Abcarian v. McDonald

In the

United States Court of Appeals
For the Seventh Circuit

No. 09-3208

H ERAND A BCARIAN,
Plaintiff-Appellant,
v.

T IMOTHY M C D ONALD, et al.,

Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 08 CV 3843—Samuel Der-Yeghiayan, Judge.

A RGUED A PRIL 22, 2010—D ECIDED A UGUST 13, 2010

Before K ANNE, W ILLIAMS, and H AMILTON, Circuit Judges.
H AMILTON, Circuit Judge. After learning that the settle-
ment of a medical malpractice claim against him had
been reported to state and national professional authori-
ties, Dr. Herand Abcarian filed this suit against the Uni-
versity of Illinois and a number of its employees alleging
numerous violations of his constitutional rights. The
district court dismissed the amended complaint in its
entirety and entered a judgment dismissing the case.
2 No. 09-3208

Abcarian then moved the district court to reconsider
its ruling and allow him to amend his complaint again,
but the district court denied that motion.
We affirm in all respects. Abcarian’s own complaint
shows that the defendants merely complied with legal
requirements for filing notices of medical malpractice
settlements with federal and state authorities. By filing
those notices, the defendants did not violate Abcarian’s
free speech rights or his rights to equal protection of the
law and due process of law.

Plaintiff’s Allegations
Because the district court granted the defendants’ Rule
12(b)(6) motion to dismiss, we take the complaint’s well-
pleaded factual allegations as true and draw all reason-
able inferences in Abcarian’s favor from those allega-
tions. London v. RBS Citizens, N.A., 600 F.3d 742, 745 (7th
Cir. 2010). Where those allegations are contradicted by
written exhibits that Abcarian attached to his amended
complaint, however, the exhibits trump the allegations.
See Northern Indiana Gun & Outdoor Shows, Inc. v. City of
South Bend, 163 F.3d 449, 455 (7th Cir. 1998). We review
de novo the district court’s grant of a motion to dismiss
for failure to state a claim. United States v. Lewis, 411 F.3d
838, 841-42 (7th Cir. 2005), citing Olson v. Wexford Clearing
Servs. Corp., 397 F.3d 488, 490 (7th Cir. 2005).
At all relevant times, Abcarian was Head of the Depart-
ment of Surgery at the University of Illinois College
of Medicine at Chicago and Service Chief of the Depart-
No. 09-3208 3

ment of Surgery of the University of Illinois Medical
Center at Chicago. During his tenure, Abcarian and
the individual defendants—who were all University em-
ployees—clashed over a number of issues including
risk management, faculty recruitment, compensation
and fringe benefits, other issues that Abcarian vaguely
refers to as managerial obstruction of “numerous needed
changes,” and medical malpractice insurance premiums.
In 2005, Abcarian was notified that a lawsuit was being
contemplated against him based on the death of John
Behzad, a former patient. When the defendants learned
of this potential lawsuit, says the complaint, they con-
spired together to use that suit to discredit Abcarian’s
reputation. As part of this alleged conspiracy, the Univer-
sity executed a settlement agreement with John Behzad’s
son David Behzad. The agreement released the Uni-
versity and its employees and agents (implicitly but
undoubtedly including Abcarian) from any and all
claims arising out of John Behzad’s death in exchange
for a payment of $950,000.1

1
Abcarian alleges that there was no settlement on his behalf,
but this allegation need not be taken as true because it is
directly contradicted by the settlement agreement attached to
his amended complaint. See Northern Indiana Gun & Outdoor
Shows, 163 F.3d at 454. The fact that Abcarian was a third-
party beneficiary to the settlement agreement rather than an
actual signatory does not render the settlement a nullity. See,
e.g., Martis v. Grinnell Mut. Reinsurance Co., 905 N.E.2d 920,
924 (Ill. App. 2009).
4 No. 09-3208

Abcarian alleges that the execution of this settlement
agreement was the first step in a conspiracy to destroy
his reputation and career. How could a settlement ad-
vance the conspirators’ goal of discrediting Abcarian?
Abcarian’s answer to this question is that the defendants
entered into the settlement agreement and paid Behzad
nearly a million dollars merely so they could report the
settlement of a medical malpractice claim against Abcarian
to the Illinois Department of Financial and Professional
Regulation (“IDFPR”) and the National Practitioner
Data Bank (“NPDB”).2 Upon receiving those reports,
both the IDFPR and the NPDB asked Abcarian to pro-
vide information about the settlement. 3 The IDFPR told
Abcarian that a failure to provide a timely response to
its request could result in disciplinary action. Abcarian
does not allege, however, that any formal disciplinary
proceedings were ever initiated against him, let alone
that any formal disciplinary sanctions were imposed.

2
The NPDB is “an alert or flagging system” intended to assist
state licensing boards and other entities conduct independent
investigations into the qualifications of health care practi-
tioners. U.S. Dep’t of Health and Human Services, NPDB
G UIDEBOOK , A-3, available at http://www.npdb-hipdb.hrsa.gov/
pubs/gb/NPDB_Guidebook.pdf.
3
Abcarian alleges that the reports were false because there
was no settlement on his behalf. Again, because the settlement
agreement attached to his complaint makes clear that a settle-
ment was made on his behalf, we do not assume the truth of
this allegation. See Northern Indiana Gun & Outdoor Shows,
163 F.3d at 454.
No. 09-3208 5

The alleged conspiracy to destroy Abcarian’s profes-
sional reputation did not end with the reporting of the
settlement, according to Abcarian. The same day that
the settlement agreement was executed, the defendants
directed David Behzad’s counsel to file suit against
Abcarian in a state trial court. They further directed
Behzad’s counsel not to serve Abcarian with process in
that suit, but to inform the court that the matter had
been settled and to request a dismissal of the lawsuit.
Abcarian believes that the defendants did this to prevent
him from contesting the merits of the malpractice claim.
The state trial court approved the settlement agreement
and dismissed the case with prejudice. When Abcarian
learned of the dismissal, he filed a petition to vacate
the dismissal. He asked that the settlement be vacated
and the settlement funds returned to the defendants. The
defendants, through counsel, intervened to oppose this
petition. The court vacated the dismissal order but de-
clined to vacate the settlement agreement. Behzad then
voluntarily dismissed his lawsuit with prejudice. The
trial court’s decision was affirmed on appeal, Behzad v.
Abcarian, No. 1-07-1357 (Ill. App. May 19, 2008) (unpub-
lished order), and the Illinois Supreme Court declined
review, Behzad v. Abcarian, 897 N.E.2d 249 (Ill. 2008).4

4
Abcarian’s allegation in his amended complaint that the
Illinois appellate court held that “no settlement of any such
medical negligence lawsuit has been made” misrepresents that
court’s holding. Abcarian’s briefs make similarly misleading
assertions. The appellate court noted that Abcarian “was not
(continued...)
6 No. 09-3208

Abcarian then brought this lawsuit against the defen-
dants alleging various constitutional claims under 42
U.S.C. § 1983, as well as a number of state law claims. On
the defendants’ motion to dismiss Abcarian’s amended
complaint, the district court dismissed all claims against
the Board of Trustees of the University of Illinois on
Eleventh Amendment grounds and dismissed all of
Abcarian’s constitutional claims against the individual
defendants for failure to state a claim on which relief
could be granted. Abcarian v. McDonald, No. 08 C 3843,
2009 WL 596575 (N.D. Ill. March 9, 2009). The district
court then declined to exercise supplemental jurisdic-
tion over the remaining state law claims and dismissed
them without prejudice. Id. at *9. Abcarian later asked
the court to amend its judgment and to allow him to
amend his complaint again, but the court denied both
requests. Abcarian v. McDonald, No. 08 C 3843, 2009 WL
2448044 (N.D. Ill. Aug. 10, 2009).
Abcarian appeals the district court’s dismissal of his
free speech, equal protection, and procedural due process
claims against the individual defendants. He also chal-
lenges the court’s refusal to amend its judgment under
Federal Rule of Civil Procedure 59(e) and argues that

4
(...continued)
a party to the settlement,” but it rejected Abcarian’s challenge
to the order approving that settlement and never addressed
the validity of the settlement itself. Behzad, No. 1-07-1357, slip
op. at 5-6. The Illinois court similarly found that Abcarian’s
briefs did not “convey a complete picture of the facts,” in
violation of state court rules. Id. at 6.
No. 09-3208 7

the court should have permitted him to amend his com-
plaint. He does not appeal the dismissal of his claims
against the Board of Trustees or the dismissal of his
substantive due process and jury trial claims.

Analysis
I. Dismissal on the Merits
A. First Amendment Retaliation Claim
In Count I of his amended complaint, Abcarian claimed
that the defendants violated his First Amendment rights
by retaliating against him for exercising his freedom of
speech. The district court concluded that the Supreme
Court’s decision in Garcetti v. Ceballos, 547 U.S. 410 (2006),
foreclosed this claim because all of the speech that
prompted the alleged retaliation was speech in the
course of Abcarian’s official duties as a public employee.
On appeal, Abcarian’s makes two arguments to avoid
the effect of Garcetti. First, he argues that Garcetti forbids
retaliation claims only against employers themselves,
not against fellow employees. This is an issue on which
we reserved judgment in Fairley v. Andrews, 578 F.3d
518, 524 (7th Cir. 2009). Second, he argues that even
if Garcetti reaches retaliation claims against other em-
ployees, it does not foreclose his claim because his
speech did not “owe[ ] its existence” to his professional
responsibilities. See 547 U.S. at 421.
Garcetti held that “when public employees make state-
ments pursuant to their official duties, the employees
8 No. 09-3208

are not speaking as citizens for First Amendment pur-
poses, and the Constitution does not insulate their com-
munications from employer discipline.” Id. The case
arose when a state prosecutor brought a First Amend-
ment retaliation claim arising out of discipline imposed
on him after he drafted a memorandum questioning
the validity of a search warrant obtained in a pending
criminal case. Id. at 413-15. The Supreme Court rejected
his claim. Although the Court noted employers’ height-
ened interest in controlling employee speech when neces-
sary to manage workplace operations, it focused on
the fact that restricting speech made pursuant to em-
ployment duties “does not infringe any liberties the
employee might have enjoyed as a private citizen.” Id. at
421-23. As a result, the Court rejected “the notion that
the First Amendment shields from discipline the ex-
pressions employees make pursuant to their profes-
sional duties.” Id. at 426.
Plaintiff Abcarian seeks to narrow Garcetti to apply only
to claims against the employer as an entity, while still
allowing claims against individual co-employees who
acted as agents of the employer. We are not persuaded.
It would be difficult to reconcile Garcetti with a broad
rule permitting retaliation claims against co-employees
in all circumstances. Although the Supreme Court
couched its analysis in the context of the employer-em-
ployee relationship, it indicated that employees speaking
pursuant to their official duties do not speak as citizens
for purposes of the First Amendment. Id. at 421. For this
reason, we have read Garcetti broadly. See, e.g., Spiegla
v. Hull, 481 F.3d 961, 965 (7th Cir. 2007) (“Garcetti
No. 09-3208 9

made clear that public employees speaking ‘pursuant to
their official duties’ are speaking as employees, not citi-
zens, and thus are not protected by the First Amend-
ment regardless of the content of their speech.”).
In Fairley, on which Abcarian primarily relies, the
plaintiffs brought First Amendment retaliation claims
against both their employer and their co-employees.
578 F.3d at 520-21. Although we questioned the applica-
bility of Garcetti to all acts of non-employers, we ob-
served that the co-employee defendants in Fairley were
“merely enforcing [the employer’s] policy.” 578 F.3d at
524. Because their actions were allegedly condoned by
their employer, who was himself immune from liability
under Garcetti, we held that the co-employee defen-
dants were also immune from liability. We explained
this conclusion by noting the significant difference be-
tween co-employees who “try to subvert the employer’s
policies” and co-employees who merely “enforce” the
employer’s policies. Id. Applying this distinction, we
reinstated claims against co-employees who allegedly
bullied and threatened the plaintiffs to deter them
from testifying against other employees in a civil rights
lawsuit. We reasoned that the duty to provide testimony
is better understood for these purposes not as a job
duty, something done for the benefit of the employer,
but as a duty that any person owes to the court, some-
thing done for the rule of law. Id. at 524-25.
In essence, Fairley held that the reasoning of Garcetti
reaches claims against employers and also claims against
co-employees whose actions directly advance the em-
10 No. 09-3208

ployer’s interest in maintaining an orderly workplace.
This would apply when the co-employee acts under
instructions from, with express approval of, or in clear
accordance with the policies set out by the employer
itself. In such circumstances, the co-employee’s actions
implicate the employer’s administrative interests so
squarely as to require application of Garcetti for the
benefit of the co-employee. Suppose, for example, that
the prosecutor in Garcetti had been reported (in com-
pliance with the employer’s written policies) by a co-
worker for his behavior and had been disciplined then.
Under Abcarian’s proposed narrow interpretation of
Garcetti, the employer would be immune from a retalia-
tion claim but the co-worker would not, despite the
fact that he acted only to further the employer’s inter-
ests. Such a rule would be at least as disruptive to work-
place discipline as would a rule allowing retaliation
suits against the employer itself—exactly contrary to
Garcetti. Although employers could still respond to work-
place complaints without fear of suit, we could expect
that complaints would be made less frequently be-
cause of the other employees’ fear of being sued by their
co-workers. Less able to rely on its own employees to
provide necessary information on which to base its dis-
ciplinary decisions, the employer would be in practically
the same position, from a managerial standpoint, that
it would have occupied if Garcetti had been decided
the other way.
Accordingly, we reject Abcarian’s first argument and
conclude that Garcetti applies to the retaliation claim
against the individual defendants. Abcarian specifically
No. 09-3208 11

alleged that the Board of Trustees “adopt[ed] and
ratif[ied] the actions of the conspirators as [its] offi-
cial policy,” forcing a conclusion that the defendants’
alleged retaliatory acts advanced the Board’s interests as
an employer. Because Fairley made clear that Garcetti
shelters employee actions in this situation, we need not
decide the broader question whether Garcetti applies to
all instances of co-employee retaliation.
Abcarian’s second argument against application of
Garcetti is that his speech was not pursuant to his offi-
cial responsibilities. Garcetti bars retaliation claims only
if the plaintiff spoke as an employee rather than as a
citizen. See Chacklos v. Stevens, 560 F.3d 705, 711-12 (7th
Cir. 2009) (“Garcetti requires a threshold determination
regarding whether the public employee spoke in his
capacity as a private citizen or as an employee.”), citing
Renken v. Gregory, 541 F.3d 769, 773 (7th Cir. 2009). When
determining whether a plaintiff spoke as an employee
or as a citizen, we take a practical view of the facts
alleged in the complaint, looking to the employee’s level
of responsibility and the context in which the state-
ments were made. Tamayo v. Blagojevich, 526 F.3d 1074,
1092 (7th Cir. 2008).
A natural reading of the allegations in Abcarian’s
amended complaint indicates that he spoke while dis-
charging the responsibilities of his office, not as a mem-
ber of the general public. Abcarian was not merely a
staff physician with limited authority. He was, among
other things, the Service Chief of the Department of
Surgery at the University of Illinois Medical Center at
12 No. 09-3208

Chicago as well as Head of the Department of Surgery
at the University of Illinois College of Medicine at Chi-
cago. Abcarian had significant authority and responsi-
bility over a wide range of issues affecting the surgical
departments at both institutions and therefore had a
broader responsibility to speak in the course of his em-
ployment obligations. The subjects on which he spoke—
risk management, the fees charged to physicians, and
surgeon abuse of prescription medications, among
other things—directly affected both surgical depart-
ments and fell within the broad ambit of his responsi-
bilities. This alleged speech was within the scope of
Abcarian’s responsibilities as an employee. See id.
(“An employee with significant and comprehensive
responsibility . . . certainly has greater responsibility to
speak . . . .”).
Abcarian’s amended complaint gives us insufficient
reason to believe that, despite the likelihood that he
spoke in the course of his job responsibilities, he ever
stepped outside his administrative role to speak as a
citizen. On appeal, Abcarian admits that his amended
complaint is “entirely devoid of any job description or
other detail of Abcarian’s affirmative duties,” leaving us
to speculate whether he spoke as a citizen or in the
course of his employment. A mere speculative possi-
bility that Abcarian spoke as a citizen is no longer
enough to satisfy federal notice pleading requirements. See
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009); Limestone
Dev. Corp. v. Village of Lemont, 520 F.3d 797, 804 (7th Cir.
2008); E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773,
No. 09-3208 13

776, 781 (7th Cir. 2007). Nor are Abcarian’s conclusory
allegations that he spoke as a citizen on matters of
public concern. See Tamayo, 526 F.3d at 1092 (stating that
a plaintiff cannot “escape the strictures of Garcetti” by
asserting a legal conclusion that he spoke as a citizen
outside the duties of his employment). The amended
complaint fails to show that it is at all plausible, rather
than perhaps theoretically possible, that Abcarian spoke
in his capacity as a citizen when he spoke with other
University employees about University affairs relevant
to his job duties. See Iqbal, 129 S. Ct. at 1949 (“The plausi-
bility standard is not akin to a ‘probability require-
ment,’ but it asks for more than a sheer possibility that
a defendant has acted unlawfully.”).5
Because any plausible reading of Abcarian’s amended
complaint indicates that his speech was made pursuant
to his official duties, and because Abcarian failed to
make any factual allegations indicating otherwise,
Garcetti bars his First Amendment retaliation claim.
Dismissal of Count I of the amended complaint was
proper.

5
We also reject Abcarian’s unsupported assertion that his
speech could be considered “expression related to academic
scholarship or classroom instruction” possibly exempt from
Garcetti. See 547 U.S. at 425. Abcarian’s speech involved ad-
ministrative policies that were much more prosaic than
would be covered by principles of academic freedom.
14 No. 09-3208

B. Equal Protection Class-of-One Claim
The Equal Protection Clause of the Fourteenth Amend-
ment most typically reaches state action that treats a
person poorly because of the person’s race or other
suspect classification, such as sex, national origin,
religion, political affiliation, among others, or because
the person has exercised a “fundamental right,” or be-
cause the person is a member of a group that is the
target of irrational government discrimination. See gen-
erally Engquist v. Oregon Dep’t of Agriculture, 553 U.S.
591, __, 128 S. Ct. 2146, 2152 (2008); Plyler v. Doe, 457
U.S. 202, 216-17 (1982); Srail v. Village of Lisle, 588 F.3d
940, 943 (7th Cir. 2009). The Supreme Court has also
recognized the prospect of a so-called “class-of-one” equal
protection claim. Village of Willowbrook v. Olech, 528 U.S.
562 (2000). A class-of-one claim need not allege discrim-
ination based on a suspect classification, but must allege
that the plaintiff was singled out arbitrarily, without
rational basis, for unfair treatment. E.g., Avila v. Pappas,
591 F.3d 552, 554 (7th Cir. 2010); see generally Srail, 588
F.3d at 943 (summarizing Seventh Circuit’s “divergent
class-of-one precedent” regarding whether illegitimate
animus can substitute for absence of rational basis for
state action).
Abcarian tries to take advantage of this theory in
Count VI of the amended complaint, which alleges
that defendants violated his equal protection rights by
reporting the Behzad settlement but not the settlement
of a malpractice claim against another physician. The
district court dismissed Count VI and the related claim
No. 09-3208 15

for equitable relief on the ground that Abcarian’s claim
was barred by the Supreme Court’s decision in Engquist.
Abcarian contends that Engquist applies only to class-of-
one claims against governmental employers but not to
claims against other government employees.
We conclude that the district court correctly dismissed
the equal protection claim, but for another reason:
under the law, defendants had no discretion in deciding
whether to report the Behzad settlement. Engquist held
that class-of-one claims cannot be based on the highly
discretionary and individualized sorts of decisions that
public employers must make about their employees. The
Court pointed out that its decision in Olech, which first
recognized class-of-one equal protection claims, rested
on “the existence of a clear standard against which de-
partures, even for a single plaintiff, could be readily
assessed.” 553 U.S. at ___, 128 S. Ct. at 2153. Some forms
of state action “by their nature involve discretionary
decisionmaking based on a vast array of subjective,
individualized assessments.” Id. at 2154. “[A]llowing
a challenge based on the arbitrary singling out of a par-
ticular person would undermine the very discretion
that such state officials are entrusted to exercise.” Id. “It
is no proper challenge to what in its nature is a subjec-
tive, individualized decision that it was subjective and
individualized.” Id. Accordingly, the class-of-one theory
of equal protection is a “poor fit” with employment
decisions, which are themselves “often subjective and
individualized, resting on a wide array of factors that
are difficult to articulate and quantify.” Id. at 2154-55.
Based on this analysis, the Court held that “a ‘class-of-one’
16 No. 09-3208

theory of equal protection has no place in the public
employment context.” Id. at 2148-49.
We have interpreted Engquist to stand for the broad
proposition that inherently subjective discretionary
governmental decisions may be immune from class-of-
one claims. See, e.g., Avila, 591 F.3d at 554 (noting in
dicta that “class-of-one claims cannot rest on govern-
mental activity that is discretionary by design”); Srail,
588 F.3d at 945 (rejecting class-of-one challenge to
village’s “subjective and individualized” decision not to
extend water services); United States v. Moore, 543 F.3d
891, 898-99 (7th Cir. 2008) (stating that class-of-one chal-
lenges “may be inapplicable to any governmental action
that is the product of a highly discretionary decision-
making process”).6 We have also recognized that

6
We do not read our cases to say, nor do we mean to imply,
that Engquist precludes all class-of-one claims brought in
regard to subjective governmental decisions no matter the
context in which those decisions were rendered. After all,
Engquist rested on two key premises, only one of which
involved the subjectivity of employment decisions. See 128
S. Ct. at 2151 (“[T]he core concern of the Equal Protection
Clause as a shield against arbitrary classifications, combined
with unique considerations applicable when the government acts
as employer as opposed to sovereign, lead us to conclude that the
class-of-one theory of equal protection does not apply in the
public employment context.” (emphasis added)); id. at 2151-
52 (explaining that, because the government has broader
power when it acts as an employer, the validity of a constitu-
(continued...)
No. 09-3208 17

Engquist has limited applicability when a decision-
maker’s discretion is circumscribed by constitutional or
statutory provisions. For example, because police discre-
tion is narrowed by objective constitutional limitations
such as the Fourth Amendment, not all discretionary
police decision-making is immune from class-of-one
challenge. See Hanes v. Zurick, 578 F.3d 491, 495 (7th Cir.
2009).
But when the law gives a state actor no discretion, it is
hard to see how a person can claim irrational discrim-
ination when the law is applied to him. State and federal
law required the defendants to report the settlement of
Behzad’s malpractice claim to the relevant federal and
state authorities—no matter however frivolous or insub-
stantial that claim may have been. See 42 U.S.C. § 11131(a)
(requiring any entity making a payment in settlement
of a medical malpractice claim to report certain infor-
mation to the NPDB); 225 ILCS 60/23(A)(3) (requiring
any entity which indemnifies a physician for his profes-
sional liability to report the settlement of a claim).7

6
(...continued)
tional claim in the government employment context turns
on “whether the asserted employee right implicates the basic
concerns of the relevant constitutional provision.”).
7
The Illinois Supreme Court recently invalidated Public Act 94-
677, which amended certain sections of 225 ILCS 60/23, on non-
severability grounds. Lebron v. Gottlieb Memorial Hosp., 2010
WL 375190 (Ill. Feb. 4, 2010). That decision restored the
statute as it existed prior to the enactment of P.A. 94-677. See
(continued...)
18 No. 09-3208

Abcarian’s complaint seeks to assert a claim of selec-
tive enforcement—the enforcement of a law against only
disfavored individuals—a claim long familiar in equal
protection jurisprudence when based on race, national
origin, or other suspect classifications. See Yick Wo v.
Hopkins, 118 U.S. 356, 374 (1886) (reversing convic-
tions because underlying ordinance was enforced solely
against individuals of Chinese ancestry). Notably, such
cases are typically brought against police, prosecutors, or
other individuals having discretion in the enforcement
of the law. See, e.g., Wayte v. United States, 470 U.S. 598,
608 (1985) (challenge implicating prosecutorial discre-
tion); Yick Wo, 118 U.S. at 366 (challenge to ordinance
vesting discretion in decisionmaker so great as to be
considered “naked and arbitrary power”). Equal protec-
tion claims are allowed in such circumstances not be-
cause the particular law at issue is facially invalid or
inapplicable to the plaintiff’s conduct, but because of the
concern that individuals with discretion in law enforce-
ment will take advantage of that discretion to oppress
unpopular groups.8

7
(...continued)
Village of Chatham v. County of Sangamon, 837 N.E.2d 29, 41 (Ill.
2005) (noting that invalidation of statutory amendment
restores previous version of statute). The reporting require-
ment pre-dated the invalidated amendment, so it is still part
of Illinois law.
8
For example, the Joint Committee on Reconstruction recog-
nized that discrimination against freed slaves and Union
(continued...)
No. 09-3208 19

But Abcarian’s claim here has little in common with a
typical selective enforcement claim. As we noted above,
the defendants were required to report the settlement of
Behzad’s claim to the authorities. See 42 U.S.C. § 11131(a);
225 ILCS 60/23(A)(3). They had neither “naked and arbi-
trary” power, Yick Wo, 118 U.S. at 366, nor a broad discre-
tion to act, Wayte, 470 U.S. at 608. Unlike a police officer
or prosecutor having significant discretion as to how or
whether to enforce the law, these defendants had no
choice as to whether they complied with the law. If they
disregarded their reporting obligations, they ran the
risk of civil and criminal penalties—penalties certainly
not at issue when a police officer chooses not to issue

8
(...continued)
sympathizers was being effected not by facially discriminatory
laws, but by the failure to enforce facially neutral laws in an
even-handed way. See McCleskey v. Kemp, 481 U.S. 279, 346-47 &
n.2 (1987) (Blackmun, J., dissenting); Keith S. Alexander,
Federalism, Abortion, and the Original Meaning of the Fourteenth
Amendment Enforcement Power: Can Congress Ban Partial-
Birth Abortion After Carhart?, 13 Tex. Rev. L. & Pol. 105, 125-26
(2008); see also Michael J. Gerhardt, The Ripple Effects of
Slaughter-House: A Critique of a Negative Rights View of the
Constitution, 43 Vand. L. Rev. 409, 441 (1990) (“The framers of
the fourteenth amendment understood from first-hand ex-
perience that the states could discriminate invidiously against
the beneficiaries of Reconstruction, specifically blacks and
those seeking enforcement of a wide variety of fundamental
rights, through . . . the discriminatory enforcement of racially
neutral laws . . . .”).
20 No. 09-3208

a traffic ticket or when a prosecutor declines to press
charges. See 42 U.S.C. § 11131(c) (imposing civil penalty
of not more than $10,000 for a failure to report); 225 ILCS
60/23(G) (making a failure to report a misdemeanor).
Absent any meaningful discretion on the defendants’
part to decide whether to report the settlement of a par-
ticular malpractice claim, we see little risk of the kind
of discriminatory action addressed by the Fourteenth
Amendment. The district court was correct to dismiss
Count VI of Abcarian’s amended complaint and the
related claim for equitable relief.

C. Procedural Due Process Claims
Abcarian’s last constitutional claim is that defendants
violated his right to procedural due process by
reporting the Behzad settlement to state and national
authorities. He now challenges the district court’s dis-
missal of Counts II and IV and his related request
for equitable relief.
A procedural due process claim involves a two-step
analysis: “First, we determine whether the defendants
deprived the plaintiff of a protected liberty or property
interest, and if so, then we assess what process was
due.” Brokaw v. Mercer County, 235 F.3d 1000, 1020 (7th Cir.
2000), citing Hamlin v. Vaudenberg, 95 F.3d 580, 584 (7th
Cir. 1996); see Armstrong v. Manzo, 380 U.S. 545, 550
(1965) (stating that deprivations of life, liberty, or prop-
erty must be accompanied by notice and the oppor-
tunity for a hearing appropriate to the interest at is-
No. 09-3208 21

sue), quoting Mullane v. Central Hanover Bank & Tr. Co.,
339 U.S. 306, 313 (1950).9
Abcarian claims that the defendants defamed him
and thereby infringed his liberty to pursue his chosen
occupation. The Supreme Court has made it clear that
defamation alone, even by a state actor, does not violate
the Due Process Clause of the Fourteenth Amend-
ment. Paul v. Davis, 424 U.S. 693 (1976). To avoid con-
stitutionalizing state defamation law, defamation by a
government actor does not implicate the Due Process
Clause unless “a right or status previously recognized
by state law was distinctly altered or extinguished” as a
result. Id. at 711; Brown v. City of Michigan City, 462
F.3d 720, 730 (7th Cir. 2006). To avoid this problem, a
plaintiff must allege that “(1) he was stigmatized by the
defendant’s conduct, (2) the stigmatizing information
was publicly disclosed and (3) he suffered a tangible
loss of other employment opportunities as a result of
public disclosure.” Townsend v. Vallas, 256 F.3d 661, 669-
70 (7th Cir. 2001); Johnson v. Martin, 943 F.2d 15, 16 (7th
Cir. 1991).
Abcarian’s amended complaint shows that he cannot
satisfy the third prong of this test. It is true that he has

9
Abcarian claims that the defendants waived any argument
regarding the existence of a protected interest by failing to
raise that argument before the district court. This contention
is absolutely without merit, given that the defendants
devoted nearly a page of their Rule 12(b)(6) memorandum to
that precise argument.
22 No. 09-3208

a protected liberty interest in pursuing his chosen pro-
fession, of course, but that right is not infringed by ordi-
nary defamation or even by a serious deprivation of one’s
future employment prospects. Dupuy v. Samuels, 397
F.3d 493, 510 (7th Cir. 2005). To plead a constitutionally
relevant tangible loss of his employment opportunities,
Abcarian must allege that his “good name, reputation,
honor or integrity [was] called into question in a
manner that makes it virtually impossible for [him] to
find new employment in his chosen field.” Townsend,
256 F.3d at 670; Head v. Chicago Sch. Reform Bd. of
Trustees, 225 F.3d 794, 801 (7th Cir. 2000); Olivieri v. Rodri-
guez, 122 F.3d 406, 408 (7th Cir. 1997).
Abcarian cannot meet this burden for a simple and
benign reason: he still has his job in his chosen profes-
sion! According to his amended complaint, he remains
gainfully employed as a University of Illinois physician
and professor. Although he allegedly fears that he
will not be employed at additional health care institu-
tions in the future, “[i]t is the liberty to pursue a calling
or occupation, and not the right to a specific job, that is
secured by the Fourteenth Amendment.” Wroblewski v.
City of Washburn, 965 F.2d 452, 455 (7th Cir. 1992), citing
Lawson v. Sheriff of Tippecanoe County, 725 F.2d 1136, 1138
(7th Cir. 1984). One simply cannot have been denied
his liberty to pursue a particular occupation when he
admittedly continues to hold a job—the same job—in
that very occupation.
We pause to clarify one additional point. We have
been focusing on the absence of any infringement of a
No. 09-3208 23

liberty interest. The district court also addressed
Abcarian’s property interest theory. In addressing that
theory, the district court erroneously concluded that our
decision in Fleury v. Clayton, 847 F.2d 1229 (7th Cir. 1988),
meant that the mere reporting of the settlement imposed
a property deprivation. Abcarian, 2009 WL 596575, at *7.
In Fleury, an Illinois physician had consented to a
censure by state disciplinary authorities. 847 F.2d at
1230. He then sued to expunge the censure, alleging a
deprivation of his right to procedural due process. On
appeal, we reversed dismissal of his claim. We noted
that Fleury had not been wholly excluded from his
chosen profession and therefore had not been denied
his liberty of occupational choice. Nevertheless, based on
Board of Regents v. Roth, 408 U.S. 564, 577 (1972), and
its progeny, we concluded that the “criteria for profes-
sional discipline” found in Illinois statutes “creates a
‘property’ interest in a blemish-free license to practice
medicine” because those criteria gave Fleury a “right to
a particular decision reached by applying rules to facts.”
Id. at 1231-32. Absent the statute’s “substantive crite-
ria,” however, he would have had no such property
interest. Id. at 1232; see Cain v. Larson, 879 F.2d 1424,
1427 (7th Cir. 1989).
Read in context, the language in Fleury means only
that an Illinois physician has a property interest in a
medical license free from formal disciplinary sanction
imposed without due process. A physician does not
have a due process right to be exempt from the formal
disciplinary processes themselves. In other words, the
relevant “blemishes” are actual formal disciplinary sanc-
24 No. 09-3208

tions, not the use of formal processes to resolve mere
llegations of unprofessional conduct. Key to our analy-
sis in Fleury was the formality of disciplinary sanctions
and their possible legal consequences, contrasted with
the lesser, informal consequences of mere defamatory
statements. Id. at 1232. This distinction was significant
because the defendants were members of the state
medical disciplinary board that had censured Fleury.
Accordingly, the “blemish-free license” language in
Fleury is limited to defendants actually able to impose
formal disciplinary sanctions and bound by the
relevant substantive decision-making criteria governing
the imposition of such sanctions. Only such defendants
may actually “blemish” a physician’s medical license in
a constitutionally relevant way.
Abcarian failed to allege a deprivation of the prop-
erty interest in his medical license we recognized in
Fleury. None of the defendants named in this suit had
the ability to impose sanctions. They could only
report Abcarian (or, actually, report the group settle-
ment of the malpractice claim) to the authorities, as
required by law. Standing alone, such a report has no
formal effect on Abcarian’s license to practice medi-
cine. Even if we suppose that the report defamed
him, which is a very long stretch, mere defamation is
insufficient to create a constitutionally actionable “blem-
ish.” The district court did not err by dismissing
Counts II and IV of the amended complaint and the
related claim for equitable relief.
No. 09-3208 25

II. The Rule 59(e) Motion and the Second Amended Complaint
Abcarian also asserts that the district court should
have granted his motion to amend or alter its judgment
under Federal Rule of Civil Procedure 59(e). He argues
in the alternative that he did not need to bring a
Rule 59(e) motion before requesting leave to amend
his complaint because the district court had dismissed
only his amended complaint but never entered final
judgment disposing of the entire civil action.
As to Abcarian’s first argument, a Rule 59(e) motion
will be granted only in the case of a manifest error of law
or fact, or newly discovered evidence. Bordelon v. Chicago
Sch. Reform Bd. of Trs., 233 F.3d 524, 529 (7th Cir. 2000).
Abcarian claims no newly-discovered evidence, and the
district court committed no error of law calling its judg-
ment into question, let alone any manifest error of law
justifying relief under Rule 59(e).
As to his second argument, a plaintiff may amend his
pleading once as a matter of course, but any additional
amendments may be made only with the opposing party’s
consent or by leave of court. Fed. R. Civ. P. 15(a). If the
plaintiff wants to amend his complaint following the
entry of judgment, however, he may do so only after a
motion under Rule 59(e) or 60(b) has been granted. Sparrow
v. Heller, 116 F.3d 204, 205 (7th Cir. 1997), quoting Figgie
Int’l Inc. v. Miller, 966 F.2d 1178, 1179 (7th Cir. 1992).
Having failed to bring a successful motion under Rule
59(e), Abcarian can amend his complaint only if he is
correct that no final judgment had been entered in this
matter.
26 No. 09-3208

We have often held that the “simple dismissal of a
complaint does not terminate the litigation.” E.g.,
Benjamin v. United States, 833 F.2d 669, 671 (7th Cir. 1987),
citing Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101,
1111 (7th Cir. 1984). Importantly, however, Benjamin
itself addressed a specific situation in which the scope
of the district court’s order was unclear. See 833 F.2d
at 671-72 (noting that the court used both the words
“complaint” and “action”). If the district court clearly
intended its order of dismissal to dispose of the entire
action, not merely the complaint itself, there exists a
final and appealable judgment and the Benjamin rule
is inapplicable. Rothner v. City of Chicago, 929 F.2d 297,
300 (7th Cir. 1991).
Here, the district court’s intent was obvious. When
the court granted the defendants’ motion to dismiss, a
separate entry was immediately made in the court
docket on Form AO 450, the form specifically used for
entry of a separate final judgment under Rule 58. See
Martinez v. City of Chicago, 499 F.3d 721, 724 (7th Cir.
2007). In denying Abcarian’s Rule 59(e) motion, the
court stated that its previous order meant to make “abun-
dantly clear” that the court “dismissed the action, not
the amended complaint.” Abcarian, 2009 WL 2448044, at *2
(emphasis added). A court’s interpretation of its own
orders can be rejected for an abuse of discretion, In re
Chicago, Rock Island & Pac. R.R. Co., 860 F.2d 267, 272
(7th Cir. 1988), but Abcarian draws our attention to
nothing in the record that would persuade us not to
take the district court at its word. Final judgment was
entered in this matter before Abcarian attempted to
No. 09-3208 27

amend his complaint a second time. Accordingly, the
district court did not err when it denied Abcarian leave
to file his second amended complaint. Sparrow, 116 F.3d
at 205.
The judgment of the district court is A FFIRMED.

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