In seeking to become "credentialed" in his new job at an Army
hospital, petitioner Siegert, a clinical psychologist, asked his
former employer, a federal hospital, to provide job performance and
other information to his new employer. Respondent Gilley, Siegert's
supervisor at his former job, responded with a letter declaring
that he could not recommend Siegert because he was inept,
unethical, and untrustworthy. After he was denied credentials and
his federal service employment was terminated, Siegert filed a
damages action against Gilley in the District Court, alleging,
inter alia, that, under
Bivens v. Six Unknown Fed.
Narcotics Agents, 403 U. S. 388,
Gilley had caused an infringement of his "liberty interests" in
violation of the Due Process Clause of the Fifth Amendment "by
maliciously and in bad faith publishing a defamatory
per
se statement . . . which [he] knew to be untrue." Gilley filed
a motion to dismiss or for summary judgment, asserting, among other
things, the defense of qualified immunity under
Harlow v.
Fitzgerald, 457 U. S. 800, and
contending that Siegert's factual allegations did not state the
violation of any constitutional right "clearly established" at the
time of the complained-of actions,
see id. at
457 U. S. 818.
The court ultimately found Siegert's allegations to be sufficient,
but the Court of Appeals reversed and remanded with instructions
that the case be dismissed. Although assuming that bad-faith
motivation would suffice to make Gilley's actions in writing the
letter a violation of Siegert's clearly established constitutional
rights, the court held that Siegert's particular allegations were
insufficient under its "heightened pleading standard" to overcome
Gilley's qualified immunity claim.
Held: The Court of Appeals properly concluded that the
District Court should have dismissed Siegert's suit because he had
not overcome Gilley's qualified immunity defense. Siegert failed to
allege the violation of a clearly established constitutional right
-- indeed, of any constitutional right at all -- since, under
Paul v. Davis, 424 U. S. 693,
424 U. S.
708-709, injury to reputation, by itself, is not a
protected "liberty" interest. He therefore failed to satisfy the
necessary threshold inquiry in the determination of a qualified
immunity claim.
See, e.g., Harlow, supra, at
457 U. S. 818.
Thus, although the Court of Appeals reached the correct result, it
should not have assumed without deciding the necessary
preliminary
Page 500 U. S. 227
issue and then proceeded to examine the sufficiency of Siegert's
allegations. Siegert's claim failed at an analytically earlier
stage of the inquiry. Pp.
500 U. S.
231-235.
282 U.S.App.D.C. 392, 895 F.2d 797 (CADC 1990) affirmed.
REHNQUIST, C.J., delivered the opinion of the Court, in which
WHITE, O'CONNOR, SCALIA, and SOUTER, JJ., joined. KENNEDY, J.,
filed an opinion concurring in the judgment. MARSHALL, J., filed a
dissenting opinion, in which BLACKMUN, J., joined, and in Parts II
and III of which STEVENS, J., joined,
post, p.
500 U. S.
236.
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
We granted certiorari in this case to determine whether the
United States Court of Appeals for the District of Columbia Circuit
properly directed dismissal of petitioner's
Bivens claim
on the grounds that he had not overcome respondent's claim of
qualified immunity. The Court of Appeals relied on its "heightened
pleading standard," but we hold that petitioner's claim failed at
an analytically earlier stage of the inquiry into qualified
immunity: his allegations, even if accepted as true, did not state
a claim for violation of any rights secured to him under the United
States Constitution.
Petitioner Frederick A. Siegert, a clinical psychologist, was
employed at St. Elizabeth's Hospital, a Federal Government facility
in Washington, D.C. from November, 1979, to October, 1985. He was a
behavior therapy coordinator specializing in work with mentally
retarded children and, to a lesser extent, with adults. In January,
1985, respondent H.
Page 500 U. S. 228
Melvin Gilley became head of the division for which Siegert
worked.
In August, 1985, St. Elizabeth's notified Siegert that it was
preparing to terminate his employment. Siegert was informed that
his
"proposed removal was based upon his inability to report for
duty in a dependable and reliable manner, his failure to comply
with supervisory directives, and cumulative charges of absence
without approved leave."
App. 15, 21. After meeting with hospital officials, Siegert
agreed to resign from the hospital, and thereby avoid a termination
that might damage his reputation.
Id. at 21.
Following his resignation from St. Elizabeth's, Siegert began
working as a clinical psychologist at a United States Army Hospital
in Bremerhaven, West Germany. Because of the requirement that he be
"credentialed" to work in hospitals operated by the Army, Siegert
signed a "Credential Information Request Form" asking that St.
Elizabeth's Hospital provide to his prospective supervisor, Colonel
William Smith, "all information on job performance and the
privileges" he had enjoyed while a member of its staff. Siegert's
request was referred to Gilley because he had been Siegert's
supervisor at St. Elizabeth's.
In response to Siegert's request, Gilley notified the Army by
letter that "he could not recommend [Siegert] for privileges as a
psychologist."
Id. at 6. In that letter, Gilley wrote that
he
"consider[ed] Dr. Siegert to be both inept and unethical,
perhaps the least trustworthy individual I have supervised in my
thirteen years at [St. Elizabeth's]."
Ibid. After receiving this letter, the Army Credentials
Committee told Siegert that, since "reports about him were
extremely unfavorable' . . . , the committee was . . .
recommending that [Siegert] not be credentialed."
Id. at 7.
After being denied credentials by the Committee, Siegert was
turned down for a position he sought with an Army hospital in
Stuttgart. Siegert then returned to Bremerhaven where he was given
provisional credentials, limited to his
Page 500 U. S. 229
work with adults. Siegert filed administrative appeals with the
Office of the Surgeon General to obtain full credentials. In
December, 1987, the Surgeon General denied Siegert's claims. Soon
thereafter, his "federal service employment [was] terminated."
Id. at 23.
Upon learning of Gilley's letter in November, 1986, Siegert
filed suit in the United States District Court for the District of
Columbia, alleging that Gilley's letter had caused him to lose his
post as a psychologist at the Bremerhaven Army Hospital, and had
rendered him unable to obtain other appropriate employment in the
field. Relying on
Bivens v. Six Unknown Fed. Narcotics
Agents, 403 U. S. 388
(1971), Siegert sought $4 million in damages against Gilley,
contending that --
"by maliciously and in bad faith publishing a defamatory
per
se statement . . . which [he] knew to be untrue, or with
reckless disregard as to whether it was true or not,"
-- Gilley had caused an infringement of his "liberty interests"
in violation of the protections afforded by the Due Process Clause
of the Fifth Amendment. App. 9. Siegert also asserted pendent state
law claims of defamation, intentional infliction of emotional
distress, and interference with contractual relations.
Gilley filed a motion to dismiss or, in the alternative, for
summary judgment. He contended that Siegert's factual allegations,
even if true, did not make out a violation of any constitutional
right. Gilley also asserted the defense of qualified immunity under
Harlow v. Fitzgerald, 457 U. S. 800
(1982), contending that Siegert's allegations did not state the
violation of any "clearly established" constitutional right. App.
to Pet. for Cert. 30a-31a, 36a. Siegert submitted opposing
affidavits stating facts supporting his allegations of malice.
In December, 1987, the District Court issued an order
"[declining] to decide this matter on a Summary Judgment motion at
this time."
Id. at 54a. Instead, the court determined that
"[it] would like to see a more developed record,"
Page 500 U. S. 230
and therefore ordered "a limited amount of discovery."
Ibid. In particular, the court directed the taking of the
depositions of the parties and Colonel Smith.
Gilley filed a motion for reconsideration, asking the court to
stay further discovery pending disposition of his qualified
immunity claim. In June, 1988, the District Court denied the
motion, and, in a written opinion, found that Siegert's factual
allegations were sufficient to state violations of a clearly
established constitutional right. It analyzed our decision in
Paul v. Davis, 424 U. S. 693
(1976), but found this case closer on its facts to two decisions of
the Court of Appeals for the District of Columbia Circuit,
Doe
v. United States Department of Justice, 243 U.S.App.D.C. 354,
753 F.2d 1092 (1985), and
Bartel v. FAA, 233 U.S.App.D.C.
297, 725 F.2d 1403 (1985). The court directed the parties to
proceed with the previously ordered limited discovery. Gilley
appealed the denial of his qualified immunity defense to the Court
of Appeals pursuant to
Mitchell v. Forsyth, 472 U.
S. 511 (1985).
A divided panel of the United States Court of Appeals for the
District of Columbia Circuit reversed and remanded with
instructions that the case be dismissed. The court first determined
that, to the extent Siegert's
Bivens action was premised
on allegations of improper conduct irrespective of subjective
intent, the allegations did not state a claim for violation of any
clearly established constitutional right. In the course of that
analysis, it concluded that the District Court had mistakenly
relied on its decisions in
Doe, supra, and
Bartel,
supra.
The Court of Appeals then turned to Siegert's allegation that
Gilley wrote the letter with bad faith and malice. Assuming "that
such bad faith motivation would suffice to make Gilley's actions in
writing the letter a violation of Siegert's [clearly established]
constitutional rights," 282 U.S.App.D.C. 392, 398, 895 F.2d 797,
803 (1990), the court held that Siegert's allegations of improper
motivation were insufficient
Page 500 U. S. 231
to overcome Gilley's assertion of qualified immunity. The court
explained that where, as here, improper purpose is an essential
element of a constitutional tort action, the plaintiff must
adequately allege specific, direct evidence of illicit intent -- as
opposed to merely circumstantial evidence of bad intent -- in order
to defeat the defendant's motion to dismiss or motion for summary
judgment asserting qualified immunity.
Id. at 395-396,
398-399, 895 F.2d at 800-801, 803-804a.
The Court of Appeals then determined that Siegert's allegations
did not satisfy that "heightened pleading standard."
Id.
at 400, 895 F.2d at 805. It found that Siegert's complaint "merely
asserts (and reasserts) that in making the statement [Gilley]
knew [it] to be false or [made it] with reckless disregard as
to whether it was true,'" Id. at 398, 895 F.2d at 803
(citation omitted), and that Siegert's affidavits failed "to add
anything more tangible to the record. . . ."
Ibid.
We granted certiorari, 498 U.S. 918 (1990), in order to clarify
the analytical structure under which a claim of qualified immunity
should be addressed. We hold that the petitioner in this case
failed to satisfy the first inquiry in the examination of such a
claim; he failed to allege the violation of a clearly established
constitutional right.
We have on several occasions addressed the proper analytical
framework for determining whether a plaintiff's allegations are
sufficient to overcome a defendant's defense of qualified immunity
asserted in a motion for summary judgment. Qualified immunity is a
defense that must be pleaded by a defendant official.
Gomez v.
Toledo, 446 U. S. 635
(1980);
Harlow, 457 U.S. at
457 U. S. 815.
Once a defendant pleads a defense of qualified immunity,
"[o]n summary judgment, the judge appropriately may determine,
not only the currently applicable law, but whether that law was
clearly established at the time an action occurred. . . . Until
this threshold immunity question is resolved, discovery should not
be allowed."
Id. at
457 U. S.
818.
Page 500 U. S. 232
In this case, Siegert based his constitutional claim on the
theory that Gilley's actions, undertaken with malice, deprived him
of a "liberty interest" secured by the Fifth Amendment to the
United States Constitution. He contended that the loss of his
position at the Bremerhaven Hospital, followed by the refusal of
the Army hospital in Stuttgart to consider his application for
employment, and his general inability to find comparable work
because of Gilley's letter, constituted such a deprivation. The
Court of Appeals agreed with respondent that, in the absence of an
allegation of malice, petitioner had stated no constitutional
claim. But it then went on to
"assume[] without deciding, that [Gilley's] bad faith motivation
would suffice to make [his] actions in writing the letter a
violation of Siegert's constitutional rights, and that the process
given by the credentialing review was not adequate to meet due
process requirements."
282 U.S.App.D.C. at 398, 895 F.2d at 803. We think the Court of
Appeals should not have assumed without deciding this preliminary
issue in this case, and proceeded to examine the sufficiency of the
allegations of malice.
In
Harlow, we said that "[u]ntil this
threshold immunity question is resolved, discovery should
not be allowed."
Harlow, supra, at
457 U. S. 818
(emphasis added). A necessary concomitant to the determination of
whether the constitutional right asserted by a plaintiff is
"clearly established" at the time the defendant acted is the
determination of whether the plaintiff has asserted a violation of
a constitutional right at all. Decision of this purely legal
question permits courts expeditiously to weed out suits which fail
the test without requiring a defendant who rightly claims qualified
immunity to engage in expensive and time-consuming preparation to
defend the suit on its merits. One of the purposes of immunity,
absolute or qualified, is to spare a defendant not only unwarranted
liability, but unwarranted demands customarily imposed upon those
defending a long drawn-out lawsuit. In
Mitchell v. Forsyth,
supra, we said:
Page 500 U. S. 233
"
Harlow thus recognized an entitlement not to stand
trial or face the other burdens of litigation, conditioned on the
resolution of the essentially legal question whether the conduct of
which the plaintiff complains violated clearly established law. The
entitlement is an
immunity from suit, rather than a mere
defense to liability; and like an absolute immunity, it is
effectively lost if a case is erroneously permitted to go to
trial."
Id. at
472 U. S.
526.
This case demonstrates the desirability of this approach to a
claim of immunity, for Siegert not only failed to allege the
violation of a constitutional right that was clearly established at
the time of Gilley's actions, but he failed to establish the
violation of any constitutional right at all.
In
Paul v. Davis, the plaintiff's photograph was
included by local police chiefs in a "flyer" of "active
shoplifters," after petitioner had been arrested for shoplifting.
The shoplifting charge was eventually dismissed, and the plaintiff
filed suit under 42 U.S.C. § 1983 against the police chiefs,
alleging that the officials' actions inflicted a stigma to his
reputation that would seriously impair his future employment
opportunities, and thus deprived him under color of state law of
liberty interests protected by the Fourteenth Amendment.
We rejected the plaintiff's claim, holding that injury to
reputation by itself was not a "liberty" interest protected under
the Fourteenth Amendment. 424 U.S. at
424 U. S.
708-709. We pointed out that our reference to a
governmental employer stigmatizing an employee in
Board of
Regents of State Colleges v. Roth, 408 U.
S. 564 (1972), was made in the context of the employer
discharging or failing to rehire a plaintiff who claimed a liberty
interest under the Fourteenth Amendment. Defamation, by itself, is
a tort actionable under the laws of most States, but not a
constitutional deprivation.
The facts alleged by Siegert cannot, in the light of our
decision in
Paul v. Davis, be held to state a claim for
denial of a
Page 500 U. S. 234
constitutional right. This is not a suit against the United
States under the Federal Tort Claims Act -- such a suit could not
be brought, in the light of the exemption in that act for claims
based on defamation,
see 28 U.S.C. § 2680(h) -- but a suit
against Siegert's superior at St. Elizabeth's hospital. The alleged
defamation was not uttered incident to the termination of Siegert's
employment by the hospital, since he voluntarily resigned from his
position at the hospital, and the letter was written several weeks
later. The statements contained in the letter would undoubtedly
damage the reputation of one in his position, and impair his future
employment prospects. But the plaintiff in
Paul v. Davis
similarly alleged serious impairment of his future employment
opportunities, as well as other harm. Most defamation plaintiffs
attempt to show some sort of special damage and out-of-pocket loss
which flows from the injury to their reputation. But so long as
such damage flows from injury caused by the defendant to a
plaintiff's reputation, it may be recoverable under state tort law,
but it is not recoverable in a
Bivens action. Siegert did
assert a claim for defamation in this case, but made no allegations
as to diversity of citizenship between himself and respondent.
The Court of Appeals assumed, without deciding, that, if
petitioner satisfactorily alleged that respondent's letter was
written with malice, a constitutional claim would be stated.
Siegert, in this Court, asserts that this assumption was correct --
that, if the defendant acted with malice in defaming him, what he
describes as the "stigma plus" test of
Paul v. Davis is
met. Our decision in
Paul v. Davis did not turn, however,
on the state of mind of the defendant, but on the lack of any
constitutional protection for the interest in reputation.
The Court of Appeals' majority concluded that the District Court
should have dismissed petitioner's suit because he had not overcome
the defense of qualified immunity asserted by respondent. By a
different line of reasoning, we reach the
Page 500 U. S. 235
same conclusion, and the judgment of the Court of Appeals is
therefore
Affirmed.
JUSTICE KENNEDY, concurring in the judgment.
I agree with the Court that
"[a] necessary concomitant to the determination of whether the
constitutional right asserted by a plaintiff is 'clearly
established' at the time the defendant acted is the determination
of whether the plaintiff has asserted a violation of a
constitutional right at all."
Ante at
500 U. S. 232.
I do not, however, agree that the Court of Appeals "should not have
assumed without deciding" this issue.
Ibid. The Court of
Appeals adopted the altogether normal procedure of deciding the
case before it on the ground that appeared to offer the most direct
and appropriate resolution, and one argued by the parties. If it is
plain that a plaintiff's required malice allegations are
insufficient but there is some doubt as to the constitutional right
asserted, it seems to reverse the usual ordering of issues to tell
the trial and appellate courts that they should resolve the
constitutional question first.
As revealed by the differences in our majority and dissenting
opinions, the question whether petitioner asserted the deprivation
of a liberty interest protected by the Constitution, under the
principles explained in
Paul v. Davis, 424 U.
S. 693 (1976), is itself one of some difficulty. In my
view, it is unwise to resolve the point without the benefit of a
decision by the Court of Appeals and full briefing and argument
here.
I would affirm for the reasons given by the Court of Appeals.
Here malice is a requisite showing to avoid the bar of qualified
immunity. The heightened pleading standard is a necessary and
appropriate accommodation between the state of mind component of
malice and the objective test that prevails in qualified immunity
analysis as a general matter.
See Harlow v. Fitzgerald,
457 U. S. 800
(1982). There is tension between the rationale of
Harlow
and the requirement
Page 500 U. S. 236
of malice, and it seems to me that the heightened pleading
requirement is the most workable means to resolve it. The
heightened pleading standard is a departure from the usual pleading
requirements of Federal Rules of Civil Procedure 8 and 9(b), and
departs also from the normal standard for summary judgment under
Rule 56. But avoidance of disruptive discovery is one of the very
purposes for the official immunity doctrine, and it is no answer to
say that the plaintiff has not yet had the opportunity to engage in
discovery. The substantive defense of immunity controls.
Upon the assertion of a qualified immunity defense the plaintiff
must put forward specific, nonconclusory factual allegations which
establish malice, or face dismissal. I would reject, however, the
Court of Appeals' statement that a plaintiff must present direct,
as opposed to circumstantial, evidence. 895 F.2d at 803-804.
Circumstantial evidence may be as probative as testimonial
evidence.
See Holland v. United States, 348 U.
S. 121,
348 U. S. 140
(1954).
In my view, petitioner did not meet the burden of alleging facts
from which malice could be inferred by other than the most
conclusory allegations. The Court of Appeals sets forth a detailed
analysis which is persuasive on this point.
For these reasons, I concur in the judgment to affirm.
JUSTICE MARSHALL, with whom JUSTICE BLACKMUN joins, and with
whom JUSTICE STEVENS joins as to Parts II and III, dissenting.
The majority today decides a question on which we did not grant
certiorari. Moreover, in deciding that petitioner Siegert failed to
allege a violation of a clearly established constitutional right,
the majority completely mischaracterizes the nature of Siegert's
claim. Siegert alleged significantly more than mere "damage [to]
reputation" and "future employment prospects."
Ante at
500 U. S. 234.
Because the alleged defamation was "accompan[ied] [by a] loss of
government employment,"
Paul v. Davis,
424 U. S. 693,
424 U. S. 706
(1976) (emphasis
Page 500 U. S. 237
added), as well as a change in "legal status" occasioned by the
effective foreclosure of any opportunity for hospital credentials,
see id. at
424 U. S. 705,
Siegert has alleged the deprivation of a cognizable liberty
interest in reputation. Because I view the majority's disposition
of this case as both procedurally and substantively unjustified, I
dissent.
I
The majority incorrectly claims that
"[w]e granted certiorari in this case to determine whether the .
. . Court of Appeals . . . properly directed dismissal of
petitioner's
Bivens claim on the grounds that he had not
overcome respondent's claim of qualified immunity."
Ante at
500 U. S. 227.
In fact, the two questions on which we granted certiorari were much
more specific.
"1. In a claim for damages under
Bivens v. Six Unknown Named
Agents, 403 U. S. 388 (1971), in which
malice has been alleged and where qualified immunity has been
raised as a defense, whether a 'heightened pleading' standard which
precludes limited discovery prior to disposition on a summary
judgment motion violates applicable law?"
"2. In a
Bivens claim for damages, whether a federal
official can be qualifiedly immune from suit without regard to
whether the challenged conduct was discretionary in nature?"
Pet. for Cert. i. According to this Court's Rule 14.1(a):
"[O]nly the questions set forth in the petition [for writ of
certiorari], or fairly included therein, will be considered by the
Court." In my view, neither of the questions set forth in the
petition is broad enough to subsume the issue that the majority
contends is presented in this case. [
Footnote 1]
Page 500 U. S. 238
One would have thought from the questioning during oral argument
that the Court was well aware that it was at least debatable
whether the issue the majority now decides was within the grant of
review. When counsel for Siegert addressed the question whether
Siegert had stated a compensable injury to a protected liberty
interest, she was admonished:
"[T]he first question presented in your petition for certiorari
is the extent of discovery which you should be allowed where
there's a defensive [
sic] qualified immunity. That really
has nothing to do with the merits of your case, I would think."
Tr. of Oral Arg. 5. When counsel raised the issue again, she was
told: "You really haven't explicitly addressed either of the
questions presented in your petition for certiorari. I suggest you
do so."
Id. at 12. Rather than attempting to explain why
the issue the majority today reaches is subsumed by the grant of
certiorari, the majority disingenuously recharacterizes the
question presented.
"Absent unusual circumstances, we are chary of considering
issues not presented in petitions for certiorari."
Berkemer v.
McCarty, 468 U. S. 420,
468 U. S. 443,
n. 38 (1984) (citation omitted). The majority makes no attempt to
show that this case presents "unusual circumstances." Moreover, the
significance of the issue the majority decides -- the extent of a
government employee's constitutional liberty interest in reputation
-- militates even more heavily in favor of restraint. As the author
of today's opinion once wrote:
"Where difficult issues of great public importance are involved,
there are strong reasons to adhere scrupulously to the customary
limitations on our discretion."
Illinois v. Gates, 462 U. S. 213,
Page 500 U. S. 239
462 U. S. 224
(1983). Adherence to "customary limitations on our discretion" is
necessary not only to ensure that parties are not denied their "day
in court" but also to ensure that we receive the full benefit of
briefing and argument before deciding difficult and important legal
issues. The issue that now has become central to the majority's
disposition of this case received only scant briefing by the
parties.
See Brief for Petitioner 17-20; Brief for
Respondent 26, n. 16. The majority's insistence on reaching this
issue in this context disserves our adjudicative process and
undermines public respect for our decisions.
II
I also disagree with the merits of the majority's holding. The
majority concludes that Siegert has not alleged the violation of
any "right," "clearly established" or otherwise. In my view, there
can be no doubt that the conduct alleged deprived Siegert of a
protected liberty interest, and that this right was clearly
established at the time Gilley wrote his letter. Siegert's claim,
therefore, should surmount Gilley's assertion of qualified
immunity.
See Harlow v. Fitzgerald, 457 U.
S. 800,
457 U. S. 818
(1982). [
Footnote 2]
A
Paul v. Davis, 424 U. S. 693
(1976), holds that injury to reputation, standing alone, is not
enough to demonstrate deprivation of a liberty interest.
See
id. at
424 U. S. 712.
Paul also
Page 500 U. S. 240
establishes, however, that injury to reputation
does
deprive a person of a liberty interest when the injury is combined
with the impairment of "some more tangible" government benefit.
Id. at
424 U. S. 701.
It is enough, for example, if the plaintiff shows that the
reputational injury causes the "loss of government employment,"
id. at
424 U. S. 706,
or the imposition of a legal disability, such as the loss of "the
right to purchase or obtain liquor in common with the rest of the
citizenry,"
id. at
424 U. S. 708
(citing
Wisconsin v. Constantineau, 400 U.
S. 433 (1971)).
This standard is met here, because the injury to Siegert's
reputation caused him to lose the benefit of
eligibility for
future government employment. A condition of Siegert's
employment with the Army hospital in Bremerhaven was that he be
"credentialed" to treat both children and adults. Siegert alleges
(and we must accept as true) that Gilley's letter caused him not to
be credentialed, and thus effectively foreclosed his eligibility
for future Government employment. According to Siegert, after
Gilley wrote the letter charging that Siegert was "inept and
unethical, perhaps the least trustworthy individual I have
supervised in . . . thirteen years," App. 6, Siegert was informed
that the Army's credentials committee was recommending that he not
be credentialed because reports about him were "extremely
unfavorable,"
id. at 7. As a result, Siegert contends, he
lost government employment as a psychologist at the Bremerhaven
Army hospital, similar future employment at another Army hospital
in Stuttgart, and any legitimate opportunity to be considered for
like Government employment any time in the future.
See id.
at 6-9, 19-23. [
Footnote 3]
Page 500 U. S. 241
We have repeatedly recognized that an individual suffers the
loss of a protected liberty interest
"'where government action has operated to bestow a badge of
disloyalty or infamy,
with an attendant foreclosure from other
employment opportunity.'"
Paul v. Davis, supra, 424 U.S. at
424 U. S. 705,
quoting
Cafeteria Workers v. McElroy, 367 U.
S. 886,
367 U. S. 898
(1961) (emphasis supplied by
Paul v. Davis Court). Thus,
although the at-will government employee in
Board of Regents of
State Colleges v. Roth, 408 U. S. 564
(1972), did not have a legal entitlement to retain his job, the
Court recognized that a liberty interest would be deprived
where
"the State . . . imposed on [the plaintiff] a stigma or other
disability that foreclosed his freedom to take advantage of other
employment opportunities."
Id. at
408 U. S. 573.
Accord, Paul, supra, 424 U.S. at
424 U. S.
709-710 (quoting
Roth). [
Footnote 4] The same conclusion should apply
here.
Citing
Paul, the majority suggests that reputational
injury deprives a person of liberty only when combined with loss of
present employment, not future employment.
See ante at
500 U. S. 234.
This suggestion rests on a gross mischaracterization of
Paul. The
Paul Court rejected a
private
employee's generalized claim of loss of future employment prospects
where the plaintiff made no showing of a loss of government
employment or future opportunities for government employment;
indeed no governmental benefit or entitlement was at risk in
Page 500 U. S. 242
Paul. The plaintiff in
Paul, who had been
labeled by the government as a shoplifter, had merely been told by
his supervisor that, although he would not be fired, he "
had
best not find himself in a similar situation'" in the future.
Paul, supra, at 424 U. S. 696.
Therefore, Paul truly was a case where the only interest
the plaintiff was asserting was injury to his reputation.
Although
Paul rejected a private employee's claim, it
expressly reaffirmed
Roth, McElroy, and other decisions
recognizing that stigmatization deprives a person of liberty when
it causes loss of present or future government employment.
See
Paul, supra, at
424 U. S.
702-710. Indeed, the
Paul Court explained the
decision in
Joint Anti-Fascist Refugee Comm. v. McGrath,
341 U. S. 123
(1951) -- which held that the plaintiffs stated a cognizable claim
against the Attorney General's designation of certain organizations
as "Communist" on a list furnished to the Civil Service Commission
-- primarily in terms of the deprivation this action would work on
the present and future government employment opportunities of
members of such organizations.
See Paul, 424 U.S. at
424 U. S.
702-705;
see also id. at
424 U. S. 704
("
To be deprived not only of present government employment but
of future opportunity, for it certainly is no small injury when
government employment so dominates the field of opportunity,'"
quoting Joint Anti-Fascist Refugee Comm., supra, 341 U.S.
at 341 U. S.
184-185 (Jackson, J., concurring)). Foreclosure of
opportunity for future government employment clearly is within the
ambit of the "more tangible interests" that, when coupled with
reputation, create a protected liberty interest. See Paul,
supra, 424 U.S. at 424 U. S.
701-702 (noting the Court's recognition of a liberty
interest in United States v. Lovett, 328 U.
S. 303 (1946), where congressional action stigmatized
three Government employees and "`prohibit[ed] their ever holding a
government job'").
B
It is also clear that Gilley should have known that his alleged
conduct deprived Siegert of a liberty interest. If our
Page 500 U. S. 243
case law left any doubt that reputational injury deprives a
person of liberty when it causes loss of future government
employment, that doubt was dispelled by the decisions of the Court
of Appeals for the District of Columbia Circuit, the jurisdiction
where Gilley worked.
See, e.g., Davis v. Scherer,
468 U. S. 183,
468 U. S.
191-192 (1984) (for purposes of determining whether a
constitutional right was clearly established, the Court may look to
the law of the relevant circuit at the time of the conduct in
question). [
Footnote 5] On
numerous occasions prior to Gilley's challenged conduct, the
District of Columbia Circuit reiterated the principle that a person
is deprived of a protected liberty interest when stigmatizing
charges "effectively foreclos[e] [his or her] freedom to take
advantage
Page 500 U. S. 244
of other Government employment opportunities."
Old Dominion
Dairy Products, Inc. v. Secretary of Defense, 203 U.S.App.D.C.
371, 382, 631 F.2d 953, 964 (1980).
See also Conset Corp. v.
Community Services Administration, 211 U.S.App.D.C. 61, 67,
655 F.2d 1291, 1297 (1981) (liberty deprived if "memorandum was
effectively used to bar Conset from government contract work due to
charges calling into question Conset's integrity, honesty or
business reputation");
Mosrie v. Barry, 231 U.S.App.D.C.
113, 123, 718 F.2d 1151, 1161 (1983) (liberty deprived if
government-imposed stigma "so severely impaired [the plaintiff's]
ability to take advantage of a legal right, such as a right to be
considered for government contracts or employment . . . that the
government can be said to have 'foreclosed' one's ability to take
advantage of it and thus extinguished the right");
Doe v.
United States Department of Justice, 243 U.S.App.D.C. 354,
373, 753 F.2d 1092, 1111 (1985) (government defamation resulting in
a "[l]oss of present or future government employment" implicates a
liberty interest).
This established principle was applied by the District of
Columbia Circuit in a case with facts strikingly similar to those
that confront us here. In
Bartel v. Federal Aviation
Administration, 233 U.S.App.D.C. 297, 725 F.2d 1403 (1984),
the plaintiff, Bartel, had once worked for the Federal Aviation
Administration (FAA) as an air safety inspector, left its employ
for a job in Canada, and then applied for reemployment with the
FAA. An FAA official who learned that Bartel was seeking
reemployment allegedly sent letters to other FAA officials stating
his opinion that Bartel had violated the federal Privacy Act of
1974, 5 U.S.C. § 552a, during his previous tenure with the FAA. As
a result, Bartel claimed the FAA informed him that he would not be
hired for a job for which he had been determined to be "best
qualified." Eventually Bartel secured a temporary GS-12 position,
although a permanent GS-13 position for which he was qualified was
available.
See 223 U.S.App.D.C. at 299-300, 725 F.2d at
1405-1406. Bartel brought suit claiming,
inter alia, a due
process violation because he had been branded and denied employment
without an opportunity to refute the charges in the letter. The
District of Columbia Circuit agreed that
Paul v. Davis was
controlling, and found that Bartel had stated a cognizable liberty
interest in reputation sufficient to survive a motion for summary
judgment.
See 233 U.S.App.D.C. at 309, 725 F.2d at
1415.
"The complaint states that Bartel was denied a specific job
because of the [stigmatizing letter]. . . . The crux of
the complaint, as we read it, is that Bartel was not considered for
FAA employment on a basis equal with others of equivalent skill and
experience --
i.e., that he was wrongfully denied the
'right to
Page 500 U. S. 245
be considered for government [employment] in common with all
other persons.' For an individual whose entire career revolved
around aviation, this denial may have effectively abridged his
freedom to take advantage of public employment."
Ibid. (citations omitted; emphasis add.)
See also
Doe v. United States Department of Justice, supra, at 373, n.
20, 753 F.2d at 1111 (noting that Bartel had "alleged a protected
liberty interest because an FAA letter had accused him of Privacy
Act violations and thus hampered his ability to seek government
employment on an equal basis with others of similar skill and
experience").
After the District of Columbia Circuit's holding in
Bartel, it should have been abundantly clear to any
reasonable governmental official that mailing stigmatizing letters
in circumstances that would severely impair or effectively
foreclose a government employee from obtaining similar government
employment in the future would deprive the individual of a
constitutionally protected liberty interest. Yet that is precisely
what Siegert alleges Gilley did. [
Footnote 6]
C
Finally, there remains the primary question on which we granted
certiorari: whether, in a
Bivens action in which
malice
Page 500 U. S. 246
has been alleged and where qualified immunity has been raised as
a defense, a "heightened pleading" standard must be met in order to
allow limited discovery prior to disposition on a summary judgment
motion. Under my understanding of
Paul, I do not believe
Siegert would have to prove malice in order to establish a
constitutional violation. However, I believe the Court of Appeals
erred in holding that a district court may not permit limited
discovery in a case involving unconstitutional motive unless the
plaintiff proffers direct evidence of the unconstitutional motive.
See 282 U.S.App.D.C. 392, 398-399, 895 F.2d 797, 803-804
(1990). Because evidence of such intent is peculiarly within the
control of the defendant, the "heightened pleading" rule employed
by the Court of Appeals effectively precludes any
Bivens
action in which the defendant's state of mind is an element of the
underlying claim. I find no warrant for such a rule as a matter of
precedent or common sense.
This Court has stated that "bare allegations of malice should
not suffice to subject government officials either to the costs of
trial or to the burdens of broad-reaching discovery."
Harlow v.
Fitzgerald, 457 U.S. at
457 U. S.
817-818. Yet it also has recognized that, in some
instances, limited discovery "tailored specifically to the question
of . . . qualified immunity" may be necessary.
Anderson v.
Creighton, 483 U. S. 635,
483 U. S.
646-647, n. 6 (1987). In my view, a plaintiff pleading a
Bivens claim that requires proof of the defendant's intent
should be afforded such discovery whenever the plaintiff has gone
beyond bare, conclusory allegations of unconstitutional purpose.
Siegert has offered highly specific circumstantial evidence of
unconstitutional motive. For this reason, I believe that the Court
of Appeals erred in overturning the District Court's order
permitting limited discovery.
III
It is a perverse jurisprudence that recognizes the loss of a
"legal" right to buy liquor as a significant deprivation but
Page 500 U. S. 247
fails to accord equal significance to the foreclosure of
opportunities for government employment. The loss in Siegert's case
is particularly tragic because his professional specialty appears
to be one very difficult to practice outside of government
institutions. The majority's callous disregard of the real
interests at stake in this case is profoundly disturbing. I
dissent.
[
Footnote 1]
The question on which the majority claims the Court granted
certiorari actually was presented in respondent Gilley's brief in
opposition to certiorari.
See Brief in Opposition I
("Whether the court of appeals correctly dismissed this
Bivens action on grounds of qualified immunity"). However,
our grant of certiorari did not purport to accept respondent's
depiction of the question presented.
See 498 U.S. 918
(1990). Indeed, in his brief on the merits, respondent urged that
the very issue that the majority today resolves in his favor "is
scarcely related to the questions on which the Court granted
certiorari, [and] is not properly before the Court." Brief for
Respondent 26, n. 16.
[
Footnote 2]
The question whether Gilley's alleged conduct in this case was a
discretionary function for which he would be entitled to raise the
defense of qualified immunity was the second question presented in
the petition for certiorari.
See supra at
500 U. S. 237.
The majority does not address this issue. Consequently, I will
state only briefly my view that Gilley's function in responding to
the credentials request form was inherently discretionary. The form
requested that Gilley send "all information" on Siegert's "job
performance and [hospital] privileges." App. to Pet. for Cert. 55a.
Because the form did not prescribe any specific conduct and Siegert
has not identified any other rules or restrictions which mandated a
specific mode or manner of response, Gilley was called upon to
exercise his judgment as to what information must be sent.
[
Footnote 3]
Siegert contends that he had a legitimate expectation that he
would be credentialed based upon his job performance at St.
Elizabeth's. For his first five years at St. Elizabeth's, Siegert
attests that he received exemplary job performance ratings from his
supervisors and was rated "outstanding" for his performance in
1984. App. 20. Gilley became Siegert's supervisor in January, 1985.
According to Siegert, professional and personal differences soon
arose between the two because of Siegert's extensive medical leave
due to a head injury and Siegert's resistance to Gilley's attempts
to modify some aspects of a behavior modification program.
Id. at 19-20. After Siegert had obtained his position with
Bremerhaven, he was given advanced notice that he was going to be
terminated by St. Elizabeth's. Siegert then worked out an agreement
with St. Elizabeth's with the precise understanding that he would
resign and his personnel file would not be tainted.
Id. at
21. Approximately three weeks after Siegert resigned, Gilley sent
the stigmatizing letter.
See id. at 5-6.
[
Footnote 4]
Notably, the concept of liberty under the Due Process Clause
includes
"'the right of the individual to contract, to engage in any of
the common occupations of life . . . and generally to enjoy those
privileges long recognized . . . as essential to the orderly
pursuit of happiness by free men.'"
Board of Regents v. Roth, 408 U.
S. 564,
408 U. S. 572
(1972), quoting
Meyer v. Nebraska, 262 U.
S. 390,
262 U. S. 399
(1923).
[
Footnote 5]
In
Anderson v. Creighton, 483 U.
S. 635 (1987), this Court explained that a right is
"clearly established" when its "contours [are] sufficiently clear
that a reasonable official would understand that what he is doing
violates that right."
Id. at
483 U. S. 640.
Anderson stressed that a right may be "clearly
established" even though "the very action in question" has not
previously been held unlawful. Rather, it is enough "to say that,
in the light of preexisting law, the unlawfulness [is] apparent."
Ibid. Accord, Mitchell v. Forsyth, 472 U.
S. 511,
472 U. S. 535,
n. 12 (1985) ("We do not intend to suggest that an official is
always immune from liability or suit for a warrantless search
merely because the warrant requirement has never explicitly been
held to apply to a search conducted in identical
circumstances").
[
Footnote 6]
The "Credential Information Request Form" specifically informed
Gilley that Siegert was applying for hospital credentials in order
to work as a clinical psychologist at an Army hospital and that
information on Siegert's credentials and work history was needed in
order to complete the process.
See App. to Pet. for Cert.
55a. As an objective matter, in these circumstances, Gilley should
have known that to send a letter charging that Siegert was "inept
and unethical, perhaps the least trustworthy individual I have
supervised in . . . thirteen years" would severely hamper, if not
foreclose, Siegert's ability to gain credentials, particularly for
working with children.
Cf. Old Dominion Dairy Products, Inc. v.
Secretary of Defense, 203 U.S.App.D.C. 371, 381 631 F.2d 953,
963 (1980) ("A determination was made that Old Dominion
lacked
integrity,' and that determination was communicated through
official Government channels, and would likely continue to be
communicated every time Old Dominion bid for a contract").