Denius, Ronald C. v. Dunlap, Wayne

In the

United States Court of Appeals

For the Seventh Circuit

No. 99-1402

Ronald C. Denius,

Plaintiff-Appellant,

v.

Wayne Dunlap and Gary Sadler/1,

Defendants-Appellees.

Appeal from the United States District Court

for the Central District of Illinois, Urbana Division.

No. 97-C-2088--Harold A. Baker, Judge.

Argued January 6, 2000--Decided April 11, 2000

Before Coffey, Flaum and Kanne Circuit Judges.

Flaum, Circuit Judge. Ronald Denius filed suit

against Wayne Dunlap in his individual and

official capacity as director of the Lincoln

Challenge Program ("LCP") seeking injunctive,

declaratory and monetary relief under 42 U.S.C.

sec.sec. 1983 and 1988. Denius alleges that

Dunlap violated his constitutional rights when

Dunlap refused to renew his employment contract.

The district court granted summary judgment in

favor of the defendant on qualified immunity

grounds. For the reasons stated herein, we affirm

in part and reverse and remand in part.

I. BACKGROUND

The LCP is an eighteen-month program for 16 to

18 year old high school dropouts located on the

premises of the now-closed Chanute Air Force

Base. Students participating in the LCP live on

campus for the first five months of the program

and then live off campus for the remainder of the

program under the supervision of mentors. The LCP

uses a military training method with the goal of

teaching "life skills" instead of military skills

and has as its objective that all participants

obtain a GED. By 1996, the LCP had two 400

student classes each year. In 1996, the LCP

received 100 percent of its funding from the

federal government but was administered by the

State of Illinois. Students who have felony

convictions are not eligible to participate in

the LCP.

In 1993, Wayne Dunlap, an Army colonel, became

the director of the LCP. Dunlap retired from the

Army in 1994 but continued to serve as director

of the LCP, becoming an employee of the State of

Illinois.

Ronald Denius is a retired Air Force technical

sergeant who has earned two bachelor’s degrees

and a master’s degree. At the time he retired

from the Air Force, Denius had a "top secret"

security clearance. In March 1994, Denius began

work as a teacher at the LCP under a three-month

contract that was to last until the end of that

school year. Denius taught math, science, social

studies, language arts and writing skills. Denius

did not carry a weapon or have any duties beyond

those of a typical teacher.

On July 1, 1994, Denius signed a two-year

contract to continue teaching at the LCP. At this

time, he signed a release form that authorized

the LCP to perform a criminal background check

and collect his educational records (the "1994

Release"). This release did not contain a time

limitation. Criminal background checks were

performed on the initial group of LCP instructors

in 1994, but no further criminal background

checks were performed on LCP personnel until

1996.

In July of 1996, Denius was offered the

opportunity to renew his teaching contract with

the LCP provided he sign an Authorization for

Release of Personal Information

("Authorization"). This Authorization required

Denius to consent to the release of considerably

more confidential information than provided in

the 1994 Release. LCP Director Dunlap had

acquired the Authorization from Captain John

Moraitis of the Illinois State Police who

informed Dunlap that the Authorization was used

by the police for background checks of

gubernatorial candidates and applicants for

employment with the State Police. Moraitis

suggested that Dunlap consult an attorney before

using the Authorization at the LCP, but Dunlap

did not heed this advice.

The Authorization provided in pertinent part:

For the period of one year from the execution of

this form I ________, do hereby authorize a

review of and full disclosure of all records

concerning myself to any duly authorized agent of

the Lincoln Challenge Program, whether the said

records are of a public, private or confidential

nature.

The intent of this authorization is to give my

consent for full and complete disclosure of

records of educational institutions; financial or

credit institutions, including records of loans,

the records of commercial or retail credit

agencies (including credit reports and/or

ratings); and other financial statements and

records wherever filed; records maintained by the

National Personnel Records Center, the U.S.

Veteran’s Administration, and County, State or

Federal Law Enforcement Agencies; employment and

pre-employment records, including background

reports, efficiency ratings, complaints or

grievances filed by or against me and the records

and recollections of attorneys at law, or of

other counsel, whether representing me or another

person in any case, either criminal or civil, in

which I presently have, or have had an interest.

. . . I also certify that any person(s) who may

furnish such information concerning me shall not

be held accountable for giving this information;

and I do hereby release said person(s) from any

and all liability which may be incurred as a

result of furnishing such information. I further

release the Lincoln Challenge Program from any

and all liability which may be incurred as a

result of collecting such information.

Denius signed the 1996 employment contract but

refused to sign the Authorization. Dunlap told

Denius that his contract was not valid unless he

signed the Authorization. Denius attempted to

resume his teaching responsibilities on August 2,

1996, the beginning of the school term for that

year. When he did so, Dunlap informed Denius that

he could not be employed by the LCP unless he

signed the Authorization, and he asked Denius to

leave the LCP premises. Denius’s refusal to sign

the Authorization was the sole reason his

employment contract with the LCP was not renewed.

At the time he required Denius to sign the

Authorization, Dunlap did not intend to use it

for any purpose other than to perform a routine

criminal background check because the LCP did not

have the funds to perform a more thorough

background investigation. If the LCP had

possessed the funds, Dunlap would have conducted

a more extensive background check. However,

Dunlap did not tell Denius that he only intended

to use the Authorization for a routine criminal

background check.

Denius filed suit under 42 U.S.C. sec.sec. 1983

and 1988 asserting that Dunlap had violated his

constitutional rights under the First, Sixth and

Fourteenth Amendments by refusing to renew his

employment contract unless he signed the

Authorization. Denius sought injunctive,

declaratory and monetary relief. The district

court granted summary judgment in favor of

Dunlap, finding that Dunlap was entitled to

qualified immunity for all of the claims brought

by Denius. Denius now appeals.

II. DISCUSSION

A. Standard of Review

The district court granted summary judgment to

the defendant and denied summary judgment to the

plaintiff. We review a district court’s summary

judgment decisions de novo. See Henderson v.

Sheahan, 196 F.3d 839, 848 (7th Cir. 1999). In

conducting our evaluation, we view all evidence

in the light most favorable to the non-moving

party and draw all reasonable inferences in that

party’s favor. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 255 (1986).

B. Monetary Relief

The district court concluded that Denius’s suit

for monetary damages was barred because Dunlap

was protected by qualified immunity. Denius

argues that the district court erred in reaching

this conclusion.

1. Qualified Immunity

The doctrine of qualified immunity is an

affirmative defense to allegations that a state

official violated the constitutional rights of a

plaintiff. Siegert v. Gilley, 500 U.S. 226, 231

(1991); Harlow v. Fitzgerald, 457 U.S. 800, 815

(1982). This defense is available only to state

officials who occupy positions with discretionary

or policymaking authority, and it protects those

individuals solely when they are acting in their

official capacity. Harlow, 457 U.S. at 816. These

officials "are shielded from liability for civil

damages insofar as their conduct does not violate

clearly established statutory or constitutional

rights of which a reasonable person would have

known." Harlow, 457 U.S. at 818; see Wilson v.

Layne, 119 S.Ct. 1692, 1696 (1999); Anderson v.

Creighton, 483 U.S. 635, 638 (1987).

To evaluate a claim of qualified immunity, we

engage in a two-step analysis. First, we

determine whether the plaintiff’s claim states a

violation of his constitutional rights. Then, we

determine whether those rights were clearly

established at the time the violation occurred.

See Wilson, 119 S.Ct. at 1697; Khuans v. School

Dist. 100, 123 F.3d 1010, 1013 (7th Cir. 1997).

If the rights were clearly established, the

official may be liable for monetary damages and

the suit proceeds to the next stage. If the

rights were not clearly established, then the

official is immune from suit and the claim is

dismissed. See Richardson v. McKnight, 521 U.S.

399, 403 (1997) ("[A] legal defense may well

involve ’the essence of the wrong,’ while an

immunity frees one who enjoys it from a lawsuit

whether or not he acted wrongly."). Because the

doctrine of qualified immunity should not stand

as an impediment to the clarification and

evolution of a court’s articulation of

constitutional principles, we evaluate the

constitutionality of the official’s conduct even

though, in the end, he may not be held liable for

monetary damages flowing from that conduct. See

Wilson, 119 S.Ct. at 1697 ("Deciding the

constitutional question before addressing the

qualified immunity question . . . promotes

clarity in the legal standards for official

conduct, to the benefit of both the officers and

the general public."); County of Sacramento v.

Lewis, 118 S.Ct. 1708, 1714 n.5 (1998).

It is the plaintiff’s burden to demonstrate the

existence of a clearly established constitutional

right. Kernats v. O’Sullivan, 35 F.3d 1171, 1176

(7th Cir. 1994). A clearly established right is

one where "[t]he contours of the right [are]

sufficiently clear that a reasonable official

would understand that what he is doing violates

that right." Anderson, 483 U.S. at 640; see

Wilson, 119 S.Ct. at 1700. To determine whether

a right is clearly established, we look first to

controlling Supreme Court precedent and our own

circuit decisions on the issue. Because there is

an almost infinite variety of factual scenarios

that may be brought into the courtroom, a

plaintiff need not point to cases that are

identical to the presently alleged constitutional

violation. However, "the contours of the right

must have been established so that the

unlawfulness of the defendant’s conduct would

have been apparent in light of existing law."

Cleveland-Perdue v. Brutsche, 881 F.2d 427, 430

(7th Cir. 1989).

In the absence of controlling precedent, we

broaden our survey to include all relevant

caselaw in order to determine "whether there was

such a clear trend in the caselaw that we can say

with fair assurance that the recognition of the

right by a controlling precedent was merely a

question of time." Id. at 431. A split among

courts regarding the constitutionality of conduct

analogous to the conduct in question is an

indication that the right was not clearly

established at the time of the alleged violation.

See Wilson, 119 S.Ct. at 1701 ("If judges thus

disagree on a constitutional question, it is

unfair to subject [the defendant] to money

damages for picking the losing side of the

controversy."). In some rare cases, where the

constitutional violation is patently obvious, the

plaintiff may not be required to present the

court with any analogous cases, as widespread

compliance with a clearly apparent law may have

prevented the issue from previously being

litigated. See Kernats, 35 F.3d at 1176.

The plaintiff Denius alleges that the defendant

director of a state-run and federally-funded

educational institution abused his position of

authority by requiring the plaintiff to sign the

Authorization as a condition of employment in

violation of his constitutional rights. In

response to these allegations, the defendant

Dunlap asserts qualified immunity as an

affirmative defense. It is unquestioned that

Dunlap, as the director of a public school, is

entitled to qualified immunity for the decisions

he makes in hiring and firing the employees under

his supervision. See Khuans, 123 F.3d at 1013

(holding that a school superintendent making the

decision not to renew the contract of a school

psychologist was "a government official

performing discretionary functions" who was

entitled to qualified immunity). Thus, even if we

find that Dunlap violated Denius’s constitutional

rights by requiring him to sign the

Authorization, Dunlap is immune from suit for

damages under sec. 1983 if those rights were not

clearly established at the time in question.

2. Pickering Balancing Test

It is clearly established that a public school

teacher cannot have his employment conditioned

upon his relinquishment of a constitutional right

unless the interest of the school "as an

employer, in promoting the efficiency of the

public services it performs through its

employees," outweighs the individual interests of

the teacher in asserting his constitutional

rights. Pickering v. Board of Educ. of Township

High Sch. Dist. 205, 391 U.S. 563, 568 (1968);

see Abood v. Detroit Bd. of Educ., 431 U.S. 209,

234 (1977); Mt. Healthy City Sch. Dist. Bd. of

Educ. v. Doyle, 429 U.S. 274, 283-84 (1977);

Shelton v. Tucker, 364 U.S. 479, 488 (1960). At

this stage of the proceedings, the defendant has

articulated no interest that the LCP has in

obtaining the information it was permitted to

gather through the Authorization. Dunlap stated

that he did not intend to use any additional

information beyond that which Denius had already

consented to release for the initial 1994

background check, and Dunlap did not present any

other justification for requiring the

information./2 Because Dunlap has articulated no

interest that is promoted by requiring Denius to

sign the Authorization, it is unnecessary for us

to determine at this time whether the interests

of the LCP as an employer outweigh the

constitutional rights of Denius.

Dunlap acknowledges that the only reason Denius

was dismissed from his teaching position was his

refusal to sign the Authorization./3 Therefore,

if a finding that Denius has a clearly

established constitutional right not to sign the

Authorization is made, then it follows that

conditioning his employment as a public school

teacher on the relinquishment of that right

without any justification is a violation of a

clearly established right for which Dunlap cannot

receive qualified immunity. See Keyishian v.

Board of Regents, 385 U.S. 589, 605-06 (1967)

("[T]he theory that public employment which may

be denied altogether may be subjected to any

conditions, regardless of how unreasonable, has

been uniformly rejected.") (citations omitted).

We now examine each of Denius’s constitutional

claims to determine: 1) whether a constitutional

right exists; and 2) whether that right was

clearly established at the time in question.

3. Attorney-Client Privilege

The Authorization requires that Denius "give

[his] consent for full and complete disclosure of

. . . the records and recollections of attorneys

at law, or of other counsel, whether representing

[him] or another person in any case, either

criminal or civil, in which [he] presently [has]

or [has] had an interest." Denius argues that the

intent and effect of this section of the

Authorization is to require him to waive his

attorney-client privilege and allow the state

access to all information that would otherwise be

protected by this doctrine. Denius contends that

this compelled waiver violates his constitutional

rights under the First and Sixth Amendments as

applied to the states through the Fourteenth

Amendment. See, e.g., Gideon v. Wainwright, 372

U.S. 335 (1963); Edwards v. South Carolina, 372

U.S. 229 (1963).

Under the doctrine of attorney-client privilege,

confidential communications between a client and

an attorney for the purpose of obtaining legal

advice are privileged. A court cannot compel

revelation of these communications through

discovery or testimony in civil or criminal

matters. This doctrine is a common law privilege

that can be explicitly or implicitly waived by

the client and is subject to a number of

restrictions and exceptions. The privilege is

implicitly waived if the client communicates

information to his attorney without the intent

that that information remain confidential. See

generally Moore’s Federal Practice 3d sec. 26.49;

Weinstein’s Federal Evidence 2d ch. 503.

In this case, we agree that Denius has been

asked to waive his privilege of confidentiality

regarding the information he communicates to an

attorney as a condition of employment with the

LCP. If Denius were to sign the Authorization,

all previously protected communications with his

attorney would no longer be privileged.

Furthermore, the Authorization may jeopardize the

attorney-client privilege for all future

communications. Because these communications

would be made with the knowledge that Denius has

given consent for his attorney to transmit the

information to the LCD, they are no longer

confidential and, therefore, not protected by the

privilege. See Weinstein’s Federal Evidence sec.

503.15(2); United States v. Lawless, 709 F.2d

485, 487 (7th Cir. 1983) ("When information is

transmitted to an attorney with the intent that

the information will be transmitted to a third

party . . . , such information is not

confidential.")./4

We now consider whether this mandatory waiver

of the attorney-client privilege violates

Denius’s constitutional rights. Denius contends

that the attorney-client privilege implicates his

right to counsel under the Sixth Amendment as

well as his rights of free speech, association

and petition under the First Amendment. We

address each of these arguments in turn.

a. Sixth Amendment

The Authorization includes the release of

information related to all legal matters "either

civil or criminal." Where the Sixth Amendment

right to the effective assistance of counsel

attaches, this right includes the ability to

speak candidly and confidentially with counsel

free from unreasonable government interference.

See Adams v. Carlson, 488 F.2d 619, 630-31 (7th

Cir. 1973) (recognizing confidentiality in the

attorney-client relationship as an essential

component of the Sixth Amendment right to

effective assistance of counsel); cf. Weatherford

v. Bursey, 429 U.S. 545, 552 (1977) (recognizing

that state interference with confidential

attorney-client communications implicates a

defendant’s Sixth Amendment right to effective

assistance of counsel and may in some

circumstances require the reversal of a

conviction). However, an individual enjoys no

protection provided by the Sixth Amendment until

the instigation of criminal proceedings against

him. See McNeil v. Wisconsin, 501 U.S. 171, 175

(1991); Hannah v. Larche, 363 U.S. 420, 440 n.16

(1960). As Denius has at no time been the subject

of a criminal prosecution, his Sixth Amendment

rights are not implicated./5

b. First Amendment

Denius next contends that requiring him to sign

the Authorization and waive his attorney-client

privilege as a condition of employment violates

his First Amendment rights of speech, association

and petition.

The right to hire and consult an attorney is

protected by the First Amendment’s guarantee of

freedom of speech, association and petition. See

DeLoach v. Bevers, 922 F.2d 618, 620 (10th Cir.

1990) ("The right to retain and consult an

attorney . . . implicates not only the Sixth

Amendment but also clearly established First

Amendment rights of association and free

speech."); Martin v. Lauer, 686 F.2d 24, 32 (D.C.

Cir. 1982). It has long been recognized that the

First Amendment prohibits the state from

interfering with collective action by individuals

to seek legal advice and retain legal counsel.

See United Transp. Union v. State Bar of Mich.,

401 U.S. 576, 585-86 (1971) ("[C]ollective

activity undertaken to obtain meaningful access

to the courts is a fundamental right within the

protection of the First Amendment."); United Mine

Workers of Am. v. Illinois State Bar Ass’n, 389

U.S. 217, 221-22 (1967) ("[T]he freedom of

speech, assembly, and petition guaranteed by the

First and Fourteenth Amendments gives petitioner

the right to hire attorneys on a salary basis to

assist its members in the assertion of their

legal rights."); see also Brotherhood of R.R.

Trainmen v. Virginia, 377 U.S. 1, 6 (1964); NAACP

v. Button, 371 U.S. 415, 429-30 (1963). Likewise,

the state cannot impede an individual’s ability

to consult with counsel on legal matters. See

Bates v. State Bar of Ariz., 433 U.S. 350, 376

n.32 (1977) ("Underlying [the collective action

cases] was the Court’s concern that the aggrieved

receive information regarding their legal rights

and the means of effectuating them. This concern

applies with at least as much force to aggrieved

individuals as it does to groups."); see also

Trainmen, 377 U.S. at 7 ("A State could not . .

. infringe in any way the right of individuals

and the public to be fairly represented in

lawsuits . . . ."). Furthermore, the right to

obtain legal advice does not depend on the

purpose for which the advice is sought. This

right applies equally to legal representation

intended to advocate a political or social

belief, see Button, 371 U.S. at 419-20, or to

recover damages in a personal injury suit, see

United Mine Workers, 389 U.S. at 223. See also

id. (stating that in earlier cases "we rejected

the contention . . . that the principles

announced in Button were applicable only to

litigation for political purposes"). In sum, the

First Amendment protects the right of an

individual or group to consult with an attorney

on any legal matter.

The ability to maintain confidentiality in

attorney-client communications is an important

component of the right to obtain legal advice.

"[T]he right to confer with counsel would be

hollow if those consulting counsel could not

speak freely about their legal problems." Martin,

686 F.2d at 32. The centrality of confidentiality

to the effective rendering of legal advice is

reflected in the long-standing common law

privilege for attorney-client communications. See

Swidler & Berlin v. United States, 524 U.S. 399,

403 (1998). This privilege not only protects the

interest of the client in receiving the best

legal advice but also "’promote[s] broader public

interests in the observance of law and the

administration of justice.’" Id. (quoting Upjohn

Co. v. United States, 449 U.S. 383, 389 (1981)).

Because the maintenance of confidentiality in

attorney-client communications is vital to the

ability of an attorney to effectively counsel her

client, interference with this confidentiality

impedes the client’s First Amendment right to

obtain legal advice.

The First Amendment may be implicated where the

state compels an individual to speak. If by

compelling an individual to reveal information

that he would rather keep confidential the state

chills the individual’s ability to engage in

protected speech, the state has infringed the

individual’s First Amendment right in the

protected speech, unless it provides a sufficient

justification for the required disclosure. See

McIntyre v. Ohio Elections Comm., 514 U.S. 334,

341-42 (1994); NAACP v. Alabama ex rel.

Patterson, 357 U.S. 449, 462-63 (1958). The level

of justification required by the state will vary

depending on the nature of the speech involved.

See McIntyre, 514 U.S. at 347.

In this case, Denius alleges that the state is

compelling the revelation of information he would

prefer to keep confidential by requiring him to

waive his attorney-client privilege. He argues

that this compelled revelation of confidential

communications chills the protected speech

involved in his consultation with an attorney on

legal matters. At this stage of the proceedings,

Dunlap has offered no reason for requiring that

Denius waive his attorney-client privilege.

Therefore, we need not decide and do not address

the level of justification required for the state

to overcome an individual’s right to maintain

confidentiality in his legal communications with

his attorney. We merely conclude that absent

appropriate justification the state cannot compel

the revelation of privileged attorney-client

communications. Therefore, if the LCP had no

basis for requiring Denius to reveal confidential

attorney-client communications, Dunlap violated

Denius’s First Amendment rights when he refused

to renew Denius’s contract solely because Denius

declined to waive his attorney-client privilege.

However, the parameters of an individual’s First

Amendment right to confidential communications

with his attorney were not clearly defined before

this incident occurred. There is no existing

Supreme Court or Seventh Circuit precedent on

this issue, and we are only able to find two

cases from fellow circuit courts articulating

this right. See DeLoach v. Bevers, 922 F.2d 618,

620 (10th Cir. 1990); Martin v. Lauer, 686 F.2d

24 (D.C. Cir. 1982). These two cases do not

represent a trend in the law that would

inevitably lead to the result we announce here.

Similarly, the constitutional dimensions of the

attorney-client privilege are not so patently

obvious that no existing case law is required to

show the right is clearly established. Therefore,

we also hold that Dunlap is shielded by qualified

immunity for any possible violation of Denius’s

First Amendment right to confidential

communications with his attorney, and we affirm

the district court’s grant of summary judgment to

the defendant on this issue.

4. Other disclosures

In addition to requiring that Denius waive his

attorney-client privilege, the Authorization also

permits the release of other confidential

information including all records pertaining to:

1) educational, 2) financial, 3)

military/veterans, 4) criminal, or 5) employment

matters./6 Again, the LCD proffers no

justification at this stage for requiring

disclosure of this broad range of information.

Denius contends that requiring him to authorize

these disclosures violates his right to privacy

in confidential information.

The "concept of ordered liberty" protected by

the Fourteenth Amendment’s Due Process Clause has

been interpreted to include "the individual

interest in avoiding disclosure of personal

matters." Whalen v. Roe, 429 U.S. 589, 599-600

(1977); see also Nixon v. Administrator of

General Servs., 433 U.S. 425, 465 (1977)

(recognizing "a legitimate expectation of privacy

in [ ] personal communications"); Pesce v. J.

Sterling Morton High Sch., 830 F.2d 789, 795 (7th

Cir. 1987) ("The federal constitution does, of

course, protect certain rights of privacy

including a right of confidentiality in certain

types of information."). This Court has

recognized that "the federal right of

confidentiality might in some circumstances be

implicated when a state conditions continued

employment on the disclosure of private

information." Pesce, 830 F.2d at 797.

However, the scope and contours of this right

have not been defined in this Circuit. For

example, it is not clear whether the right of

confidentiality covers all confidential

information or only confidential information

relating to certain matters. In this Circuit, the

right clearly covers medical records and

communications. See Anderson v. Romero, 72 F.3d

518, 522 (7th Cir. 1995) (noting the recognition

of this right as early as 1992); Schaill v.

Tippecanoe County Sch. Corp., 864 F.2d 1309, 1322

n.19 (7th Cir. 1989) (recognizing "a substantial

privacy interest in the confidentiality of

medical information"). But, it is not clear

whether other confidential information, such as

that contained in financial records, also

receives similar protection under this right.

Furthermore, while it is apparent that some form

of balancing test would be used to determine when

this right of confidentiality has been violated,

that test has not been defined in this Circuit.

See Pesce, 830 F.2d at 797 n.5 (noting that other

courts have used either a "general balancing of

interests" or strict scrutiny when addressing

this right, and declining to define a test for

use in this Circuit); see also Fraternal Order of

Police v. City of Philadelphia, 812 F.2d 105, 110

(3d Cir. 1987) (noting that the majority of

circuits have adopted intermediate scrutiny for

required disclosures of confidential information

and that some circuits have employed a compelling

interest test where the intrusion was

particularly egregious); cf. Nixon, 433 U.S. at

465 (balancing interests); Whalen, 429 U.S. at

601-04 (same)./7

Denius argues that it is clearly established

that the state could not require the release of

confidential information without at least some

interest to place in the balance and some

measures limiting the use of the information and

protecting it from further disclosure. Although

Denius alludes in his brief to the

Authorization’s effect on his privacy rights in

a broad range of confidential information, he

only discusses with specificity his interest in

medical and financial information. Therefore, we

address his privacy argument with respect to

these two types of information alone. See Gagan

v. American Cablevision, Inc., 77 F.3d 951, 965

(7th Cir. 1996) (holding that failure to

adequately develop an argument on appeal

constitutes waiver).

a. Medical Information

As discussed above, this Circuit has outlined a

clearly established "substantial" right in the

confidentiality of medical information that can

only be overcome by a sufficiently strong state

interest. See Anderson, 72 F.3d at 522.

Therefore, to the extent that the Authorization

provided for the release of medical records or

communications,/8 Dunlap was on notice that this

type of information has constitutional protection

in this Circuit and that the state cannot require

its disclosure without a sufficient

countervailing interest. As Dunlap has provided

no interest at this stage in the proceedings that

would justify requiring Denius to supply this

information, we find he has not shown that he is

entitled to qualified immunity on this issue. See

Gustafson v. Jones, 117 F.3d 1015, 1021 (7th Cir.

1997) (recognizing that balancing tests "produce

a wide gray area between the clearly legal and

the clearly illegal . . . . This does not mean,

however, that legal certainty never exists when

the law demands the consideration of a number of

different factors."). We thus reverse the

district court’s grant of summary judgment to the

defendant on this issue and remand for further

proceedings.

b. Financial Information

While this Court has concluded that there is a

general federal constitutional right of

confidentiality, we have discussed this right

only in the context of confidential medical

information. See Anderson, 72 F.3d 518; Schaill,

864 F.2d at 1322 n.19; Pesce, 830 F.2d 789.

Denius now urges us to find that the right of

confidentiality applies to confidential financial

information.

Seven of our sister circuits have found that

the constitutional right of privacy in

confidential information covers some financial

disclosures. See Sheets v. Salt Lake County, 45

F.3d 1383, 1388 (10th Cir. 1995) (finding a

constitutionally protected privacy interest in

matters concerning "marriage, finances, and

business"); Doe v. City of New York, 15 F.3d 264,

267 (2d Cir. 1994) (recognizing a

constitutionally protected privacy interest in

financial information); Alexander v. Peffer, 993

F.2d 1348 (8th Cir. 1993) (recognizing a

constitutionally protected privacy interest in

"highly personal medical or financial

information"); Walls v. City of Petersburg, 895

F.2d 188, 194 (4th Cir. 1990) (same); Fraternal

Order of Police v. City of Philadelphia, 812 F.2d

105, 115 (3d Cir. 1987) (same); Plante v.

Gonzalez, 575 F.2d 1119, 1135 (5th Cir. 1978)

(recognizing a "substantial" privacy interest in

confidential financial information); see also

James v. City of Douglas, 941 F.2d 1539, 1543 n.7

(11th Cir. 1991) (recognizing Fifth Circuit

precedent in this area finding a right to privacy

in confidential financial information as

binding). The only circuit to explicitly disavow

such a right, and the right of confidentiality in

general, is the Sixth Circuit. See J.P. v.

DeSanti, 653 F.2d 1080, 1090 (6th Cir. 1981)

(finding that no right of confidentiality exists

under the federal constitution); Cushall v.

Sundquist, 193 F.3d 466, 481 (6th Cir. 1999)

(recognizing the continued vitality of the

DeSanti decision). However, we explicitly

recognized our disagreement with the Sixth

Circuit’s approach in Anderson where we agreed

with the majority of circuits that Whalen and

Nixon delineate a federal right of

confidentiality. 72 F.3d at 522./9

The Supreme Court has discussed the existence

and extent of constitutional protection for

confidential information in terms of the type of

information involved and the reasonable

expectation that that information would remain

confidential. Nixon, 433 U.S. at 465; see also

Whalen, 429 U.S. at 604. Following this logic, we

held that medical information may be a form of

protected confidential information because of its

intimate and personal nature. See Anderson, 72

F.3d at 522; Pesce, 830 F.2d at 797. Our fellow

circuit courts have applied similar reasoning to

determine whether information may receive

protection under the confidentiality branch of

the right to privacy. See In re Crawford, 194

F.3d at 959; Doe, 15 F.3d at 267; Walls, 895 F.2d

at 192, 194; Westinghouse, 638 F.2d at 579;

Plante, 575 F.2d at 1134-35. Because confidential

financial information may implicate substantial

privacy concerns and impact other fundamental

rights, we agree with the overwhelming majority

of our sister circuits that some types of

financial information involve the degree and kind

of confidentiality that is entitled to a measure

of protection under the federal constitutional

right of privacy.

In this case, the plaintiff has identified no

specific financial information that he claims

deserves constitutional protection. However, the

Authorization provides for the release of a

virtually limitless range of confidential

financial information. Furthermore, the LCD has

provided no basis for requiring this information

and no explanation for how it would tailor the

gathering of the information to any need it might

proffer. Most importantly, the LCD has provided

no guarantee that the information obtained

pursuant to the Authorization would be kept

confidential and only used for a legitimate

government purpose. We conclude that this

sweeping disclosure requirement, lacking any

safeguards against misuse or further disclosure,

and supported by no justification, infringes

Denius’s right of privacy in confidential

information.

That some forms of confidential financial

information may fall within the scope of the

right of privacy was not clear in this Circuit at

the time Dunlap made his decision not to renew

Denius’s contract. While there was a trend among

the majority of circuits in this direction, the

conclusion was not unanimous. Therefore, we do

not find that the law in this area was so clearly

defined that a government official can be charged

with its knowledge. We conclude that Dunlap is

shielded by qualified immunity for requiring

Denius to disclose confidential financial

information as a condition of employment, and we

affirm the district court’s grant of summary

judgment to the defendant on this issue./10

C. Equitable Relief

Denius next argues that the district court

erred as a matter of law when it dismissed his

claims for equitable relief as barred by the

defendant’s qualified immunity.

1. Waiver

The defendant contends that Denius waived his

right to appeal this issue because the district

court’s dismissal of Denius’s claims for

equitable relief was an oversight and not a legal

judgment. The defendant asserts that Denius was

required to file a Rule 60(b) Motion for Relief

from Judgment calling the district court’s

attention to this oversight and requesting its

correction. The defendant argues that by failing

to make a Rule 60(b) motion, Denius waived his

ability to raise this argument on appeal.

The defendant is correct that where a plaintiff

is seeking relief from judgment that is most

appropriately awarded by a trial court on a Rule

60 motion, such as where the plaintiff is

claiming oversight, mistake or clerical error,

the plaintiff may waive his right to present that

type of argument on appeal if he did not make the

appropriate Rule 60 motion below. See Chicago

Downs Ass’n, Inc. v. Chase, 944 F.2d 366, 370-71

(7th Cir. 1991) (finding that where plaintiff’s

only argument on appeal was that the district

court’s judgment was inequitable because of

attorney neglect, plaintiff waived this Rule

60(b)-type argument on appeal because he failed

to make the appropriate motion below); see also

Securities and Exchange Comm’n v. Mayhew, 121

F.3d 44, 53-54 (2d Cir. 1997). However, in this

case, Denius is not contending that the district

court overlooked his claim for declaratory and

injunctive relief or issued a mistaken judgment

for any of the reasons that would properly be

corrected by a Rule 60 motion. Rather, he claims

that the district court was fully aware of his

claims for both equitable and monetary relief but

erroneously concluded that qualified immunity was

a bar to claims in both law and equity.

We agree with Denius’s interpretation of the

district court’s ruling. This is not a case where

the district court completely overlooked

plaintiff’s claims for equitable relief. The

district court clearly states that it is

disposing of Denius’s claims for monetary and

equitable relief through its summary judgment

opinion. In addition, the district court did not

limit its discussion of qualified immunity solely

to Denius’s claims for monetary relief but

applied that doctrine to all of Denius’s claims.

Furthermore, oral argument before the trial court

pertaining to the motion for summary judgment

clearly indicates that the district court was

aware of, and took into consideration, Denius’s

claims for equitable as well as monetary relief.

Denius appealed the district court’s conclusion

of law on this matter directly to this Court, and

it was proper for him to do so. While he may have

filed a Rule 60(b) motion asking the district

court to reconsider this conclusion of law, he

was not required to do so, and he has not waived

any of his arguments related to this matter on

appeal. See Meinecke v. H & R Block of Houston,

66 F.3d 77, 82 n.2 (5th Cir. 1995) ("[I]t has

never been the case that a Rule 60(b) motion must

be filed as a prerequisite to appeal.").

2. Denius’s Equitable Claims

The doctrine of qualified immunity does not

apply to claims for equitable relief. See Burgess

v. Lowery, 2000 WL 30073, *1 (7th Cir. Jan. 18,

2000) ("There is no immunity from a suit for

[equitable] relief."); Eberhardt v. O’Malley, 17

F.3d 1023, 1028 (7th Cir. 1994) (finding

qualified immunity "irrelevant to the plaintiff’s

request for an order that he be reinstated"); see

also Wood v. Strickland, 420 U.S. 308, 314 n.6

(1975) (stating that "immunity from damages does

not ordinarily bar equitable relief as well").

Therefore, we hold that the district court erred

in concluding that the defendants in this case

are shielded from all liability for their actions

under the qualified immunity doctrine. As

discussed above, Denius has a First Amendment

right in confidential communications with his

attorney and a Fourteenth Amendment right in

maintaining the confidentiality of some medical

and financial information. These rights are

subject to a balancing of interests to determine

whether the state has violated them. On the

present record, the defendant has presented no

justification for the burden he has placed on

these rights by conditioning Denius’s employment

on relinquishing them, and he is not entitled to

prevail on summary judgment. Therefore, we

reverse the district court’s grant of summary

judgment to the defendant on Denius’s claims for

equitable relief and remand these claims for

further proceedings.

III. CONCLUSION

For the reasons stated above, we Affirm the

district court’s grant of summary judgment to the

defendants on plaintiff’s claims for monetary

relief on the First Amendment attorney-client

privilege and Fourteenth Amendment financial

privacy claims; we Reverse the district court’s

grant of summary judgment in favor of the

defendants on plaintiff’s claim for monetary

relief on the Fourteenth Amendment medical

privacy claim as well as plaintiff’s claims for

equitable relief; and we Remand this case to the

district court for further proceedings consistent

with this opinion.

/1 Pursuant to Fed. R. App. Pro. 43(c)(2), we have

added Gary Sadler, the current Director of the

Lincoln Challenge Program, as a party to this

action which involves claims for prospective

injunctive relief as well as monetary damages.

However, for purposes of our discussion we will

refer to Dunlap as the defendant in this matter.

/2 The only justification revealed on the record

relates to the LCP’s need for information

concerning the criminal background of its

teachers. Denius has not objected to providing

this information and, indeed, has signed a

consent form without any time limit authorizing

the disclosure of information regarding his

criminal history. The record does not reveal any

justification for requiring the additional

information in the 1996 Authorization that is the

subject of this appeal.

/3 It is irrelevant to our analysis that Dunlap did

not fire Denius but refused to renew his

contract, since Denius alleges that this decision

was made solely because he chose to exercise his

constitutional rights. See Mt. Healthy, 429 U.S.

at 283 (holding that a plaintiff whose contract

was not renewed "may nonetheless establish a

claim to reinstatement if the decision not to

rehire him was made by reason of his exercise of

constitutionally protected First Amendment

freedoms").

/4 The defendant contends that Denius does not have

standing to raise a constitutional claim

regarding the attorney-client privilege because

he was not involved in any past or present legal

matters at the time he was required to sign the

release. However, this fact is not determinative

of Denius’s standing in this case. In Shelton v.

Tucker, 364 U.S. 479 (1960), and Keyishian v.

Board of Regents, 385 U.S. 589 (1967), the

Supreme Court held that requiring a teacher to

reveal his associational memberships as a

condition of public employment was an

unconstitutional burden on the teacher’s exercise

of his First Amendment rights. The holdings in

these cases rest on the proposition that First

Amendment activity may be unreasonably chilled

when public employees are forced to choose

between revealing protected activities to their

employer or keeping their jobs. See Keyishian,

385 U.S. at 601-04; Shelton, 364 U.S. at 485-88;

cf. NAACP v. Alabama ex rel. Patterson, 357 U.S.

449, 462 (1958). As with the associational rights

in those cases, the First Amendment right in this

case--the right to seek counsel from an attorney-

-is arguably impaired by a requirement that

attorney-client communications be made available

to a public employer. We are particularly

concerned with a potential chilling effect in

this context because in certain cases it is only

through the aid of an attorney that an individual

is able to determine what his rights are and how

to give them effect. In neither Shelton nor

Keyishian were the plaintiff teachers required to

show that they were actually chilled from

associating with particular groups or persons

because of the challenged regulations. Rather,

the plaintiffs alleged that they refused to

comply with the regulations requiring disclosure

of associational membership and were fired

because of this refusal. Likewise, because Denius

alleges that he was required to chose between

signing a release that would potentially curtail

an important First Amendment activity and keeping

his job, we find that he has standing to assert

a First Amendment claim.

/5 The fact that the Authorization may affect future

communications does not alter this result with

respect to the Sixth Amendment. Contrary to the

First Amendment context, an individual cannot

assert a claim based on a future violation of his

Sixth Amendment rights. Those rights may only be

vindicated once they have attached. See McNeil,

501 U.S. at 176.

/6 To the extent that the Authorization duplicates

the release of criminal and educational records

that Denius signed when he first began working at

LCD, he does not contest its validity. It is only

the disclosure of information above and beyond

that necessary to perform such a routine

background check that is the subject of this

appeal.

/7 In Whalen, the Supreme Court balanced the

following factors: 1) the potential for public

disclosure of the information; 2) the extent to

which the private information is already

disclosed to other individuals or institutions;

3) the similarity of the disclosure in question

to disclosures that have already taken place; 4)

the potential deterrent effect on the exercise of

other constitutional liberties; and 5) the

state’s interest in the information. 429 U.S. at

601-04.

In Nixon, the factors considered were: 1) the

extent of the intrusion into the individual’s

privacy; 2) the individual’s status as a public

figure; 3) the expectation of privacy in the

materials in question; 4) the importance of the

public interest; 5) the level of difficulty

involved in segregating private from non-private

materials; and 6) the measures taken to keep

private materials from being publicly

disseminated or revealed. 433 U.S. at 465.

A number of our sister circuits have adopted a

variation of the balancing test articulated by

the Third Circuit that includes: 1) "the type of

record requested"; 2) "the information it does or

might contain"; 3) "the potential for harm in any

subsequent nonconsensual disclosure"; 4) "the

injury from disclosure to the relationship in

which the record was generated"; 5) "the adequacy

of safeguards to prevent unauthorized

disclosure"; 6) "the degree of need for access";

7) "whether there is an express statutory

mandate, articulated public policy, or other

recognizable public interest militating toward

access." United States v. Westinghouse Elec.

Corp., 638 F.2d 570, 578 (3d Cir. 1980); see In

re Crawford, 194 F.3d 954, 959 (9th Cir. 1999).

/8 The present record does not reveal whether the

Authorization extends to medical records or

communications as Denius alleges. We leave this

factual determination to be resolved by the

district court.

/9 The District of Columbia Circuit has recently

expressed "grave doubts" as to the existence of

a federal right of confidentiality. See American

Fed’n of Gov’t Employees v. Department of Hous.

& Urban Dev., 118 F.3d 786, 791 (D.C. Cir. 1997).

However, that circuit recognized that it did not

"write on a blank slate" and that the circuit’s

earlier decisions indicated the existence of such

a right. Id. at 791-92. Similarly, the First

Circuit has expressed concern regarding the

contours of this right but has declined to

address the issue. See Borucki v. Ryan, 827 F.2d

836 (1st Cir. 1987).

/10 The Authorization also includes a release of

liability to all persons giving information to

the LCP pursuant to the Authorization and to the

LCP for any liability incurred as a result of

gathering this information. Denius contends that

requiring him to release these potential legal

claims interferes with his right of access to the

courts and his property right in legal causes of

action.

We have searched the record presented on appeal

and can find no evidence that Denius raised

either of these claims before the district court.

We have repeatedly held that "[a]n issue not

presented in the court below cannot be raised for

the first time on appeal and form a basis for

reversal." Weeks v. Samsung Heavy Indus. Co.,

Ltd., 126 F.3d 926, 942 (7th Cir. 1997)

(citations omitted). Therefore, we consider these

issues waived and do not address them at this

time.