90-96 -- DISSENT v. GILLEY

No. 90-96

A. SIEGERT, PETITIONER v.H. MELVYN GILLEY

[May 23, 1991]

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 con- stitutional right, the majority completely mischaracterizes the nature of Siegert's claim. Siegert alleged significantly more than mere "damage [to] reputation" and "future em- ployment prospects." Ante, at 8. Because the alleged defa- mation was "accompan[ied] [by a] loss of government employ- ment," Paul v. Davis, 424 U.S. 693, 706 (1976) (emphasis added), as well as a change in "legal status" occasioned by the effective foreclosure of any opportunity for hospital creden- tials, see id., at 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 certio- rari in this case to determine whether the . . . Court of Ap- peals . . . properly directed dismissal of petitioner's Bivens claim on the grounds that he had not overcome respondent's claim of qualified immunity." Ante, at 1. In fact, the two questions on which we granted certiorari were much more specific.

"1. In a claim for damages under Bivens v. Six Un- known 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 vio- lates applicable law?

"2. In a Bivens claim for damages, whether a federal official can be qualifiedly immune from suit without re- gard to whether the challenged conduct was discretion- ary 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 in- cluded 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 con- tends is presented in this case. ^[n.1]

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 ad- dressed the question whether Siegert had stated a compensa- ble injury to a protected liberty interest she was admonished:

"[T]he first question presented in your petition for cer- tiorari is the extent of discovery which you should be al- lowed where there's a defensive [sic] qualified immu- nity. 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 certio- rari, the majority disingenuously recharacterizes the ques- tion presented.

"Absent unusual circumstances, we are chary of consider- ing issues not presented in petitions for certiorari." Berkemer v. McCarty, 468 U.S. 420, 443, n. 38 (1984) (cita- tion 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 limi- tations on our discretion." Illinois v. Gates, 462 U.S. 213, 224 (1983). Adherence to "customary limitations on our dis- cretion" 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 diffi- cult and important legal issues. The issue that now has be- come central to the majority's disposition of this case re- ceived only scant briefing by the parties. See Brief for Petitioner 17-20; Brief for Respondent 26, n. 16. The ma- jority's insistence on reaching this issue in this context dis- serves our adjudicative process and undermines public re- spect for our decisions.

II I also disagree with the merits of the majority's holding. The majority concludes that Siegert has not alleged the viola- tion of any "right," "clearly established" or otherwise. In my view, there can be no doubt that the conduct alleged de- prived Siegert of a protected liberty interest and that this right was clearly established at the time Gilley wrote his let- ter. Siegert's claim, therefore, should surmount Gilley's as- sertion of qualified immunity. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). ^[n.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 712. Paul also 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 701. It is enough, for example, if the plaintiff shows that the reputational injury causes the "loss of government employment," id., at 706, or the imposition of a legal disabil- ity, such as the loss of "the right to purchase or obtain liquor in common with the rest of the citizenry," id., at 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 fu- ture government employment. A condition of Siegert's em- ployment 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 let- ter 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 cre- dentials committee was recommending that he not be credentialed because reports about him were "extremely un- favorable," id., at 7. As a result, Siegert contends, he lost government employment as a psychologist at the Bremerha- ven 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. ^[n.3]

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 oppor- tunity.' " Paul v. Davis, supra, at 705, quoting Cafeteria Workers v. McElroy, 367 U.S. 886, 898 (1961) (emphasis supplied by Paul v. Davis Court). Thus, although the at- will government employee in Board of Regents of State Col- leges v. Roth, 408 U.S. 564 (1972), did not have a legal enti- tlement 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 opportuni- ties." Id., at 573. Accord, Paul, supra, at 709-710 (quot- ing Roth). ^[n.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 7-8. This suggestion rests on a gross mischaracterization of Paul. The Paul Court rejected a private employee's gen- eralized claim of loss of future employment prospects where the plaintiff made no showing of a loss of government employ- ment or future opportunities for government employment; in- deed no governmental benefit or entitlement was at risk in Paul. The plaintiff in Paul, who had been labeled by the government as a shoplifter, had merely been told by his su- pervisor that, although he would not be fired, he " `had best not find himself in a similar situation' " in the future. Paul, supra, at 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 ex- pressly reaffirmed Roth, McElroy, and other decisions rec- ognizing that stigmatization deprives a person of liberty when it causes loss of present or future government employ- ment. See Paul, supra, at 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 "Commu- nist" on a list furnished to the Civil Service Commission -- pri- marily in terms of the deprivation this action would work on the present and future government employment opportuni- ties of members of such organizations. See Paul, 424 U. S., at 702-705; see also id., at 704 (" `To be deprived not only of present government employment but of future opportunity for it certainly is no small injury when government employ- ment so dominates the field of opportunity,' " quoting Joint Anti-Fascist Refugee Comm., supra, at 184-185 (Jackson, J., concurring)). Foreclosure of opportunity for future govern- ment employment clearly is within the ambit of the "more tangible interests" that, when coupled with reputation, cre- ate a protected liberty interest. See Paul, supra, at 701-702 (noting the Court's recognition of a liberty interest in United States v. Lovett, 328 U.S. 303 (1946), where congres- sional 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 al- leged conduct deprived Siegert of a liberty interest. If our 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 ju- risdiction where Gilley worked. See, e. g., Davis v. Scherer, 468 U.S. 183, 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). ^[n.5] On numerous occasions prior to Gilley's challenged conduct, the District of Columbia Cir- cuit reiterated the principle that a person is deprived of a protected liberty interest when stigmatizing charges "effec- tively foreclos[e] [his or her] freedom to take advantage of other Government employment opportunities." Old Domin- ion 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 severly impaired [the plaintiff's] ability to take ad- vantage of a legal right, such as a right to be considered for government contracts or employment . . . that the govern- ment can be said to have `foreclosed' one's ability to take ad- vantage 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" im- plicates 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, 223 U. S. App. D. C. 297, 725 F. 2d 1403 (1984), the plaintiff, Bartel, had once worked for the Federal Aviation Adminstration (FAA) as an air safety inspector, left its employ for a job in Canada, and then applied for reemploy- ment 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 vio- lated the federal Privacy Act of 1974, 5 U.S.C. 552a dur- ing 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, al- though a permanent GS-13 position for which he was quali- fied 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 223 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 be considered for government [employment] in common with all other per- sons.' For an individual whose entire career revolved around aviation, this denial may have effectively abridged his freedom to take advantage of public em- ployment." Ibid. (Citations omitted; emphasis added.)

See also Doe v. United States Department of Justice, supra, at 373, n. 20, 753 F. 2d, at 1111, (noting that Bartel had "al- leged 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 govern- mental official that mailing stigmatizing letters in circum- stances 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 pre- cisely what Siegert alleges Gilley did. ^[n.6]

C Finally, there remains the primary question on which we granted certiorari: whether in a Bivens action in which malice 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 un- constitutional motive unless the plaintiff proffers direct evi- dence 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 un- derlying 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 discov- ery." Harlow v. Fitzgerald, 457 U. S., at 817-818. Yet it also has recognized that in some instances limited discovery "tailored specifically to the question of . . . qualified immu- nity" may be necessary. Anderson v. Creighton, 483 U.S. 635, 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 be- lieve that the Court of Appeals erred in overturning the Dis- trict 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 fails to accord equal significance to the foreclosure of oppor- tunities 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 govern- ment institutions. The majority's callous disregard of the real interests at stake in this case is profoundly disturbing. I dissent.

Notes

2 The question whether Gilley's alleged conduct in this case was a dis- cretionary 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 2. The majority does not address this issue. Consequently, I will state only briefly my view that Gilley's function in re- sponding to the credentials request form was inherently discretionary. The form requested that Gilley send "all information" on Siegert's "job per- formance and [hospital] privileges." App. to Pet. for Cert. 55a. Because the form did not prescribe any specific conduct and Siegert has not identi- fied any other rules or restrictions which mandated a specific mode or man- ner of response, Gilley was called upon to exercise his judgment as to what information must be sent.

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 exem- plary job performance ratings from his supervisors and was rated "out- standing" for his performance in 1984. App. 20. Gilley became Siegert's supervisor in January 1985. According to Siegert, professional and per- sonal differences soon arose between the two because of Siegert's exten- sive 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. Eliza- beth'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 re- signed, Gilley sent the stigmatizing letter. See id., at 5-6.

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 recog- nized . . . as essential to the orderly pursuit of happiness by free men.' " Board of Regents v. Roth, 408 U.S. 564, 572 (1972), quoting Meyer v. Ne- braska, 262 U.S. 390, 399 (1923).

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 vio- lates that right." Id., at 640. Anderson stressed that a right may be "clearly established" even though "the very action in question" has not pre- viously been held unlawful. Rather, it is enough "to say that in the light of pre-existing law the unlawfulness [is] apparent." Ibid. Accord, Mitchell v. Forsyth, 472 U.S. 511, 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").

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 fore- close 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 con- tinue to be communicated every time Old Dominion bid for a contract").