Siegert v. H Gilley/Dissent Marshall

by Thurgood Marshall

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 234. Because the alleged defamation was "accompan[ied] [by a] loss of government employment," Paul v. Davis, 424 U.S. 693 , 706, 96 S.Ct. 1155, 1163, 47 L.Ed.2d 405 (1976) (emphasis added), as well as a change in "legal status" occasioned by the effective foreclosure of any opportunity for hospital credentials, see id., at 705, 96 S.Ct., at 1162-63, 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.

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 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 , 91 S.Ct. 1999, 29 L.Ed.2d 619 (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.^[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 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 , 443, n. 38, 104 S.Ct. 3138, 3152, n. 38, 82 L.Ed.2d 317 (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 , 224, 103 S.Ct. 2317, 2325, 76 L.Ed.2d 527 (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.

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 , 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982).^[2]

Paul v. Davis, 424 U.S. 693 , 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), holds that injury to reputation, standing alone, is not enough to demonstrate deprivation of a liberty interest. See id., at 712, 96 S.Ct., at 1165-66. 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, 96 S.Ct., at 1160-61. It is enough, for example, if the plaintiff shows that the reputational injury causes the "loss of government employment," id., at 706, 96 S.Ct., at 1163, 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 708, 96 S.Ct., at 1164 (citing Wisconsin v. Constantineau, 400 U.S. 433 , 91 S.Ct. 507, 27 L.Ed.2d 515 (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.^[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 opportunity.' " Paul v. Davis, supra, 424 U.S., at 705, 96 S.Ct., at 1163, quoting Cafeteria Workers v. McElroy, 367 U.S. 886 , 898, 81 S.Ct. 1743, 1750, 6 L.Ed.2d 1230 (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 , 92 S.Ct. 2701, 33 L.Ed.2d 548 (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 573, 92 S.Ct., at 2707. Accord, Paul, supra, 424 U.S., at 709-710, 96 S.Ct., at 1164-1165 (quoting Roth ).^[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 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 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 696, 96 S.Ct., at 1158. 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 702-710, 96 S.Ct., at 1161-1165. Indeed, the Paul Court explained the decision in Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123 , 71 S.Ct. 624, 95 L.Ed. 817 (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 702-705, 96 S.Ct., at 1161-1163; see also id., at 704, 96 S.Ct., at 1162 (" '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 184-185, 71 S.Ct., at 655 (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 701-702, 96 S.Ct., at 1160-1161 (noting the Court's recognition of a liberty interest in United States v. Lovett, 328 U.S. 303 , 66 S.Ct. 1073, 90 L.Ed. 1252 (1946), where congressional action stigmatized three Government employees and " 'prohibit[ed] their ever holding a government job' ").

It is also clear that Gilley should have known that his alleged 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 jurisdiction where Gilley worked. See, e.g., Davis v. Scherer, 468 U.S. 183 , 191-192, 104 S.Ct. 3012, 3017-3018, 82 L.Ed.2d 139 (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).^[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 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 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 added.)

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.^[6]

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 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 817-818, 102 S.Ct., at 2738. 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 , 646-647, n. 6, 107 S.Ct. 3034, 3042-3043, n. 6, 97 L.Ed.2d 523 (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.

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 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.

Notes

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. ----, 111 S.Ct. 292, 112 L.Ed.2d 246 (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.
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 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.
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.
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 , 572, 92 S.Ct. 2701, 2707, 33 L.Ed.2d 548 (1972), quoting Meyer v. Nebraska, 262 U.S. 390 , 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042 (1923).
5. In Anderson v. Creighton, 483 U.S. 635 , 107 S.Ct. 3034, 97 L.Ed.2d 523 (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 640, 107 S.Ct., at 3039. 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 pre-existing law the unlawfulness [is] apparent." Ibid. Accord, Mitchell v. Forsyth, 472 U.S. 511 , 535, n. 12, 105 S.Ct. 2806, 2820, n. 12, 86 L.Ed.2d 411 (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 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").