Subject:  SIEGERT v. GILLEY, Syllabus



 
    NOTE: Where it is feasible, a syllabus (headnote) will be released, as
is being done in connection with this case, at the time the opinion is
issued.  The syllabus constitutes no part of the opinion of the Court but
has been prepared by the Reporter of Decisions for the convenience of the
reader.  See United States v. Detroit Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES


Syllabus



SIEGERT v. GILLEY


certiorari to the united states court of appeals for the district of
columbia circuit

No. 90-96.  Argued February 19, 1991 -- Decided May 23, 1991

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
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, 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
818.  Thus, although the Court of Appeals reached the correct result, it
should not have assumed without deciding the necessary preliminary 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. 5-8.

282 U. S. App. D. C. 392, 895 F. 2d 797, 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.

------------------------------------------------------------------------------




Subject: 90-96 -- OPINION, SIEGERT v. GILLEY

 


NOTICE: This opinion is subject to formal revision before publication in
the preliminary print of the United States Reports.  Readers are requested
to notify the Reporter of Decisions, Supreme Court of the United States,
Washington, D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print goes to
press.
SUPREME COURT OF THE UNITED STATES


No. 90-96



FREDERICK A. SIEGERT, PETITIONER v.
H. MELVYN GILLEY


on writ of certiorari to the united states court of appeals for the
district of columbia

[May 23, 1991]




    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 Gov ernment 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. 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 hos pitals 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 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
ap propriate 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," 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 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. --- (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 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
818.
    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 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:

"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 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. MDRV 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 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 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. MDRV
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 same conclusion, and the judgment of the Court of
Appeals is therefore
Affirmed.
------------------------------------------------------------------------------




Subject: 90-96 -- CONCUR, SIEGERT v. GILLEY

 


    SUPREME COURT OF THE UNITED STATES


No. 90-96



FREDERICK A. SIEGERT, PETITIONER v.
H. MELVYN GILLEY


on writ of certiorari to the united states court of appeals for the
district of columbia


[May 23, 1991]



    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 6.  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 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, 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.
------------------------------------------------------------------------------




Subject: 90-96 -- DISSENT, SIEGERT v. GILLEY

 


    SUPREME COURT OF THE UNITED STATES


No. 90-96


FREDERICK A. SIEGERT, PETITIONER v.
H. MELVYN GILLEY


on writ of certiorari to the united states court of appeals for the
district of columbia

[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 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 8.  Because the alleged defamation was
"accompan[ied] [by a] loss of government employment," 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
credentials, 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 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 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 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. {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 (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 (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,
818 (1982). {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 disability, 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 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, at 705, quoting
Cafeteria Workers v. McElroy, 367 U. S. 886, 898 (1961) (emphasis supplied
by Paul v. Davis Court).  Thus, although the atwill 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 573.  Accord, Paul,
supra, at 709-710 (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 7-8.  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.
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.  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 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 employment
so dominates the field of opportunity,' " quoting Joint Anti-Fascist
Refugee Comm., supra, at 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, at 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 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 (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 severly 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, 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 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. MDRV 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 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 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}
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 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.  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 (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 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.
------------------------------------------------------------------------------
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. --- (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 2.  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 (1972), quoting Meyer
v. Nebraska, 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
violates that right."  Id., at 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 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
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").
