Christopher A. Sciolino v. City of Newport News, Virginia Dennis A. Mook, Individually and as Chief of Police for the City of Newport News , 480 F.3d 642 ( 2007 )

Vacated and remanded by published opinion. Judge MOTZ wrote the opinion, in which Judge GREGORY joined. Judge WILKINSON wrote a dissenting opinion.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge.

A former probationary city police officer brings this action pursuant 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 prospective employers or members of the public would see the damaging information, the district court did not abuse its discretion in dismissing 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 Christopher Sciolino as a police officer. Sciolino began an eighteen-month probationary period during which he was not entitled to any departmental 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 approximately 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 department 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 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 complaint, assertedly to satisfy this standard. The district court denied Sciolino’s motion to amend. Scioli-no appeals both the order dismissing 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 reputation and his ability to obtain future employment — without granting 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 discretion 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, 92 S.Ct. 2701, 33 L.Ed.2d 548 (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 engage in any of the common occupations of life,’ ” Roth, 408 U.S. at 572, 92 S.Ct. 2701 (quoting Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (1923)); and (2) the right to due process “[wjhere a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him,” Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971); see also Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 47 L.Ed.2d 405 (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 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, 96 S.Ct. 2074, 48 L.Ed.2d 684 (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 “likelihood of dissemination” of the false charges to prospective employers.³

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 discharge.” 426 U.S. at 343, 348, 96 S.Ct. 2074. The Court held that the employer’s explanation could not “properly form the basis for a claim that petitioner’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 reputation than if [it] had been true.” Id. at 348-49, 96 S.Ct. 2074 (internal quotation marks omitted). Bishop thus holds that a purely private communication 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 Led-ford, of whether “false information con-, tained in [a discharged probationary employee’s] personnel file has impaired his ability to procure other employment.” 612 F.2d at 885. The district court had granted the public employer summary judgment, reasoning that “[t]he mere fact that an employer may 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 203887. 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 dissemination 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 “[pjlaintiff 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 standards 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. Martin, 943 F.2d 15, 16-17 (7th Cir.1991); cf. Burton v. Town of Littleton, 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 the defendants divulged, information regarding the circumstances surrounding [her] termination” (internal quotation marks omitted) (alteration 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 available 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, 111 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, 96 S.Ct. 2074. For this reason, we agree with the district 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 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 prospective 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, 92 S.Ct. 2701. When a plaintiff alleges that his termination is based on false, stigmatizing charges that are likely to be inspected by prospective employers, he states a claim that the government has deprived him of these liberty interests.

If prospective employers are likely to see the stigmatizing allegations, 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 plaintiff 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 standard). If a plaintiff must allege a specific instance of actual dissemination to a prospective employer, he would not be “as free as before to seek another job.” Bishop, 426 U.S. at 348, 96 S.Ct. 2074 (quoting Roth, 408 U.S. at 575, 92 S.Ct. 2701 (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). 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 requirement 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 requirement that a plaintiff must allege actual disclosure to a particular prospective employer would undermine the liberties protected by the Fourteenth Amendment.

For these reasons, we believe the district court selected the appropriate 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. Second, 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 employee’s constitutional liberty interests but does not unduly interfere with the employer’s personnel administration. It imposes no “enormous costs,” post at 660, 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 information, 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 dissemination 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 applied this same standard — rather than the standard for consideration 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 permission 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 complaint “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, 78 S.Ct. 99, 2 L.Ed.2d 80 (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 abused its discretion in denying Sciolino’s motion to.amend his complaint.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 colleague 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 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 658 (emphasis added). This contention avails the dissent not at all, for it is both irrelevant and inaccurate. 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 Scioli-no has, that the “records pertaining to” his termination might seriously damage his standing in the community, the Supreme Court (contrary to the dissent’s contention) has in fact been willing “to find a constitutional interest” in the “consequences that might flow from ... the[se] records.” Post at 658. Indeed, in Roth itself, on which the dissent heavily 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, 92 S.Ct. 2701.

So it is here. In so holding we are neither “predicting] future harms,” post at 657, nor “reasoning from the remedy ... back to the creation of a constitutional wrong,” id. at 661-62. Rather, we are simply 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 termination. 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, 92 S.Ct. 2701.⁹

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.” Constantineau, 400 U.S. at 437, 91 S.Ct. 507. 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, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965). An opportunity 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 opinion.

VACATED AND REMANDED.

1 . Relying 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 referenced meeting may have afforded Scioli-no 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, 96 S.Ct. 893, 47 L.Ed.2d 18 (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 requirements of the Due Process Clause.

2 . The City also briefly contends that Scioli-no's first amended complaint did not allege the first element, i.e., that the charges against Sciolino do not rise to the level of " ‘imply[ing] the existence of serious character defects such as dishonesty or immorality.’" Brief of Appellees at 8 (quoting Robertson v. Rogers, 679 F.2d 1090, 1092 (4th Cir.1982)). We disagree. In Robertson, we held that "[allegations 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 regulation, implies "the existence of serious character defects such as dishonesty or immorality.” Robertson, 679 F.2d at 1092. Accordingly, Sciolino's first amended complaint sufficiently alleged this element of the cause of action.

3 . The City's argument that Sciolino cannot possibly meet any public disclosure standard because his personnel file is protected from dissemination by a state statute — the Government Data Collection and Dissemination 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 revealing the employee’s "reason for leaving” the department. Brief of Appellees at 18 n. 4. Moreover, this city policy allows the police department to reveal additional information "if the employee's history could place the requesting agency in a high liability situation,” id. — presumably the case with an employee who has deliberately destroyed government property. At oral argument the City again conceded that "under certain circumstances there is some dissemination” by it of an employee’s personnel file. Thus, the City admits not only that it is legally authorized to share personnel flies with prospective employers, but also that it is its practice to do so in some circumstances.

4 . It 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 actually 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 constitutional claim — but the statements in Led-ford quoted above and infra n. 5 suggest that something less than actual dissemination does suffice.

5 . We 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 employees, 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 prospective employers not only have permission to, but are likely to, inspect the file.

6 . Indeed, rather than there being "little that state and local governments will be able to do to avoid litigation” under our holding, post at 660-61 (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 allegations private.

7 . A "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 otherwise 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, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)). We therefore vacate the district court’s judgment denying Sciolino's Rule 59(e) motion as well.

8 . For 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 Constitution 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 655; see also id. at 653, 655, 656, 658, and 659. Of course, this is not so. What we in fact hold is that in order to state a liberty interest, an individual in Scioli-no'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 662) 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 661. 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 654, 658, 658-61.

9 . Moreover, contrary to the dissent's suggestion, post at 656, 661-62, 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 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, 94 S.Ct. 2963, 41 L.Ed.2d 935 (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, 71 S.Ct. 624, 95 L.Ed. 817 (1951) (emphasis added).