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. Elizabeths 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.
In August 1985, St. Elizabeths 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. Elizabeths, 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. Elizabeths 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. App. to Pet. for Cert. 55a. Siegert's request was referred to Gilley because he had been Siegert's supervisor at St. Elizabeths.
In response to Siegert's request, Gilley notified the Army by letter that "he could not recommend [Siegert] for privileges as a psychologist." App. 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. Elizabeths]." 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
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,"
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
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 399, 895 F. 2d, at 804, 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 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 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:
This case demonstrates the desirability of this approach to a claim of immunity, for Siegert failed not only to allege the violation of a constitutional right that was clearly established at the time of Gilley's actions, but also to establish the violation of any constitutional right at all.
In Paul v. Davis, 424 U.S. 693 (1976), 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 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
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
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 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
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. 282 U. S. App. D. C. 392, 398-399, 895 F.2d 797, 803-804 (1990). 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.
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 (1976) (emphasis
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.
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.
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,
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).
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
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.
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
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 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"').
It is also clear that Gilley should have known that his alleged conduct deprived Siegert of a liberty interest. If our
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 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 223 U. S. App. D. C., at 309, 725 F. 2d, at 1415.
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.
Finally, there remains the primary question on which we granted certiorari: whether in a Bivens action in which malice
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.
It is a perverse jurisprudence that recognizes the loss of a "legal" right to buy liquor as a significant deprivation but