​‌​​‌​​​​‌‌​‌​‌‍further con- II. opinion. sistent with this

Sciolino contends that placing false charges file, I. in personnel his which “may prospective be available” to employers, the 2002, May Newport News Police City deprived him of Fourteenth Amend- Department Christopher hired Sciolino as liberty ment interests —in reputation his police began eigh- a officer. Sciolino an ability and his employ- to obtain future probationary period during teen-month granting ment —without him a name-clear- any he was not entitled tо depart- which ing court, hearing. Like the district we grievance rights. mental On June believe that in order to state a claim under Acting Chief of Police Carl Burt Clause, the Due Process a plaintiff must placed duty, Sciolino on administrative as- allege prospective a likelihood that em- serting that Sciolino had advanced the ployers inspect personnel will his file. Ac- police approxi- odometer of his cruiser cordingly, the district court did abuse 10,000 miles, mately ostensibly get a its in dismissing discretion Sciolino’s first new car sooner. Sciolino denied these complaint. amended 26, 2003, charges. September On Chief of Mook, acting Police Dennis on behalf of A. department, terminated em- Sciolino’s letter, ployment by accusing him of delib- Sciolino, Although a probation as erately destroying city property by ad- ary employee, protected “property” has no

vancing alleges the odometer. Sciolino employment City, interest his with department placed the letter in public employer deprive proba cannot his file. tionary employee of his “freedom to take 2, 2004, brought advantage employment On June this other opportuni Sciolino of against City Newport Regents action News ties.” Bd. v. State Colls. (in Roth, 564, 573, and Chief Mook both his individual and 92 408 U.S. capacity). City reason, official and Chief L.Ed.2d 548 For this (hereafter collectively City”) “liberty Mook “the Fourteenth Amendment interest is (1976) an individual’s lib- (explaining that of rea announcement by public implicated is suffi- erty reputation discharge.” John employee’s sons for (4th protection Morris, procedural Cir. “to invoke cient son v. if 1990). Process Clause” combined of the Due tangible such interest[] “some more arises thus claim Sciolino’s employment”).1 as rights protect- of two distinct combination (1) the Amendment: Fourteenth ed liberty inter type To state “ the common any of engage ‘to Clause, a Due claim under the Process est ” Roth, life,’ 408 U.S. occupations charges Nebraska, Meyer v. (quoting 92 S.Ct. (1) placed stigma on against him: 67 L.Ed. (2) by were made reputation; (2) to due (1923)); right (3) conjunction employer; were made name, “[wjhere good person’s process (4) demotion; and or with his termination at stake honor, integrity is reputation, v. Md. false. See Stone Univ. were doing government because of what 167, 172 n. 5 Sys. Corp., 855 F.2d Med. Constantineau, 400 him,” Wisconsin Cir.1988). 507, 437, 27 L.Ed.2d 515 433, 91 S.Ct. U.S. ser Davis, stage, At this the element 424 (1971); v. U.S. see also Paul second, iously require- at the 1155, 405 issue2 the 693, 701, 47 L.Ed.2d 96 S.Ct. City briefly that Scioli- by also contends solely Chief 2. Relying on letter written 1. Mook, allege argues complaint received did not City that Sciolino first amended the no's element, i.e., opportunity to be required charges against and "notice the the first that " letter, discharge. that prior In to his heard” ‘im not to the level of Sciolino do rise 16, Sciolino, Sеptember "On wrote to Mook 2003, de ply[ing] the existence of serious character City you in accordance I met with immorality.’" dishonesty fects such as or opportunity re- provide you the Policy to (quoting v. Appellees at 8 Robertson Brief of against you....” The allegation spond to the 1090, 1982)). (4th Rogers, 679 F.2d 1092 Cir. may meeting have afforded Scioli- referenced Robertson, disagree. we held that We In due; which he would be process all the no incompetence” "[allegations of alone could early simply that at this we do not know give protected liberty rise to a interest. City alleges denied stage. Sciolino at But "we have distin 679 F.2d including hearing” rights, "procedural him imply ... serious guished statements that he would have had the and "a forum which simply character defects from statements name.” To deter- opportunity to clear his ” Ridpath allege 'incompetence.' v. Bd. of given process Sciolino suf- mine whether fices, Univ., 447 F.3d 308- Governors Marshall factors must three a court assess Cir.2006). (4th We have noted 09 Math- by the Court in enumerated regulation "charges Department ... viola 319, 335, S.Ct. Eldridge, 424 U.S. 96 ews v. fraud' and 'in tions that 'smack of deliberate (1976). Applying the 47 L.Ed.2d 18 ” allege dishonesty’ clearly meet effect v. context in Boston Mathews test in similar give rise to a consti Robertson standard and (4th Cir.1986), Webb, we 783 F.2d 1166 Butz, (quoting McNeill v. tutional claim. Id. individual, by on upheld process which (4th Cir.1973)). The 480 F.2d 319-20 notice, occasions, given adequate was two falsely City's charge Sciolino ad here that witnesses, testify present allowed to odometer, deliberately de vanced the thus The record in represented was counsel. city property a De stroying in violation of sufficiently developed make case is not this partment regulation, implies "the existence of Viewing pleadings this sort of evaluation. dishonesty as character defects such Sciolino, serious we light favorable to as in the most Robertson, immorality.” F.2d at 1092. 679 or stage, we cannot now hold that at must Accordingly, first amended com Sciolino's letter ful- meeting to in Mook's referred sufficiently this element of the plaint alleged requirements the Due Process filled cause of action. Clause.

647 charges discharge have been “made his “deprived ment that him of an interest “public liberty protected by” that there has been a public” the Due Process —or Clause, v. Bishop though See Wood U.S. even his disclosure.” had not 341, 348, “public[ly] 48 L.Ed.2d 684 disclose[d] the reasons for the alleges discharge.” Sciolino in his first amend U.S. 96 S.Ct. complaint “may ed that his file be avail 2074. The employer’s Court held that the prospective employers. Quoting explanation “properly able” could not form the Delancey, our decision in for a claim that petitioner’s basis Ledford Cir.1980), name, argues honor, 886-87 he good reputation, his because, a plaintiff integrity thereby impaired” satisfies the dissemination was if alleges personnel explanation element he file since the had not been made “ subject ‘may inspection pro public, be the even if false it would have had “no ” spective employers.’ Appellant impact Brief of different on reputation than if 348-49, (emphasis by Appellant). added con had [it] been true.” Id. at (internal trast, omitted). City contends that a quotation marks allege specific incident of Bishop must “actual thus holds that a purely private publication” file to state a communication of the reasons for an em- of Appellees ployee’s claim. Brief at 19. The dis termination cannot form the basis claim, process trict court selected an intermediate stan for a due because there is dard, claim holding possibility allegation to state a no affecting the a “likelihood of dis individual’s Fourteenth Amendment liber- charges pro ty semination” of the false interests.

spective employers.3 up question, We then took in Led- con-, ford, of whether “false information B. tained in discharged probationary [a em- Although they emphasize por- different ployee’s] personnel impaired file has Bishop Ledford, tions of each side ability to procure employment.” other 612 contends that these cases dictate the stan- grant- F.2d at 885. The district court had it espouses. Actually, dard neither case public employer summary judg- ed the does so. ment, reasoning that fact that mere “[t]he Bishop, an employer may pro- Court consid- communicate with discharged city police employers ered the case of a spective as to the asserted rea- officer who sued his former con- sons for ... nonretention does not rise to tending charges that false accompanying infringement liberty.” the level of an Moreover, City's argument Appellees 3. The that Sciolino cannot Brief of at 18 n. possibly any public city policy police department meet disclosure standard allows the to personnel protected because his file employ- reveal additional information "if the by history place requesting agency dissemination a state statute —the Govern- ee's could situation,” ment Data high liability presumably Collection and Dissemination in a id.— Act, §§ employee Practices Va.Code Ann. 2.2-3800 to the case with an who has deliber- (West 2004) ignores allegation ately destroyed government property. 2.2-3809 At oral — complaint practice argument City again in Sciolino's that in that "un- conceded files, City by discloses these and is belied der certain circumstances there is some dis- City's by personnel employee’s admission that its own "official Police semination” it of an Thus, Departmеnt policy police City only ... authorizes” the file. admits not that it is department respond inquiry legally personnel to to an from a authorized to share flies prospective employer by revealing prospective employers, the em- with but also that it is ployee’s leaving” department. practice "reason for its to do so in circumstances. some 648 any that 16, support a conclusion Led to Appellant at in Brief of

Quoted requested, or (4th Cir.1980), employers prospective 1977 WL F.2d 883 ford, 612 re divulged, information reversed, holding pub the defendants 203887. We surrounding right circumstances protected garding have a “does lic (internal quotation termination” person of his to the contents respect [her] omitted) (alteration may subject original)). file be the marks nel file when employers.” “presence” of that the mere prospective Others hold inspection file, explained personnel at 886. We in a without 612 F.2d information Ledford, more, pro be require had been satisfied due is insufficient that this standard Garland, plain 204 F.3d may fairly Hughes City infer that v. “one cess. cause (5th Cir.2000); informa Copeland v. Phila that certain false 228 alleged tiff has continue Dep’t, and will 840 F.2d delphia circulated Police tion has been (3d Cir.1988). employers.” only require others prospective Still to be circulated pro that a did not hold be available the file “would Id. 886-87. We Mann, actual dissemination v. employers,” Clark spective prospec (8th Cir.1977); particular there of the information before only that in the case employer, potential em “possibility” tive must be a fairly information, infer” that the may Bailey v. us “one see the ployers will (10th And we alleged Kirk, actual dissemination.4 had n. 18 Cir. 111 F.2d “[pjlaintiff that a immediately 1985) reiterated Indep. Burris v. Sch. (citing Willis file contain personnel (5th Cir.1983)); that his right Dist., has a 713 F.2d ... substantially false information no infor “presence or that the pro information is available when that part of the file was mation” (emphasis Id. spective employers.” could be obtained public record and so added). though it had employers, even prospective any particular disseminated to not been Bishop nor Not do neither Ledford City, City employer, Buxton Plant us, also the before question resolve the Cir.1989). 871 F.2d 1045-46 circuits articulate our sister cases from requires, as the district Circuit Second meaning of to the varying as standards here, that the files did a likelihood court that a courts hold Some disclosure. by potential employers. would be seen containing stigmatizing file personnel Servs., Coop. v. Bd. Educ. See Brandt have been dis actually must statement Cir.1987) (2d (“[T]he F.2d 44-45 820 See potential employer. a to seminated requirement been (7th has 15, 16-17 public disclosure Martin, F.2d v. 943 Johnson charges stigmatizing satisfied where Cir.1991); Little Burton Town of cf. Cir.2005) (1st discharged in the placed employee’s are ton, n. 15 5 426 F.3d likely to be and are disclosed personnel a file dissemination (noting prove that employers.”). prospective evidence sufficient “plaintiff must marshal Thus, 1980), holding our opinion WL 203837. entirely our in 1977 clear from 4. It is not plaintiff a is who reveal that Ledford, the briefs in case Ledford fact, did, a alleged actual does have con allege file had dissemination plaintiff that his does not prospective em stitutional claim. reach actually been disseminated Ledford actual question us—whether less than plaintiff "that he was before ployers. contended provide a con can the basis local for positions with at least three other dissemination denied in Led- claim—but the statements agencies specifically because” stitutional governmental suggest n. 5 personnel quoted above and damaging information his infra ford does Ap something than actual dissemination less to them. Brief file disseminated was 16, Ledford, Cir. suffice. pellant at 612 F.2d 883

649 c. contrary requirements be to the of the Fourteenth Amendment. A public em- nor Although Bishop neither re- Ledford (or rehire) ployer who fires refuses to plaintiff allege a must to meet solves what employee in a manner that sullies the em- “public requirement, disclosure” ployee’s good name and restricts his future provided helpful guid- Supreme Court has employment opportunities deprives him of ance as to what the Due Process Clause important liberty protected by interests requires. Roth, the Fourteenth Amendment. See First, course, the Court instructed in 408 U.S. at 92 S.Ct. 2701. aWhen the Due Process “is Bishop Clause plaintiff alleges that his termination is guarantee against not a incorrect or ill- false, based on stigmatizing charges that personnel advised decisions” and that the likely are inspected by to be prospective not “penalize Constitution should forth- employers, he states a claim gov- that the right and truthful communication between deprived ernment has him of these employer employee.” Bishop, 426 interests. U.S. S.Ct. For this If prospective employers likely are reason, agree we with the district court stigmatizing see the allegations, an em- plaintiff allege that a more than the ployee must finding choose between future presence” stigmatizing charges “mere employment and protecting reputation “may prospective be available” to em- (and applying jobs If thus not ployers. adopt “may we were to be standard, risking the release just available” if alle- even there was gations). Requiring chance that to “wait any prospective small em- file, actually job until he ployer opportuni- could loses some inspect the or an uncer- ties” tainty “place would him between the as whethеr the former devil Brandt, available, and the deep blue sea.” plain- would ever make the file (internal omitted) at 45 quotation tiff marks would still have a cause of action. But standard). cases, (adopting the likelihood If a those would un- plaintiff must likely deprived specific to be instance of employment future actual prospective or to have dissemination to a em- reputation tarnished. Ac- ployer, he would not be “as free cordingly, just to the extent that there as before job.” to seek another slight possibility Bishop, 426 U.S. at stigmatizing charges Roth, (quoting S.Ct. file could be available to (internal prospective quotation employers, the Constitution omitted)). marks recognize does not deprivation of a liberty interest. hand, that at situations like the con-

Although plaintiff we conclude that a stitutional harm “is not the defamation” allege itself; than “may must more that his file rather it hearing is “the denial of a prospective be available” to a employer, employee we which the dismissed an reject also City’s the contention that a opportunity public charge.” to refute the Comm’n, plaintiff allege specific must a of N. Transp. instance Cox v. Va. 551 F.2d Cir.1976). City’s actual dissemination. allegation Under the If an standard, proposed plaintiff even if a required, al- actual dissemination were the in- leged prospective employ- already a likelihood that fоrmation would have been com- potential employer, ers would see the false and municated to a the em- file, charges foreclosed, ployee’s job opportunities he would not have a approach cause of action. an reputation damaged any possi- Such would his before releasing practice a employer has Fur- mer name-clearing hearing. bility for a inquiring employers. all files to personnel need employer that an ther, requirement that Second, allege could employee hearing if it name-clearing only provide releases employer former although his employee’s per- actually disseminates inquiring only to certain files employ- personnel prospective specific to a sonnel file to at apply that he intends to employers, to enforce. virtually impossible er would be In either employers. these least one of never know will job applicants Most prospective that the case, allege he must employer decides prospective whether a likely request the file employer is false dam- hiring them because against The likelihood stan file, employer.5 former or for his personnel charges aging employee’s constitutional protects if dard reasons, know and would not even other unduly not inter liberty interests but does has learned employer prospective admin Therefore, employer’s fere with the requirement charges. costs,” “enormous imposes It no actual disclo- istration. allege plaintiff must that only employer an need post at prospective particular sure to a if it will name-clearing hearing by grant protected the liberties would undermine a for damaging charges about make false Amendment. the Fourteenth likely to available to those employee mer reasons, we believe For these information, future em e.g., request appropriate selected district court apply.6 employee will ployers to whom that allege not plaintiff A need standard. actually been disseminated his file has complaint amended first Sciolino’s But, he employers. particular prospective al because it this standard did not meet “may that his file than allege must more charges file with the only that his leged thus hold to them. We be available” prospective employ “may be available (and ultimately allege employee court’s thus affirm the district ers.” We prospective em prove) a likelihood complaint. dismissing order he will (i.e., to whom employers ployers large inspect will public at apply) or the III.

the file. court’s appeals also the district this standard Sciolino can meet A 15(a) file denying his Rule motion to First, could order ways. in two he complaint—one amended (and his for a second ultimately prove) that allege Ledford, requires a dard statements in 5. We note that our prospective em- personnel file is available to 886-87, plaintiff had a consti- that the F.2d at employers ployers, prospective and that those "may personnel file claim when his tutional to, to, ‍‌​‌‌​‌​​​‌​​​‌‌​​​‌‌‌‌​‌‌​​‌‌‌‌‌‌​‌​​‌​​​​‌‌​‌​‌‍likely permission have but are avail- subject inspection” or "is be the inspect the file. employers, do not con- prospective able” to holding Stating a file here. flict with our Indeed, being "little that rather than there subject inspection” or "is "may governments be able to do state and local will employers implies prospective available” to holding, post at litigation” under our to avoid ability inspect employers will have added), they (emphasis little 660-61 there is choose; speak to they it does not the file if so memorializing false must do: refrain from fact, they will do so. probability that dismissing stigmatizing charges while and typically request infor- given employers or, charges, they employee; if do level such or, employees, prospective our name-clearing opportunity; files of if provide mation or provide opportunity, points they to the likelihood of want this language in do not to Ledford allegations private. keep the false likelihood stan- standard. The dissemination satisfy a claim that would motion to intended to state amend is evaluated under the of dissemination standard. the likelihood legal same standard aas similar motion judgment filed before was entered —for 15(a) Sciolino’s Rule motion accom prejudice, faith, futility.” bad or Id. at 59(e) panied a Rule motion to alter or judgment amend The dismissal. applied appropriate district court stan why There is no reason allowing 59(e) in denying

dard the Rule motion complaint Sciolino to amend his would identify because Sciolino did not an inter prejudice City, and law, there is no evi vening change controlling newly evidence, law, dence of discovered a clear error of bad faith. Nor would amendment necessity prevention or the for of manifest be futile. proposed Sciolino’s second Staton, injustice. See Hutchinson v. 994 amended complaint alleges that it is the (4th Cir.1993). dis practice of the Newport News Police De court, however, erroneously trict applied partment to employ disseminate former this same standard —rather than the stan ees’ personnel regional “[l]ocal files and 15(a) dard for of Rule mo consideration police departments, specifically including, tions—to Sciolino’s motion to amend his and way example, police depart complaint. mеnts of the cities of Suffolk Hamp 15(a), filing Under Rule after a first Although complaint ton.” does not amended complaint right, explicitly state that Sciolino applied may subsequently complaint amend his these particular employers, reading the Still, only permission from the court. complaint “liberally in plain favor of the 15(a) Rule instructs that leave to amend tiff,” Anderson v. Found. Advance freely given justice “shall be when re- so ment, Employment Educ. and Am. In quires.” As our en banc court has recent- dians, (4th Cir.1998) 155 F.3d ly explained, gives “[t]his liberal rule effect 8; Gibson, (citing Conley Fed.R.Civ.P. v. policy to the resolving federal favor of 41, 45-46, 355 U.S. 78 S.Ct. 2 L.Ed.2d cases on disposing their merits instead of (1957)), must, complaint as we on them technicalities.” Laber v. Har- be construed to assert that Sciolino in (4th Cir.2006) (en vey, 438 F.3d apply tends to local regional these banc). reason, For this have “[w]e inter- succeed, course, police departments. To 15(a) preted provide Rule that ‘leave to prove prospective Sciolino must that a em pleading amend a should be denied ployer to apply likely whom he will prejudicial when the amendment would be inspect allegations the false person opposing party, to the there has been bad file; nel allowing Sciolino to amend his faith on part moving party, ” complaint According would not be futile. the amendment would have been futile.’ ly, thе district court abused its discretion (quoting Id. Johnson Oroweat Foods Co., (4th Cir.1986)). in denying 785 F.2d Sciolino’s motion to.amend his And, have post-judgment complaint.7 we held that “a amend,” may grant” 7. A post- provides grounds "district court "sufficient on judgment complaint motion to amend a "un- which to reverse the district court’s denial of , 59(e) judgment pursuant less the (citing is vacated to Rule a Rule motion.” Id. at 427-28 Laber, 59(e).” Davis, Although 438 F.3d at 427. Foman v. 59(e) (1962)). may denial of a Rule motion otherwise 9 L.Ed.2d 222 We therefore appropriate, judgment denying when a district court vacate the district court’s 59(e) denying its "abuse[s] discretion motion to Sciolino's Rule motion as well. claim tion is irrelevant because Sciolino’s IV. the “rec- his termination and arises from ground, adopt- chart a middle thusWe to” it. It is inaccurate pertaining ords by Sciolino favored position ing neither alleges, as when a Scioli- because City. believe by the We espoused that nor has, pertaining “records to” his no that the with the accords best approach this that seriously damage his might termination at liberty interests limited, important, community, Supreme standing Amend- the Fourteenth here and issue (contrary to the dissent’s conten- Court government will that the guarantee ment’s tion) willing “to a has fact been find any liberty individual an deprive not in the “conse- constitutional interest” process.” due right “without ... might flow from quences the[se] that one, ais modest approaсh our Although Indeed, at 658. Roth records.” Post colleague dissents vehe- distinguished our relies, itself, heavily the dissent on which But length. at considerable mently and if, that in connection explained the Court musings ques- on stripped professorial decision, employment with an adverse repeated mis- here not at issue tions em- any charge against [an “ma[d]e state holding,8 dissent’s of our statements seriously damage his ployee] might that single devolves to a with us disagreement standing in his communi- and associations that a dissent believes The contention. an ty,” process “due would accord then right no position has in Sciolino’s Roth, charge.” to refute opportunity when a to clear his name opportunity to an at 92 S.Ct. 2701. him from employer has dismissed former false, stigmatizing alle- job his and made holding In so we are So it is here. likely by future that are to be seen gations harms,” “predicting] post future at neither employers. remedy ... “reasoning nor from back to the creation of constitutional position the support of its

Tellingly, Rather, are wrong,” id. at 661-62. we that Supreme proffer can dissent harm: simply recognizing present “refused to find constitutional has Court name-clearing hearing provide failure to might “consequences in the interest” when an faces a restriction on or the employees’ terminations flow sullying employment future and the to them.” Post at 658 pertaining records рrospective employers added). good name as learn This avails contention (emphasis false, allegations regarding all, stigmatizing is both irrele- the dissent not The for his termination. The dissent’s conten- reasons and inaccurate. vant discharge, philosophizes with his former example, the dissent on 8. For false, him against leveled principles and state merits of federalism remedies, likely charges are to be disseminated. no one dis- law which tort bemoans the asserted burdens agrees, and incorrectly suggests (ap- also dissent the Constitu- strawman, Court has held post parently to down a strike public employers, imposes burdens on 662) tion posit that it would create we question. The dissent lower court can employee might no if a "former unfair burden suggests that hold that a repeatedly discovery we in order to be also have to seek certain "infringed by a letter in liberty can be at 661. that he a cause of action.” See id. had 655; drawer,” post at see id. at Actually, a file also we have not so much as mentioned course, burdens, 655, 656, 658, discovery is not we believe consti- and 659. Of prob- "practical requirements, in order to we in fact hold tutional What so. interest, par- policy,” are in Scioli- and other “matters an individual lems” state that, 658-61. id. at position in connection amount here. no's Cf.

653 meaningful opportunity liberty to be heard to stitutional in reputation employment. and future It in par- entitled in these circum- holds which Sciolino is ticular Newport that the News Police De- remedy right is not a but a stances partment may deprived have former pro- Roth, ... 408 process accord[s].” “due bationary employee Christopher Sciolino of 573, 92 S.Ct. 2701.9 U.S. “life, liberty, property” by or explaining sure, To be Sciolino is not entitled a letter to Sciolino himself that Sciolino’s many rights public of the afforded some employment being was terminated due employees (e.g. protected those tenure alleged misconduct and then placing the contract), pub or but when dismissed from letter in its files. So mistrustful is the employment probationary lic even a or at- majority of governments state and local him will is entitled to take with it the Fourteenth extends Amend- good Long ago his name. ment to forbid that unpredictable actions that when “the Court determined State predict courts create a “likelihood” of fu- citizen, infamy’ attaches ‘a to the badge others, respect, ture harm. this inas into process play.” due comes Constanti majority fails to grapple many with the neau, 437, Fun 400 U.S. at 91 S.Ct. 507. practical problems holding. of its process opportunity damental to due is an My colleagues fine also contend that opportunity to be heard —“an which must Newport “charge[s] News has made granted meaningful at a time.” Arm аgainst might seriously [Sciolino] Manzo, 545, 552, strong v. 380 U.S. 85 damage standing and associations (1965). 1187, S.Ct. 14 L.Ed.2d 62 An op community.” Maj. atOp. (quoting portunity your it clear name after has Roth, 2701). 408 U.S. at 92 S.Ct. This false, stig been ruined dissemination of implies city gone matizing charges “meaningful.” is not Wood, some fashion. Bishop See

U.S. 96 S.Ct. 48 L.Ed.2d V. (1976) (requiring that information con- cerning discharge public” be “made in- For the foregoing reasons we vacate the interest). fringe Newport constitutional court, judgment of the district and remand nothing News has done of the sort. It has proceedings for further consistent record, nothing done keep its own opinion. which it must do if it is not to act arbitrari- VACATED AND REMANDED. ly if it protect is to itself from future say litigation. Newport Thus to WILKINSON, Judge, Circuit jeopardized plain- News has somehow dissenting. standing community tiffs in the ais com- holds that a document in a plete city’s mischaracterization of the con- government file drawer can a con- duct. There violate ‍‌​‌‌​‌​​​‌​​​‌‌​​​‌‌‌‌​‌‌​​‌‌‌‌‌‌​‌​​‌​​​​‌‌​‌​‌‍is no contention —much less Moreover, McDonnell, 560-61, contrary sugges- to the dissent's v. 2963, 418 U.S. Wolff tion, 656, 661-62, Indeed, post need not L.Ed.2d 935 consequences right being have suffered the full “the to be heard con- before kind, deprivation liberty rights grievous any of his to have demned under to suffer loss of Clause, standing though may stigma the Due Process to sue. even it not involve the Thus, conviction, example, prisoner’s hardships princi- revocation of a of a criminal is a "good deprivation ple sоciety.” time” ais basic to our Joint Anti-Fascist McGrath, gives process rights though Refugee to due even rise Comm. v. (1951) (em- "very likely, any not then and does there work 95 L.Ed. 817 added). change liberty.” phasis in the conditions of his Tenth have made the The Second and Circuits Newport News evidence—that contrast, written, alle any fu- in that letter to sent the public letter liberty a fact, majority’s deprive person a of gations the can In employer. ture allegations much. if the as interest even have concedes “likelihood” standard Cir plaintiff publicly no been disclosed. The Second has caused Newport News way Coopera in a v. Board It has acted cuit held in Brandt harm. reputational repu- liberty a causing plaintiff that avoid tive Educational Services would any- harm, deprived stigmatiz it has not implicated interest is “where tational so inter- any discharged Amendment in ing charges placed one Fourteenth are likely are employee’s personnel est. file and prospective employers.” be disclosed to a constitutional cause I not create would (2d Cir.1987) (emphasis F.2d 45 820 functions. record-keeping of action out of added). recognized The Tenth also Circuit majority’s from the respectfully I dissent upon a claim statements that based and Su- departure from constitutional text beyond gov a plaintiff did not went departure a precedent, preme Court Bailey v. employer’s ernment own offices. law over routine as- judge-made extends (10th Kirk, n. 18 Cir. 111 F.2d 580 in relationship employment pects of 1985). in government our every and local state circuit. neatly do not fit into these Other circuits camps. Eighth sug- two The Circuit has I. that a claim would lie if a gested thing upon which is at least one There that a record be avail- established “would agree: I can The circuits prospective employers,” Clark v. able to stigmatizing allega- split as to whether are (8th Cir.1977) Mann, F.2d 1116 562 a former deprive government tions can added), suggested anoth- (emphasis liberty inter- employee of a constitutional er case information must be disclosed are disseminated allegations est before a give it could rise to cause before employers or others. prospective action, Reed, 120 F.3d Merritt v. have The First and Seventh Circuits (8th Cir.1997). only de that such statements can written cases also to be The Fifth Circuit’s seem employee of a prive government former ap- The court in some internal tension. are liberty allegations interest when pears to have sanctioned claims based See Johnson v. disseminated. publicly possibility allegations would upon the (7th Cir.1991); Martin, 15, 16-17 943 F.2d future, writing an be disclosed in the Littleton, 9, 17 F.3d v. Town Burton deprivation of ex-employee could establish (1st Cir.2005); Lot Wojcik v. Mass. State (1st by showing “that his Comm’n, 92, 103 Cir. tery 300 F.3d likely has made or is make 2002). suggested Third Circuit allegedly stigmatizing charges public view, same, by stating that a my any official or intentional manner.” that the evidence produce “must n. Selcraig, re 705 F.2d public was made reason for his termination Cir.1983) added; (emphasis quota- ar internal city” rejecting plaintiffs omitted). subsequent Yet a court of liber tions gument deprived that he had been rejected plaintiffs likely. likelihood-of-dissemi- ty because future disclosure was theory, equating argu- it with Dep’t, 840 nation Copeland Philadelphia v. Police (3d Cir.1988). presence” stigma- 1139, 1148 ment “the mere allegations file was tizing large inspect will file” of fact. some point Maj. sufficient to create triable issue the future. Op. at Garland, reject I City 204 F.3d this conclusion Hughes because far (5th Cir.2000). authorizing the creation of such an interest, constitutional text and Finally, recognized other circuits have precedent Court foreclose both the hold- liberty claims when authorities lacked ing in approach this case and the used to power keep statements confiden reach it. tial publicly because files were law, rights public employees While the of available under state but have not may protected many ways, be in different predictions addressed whether of dissem the text of the Fourteenth Amendment ination would suffice in the absence of permit does not recognition liberty of a Roskеlley, such statutes. See Cox v. in Cir.2004); having stigmatizing interest infor 1110-12 Bux By declaring mation on file. that v. no state City City, ton Plant 871 F.2d of (11th Cir.1989). life, “deprive any person shall of liberty, or 1042-46 property, law,” without process due of say split Thus to there is a circuit is at judicial permits amendment of oversight once true and not indicative of the full government procedures relating problem. extent of the a Whether “deprive” actions that persons of interests interest infringed letter a file “life, within the categories named liber generated drawer has answers with shades ty, or property” categories that are “not — permutations clarity that mock the law Regents infinite.” Bd. State Colls. v. provide for human conduct. Roth, 564, 570, U.S. (1972). L.Ed.2d 548 II. The Fourteenth Amendment did reorder

A. relationship of the federal and state and I recog- governments respects, While both in fundamental but division, diverge nize the circuits’ af- displace we did not state law as a residual disagreements ter that. protector many Our run first to interests the Fourteenth the treatment of Holdings constitutional text and Amendment did not enumerate. majority appears judicial structure. The to re- that oversight would “mandat[e] gard conflicting rulings circuit court among gov- communications between and as a menu from which to employees superiors select the stan- ernment and their liability dard of that it believes would the official course of business” can leаd to amount to policy. “permanent judicial the best It concludes intervention in the public employee may governmental operations that terminated conduct of to a degree raise a Fourteenth Amendment claim principles inconsistent with sound upon stigmatizing separation powers.” based information of federalism and — Ceballos, -, government personnel files if the v. even Garcetti U.S. (2006). charges public,1 have never been made so S.Ct. 164 L.Ed.2d 689 long as the “a alleges light likelihood In of the amendment’s text and the structure, prospective employers ... Supreme federal Court has plaintiff may allegations give Bishop 1. The have made the rise to a constitutional claim. against publicly by filing Wood, 341, 348-49, him available lawsuit, held Court has 48 L.Ed.2d 684 self-generated exposure litigation does not not in terms Amendment do government Fourteenth reputation, loss of held for reputation as a professional single out candidate and diminished employment, level of Fourteenth other protection to the over and above prospects special rise limit- only under deprivations by state may protected Amendment interests majority disregards. upon stigmatiz- ed conditions Id. A claim based law.” can ing government statements therefore with, undisputed that as it is begin To nor in the abstract. arise neither alone no probationary Rather, reputаtion is indistin- property Amendment Fourteenth personal, from a multitude of result, guishable all job itself. As a government proprietary interests hearing dignitary, and right neither agree, he had may deem employment legislatures of his state courts the termination before right worthy protection, to know reasons of cases establish nor a at 96 426 U.S. Bishop, dismissal. from the loss of the harms neither government job The loss of 2074. S.Ct. the nor harms employment at-will detailing the reasons for and a filed record by them- information rise stigmatizing obviously no matter. are small loss harm. to the level of constitutional selves possibly reme- cannot But Constitution the Id.; Roth, at 92 2701. 408 U.S. S.Ct. life or for wrong experienced in dy every only when termination is combined It is every wrong experienced that matter re- disclosures that the entity. the public So the of some hand magni- of constitutional sulting harm is where constitutional law question must be tude.2 statutory and where leaves off properly of Fourteenth majority’s conception The in. The remedies kick and law common as as its deprivation Amendment is flawed the Fourteenth be asked: question must in- of Fourteenth Amendment discussion displace read to cannot be Amendment yet has not been terests. The rendering by mechanisms state remedial reputation, of an interest deprived “a law to be font tort the Constitution may evi- systems whatever the reasons for his dismissal superimpоsed upon States.” already administered file. More- dently government be remain 693, 701, Davis, 424 Paul v. U.S. over, engage any “to 1155, L.Ed.2d 405 47 posited in occupations of life” common Nebraska, 390, 399, 262 43 Meyer v. U.S. constitutionally safeguarded it is While (1923), not 67 L.Ed. 1042 has S.Ct. instances, “reputation” is neither in some infringed employer where the been in the Fourteenth enumerated listed nor nor any public information neither made interest or protected as a Amendment with a future employer. information shared repu- There is no basis elevate right. short, has suffered no de- others a consti- harm above into tational ability or of his privation reputation words “[t]he interest because tutional jobs. pursue as used other ‘liberty’ ‘property’ and circumstances, pre-deprivation a failure to even in such majority contends that 2. The See, may always required. strip hearing not likelihood standard would adopt its 527, 540-41, Taylor, e.g., of its function in Parratt Due Process Clause historic (1981). Here, hearings. Maj. Op. S.Ct. 68 L.Ed.2d providing pre-deprivation proposing City Newport News is not hearing, howev- pre-deprivation 653 n. 9. A action, improper subject er, it public entity such an and is only when a is mandated entity purely of a public to suit on basis deprive a consti- an individual of proposing to and, interest, record-keeping function. tutionally right protected or majority nevertheless holds that the The Fourteenth Amendment wаs im- The not concluded, if “a plicated, can be violated it finds Constitution the Court “the dis- reputa- and likelihood” of future disclosure charge public employee of a whose position Maj. The Con- Op. tional harm. employer is terminable at the will of the power courts the give stitution does when there is no disclosure future the Con- predict harms declare discharge.” reasons Id. (emphasis possible violated before the harms stitution added). Velger, To like effect is Codd v. transpire. The text actionable makes which summarized the cases on constitu- “life, “deprive” person for states to tionally hearings by mandated noting, to create a liberty, property,” but not if “Only creates and dissemi- deprivation. of such a Wheth- “likelihood” defamatory impression nates false er addresses Fourteenth about the in connection with his “deprivations,” Amendment “interests” or hearing required.” termination is such a it has done violence our constitutional U.S. 51 L.Ed.2d and reordered our constitutional text (1977) added). (emphasis upshot The is to federalize structure. majority acknowledges binding local myriad aspects employment matter, must, precedent on this as it relationship any pretense without of demo- inexplicably puzzled by seems the Su- cratic sanction. preme plain language. Court’s The Su- B. preme the Court has used words “made If room for doubt abоut this public” “public there was and disclosure” to describe matter, Supreme Court eliminated it in harm, the threshold of constitutional Wood, Bishop v. 96 S.Ct. majority that Bishop writes did not Bishop di- 48 L.Ed.2d 684 question” plaintiff “resolve the of what a rectly up question allega- took when requirement. meet employee tions of misconduct in connection 648; Maj. Op. Maj. Op. at see also at 649. a implicate termination Fourteenth This for ambiguity observation wishes plaintiff alleged Amendment interest. The public” where there is none. To “make police department deprived that a him of “to general- means cause to become known employment when terminated his ly” just as “disclosure” entails “exposure” stigmatiz- him provided and with false and “revelation,” majority or and the cites no ing discharge might reasons for his or use that alternative definition calls into in “severely damage reputation his familiar meanings doubt the to school chil- community.” Id. at 2074. Dictionary dren. The Random House in Court found that the ab- (2d English Language 1562-63 disclosure, sence of had ed.1987). As the Seventh Circuit has writ- caused no constitutional harm. Since the ten, a “likelihood of disclosure” adopting explanation plaintiffs discharge liability upon stigmatiz- standard for based ” public made “was not before the ing personnel requires “[djefining records allegations through disclosed the his own way in a encom- ‘public disclosure’ which lawsuit, explana- the Court wrote that the passes public ‘no disclosure’ ”—“an exer- properly tion “cannot form the basis for a Martin, cise we choose not to embrace.” ‘good petitioner’s claim 943 F.2d at 17. name, honor, reputation, integrity’ or was recognition prob- thereby impaired.” Perhaps Id. at 96 S.Ct. these omitted). added; lems, majority casts for other (emphasis footnote about Bishop, 426 U.S. judi- agencies,” hang it can injuries on which possible (footnote omitted), gap widens the intervention, potential seizing upon cial private employees. and virtually any public em- between consequence indirect gov- that a former It that a for- The observes writes ployee’s termination. who feared the release prospective employee ernment might fear mer allegations might feel obli- inquiries about his of would make employers future finding limit his between might gated and to “choose job performance past reputation Maj. Op. employment protecting and as a result. See job search jobs.” Maj. Op. at 649. chilling ef- possible applying these not Although harm that a fects are the are good, but That is all well and these from letter said to have suffered could be every termi- person harms that precise file, evidently not colleagues would my may experience. employment nated prove оr that he require plaintiff plead on state action prohibitions While injury. indirect even this suffered always will Fourteenth Amendment Moreover, consequence this attenuated differences in treatment necessitate some level of a constitutional cannot rise to the private employees, and public between injuries that are more deprivation, because majority’s standard as to likelihood constitu- and direct do not warrant serious two wedge between these harms drives Roth, Paul did Bishop, and tionalization. many to an extent that groups workers claims reject Fourteenth Amendment might find both divisive lawmakers pro- negative of blindness to the widening gap unpalatable. Whether consequences that reputational fessional country private between our terminations employees’ flow from might argua- employees is desirable is at least to them —the pertaining or the records majority’s point, ble as is whether conse- recognized such explicitly cases groups very dif- approach leaves two Roth, 13, at 574 n. 408 U.S. quences. See comparable for harms ferent remedies Paul, 701, 2701; at U.S. 92 S.Ct. compelling reason. without They nevertheless refused to Second, major- power that the the broad interest because the find a constitutional matters invades ity personnel claims over of the Fourteenth text and structure in and local officials an area which state high a bar. Amendment set too judges than to equipped are often better of accu- make decisions. Whether benefits III. justify par- racy and fairness costs A. safeguards is not procedural ticular in that can be answered the ab- question judges if were somehow set free to Even Leaving analy- and for all time. stract by text or policy unconstrained prescribe democratically responsive local au- sis to lively might ensue precedent, a debate text does thorities where Constitution’s majority suitably view is over whether the it judicial involvement makes permit not is, My make a case that wise. friends suited to local possible to strike balances policy, there as with most matters of chang- to adaptation needs and facilitates two sides. exist insights. circumstances and new ing First, slighting principle that “[t]he liability example, permitting For appropriate is not the forum federal court file, personnel person- upon based a letter to review the multitude of which majority may government processes make daily by public decisions that are made nel Cases, 95, (1990). arbitrary by “penal- less fair and more 32 B.C. L.Rev. 104-07 izing] forthright and truthful communica- may Governments also record these rea- employee.” tion between and sons in order to defend themselves in the Bishop, 426 U.S. 96 S.Ct. 2074. event employee that a former claims a The makes it costlier to institute race, sex, dismissal was based upon systems of progressive discipline that re- impermissible some other consideration. quire documentation of misdeeds and take Under Title VII of the Rights Civil Act of past into account conduct in imposing pen- example, for once an employee pres- alties, though systems may even such ben- prima ents a facie case of unlawful discrim- employers employees. efit both Fur- ination —a showing that is “not onerous” to thermore, if a government employee is make—the clearly defendant “must set terminated, may he ask for a reason and forth, through the introduction of admissi- employer may consider it to be in the “legitimate, ble evidence” the nondiscrimi- interests of fairness provide explana- ‍‌​‌‌​‌​​​‌​​​‌‌​​​‌‌‌‌​‌‌​​‌‌‌‌‌‌​‌​​‌​​​​‌‌​‌​‌‍natory for challenged reason” its action. tion legal obligation even when there is no Dep’t Cmty. dine, Tex. v. Bur Affairs govern- do so. But when courts open 248, 253, 255, 254, U.S. 101 S.Ct. liability they ments to provide L.Ed.2d 207 govern- This leaves reasons, government such employers may ments with little choice but to document simply stop giving them: “where there major actions, reasons for requirement was no constitutional for the odd, least, and it say to make such anything,” state to do Judge Friendly has necessary records the next breath written, merely opt “the state would open governments up liаbility on the give no reasons and the would basis of the same documents. lose the of knowing might benefit what him in profit the future.” Russell v. B. (2d Cir.1972).

Hodges, 470 F.2d practical problems majori- with the course, Tenured employees, of are entitled ty’s approach do not end there. It is no simply to know the reasons their say governments answer to state and local challenge dismissal but to through them need avoid constitutional infractions see, Roth, hearings, e.g., 576- being to avoid found violation of the and it seems anomalous Fourteenth Amendment because under the require provision to the of reasons to ten- standard, majority’s vague this is more employees discouraging ured while the easily said than majority done. The im- provision of reasons to untenured ones. poses an amorphous overlay upon an area respect Even with to untenured employ- balancing already of the law where tests ees, may some acts of documentation not leave governments state and local uncer- result, wholly voluntary, be and aas the tain obligations. about the nature of their majority’s liability may new threat of place employers already Government face a dif- governments between a and a rock hard predictive in establishing calculus ficult place. Procedural and substantive limits procedures govern indisput- to actions that employee discipline on are common sub- ably deprive property, citizens of jects bargaining, of collective and union since the procedures required depend agreements may require therefore docu- upon judicial balancing of mentation of the for reasons dismissals. [f]irst, Hodges, private See Ann C. the Interplay Civil interest that will be action; second, Bargaining Semce Law and Collective affected the official Employee Law in Public Sector Discipline deprivation the risk of erroneous of such used, Data Collec- Virginia’s Under Government procedures the through interest Act, a Practices value, any, if of addi- tion and Dissemination probable the and agency may safe- “disseminate procedural government or substitute tional necessary ... to finally, personal the Government’s information and guards; agen- accomplish proper purpose the function involved interest, including 2.2-3803(1). City § bur- Ann. cy.” and administrative and the fiscal Va.Code or substitute accordingly the additional disclosure policy dens that forbids entail. requirement would termination ex- procedural employee’s reasons for an the reasons cept when failure disclose 319, 335, 96 Eldridge, Mathews agency could requesting government 893, L.Ed.2d 18 high liability situa- requestor place liability vague The standard Indeed, agreed court tion. district Employers respect. important second prohibit disclosure that state law would uncertainty over whether additional face Yet neither of personnel Sciolino’s files. generated documents personnel countless city litigation— these facts saves operations government course of majority’s liability perhaps —under character of serious “imply the existence Maj. Op. at 647 n. “likelihood” view. See defects,” implicate therefore could any almost state- 3. It is hard to see how Rob- if disclosed. constitutional under litigation for ment will be fodder Rogers, ertson v. approach. this Cir.1982). actions are Adverse of unfavor- taken on the basis definition litigation by offer- city Nor can a avert assessments, majority pro- and the able as generous procedural rights because ing gauging which of guidance vides little shows, can still enmesh this case sufficiently unflat- are these assessments by alleging government litigation qualify as actionable. tering yet safeguards required. more are case, Mook dis- before Police Chief a third level majority now adds And the probationary posi- missed Sciolino from his employers uncertainty: Government documenting him a letter tion and wrote a court would predict have to whether will misconduct, Mook met with findings of that even confidential find a “likelihood” explain charges and offer Sciolino to in the fu- disclosed documents would be respond. Although opportunity enor- imposes vague ture. This standard “may meeting concedes conduct government mous costs even when process all the have afforded Sciolino blameless, uncer- is found to be due,” city keeps he which would give rise to will tainty application over its keep options in court in order to its own harm. in the litigation absence in this case open, writing that record “[t]he degree perfectly illustrates This case sufficiently developed” to is not assess majority’s put will standard which safeguards “at adequacy procedural mercy litigants no at governments Maj. Op. at 646 n. 1. early stage.” this See governments’ con- how careful the matter illustrates, is little that As this case there imagined have Newport duct. News be able to governments state and local will into court under a not be it would drawn even meritless litigation do to avoid over standard: The likelihood-of-dissemination stan- claims under unascertainable plain- city concluded that disclosure majority imposes. dards merely be not personnel tiffs would files repetition that this Finally, it bears prohibited against policies its own tension between two whole area reflects a circumstances. specified law under all but action, competing legitimate interests. On cause of might because he not know hand, the one there is the interest of the filing before suit whether infor- avoiding any negative conse- employee mation had been communicated to mem- quences accounts of his public. Maj. Op. bers of the at 650. other, job performance. On the there is reasoning This is flawed in ways. several employer’s documenting interest It a dangerous utilizes and forbidden mode and in serious misconduct hold- judicial interpretation, reasoning from ing open prospect of and accu- honest remedy judges provide wish to employers rate communications between back to the creation of a constitutional prospective about hires who have serious wrong. This transforms the Due Process engaged character defects or have even protection Clause from a aof named set of criminal misdeeds. Where there has been rights a roving into commission to rework interest, deprivation of a constitutional governments state and local in the manner requires Mathews that courts strike judges deem optimal finding balance between these considerations. “rights” when necessary. The Supreme Where, here, as there has been no loss of rejected Court has confronted and reputation no deprivation and indeed judicial approach, writing repeatedly that any rising magni- to constitutional Clause, the Due under Process “The cate tude, legislatures governmеnts and state gories procedure of substance and are dis remain free to in- employee’s balance the tinct.” See Cleveland Bd. Ed. v. Loud against terests the need for maintaining ermill, 470 U.S. 105 S.Ct. records that will facilitate accurate deci- 84 L.Ed.2d 494 sion-making. The first in a step Where the most the file, put process inquiry due has done is letter must be to determine balancing legis- of the interests “whether the falls nature of the interest is one latures to the courts. contemplation within the ‘liberty property’ language of the Fourteenth

C. Amendment,” proceeding with courts My colleagues evidently impose this adequacy assess the of process only if so. vague and burdensome standard for con- Brewer, Morrissey liability stitutional they are trou- (1972); 33 L.Ed.2d 484 see also municipal liability bled that if could arise Loudermill, U.S. disseminated, if allegations were rejected Roth unambiguously ability courts would be restricted in their remedy-first approach, finding that a dis government to rework procedures until af- engaged trict court erred when it in such reputational ter harm occurred. ma- 569-71, reasoning. See 408 U.S. jority finds great this limitation too to S.Ct. 2701. “If allegation countenance: of actual Moreover, judicial pow- the limitation on

dissemination required, were the informa- majority troubling er that the finds so ais already tion would have been communicat- premise system of our constitutional potеntial ed to a employer, employee’s has served us well for centuries. The foreclosed, job opportunities repu- and his though writes as it would any be re- damaged possibility tation for a before regrettable [judicially plaintiff markable the name-clearing ordered] hear- Maj. addition, ing.” Op. repu- at 650. a would have wait until he suffered employee former harm might claiming have to seek dis- tational before that his con- covery violated, in order to be certain that a rights he had stitutional had been but in the Federal many provisions the judicial role conception the

under discovery. conduct of Constitution, governing Rules a case must in our embedded 11(b)(3), See, 26-37. e.g., Fed.R.Civ.P. injury to even imminent or actual involve majority’s would obviate The standard Maj. Op. at 649 Compare justiciable. be discovery. To the con for this the need until he to wait plaintiff (“Requiring required will to under trary, plaintiffs job opportunities loses some actually discovery and seek take more extensive devil and the him between place would array of officials testimony greater of a sea”) (internal omit- quotations deep blue upon their turn not now that cases ted) Angeles v. with, City Los e.g., of have been of whether files simple question 95, 101-02, 103 S.Ct. Lyons, U.S. question upon speculative released (1983) (“The must plaintiff L.Ed.2d exists a likelihood whether there of immedi- or is he has sustained show in the be at time future. they would some sustaining some direct danger of ately official challenged injury a result of the as not fear that state majority The need injury of injury or threat and the run riot in the conduct will governments and local immediate, not con- real and be both novel constitutional doctrine. of its absence (internal quota- jectural hypothetical”) or compelling have rea- The elected branches omitted). certain that even I am not in- reputational citizens’ safeguard tions sons standing are satisfied judi- requirements strong medicine terests absent may have a cause workings. A internal oversight this case: cial their a “likelihood” of fu- upon They action based are to constituents and accountable majority’s theo- un- employee under public disclosure often answerable to ture in immediate ions; indeed, is not providing if the have been ry, they even harm or other con- in- danger reputational reputational mechanisms vindicate injury.3 Proceed- stitutionally cognizable as through of action such terests causes injury exceed our ings long in the absence before Constitu- defamation since liti- unnecessary judicial authority purpose. Many and add invoked for this tion was government local protec- costs to state and added to these gation governments have systems, budgets. through civil service which tions employеr’s “typically restrict unique it at all remarkable Nor is discharge impose and to other discretion to all may not have potential plaintiff discipline, such as demotion and serious of his surrounding possible violation facts and often allow dismissed em- suspension,” filing suit. rights before constitutional the reasons for dis- ployees challenge evidently unac- finds While Hodg- through appeals process. an missal requirement Court’s ceptable es, at 103. supra, in order public” “made statements be Indeed, government’s own effective liability because believes give rise to by procedures to en- functioning is process makes due served requirement that this high remains employee morale impossible to en- sure “virtually protections are not lost good and that due force,” plaintiffs employees often Maj. Op. at see upon based inaccurate re- necessary to to dismissal knowledge not have all the do An “actual dissemination” standard filing ports. of action before prove their causes in- liability itself creates did, no for constitutional they would be need If there suit. no constitutional itself cannot be plaintiff's dismissal injury it is government job. supra of his claimed at 656. source See probationary undisputed that untenured procedural protections fairly centives to institute and remedies can be trusted to reach government just before the fact. Even when Supreme resolutions. The Court has personnel reports actors have not made sought to avoid the danger of over-consti- public, agencies that wish to reserve the in tutionalizing procedural its own pro- due right to in the future disseminate would be cess rejected cases. When Roth a profes- well hold hearings advised to when all sor’s claim that he provided should be parties allegations relevant of miscon- hearing termination, to contest his the Su- duct are available and their memories are preme Court explained, fresh. Under an actual dissemination analysis Our of the respondent’s consti- standard, however, judgment about fu- rights tutional in way this case no ture likelihood would be reserved to the indicates a view that an opportunity for actor capable making most it—the enti- hearing aor statement of reasons for ty that might disseminate the allegedly would, not, nonretention or would stigmatizing statements —and courts would appropriate or wise in public colleges not be drawn into wholly hypothetical dis- and universities. For it is a written putes precise about level of name- Constitution that we apply. Our role is clearing process required light interpretation confined to of that Consti- injurious may effects of disclosures that tution. never occur.4 (footnot- 578-79,

408 U.S. at 92 S.Ct. 2701 omitted). ed IY. majority fails to heed those wоrds. preserves

The Due Process Clause es- It right creates nebulous new whose freedoms, may sential but it tempt also nothing contours assure presence but the judges to overrun their role order to litigation of continued permanence and the impose conceptions justice their own on judicial oversight. Such are the costs of governments. state and local There is neglect of text and structure. Whether room for constitutional standards in this majority’s I views are wise am content area, as the Court has made others, stated, to leave to but for reasons I placing clear. But states and localities at would affirm the district court. performing constitutional risk for record- keeping goes functions much too far. By

over-constitutionalizing public employee

relationships, here, as the does

courts diminish the role of all the other

participants in this field and assume that employers,

neither employees nor representatives,

their rights nor state law majority's 4. Even pled,” Harvey, under the likelihood-of-dis- Laber v. standard, semination I Cir.2006) (en banc), would affirm the dis- or when we overrule a issued, position judgment below. Once had precedent governed plaintiff’s claim the district court did not abuse its discretion filing, at the time of id. at neither cir denying plaintiff's motions under Rule ‍‌​‌‌​‌​​​‌​​​‌‌​​​‌‌‌‌​‌‌​​‌‌‌‌‌‌​‌​​‌​​​​‌‌​‌​‌‍present cumstance is here. The district court 59(e) 15(a) reopen and Rule his case and to by giv therefore did not abuse its discretion complaint amend his for a second time. ing weight finality to the interests of shared when, permitted prior While amendment is judicial system the defendants and the discovery, plaintiff "merely adds an addi- itself. theory recovery already tional to the facts

Case Details

Case Name: Christopher A. Sciolino v. City of Newport News, Virginia Dennis A. Mook, Individually and as Chief of Police for the City of Newport News

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Mar 12, 2007

Citation: 480 F.3d 642

Docket Number: 05-2229

Court Abbreviation: 4th Cir.