# Frederick A. Siegert, ph.d. v. H. Melvyn Gilley, ph.d.

> Court of Appeals for the D.C. Circuit · April 16, 1990 · 895 F.2d 797

URL: https://www.frixlaw.com/law-library/cases/9479980

## Case

- **Full name:** Frederick A. SIEGERT, Ph.D. v. H. Melvyn GILLEY, Ph.D., Appellant
- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** April 16, 1990
- **Citations:** 895 F.2d 797; 282 U.S. App. D.C. 392
- **Precedential status:** Published
- **Opinion:** Dissent by Wald
- **Judges:** Wald, Buckley, Ginsburg
- **Cited by:** 50 later opinions in the Frix Law Library

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## Opinion text

WALD, Chief Judge,
dissenting in part:
This case brings into sharp focus a dilemma created by our circuit’s current jurisprudence on qualified immunity: plaintiffs are required to adhere to a “heightened pleading standard” of nonconclusory facts that demonstrate a government official’s unconstitutional motive, but they are entirely restricted from obtaining through discovery the information necessary to make that showing. While I do not agree completely with the trial judge’s resolution of the qualified immunity issue, I also find the majority’s outright dismissal of Sie-gert’s action unnecessary and inappropriate in the circumstances of this case. Although I too would vacate the trial judge’s finding of no qualified immunity, I would allow a limited discovery, similar to that ordered by the judge, to proceed on remand to permit the plaintiff to make a showing of unconstitutional motive, if he can.
I. The Heightened Pleading Standard
The qualified immunity defense is designed to prevent “bare allegations of malice” from subjecting government officials to the disruptions of litigation, including “the burdens of broad-reaching discovery.” Harlow v. Fitzgerald, 457 U.S. 800, 817-18 , 102 S.Ct. 2727, 2738 , 73 L.Ed.2d 396 (1982). Consistent with this instruction, this circuit has required plaintiffs challenging qualified immunity defenses to provide “some factual allegations [to] support claims of unconstitutional motive” on the part of defendant officials. Hobson v. Wilson, 737 F.2d 1, 30 (D.C.Cir.1984). This heightened pleading standard “bears on the degree of factual specificity required in plaintiff’s complaint.” Martin v. Malhoyt, 830 F.2d 237 , 254 n. 41 (D.C.Cir.1987) (emphasis in original). It is applied once the defendant makes a showing of the objective legal reasonableness of his actions; at that point, plaintiffs must offer “some direct evidence that the officials’ actions were improperly motivated” to avoid pre-trial dismissal. Martin v. D.C. Metropolitan Police Dep’t, 812 F.2d 1425 , 1435 (D.C.Cir.1987).
A plaintiff who has good reason to suspect but lacks specific evidence of an official’s unconstitutional motive therefore faces a threshold problem: how to gain enough information to survive the defendant’s motion to dismiss or motion for summary judgment on the grounds of qualified immunity. The majority offers a straightforward answer: “If a plaintiff fails to allege direct evidence of unconstitutional intent, his claim must be dismissed immediately.” Maj.Op. at 802 (citing Whitacre v. Davey, 890 F.2d 1168 , 1171 n. 4 (D.C.Cir.1989)). If the plaintiff cannot plead “specific, discernible facts or offers of proof that constitute direct ... evidence of the intent,” he is out of court. Maj.Op. at 802.
II. The Role of Limited Disoovery
I believe that this application of the “heightened pleading standard” reflects a misguided approach to our “twin goals” of “limit[ing] the litigation burdens placed on government officials by ‘insubstantial’ lawsuits” and “preserving the opportunity for plaintiffs to vindicate constitutional rights.” Martin v. D. C. Police, 812 F.2d at 1439 (Edwards, J., concurring) (citing Hob-son ). In my view, the heightened pleading standard, as originally articulated by this court, did not rule out the opportunity in *806 appropriate circumstances, where proof of the defendant’s motive is peculiarly in the defendant’s hands, for plaintiffs to examine the defendant’s motive through limited discovery, directed and supervised by the trial court.
In Hobson , we expressly noted that “in some circumstances plaintiffs are able to paint only with a very broad and speculative brush at the pre-discovery stage, and that overly rigid application of the rule we articulate could lead to dismissal of meritorious claims.” 737 F.2d at 30-31 . We warned that plaintiffs who could not allege any specific facts supporting a claim of unconstitutional motive “cannot expect to involve Government actors in protracted discovery and trial.” Id. at 30 (emphasis added). This comment, however, implicitly left open the possibility of some limited discovery before a final ruling on the qualified immunity claim.
In Martin v. D. C. Police, we vacated the district judge’s dismissal of a qualified immunity defense on the grounds that she had not properly considered whether the complaint contained the factual specificity required by the heightened pleading standard. 812 F.2d at 1436. Rather than dismissing the case outright, however, we deferred a decision on qualified immunity pending limited, particularized discovery, monitored with “particular care and sensibility.” Id. at 1437-38. Martin clearly indicated that “carefully circumscribed,” “sharply limited” discovery ordered by the district judge is consistent both with preserving plaintiffs’ constitutional rights and with enabling Government officials to avoid the rigors of “protracted” discovery. Id. at 1438-39 (Edwards, J., concurring); id. at 1437-38 (majority opinion) (noting district judge’s discretion to defer decision on summary judgment motion to allow opponent of motion to pursue discovery).
In light of these precedents, I am deeply disturbed by the trend in our more recent cases, seeming to rule out categorically a trial judge’s discretion to order such limited discovery, even in cases where he concludes it will be of genuine assistance and is not being pursued simply to harass the defendant. In so doing, we run the risk of applying the heightened pleading standard with needless insensitivity to both a legitimate plaintiff’s plight, and to a district judge’s perceptiveness in distinguishing a legitimate plaintiff from a frivolous one. In Martin v. Malhoyt, the panel reversed the district court’s limited discovery order on the grounds that the plaintiffs had not made out even a prima facie showing of their claim that the defendant police official had countenanced a pattern of illegal police activity. 830 F.2d at 257 . More recently, in Whitacre v. Davey, another panel said that the “degree of specificity needed to make out a Title VII or statutory age discrimination prima facie case” did not meet the heightened pleading standard “when the constitutional tort alleged is of the same discrimination genre covered by the antidiscrimination statute.” 890 F.2d at 1171 . Since the Title VII prima facie case is “composed of only circumstantial evidence, and not overwhelming circumstantial evidence at that,” it does not meet the “constitutional” heightened pleading standard applied in qualified immunity cases. Id. at 1171 . And, additionally, absent a plaintiff’s allegation of direct evidence of unconstitutional intent, “his claim must be dismissed immediately,” that is, without even limited discovery. Id. at 1171 n. 4.
This policy of requiring specific, direct evidence of the defendant’s unconstitutional intent, when unflinchingly applied to all cases in which a qualified immunity defense is raised, effectively cuts off both bona fide and ill-motivated suits. It blocks a judicial remedy to all plaintiffs who do not have access to the information they need to meet the heightened pleading standard, regardless of their ability to obtain such information without discovery. It is worth remembering that our heightened pleading standard has not as yet even been explicitly approved by the Supreme Court. Without limited discovery, many plaintiffs such as Siegert have no means of obtaining any direct evidence about a defendant supervisor’s motive; such evidence, if it exists, most likely is buried in bureaucratic files. By denying even the most circum *807 scribed judicially supervised factfinding into unconstitutional motive, we enable defendants who alone possess that crucial information to hide behind an unmerited shield of qualified immunity. Narrowly tailored discovery, controlled in scope and duration by a trial judge sensitive to the problems of exposing officials to disruptive litigation, on the other hand, allows worthy plaintiffs to mount reasonable challenges to otherwise impenetrable qualified immunity defenses.
Rather than being compelled to require plaintiffs independently to marshal the direct evidence of unconstitutional motive that is often peculiarly in the defendant’s possession, the trial judge should be permitted to retain discretion to authorize circumscribed factfinding for plaintiffs who initially indicate with some plausible evi-dentiary basis why the defendant’s immunity claim will fail. A pleading standard focusing on the likely success of the plaintiff’s complaint, rather than the quantity of factual evidence it adduces, would better accommodate both our articulated concerns about the speculative nature of pre-dis-covery pleadings, Hobson, 737 F.2d at 31 , and our desire to maintain intact trial judges’ “large authority to exercise control over discovery,” Martin v. D. C. Police, 812 F.2d at 1437. In any event, requiring plaintiffs to “come forward with something more than inferential or circumstantial support for [their] allegation^] of unconstitutional motive,” id. at 1435, does not preclude a judge’s use of limited discovery to enable a plaintiff to supplement his originally, perhaps necessarily, sketchy complaint.
Such limited discovery is, moreover, fully consistent with the Supreme Court’s concern that eligible government officials be immunized from “broad-ranging discovery.” Harlow, 457 U.S. at 817 , 102 S.Ct. at 2737 . As a first step in considering a defendant’s liability, Harlow instructed the trial judge to determine “whether [currently applicable] law was clearly established at the time an action occurred.” 457 U.S. at 818 , 102 S.Ct. at 2738 . “Until this threshold immunity question is resolved,” the Court stated, “discovery should not be allowed.” Id. If the law delineating the official’s duty was not clearly established at the time of the alleged violation, the official cannot be held liable for failure to act in the objectively reasonable manner required by Harlow . But if the law on which liability is based on clearly established at the time of the alleged violation, “this threshold immunity question” (emphasis added) does not end the inquiry. Then, the precise nature of the defendant’s alleged violation — for example, whether the defendant acted with a constitutional or unconstitutional motive— is placed squarely in issue in the qualified immunity determination. As a result, discovery “tailored specifically to the question of [the defendant’s] qualified immunity” “may be necessary” before the trial judge can rule on the defendant’s summary judgment motion. Anderson v. Creighton, 483 U.S. 635 , 646-47 n. 6, 107 S.Ct. 3034 , 3042 n. 6, 97 L.Ed.2d 523 (1987).
As I read the Supreme Court’s directives, once the trial judge determines that the plaintiff has asserted a clearly established right, some discovery may well be appropriate before the judge rules on the qualified immunity defense. The majority’s approach, however, slams shut this window for discovery through its unyielding application of the heightened pleading standard requiring direct proof of unconstitutional motives up front in the initial pleadings. Failure to provide any leeway for plaintiffs or trial judges, regardless of circumstances, to obtain evidence of illegal motives through limited discovery controlled by the trial judge is, in my view, not only unfair but unjustified by existing Supreme Court precedent.
III. Applications to this Case
The trial judge here did not complete the prescribed qualified immunity analysis. He correctly determined that Siegert’s right to a good faith evaluation by his supervisor was clearly established at the time, but he appears not to have considered whether Siegert’s factual pleadings of Gil-ley’s malicious motives met the heightened pleading standard. Consequently, his find *808 ing that Gilley’s qualified immunity defense fails, Siegert v. Gilley, 692 F.Supp. 1406, 1418 (D.D.C.1988), must be vacated.
I believe, however, that Siegert’s pleadings contained the necessary specificity to warrant limited discovery before a judicial resolution of the qualified immunity issue. Siegert’s Affidavit states that Gilley had embarked on a course of making Siegert’s professional life at St. Elizabeths Hospital unpleasant because he resented Siegert’s lengthy medical leave and Siegert’s resistance to Gilley’s attempts to alter St. Eliza-beths Hospital’s behavior modification program. Affidavit of Frederick A. Siegert (“Siegert Affidavit”) ¶¶ 4, 6, Joint Appendix (“J.A.”) at 25. A reading of the Affidavit, together with Siegert’s Amended Complaint, J.A. at 6, leaves little doubt that Siegert is claiming that because Gilley harbored these resentments, he maliciously wrote a highly derogatory reference letter. However inartfully, Siegert has done more than merely allege malice; he has provided some evidentiary basis for his contention that Gilley’s motives were malicious and, by extension, unconstitutional. He has demonstrated with some plausibility that armed with sufficient evidence, he might defeat Gilley’s claim to qualified immunity. Other circumstances set out in the pleadings lend some support to his theory: Sie-gert’s history of excellent ratings until Gil-ley became his supervisor, Siegert Affidavit ¶ 5, J.A. at 25, and the extreme language of the evaluation itself, Amended Complaint 1111, J.A. at 8, which inherently casts doubt on the author’s neutrality. The trial judge certainly had some basis for permitting a limited inquiry into motive.
Accordingly, I believe that a remand with instructions to allow Siegert limited discovery — indeed, discovery much along the lines that the trial judge already ordered, albeit for a merits determination — would be in order. If such circumscribed discovery, directed solely to Gilley’s motives, were productive, Siegert could then amend his complaint to conform to the heightened pleading requirement. Without such an opportunity, I believe that Siegert has been denied the opportunity to vindicate his constitutional rights. I therefore respectfully dissent from the majority’s outright dismissal of his case.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9479980. Public record. Not legal advice.