Siegert v. Gilley

• Decision Date: 16 April 1990
• Docket Number: No. 88-5257,88-5257
• Citation: 282 U.S.App.D.C. 392,895 F.2d 797
• Parties: Frederick A. SIEGERT, Ph.D. v. H. Melvyn GILLEY, Ph.D., Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 797

895 F.2d 797

282 U.S.App.D.C. 392

Frederick A. SIEGERT, Ph.D. v. H. Melvyn GILLEY, Ph.D., Appellant.

No. 88-5257.

United States Court of Appeals, District of Columbia Circuit.

Argued Oct. 11, 1989.

Decided Feb. 9, 1990.

Rehearing and Rehearing En Banc Denied April 16, 1990.

John M. Facciola, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., and John D. Bates, R. Craig Lawrence, and Michael L. Martinez, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellant.

Nina Kraut, Washington, D.C., for appellee.

Before WALD, Chief Judge, and BUCKLEY and D.H. GINSBURG, Circuit Judges.

Opinion for the court filed by Circuit Judge BUCKLEY.

Opinion dissenting in part filed by Chief Judge WALD.

BUCKLEY, Circuit Judge:

This appeal involves a suit by Dr. Frederick Siegert, a psychologist, against Dr. Melvyn Gilley, his one-time supervisor at a government hospital. Both are government employees. The complaint alleges that Gilley, in response to a request for information on job performance, wrote a letter defamatory of Siegert, causing him reputational harm and the loss of other government positions for which he had applied. Siegert further alleges that Gilley wrote the letter maliciously and in bad faith, thus depriving him of a constitutionally protected liberty interest without due process.

Defendant Gilley appeals an order of the district court denying his motion to dismiss or alternatively for summary judgment based on qualified immunity grounds. Because we find that Siegert's allegations do not meet the heightened pleading standard established by our prior decisions for cases involving claims of immunity, we reverse the district court and remand with instructions to dismiss.

I. BACKGROUND

Plaintiff Siegert was a psychologist employed by the federal government at St. Elizabeths Hospital in Washington, D.C. from November 1979 until October 1985 as a Behavior Therapy Coordinator specializing in work with mentally retarded children and, to a lesser extent, with adults. In January 1985, defendant Gilley became head of the division for which Siegert worked. The following month, Siegert was allegedly struck on the head by a patient. He claims he took a significant amount of medical leave as a result, although he was erroneously recorded as absent without leave.

St. Elizabeths notified Siegert in late August that it was preparing to terminate him. After a meeting with hospital officials, it was arranged that Siegert would resign from the hospital and thus avoid a termination that might damage his reputation. He had been planning a move in any event, he asserts, because he had experienced personal antagonism with Gilley. He had in fact already signed a 36-month contract to serve as a clinical psychologist at a U.S. Army medical facility in Bremerhaven, West Germany.

Siegert resigned from St. Elizabeths in October and took his position with the Army. 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 provide "all information on job performance and the privileges" he had enjoyed while a member of its staff to his prospective supervisor, Lt. (now Col.) William Smith. This request was referred to Gilley who, on October 23, 1985, wrote Smith that he considered Siegert to be inept, unethical, and one of the least trustworthy persons he had supervised during his thirteen years at St. Elizabeths.

Subsequently, Siegert was denied the credentials. He was also turned down for a position he later sought with an Army hospital in Stuttgart. He was thereafter given provisional credentials, but they were limited to work with adults. Although credentialing appeals are still pending, Siegert has been removed from the behavior therapy program and given work in an Army medical library, work he claims is in no way comparable to his previous responsibilities.

After learning of Gilley's letter to Smith, Siegert filed this action in the United States District Court for the District of Columbia alleging that Gilley's defamatory statements had deprived him of liberty without due process, a violation of his Fifth Amendment rights for which he seeks damages under the doctrine of Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). In addition, Siegert brought claims under the court's pendent jurisdiction. Defendant Gilley moved for dismissal or in the alternative for summary judgment based on his defense of qualified immunity under Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982).

The district court denied the motion to dismiss or for summary judgment on the ground that the record was insufficiently developed. The court ordered discovery limited to the taking of depositions from the parties and Col. Smith. Siegert v. Gilley, Civ. No. 86-3234, Order at 3, 1987 WL 27640 (D.D.C. Dec. 3, 1987). Gilley moved for reconsideration and for a stay of discovery pending resolution of his immunity claim.

On June 30, 1988, the court denied the motion to reconsider. Siegert v. Gilley, 692 F.Supp. 1406 (D.D.C.1988). The court only "reluctantly wrote this opinion because of counsel for the defendant's insistence that I had no right to establish a limited discovery schedule prior to issuing an opinion on the qualified immunity defense." Id. at 1420. The district court found that plaintiff had alleged a violation of a constitutionally protected liberty inter est that was clearly established in the case law at the time of defendant's conduct. Id. at 1418. The court concluded that "[Gilley's] qualified immunity defense therefore fails," id., and that Siegert had established a proper basis for a Bivens claim. Id. at 1419.

Defendant then filed this appeal. In an order issued on January 9, 1989, we rejected Siegert's motion to dismiss for want of a final order on the ground that a denial of a claim of qualified immunity is immediately appealable (citing Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)).

II. DISCUSSION

A. Scope of Appellate Jurisdiction

The first issue before us is the scope of our jurisdiction to hear this appeal. Although the parties do not argue the question, this court has a duty to raise sua sponte the issue of its own jurisdiction. Liberty Mutual Ins. Co. v. Wetzel, 424 U.S. 737, 740, 96 S.Ct. 1202, 1204, 47 L.Ed.2d 435 (1976). While it is well established that a denial of a claim of qualified immunity is immediately appealable, Mitchell, 472 U.S. at 530, 105 S.Ct. at 2817, the parties argue not only this issue, but also the district court's finding that a Bivens remedy is available in this case. For the reasons that follow, we conclude that our inquiry at this time is limited to the sole question of the district court's rejection of Gilley's claim of qualified immunity.

The statute establishing the parameters of appellate jurisdiction provides as follows:

The courts of appeals ... shall have jurisdiction of appeals from all final decisions of the district courts of the United States....

28 U.S.C. Sec. 1291 (emphasis added). Because the proceeding before the district court has not been terminated, this appeal may only be heard because it involves an appeal from a special category of district court decisions identified by the Supreme Court in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). That category consists of final determinations of

rights asserted in [an] action [that are] too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.

Id. at 546, 69 S.Ct. at 1226. Typically, they involve rights which if not subject to immediate appeal may be lost irreparably. Id.

In this case, the collateral matter is the right asserted by Gilley not to be forced to trial or discovery because of his qualified immunity. In Mitchell v. Forsyth, 472 U.S. at 526-27, 105 S.Ct. at 2815-16, the Supreme Court recognized that the essence of a claim of qualified immunity is that the immunized party has a positive right not to be brought to trial, and that this right is effectively lost once the case proceeds to trial. See also Minotti v. Lensink, 798 F.2d 607, 608 (2d Cir.1986) (denial of motion to dismiss for Eleventh Amendment immunity is immediately appealable because "the essence of the immunity is the possessor's right not to be haled into court--a right that cannot be vindicated after trial").

In this respect, Gilley's claim of immunity is distinct from his other defenses. It alone can be characterized as a defense that is finally determined by the court and lost if the case goes to trial. In contrast, Gilley's claim that he committed no constitutional violation or that there is no cause of action under Bivens are both claims that even if decided against him by the district court can be meaningfully vindicated through the normal course of appeal and reversal. Moreover, the Bivens issue might never come before us if the district court finds plaintiff's claim inadequate on other grounds. We conclude, then, that the only issue now properly before us on appeal is that of Gilley's qualified immunity.

B. Heightened Pleading Standard for Bivens Claims Alleging Unconstitutional Motive

In determining the validity of defendant's claim of immunity as a government official, we begin by recognizing the recasting of qualified immunity law in Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Prior to Harlow, the prevailing standard contained both objective and subjective elements; thus a federal official's claim of immunity would be defeated if "he knew or reasonably should have known " that his actions would violate an individual's constitutional rights, or if he "took the action with the malicious intention to cause a...