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

   No. 90-96

   In The Supreme Court Of The United States

   October Term, 1990

   On Writ Of Certiorari To The United States Court Of Appeals For The
District Of Columbia Circuit

   Brief For The Respondent

            TABLE OF CONTENTS
   Questions Presented
   Opinions below
   Jurisdiction
   Constitutional provision and rules involved
   Statement
   Summary of argument
   Argument:
      I. In a Bivens action based on a federal official's
         alleged malice, once the official has raised the
         defense of qualified immunity, the court may
         require the plaintiff to support his claim with
         more than conclusory allegations in order to
         proceed with the litigation
         A. The doctrine of qualified immunity mandates
            prompt resolution of the asserted
            defense in order to maintain the balance
            between remedying violations of federal
            law and safe guarding effective government
         B. Once the federal official raises the
            defense of qualified immunity, the plaintiff
            must support his Bivens action with
            more than conclusory allegations in order
            to proceed with the litigation
         C. The Federal Rules of Civil Procedure do
            not preclude a requirement that, once the
            defense of qualified immunity is raised,
            the plaintiff must set forth essential facts
            regarding a claim of malice with sufficient
            precision to negate the defense
         D. Petitioner's conclusory allegations of
            malice are not sufficient to overcome
            respondent's defense of qualified immunity
     II. Since respondent acted in the performance of
         a discretionary function, his conduct does not
         fall outside the scope of the qualified immunity
         defense
   Conclusion

                            OPINIONS BELOW

   The decision of the court of appeals (Pet. App. 5a-25a) is reported
at 895 F.2d 797.  The decision of the district court (Pet. App.
27a-52a) is reported at 692 F. Supp. 1406.

                             JURISDICTION

   The judgment of the court of appeals was entered on February 9,
1990.  A petition for rehearing was denied on April 16, 1990.  Pet.
App. 2a-4a.  The petition for a writ of certiorari was filed on July
13, 1990, and was granted on October 15, 1990.  The jurisdiction of
this Court rests on 28 U.S.C. 1254(1).

              CONSTITUTIONAL PROVISION AND RULES INVOLVED

   The Fifth Amendment to the United States Constitution provides in
pertinent part:  "No person shall be * * * deprived of life, liberty,
or property, without due process of law."

   Rules 8, 9, and 56 of the Federal Rules of Civil Procedure are set
forth in the appendix to petitioner's brief, Br. App. 2a-8a.

                          QUESTIONS PRESENTED

   1. In a Bivens action based on a federal official's alleged malice,
once the official has raised the defense of qualified immunity, may
the court require the plaintiff to support his claim with more than
conclusory allegations in order to proceed with the litigation?

   2. In this Bivens action based on a federal official's response to
a reference request by the plaintiff's prospective employer, is the
official entitled to the defense of qualified immunity?

                               STATEMENT

   1. Petitioner is a clinical psychologist who was employed at St.
Elizabeth's Hospital (then a federal government facility in
Washington, D.C.) from November 1979 to October 1985.  During 1985,
petitioner was a supervisory psychologist in the hospital's
Godding/Noyes Division, which treated patients needing behavior
therapy.  J.A. 14, 19;  Pet. App. 7a-8a.  Beginning in February 1985,
petitioner "had to take a considerable amount of medical leave time
off from work." J.A. 19.  Although the hospital's records noted that
petitioner was "AWOL" during that period, i.e., absent without leave,
petitioner alleges that those records were inaccurate, since he has
"been fully compensated for that time." J.A. 19;  see pp. 7-8, infra.

   Petitioner alleges that respondent -- the director of the
Godding/Noyes Division and his immediate supervisor during 1985 --
"resented (his) being away from work for the length of time (he)
was(,) since (his) absence created additional burdens for
(respondent)." J.A. 20.  Petitioner concedes that he "resist(ed) * * *
(respondent's) attempts to modify some aspects of the behavior
modification program that had been in operation for several years,"
claiming that respondent "knew almost nothing about behavior therapy."
J.A. 20.  Petitioner further alleged that respondent "resented (that)
resistance." J.A. 20;  see also J.A. 5-6 (Compl. Paragraph 6).

   In August 1985, Betty Humphrey, Director of the Godding/Noyes
Division, notified petitioner that the Department of Health and Human
Services (the agency in charge of the hospital) was proposing to fire
him.  Humphrey told petitioner 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." J.A. 15;  see
J.A. 21.  After a meeting with hospital administrative personnel,
petitioner resigned from his position on October 1, 1985, before the
proposed removal became final.  In so doing, petitioner avoided having
a "letter of 'removal'" placed in his personnel file.  J.A. 21;  see
Pet. App. 33a.

   Soon after his resignation from St. Elizabeth's, petitioner began
working as a clinical psychologist at a United States Army hospital in
Bremerhaven, West Germany.  J.A. 20-21.  In order to treat patients at
the hospital, petitioner needed to receive "credentials" from the Army
Medical Department Credentials Committee.  As part of that process,
petitioner submitted a "Credential Information Request Form" to St.
Elizabeth's Hospital, requesting that the hospital "send (to
petitioner's current hospital supervisor in West Germany) all
information on job performance and the privileges granted while (he)
was a member of (the) staff." Pet. App. 55a.  /1/ Dr. Stammeyer, the
Director of Psychology at St. Elizabeth's, referred petitioner's
request to respondent, because petitioner "had been under (his)
supervision when (petitioner) worked at (the hospital)." J.A. 15.

   On October 23, 1985, in response to petitioner's request,
respondent notified the Army by letter that "he could not recommend
(petitioner) for privileges as a psychologist." J.A. 6 (Compl.
Paragraph 10).  In that letter, respondent wrote that he "consider(ed)
(petitioner) to be both inept and unethical, perhaps the least
trustworthy individual I have supervised in my thirteen years at (St.
Elizabeth's Hospital)." J.A. 6 (Compl. Paragraph 11).  /2/ In late
November, the Army Credentials Committee told petitioner that since
"reports about him were 'extremely unfavorable,' * * * the committee
was * * * recommending that (petitioner) not be credentialed." J.A. 7
(Compl. Paragraph 12).  At this time, petitioner first learned of
respondent's recommendation letter.  J.A. 7 (Compl. Paragraph 13);
see Pet. App. 35a.

   As a result of the Committee's notification, petitioner hired an
attorney to assist him in presenting his case to the Army Commander.
In January 1986, petitioner "was credentialed" by the Commander.  J.A.
7 (Compl. Paragraph 15).  /3/ In July 1986, petitioner left his
position at the Bremerhaven Army Hospital and "was hired as a clinical
psychologist at another army hospital in Stuttgart, West Germany."
J.A. 7 (Compl. Paragraph 17) When petitioner reported for work in
Stuttgart, he "was literally turned away and was told that (he) was
not wanted because of what they had heard about (him) from Bremerhaven
personnel." J.A. 23;  see J.A. 7 (Compl. Paragraph 18);  Pet. App.
35a.

   Petitioner thereafter returned to the Bremerhaven Army hospital,
where the Army again undertook to review petitioner's credentials.
J.A. 7-8 (Compl. Paragraph 19).  According to petitioner, in the fall
of 1986, the Army ultimately granted him credentials to treat adults,
but revoked his credentials to treat children.  J.A. 22.  Petitioner
filed administrative appeals with the Office of the Surgeon General to
obtain those credentials.  During that time, petitioner "worked in the
medical library at the Army base hospital." J.A. 22.  In December
1987, the Surgeon General denied petitioner's claims.  Soon
thereafter, petitioner's "federal service employment (was)
terminated." J.A. 23;  see Pet. App. 35a.  /4/

   2. In November 1986, petitioner brought this federal court action
against respondent, claiming that respondent'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.  Pet. App. 35a;  J.A. 23.  Petitioner alleged that the
statements in the letter were "defamatory per se and * * * untrue,"
J.A. 8 (Compl. Paragraph 22), and that respondent had made those
statements "maliciously and in bad faith," J.A. 8 (Compl. Paragraph
21).  Relying in part on Bivens v. Six Unknown Named Narcotics Agents,
403 U.S. 388 (1971), petitioner sought $4 million in damages against
respondent in his individual capacity, contending that respondent --
"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," J.A. 9 (Compl. Paragraph
30) -- had violated his rights under the Due Process Clause of the
Fifth Amendment to the United States Constitution.  See J.A. 4, 8, 9
(Compl. Paragraphs 1, 21, 30).  /5/

   Respondent thereafter filed a motion to dismiss or in the
alternative for summary judgment.  Respondent contended that
petitioner's factual allegations, even if true, did not make out a
violation of any constitutional right.  Respondent also asserted the
defense of qualified immunity, contending that petitioner's
allegations did not state a violation of any "clearly established"
constitutional right within the meaning of Harlow v. Fitzgerald, 457
U.S. 800 (1982).  Pet. App. 30a-31a, 36a.  /6/

   In opposition to respondent's motion, petitioner submitted his
affidavit stating, among other things, that "(i)t is my understanding
that (respondent) resented my being away from work for the length of
time I was since my absence created additional burdens for him." J.A.
20.  In further explaining the basis for his allegation that
respondent acted with malice, petitioner stated that

      (h)ad (respondent) made a simple inquiry of the Department of
      Labor's Workman's Compensation Board, for example, he would have
      discovered that (petitioner) had been fully compensated for the
      periods during which (respondent) apparently considered him
      "AWOL" and which apparently was the cause of (respondent's)
      belief that (petitioner)) was (untrustworthy," inter alia.  That
      (respondent) failed to make such inquiry * * * and instead
      responded to a credentials status inquiry in the way he did show
      malice, a clear lack of good faith and unreasonableness.

Pet. Mem. in Support of Opp. to Resp. Mot. to Dis. at 12 (footnote
omitted), Siegert v. Gilley, No. 86-3234 (D.D.C. (filed May 8, 1987).
/7/

   3. In December 1987, the district court issued an order declining
to "decide this matter on a Summary Judgment motion at this time."
Pet. App. 54a.  Instead, the court determined that it "would like to
see a more developed record," and therefore ordered "a limited amount
of discovery," ibid.  In particular, the court directed that
petitioner may depose respondent and Colonel Smith, and then
respondent may depose petitioner.  /8/

   Respondent 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 that motion,
determining that respondent's "motion to dismiss, or in the
alternative, for summary judgment, must be denied at this time." Pet.
App. 31a.  The court held that petitioner's factual allegations were
sufficient to state a due process claim, because it was well
established at the time of the events that "a common law defamation is
transformed into a constitutional deprivation of liberty when the
government is the source of the defamatory allegations and the
resulting 'stigma' involves 'some tangible change of status vis-a-vis
the government.'" Id. at 44a (quoting Doe v. United States Dep't of
Justice, 753 F.2d 1092, 1108-1109 (D.C. Cir. 1985)).  The court
therefore directed the parties to proceed with the previously ordered
discovery.  Pet. App. 52a.

   4. The court of appeals reversed and remanded with instructions
that the case be dismissed.  Pet. App. 5a-25a.  The court first
determined that, to the extent petitioner'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.  Id. at 14a-16a.  The court pointed
out that the fact that petitioner and his new employer, the Army, had
solicited the information provided by respondent constituted a
significant distinction from existing case law.  /9/ And the court
recognized that a former employer responding to a request for a job
reference would have a qualified privilege at common law.  Id. at
15a-16a.

   The court of appeals then turned to petitioner's "central
contention * * * that (respondent) wrote the letter with bad faith and
malice." Pet. App. 16a.  Assuming "that such bad faith motivation
would suffice to make (respondent's) actions in writing the letter a
violation of (petitioner's clearly established) constitutional
rights," id. at 16a-17a, the court held that petitioner's allegations
of improper motivation were insufficient to overcome respondent's
assertion of qualified immunity.  The court explained that where, as
here, improper purpose is an essential component of a plaintiff's
constitutional tort action, the plaintiff must adequately allege
specific, direct evidence of illicit intent in order to defeat the
defendant's motion to dismiss or motion for summary judgment asserting
qualified immunity.  Id. at 11a-14a, 17a-18a.

   Here, the court determined, petitioner's allegations did not
satisfy that "heightened pleading standard." Pet. App. 19a.  The court
stated that

      (t)he complaint's shortcoming is most evident in its allegations
      that (respondent) had acted in bad faith when he described
      (petitioner) as inept, unethical, and untrustworthy.  * * * It
      merely asserts (and reasserts) that in making the statement he
      "knew (it) to be false or (made it) with reckless disregard as
      to whether it was true."

Id. at 17a (citations omitted).  And the court determined that
petitioner's affidavit did not

      add anything more tangible to the record than the assertions
      that prior to the time (respondent) became his supervisor, he
      had received exemplary job performance ratings, had never had
      his professional integrity questioned, and that his resistance
      to certain changes (respondent) wished to make in St.
      Elizabeth's programs was the source of (respondent's) hostility
      towards him.

Ibid.

   Chief Judge Wald dissented in part.  Pet. App. 19a-25a.  Although
she agreed with the majority that the district court's finding of no
qualified immunity should be vacated, id. at 19a, she concluded that
petitioner's factual allegations were sufficient "to warrant limited
discovery before a judicial resolution of the qualified immunity
issue," id at 24a.  /10/

                          SUMMARY OF ARGUMENT

   The judgment of the court of appeals should be affirmed.

   1. The remedy recognized by this Court in Bivens and related cases
is an important means of vindicating constitutional rights.  At the
same time, the Court has recognized that the protection afforded to
public officials by the doctrine of qualified immunity is essential to
the vigorous and effective performance of governmental functions.  For
that reason, the Court has emphasized that the scope of this immunity
embraces more than a defense to personal liability in damages;  it is
also an "entitlement * * * (to) immunity from suit." Mitchell v.
Forsyth, 472 U.S. 511, 526 (1985).

   The full measure of protection afforded by the immunity doctrine
therefore calls for an official's claim of immunity to be resolved as
early as possible in the litigation.  And since the doctrine protects
official conduct unless that conduct violates a "clearly established"
constitutional right, a plaintiff must support his allegations of
wrongdoing -- once a defense of immunity has been raised -- with more
than conclusory allegations.  Because the Court has made it clear (in
Harlow v. Fitzgerald, 457 U.S. 800 (1982)) that the test for
determining the availability of immunity is an objective one, not
turning on the official's motivation, it could well be that a Bivens
remedy does not lie when the official's state of mind is an essential
element of the violation itself.  Lower courts have not taken this
view, however;  they have struck the balance by insisting that in such
a case, the raising of an immunity defense requires -- for the
litigation to continue -- that the plaintiff support his allegation of
improper motive with sufficient precision and factual specificity to
raise a genuine issue as to the lawfulness of the official's conduct.
If such suits are to be allowed, we believe that such an approach is
necessary to maintain the viability of the immunity defense and to
safeguard the values it implements.

   The Federal Rules of Civil Procedure do not preclude the imposition
of such a requirement.  First, the mandate of Rule 8 -- that a
plaintiff make a "short and plain statement of the claim" showing that
he is "entitled to relief" -- means in this context that once the
defendant has raised his immunity defense, the plaintiff is not
"entitled to relief" (or indeed to proceed with the litigation at all)
unless he can make a sufficient showing to overcome the immunity
defense.

   Second, while the provision in Rule 9(b) allowing malice or other
condition of mind to be "averred generally" permits the plaintiff to
plead the defendant's motivation in general terms in his original
complaint, the landscape changes significantly once an immunity
defense is raised and the defendant moves for judgment.  If, as here,
the motion is one for summary judgment, the adequacy of the
plaintiff's showing is judged not under Rule 9 but under the summary
judgment provisions of Rule 56.  Moreover, whether the defendant's
motion is one for dismissal (under Rule 12) or for summary judgment
(under Rule 56), the substantive scope of the protection afforded by
the immunity doctrine requires a specific factual showing in order for
the litigation to proceed.  To the extent that the provisions of Rule
9 are seen as inconsistent with this requirement, the Rules Enabling
Act itself, 28 U.S.C. 2072(b), stipulates that the rule must give way
to the demands of the substantive law underlying the immunity
doctrine.

   In this case, petitioner's conclusory allegations of malice are not
sufficient to overcome respondent's claim of qualified immunity.
Petitioner relies on the following:  his assertion that respondent
criticized his work when he received exemplary evaluations from
others;  an inaccurate portrayal of the solicitation received from
petitioner's new employer;  claimed "conflicts" with respondent on the
proper conduct of the work;  and an unsupported allegation that
respondent "resented" petitioner's absence for several months.  As the
court of appeals recognized, none of these assertions, singly or in
combination, constitutes a sufficient showing of malice to allow the
litigation to proceed.

   2. Since respondent acted in the performance of a discretionary
function, his conduct is plainly within the scope of the qualified
immunity defense.  Providing information to a present or prospective
employer about the job performance of a subordinate employee
necessarily entails judgments and discretion, and petitioner does not
(and cannot) allege that respondent acted contrary to any statutory or
regulatory directive.

                               ARGUMENT

   I. IN A BIVENS ACTION BASED ON A FEDERAL OFFICIAL'S ALLEGED MALICE,
ONCE THE OFFICIAL HAS RAISED THE DEFENSE OF QUALIFIED IMMUNITY, THE
COURT MAY REQUIRE THE PLAINTIFF TO SUPPORT HIS CLAIM WITH MORE THAN
CONCLUSORY ALLEGATIONS IN ORDER TO PROCEED WITH THE LITIGATION

   A. The Doctrine Of Qualified Immunity Mandates Prompt Resolution Of
The Asserted Defense In Order To Maintain The Balance Between
Remedying Violations Of Federal Law And Safeguarding Effective
Government

   1. In Bivens v. Six Unknown Named Narcotics Agents, 403 U.S. 388
(1971), this Court "established that a citizen suffering a compensable
injury to a constitutionally protected interest could invoke the
general federal-question jurisdiction of the district courts to obtain
an award of monetary damages against the responsible federal
official." Butz v. Economou, 438 U.S. 478, 504 (1978);  see Carlson v.
Green, 446 U.S. 14, 18 (1980);  Davis v. Passman, 442 U.S. 228, 245
(1979).  As the Court has explained, "(i)n situations of abuse of
office, an action for damages may offer the only realistic avenue for
vindication of constitutional guarantees." Harlow v. Fitzgerald, 457
U.S. 800, 814 (1982);  Bivens, 403 U.S. at 410 ("For people in Bivens'
shoes, it is damages or nothing.") (Harlan, J., concurringg in the
judgment).

   Nonetheless, in fashioning a limited form of damages remedy, the
Court has been mindful of "the necessity of permitting officials to
perform their official functions free from the threat of suits for
personal liability." Scheuer v. Rhodes, 416 U.S. 232, 239 (1974);  see
also Barr v. Matteo, 360 U.S. 564, 569-576 (1959);  Kendall v. Stokes,
44 U.S. (3 How.) 87, 98 (1845).  The need for such substantive
protection from suit stems from

      two mutually dependent rationales:  (1) the injustice * * * of
      subjecting to liability an officer who is required, by the legal
      obligations of his position, to exercise discretion;  (and) (2)
      the danger that the threat of such liability would deter his
      willingness to execute his office with the decisiveness and the
      judgment required by the public good.

Scheuer, 416 U.S. at 240 (footnote omitted).  As a result, the Court's
"decisions consistently have held that government officials are
entitled to some form of immunity from suits for damages." Harlow, 457
U.S. at 806;  see, e.g., Mitchell v. Forsyth, 472 U.S. 511 (1985);
Nixon v. Fitzgerald, 457 U.S. 731 (1982);  Stump v. Sparkman, 435 U.S.
349 (1978);  Imbler v. Pachtman, 424 U.S. 409 (1976).

   As this Court has explained,

      (i)mplicit in the idea that officials have some immunity --
      absolute or qualified -- for their acts, is a recognition that
      they may err.  The concept of immunity assumes this and goes on
      to assume that it is better to risk some error and possible
      injury from such error than not to decide or act at all.

Scheuer, 416 U.S. at 242.  Such immunity, the Court has emphasized,
"is not a badge of honor or emolument of exalted office, but an
expression of a policy designed to aid in the effective functioning of
government." Barr v. Matteo, 360 U.S. at 572-573.  To deny such
protection altogether would "dampen the ardor of all but the most
resolute, or the most irresponsible (public officials), in the
unflinching discharge of their duties." Harlow, 457 U.S. at 814
(quoting Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949) (L.
Hand, J.), cert. denied, 339 U.S. 949 (1950)).

   2. With respect to the substantive immunity accorded "executive
officials in general," the Court has made plain that "qualified
immunity represents the norm." Harlow, 457 U.S. at 807;  see, e.g.,
Butz, 438 U.S. at 504-508.  That immunity shields "government
officials performing discretionary functions * * * 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.

   Such protection, however, is "not limited to liability for money
damages." Forsyth, 472 U.S. at 526.  To the contrary, this Court has
stressed that the substantive doctrine provides immunity from suit
itself, namely, "the general costs of subjecting officials to the
risks of trial -- distraction of officials from their governmental
duties, inhibition of discretionary action, and deterrence of able
people from public service." Ibid. (quoting Harlow, 457 U.S. at 816).
In other words, "(t)he entitlement is an immunity from suit rather
than a mere defense to liability;  and like an absolute immunity, it
is effectively lost if a case is erroneously permitted to go to
trial." Forsyth, 472 U.S. at 526.

   For that reason, this Court has made clear that the substantive
protection of qualified immunity "should be resolved at the earliest
possible stage of a litigation." Anderson v. Creighton, 483 U.S. 635,
646 n.6 (1987).  Indeed, until the "threshold immunity question is
resolved, discovery should not be allowed." Harlow, 457 U.S. at 818.
As this Court recently reiterated, "(u)nless the plaintiff's
allegations state a claim of violation of clearly established law, a
defendant pleading qualified immunity is entitled to dismissal before
the commencement of discovery." Forsyth, 472 U.S. at 526;  see
Creighton, 483 U.S. at 646 n.6 (if the complaint alleges actions a
reasonable officer could have believed lawful, then the case should be
dismissed "prior to discovery").

   B. Once The Federal Official Raises The Defense Of Qualified
Immunity, The Plaintiff Must Support His Bivens Action With More Than
Conclusory Allegations In Order To Proceed With The Litigation

   1. Under the doctrine of qualified immunity recognized by this
Court, once a government official asserts that defense, the plaintiff
in a Bivens action must either make a sufficient factual showing to
negate the immunity or face dismissal of the action.  This Court's
explanation of the scope of the substantive protection -- "(t)he
entitlement (to) an immunity from suit," Forsyth, 472 U.S. at 526 --
mandates such a straightforward approach.  See Elliott v. Perez, 751
F.2d 1472, 1483 (5th Cir. 1985) (Higginbotham, J., concurring).

   This Court has stressed that a plaintiff's allegations in a Bivens
action must not only state a claim under the Constitution, but must
also "state a claim of violation of clearly established law." Forsyth,
472 U.S. at 526.  If a plaintiff's allegations -- as stated in the
complaint or as supplemented in response to the immunity defense -- do
not state such a cognizable claim, then "a defendant pleading
qualified immunity is entitled to dismissal before the commencement of
discovery." Ibid.  "Until this threshold immunity question is
resolved," the Court has instructed, "discovery should not be
allowed." Harlow, 457 U.S. at 818.  Indeed, the Court has recognized
that "many (Bivens) cases may be disposed of without the necessity of
pretrial discovery proceedings." Cleavinger v. Saxner, 474 U.S. 193,
208 (1985).

   To ensure that the purposes of qualified immunity are effectuated,
the lower courts have consistently required that once immunity is
asserted, the plaintiff must set forth his allegations with sufficient
precision and factual specificity to negate the claim of immunity.
/11/ Such a requirement enables the court to determine the threshold
issue of qualified immunity before the defendant is forced to endure
the burdens of discovery and further proceedings.  Requiring factual
specificity therefore protects the defendant's "entitlement (to) an
immunity from suit," Forsyth, 472 U.S. at 526, and furthers the
Court's directive that "(u)ntil (the) threshold immunity question is
resolved, discovery should not be allowed," Harlow, 457 U.S. at 818.
Indeed, to allow general or otherwise conclusory allegations to
satisfy the threshold immunity inquiry would transform the "guarantee
of immunity into a rule of pleading." Creighton, 438 U.S. at 639.

   2. Similarly, a requirement of heightened factual specificity
obtains in Bivens cases in which the defendant's subjective motivation
is an element of the plaintiff's cause of action.  In Harlow, the
Court recognized that since allegations of an official's improper
state of mind lead to "(j)udicial inquiry into subjective motivation,"
permitting such allegations to defeat qualified immunity would expose
government officials to "broad-ranging discovery and the deposing of
numerous persons, including an official's professional colleagues."
457 U.S. at 817.  "Inquiries of this kind," the Court pointed out,
"can be peculiarly disruptive of effective government." Ibid.
Accordingly, the Court framed the substantive immunity protection
"essentially in objective terms," id. at 819, and made plain 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," id. at 817-818.  In other words, as part of
the substantive protection accorded government officials, the Court
"replac(ed) the inquiry into subjective malice so frequently required
at common law with an objective inquiry into the legal reasonableness
of the official action." Creighton, 483 U.S. at 645.

   Harlow thus forecloses a plaintiff from alleging improper motive or
malice to defeat head-on the official's asserted defense of qualified
immunity.  On the other hand, neither Harlow nor the Court's other
immunity decisions have squarely resolved a related issue, i.e.,
whether a plaintiff's allegation of improper motive or malice as an
element of the claimed constitutional violation indirectly negates the
official's asserted immunity defense.  See Note, Qualified Immunity
for Government Officials:  The Problem of Unconstitutional Purpose in
Civil Rights Litigation, 95 Yale L.J. 126, 134-147 (1985).  Some
constitutional claims involve the actor's state of mind as an element
of the cause of action.  See, e.g., Branti v. Finkel, 445 U.S. 507,
513-517 (1980) (First Amendment prohibits federal official's firing of
subordinate because of his political affiliation).  Harlow could be
read to preclude any Bivens claim that necessarily involves inquiring
into an official's state of mind (or at least to preclude those claims
that turn on proof of improper motive).

   The lower courts, however, have taken a different approach.  See,
e.g., Rakovich v. Wade, 850 F.2d 1179, 1210 (7th Cir. 1987) (en banc),
cert. denied, 488 U.S. 968 (1988);  Hobson v. Wilson, 737 F.2d at
29-30.  They have struck the balance by allowing plaintiffs to pursue
Bivens actions where improper motive is an element of the claim, while
insisting that once the defendant has asserted his right to immunity,
the plaintiff may proceed with the litigation only if he supports his
allegation of improper motive with sufficient precision and factual
specificity.

   As recognized in Harlow, "an official's subjective good faith has
been considered to be a question of fact that some courts have
regarded as inherently requiring resolution by a jury." 457 U.S. at
816;  see Malley v. Briggs, 475 U.S. 335, 341 & n.4 (1986).  And
issues surrounding an official's motivation -- "questions of
subjective intent" -- "so rarely can be decided by summary judgment."
Harlow, 457 U.S. at 816;  see Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 256 & n.7 (1986).  For those reasons, the Court has refused
to allow a plaintiff to defeat immunity with "bare allegations of
malice." Harlow, 457 U.S. at 817.  The same reasoning obtains where
improper motivation is an element of the plaintiff's cause of action.

   Since the issue of the official's improper motivation is -- by
definition -- subjective, mere conclusory allegations of malice,
without more, could automatically usher officials into discovery.  But
that state of affairs would undermine the purpose of qualified
immunity -- to afford an "entitlement (to) an immunity from suit."
Forsyth, 472 U.S. at 526.  Indeed, to permit such an end run around
the immunity doctrine would contravene this Court's directive that
"(u)ntil (the) threshold immunity question is resolved, discovery
should not be allowed." Harlow, 457 U.S. at 818.  In other words,
"(t)he result would be precisely the burden Harlow sought to prevent."
Hobson v. Wilson, 737 F.2d at 29.  /12/

   A bare, conclusory allegation of improper motivation as an element
of a constitutional claim may not be permitted to trump the
substantive protection accorded by the immunity doctrine.  See, e.g.,
Pueblo Neighborhood Health Centers, Inc. v. Losavio, 847 F.2d 642, 649
(10th Cir. 1988);  Elliott v. Perez, 751 F.2d at 1482;  Hobson v.
Wilson, 737 F.2d at 29-30.  As the D.C. Circuit has correctly held:

      (S)ome factual allegations must support claims of
      unconstitutional motive.  Plaintiffs who fail to allege any
      specific facts to support a claim of unconstitutional motive
      cannot expect to involve Government actors in protracted
      discovery and trial.

Id. at 30.  Thus, in order to reach the discovery stage, a plaintiff
must allege "specific and concrete facts that raise a genuine issue as
to the objective reasonableness" of the official's challenged conduct.
 Smith v. Nixon, 807 F.2d 197, 201 (D.C. Cir. 1986) (Scalia, J.).
/13/

   C. The Federal Rules Of Civil Procedure Do Not Preclude A
Requirement That, Once The Defense Of Qualified Immunity Is Raised,
The Plaintiff Must Set Forth Essential Facts Regarding A Claim Of
Malice With Sufficient Precision To Negate The Defense

   Contrary to petitioner's contention (Br. 23-24), the pertinent
Federal Rules of Civil Procedure in no way preclude the court from
requiring the plaintiff in a Bivens action -- once the defendant has
asserted his immunity -- to set forth essential facts regarding the
government official's malice with sufficient precision to negate the
immunity.  Indeed, such a requirement follows from this Court's
directive that a "firm application of the Federal Rules of Civil
Procedure will ensure that federal officials are not harassed by
frivolous lawsuits." Butz, 438 U.S. at 508.

   1. Under Fed. R. Civ. P. 8(a), the plaintiff must set out in his
complaint "a short and plain statement of the claim" showing that he
is entitled to the relief sought.  The purpose of this rule is to
provide the defendant with "fair notice of what the plaintiff's claim
is and the grounds upon which it rests." Conley v. Gibson, 355 U.S.
41, 47 (1957).  Accordingly, the rule mandates that "the (plaintiff)
disclose adequate information concerning the basis of his claim for
relief as distinguished from a bare averment that he wants relief and
is entitled to it." 5 C. Wright & A. Miller, Federal Practice and
Procedure:  Civil 2d Section 1215, at 145 (1990).

   The requirement of factual specificity once the defendant asserts
immunity -- the so-called "heightened pleading" standard, see, e.g.,
Brown v. Frey, 889 F.2d at 170 -- is a sound application of the
mandate of Rule 8 that the plaintiff show his entitlement to the
relief sought.  Requiring the plaintiff to make such a showing thus
amounts to nothing more than the "firm application" of Rule 8 that
this Court's decisions demand.  See, e.g., Harlow, 457 U.S. at 819-820
n.35;  Butz, 438 U.S. at 508.

   Indeed, to tolerate conclusory allegations in these circumstances
would be to adopt the "sue now, discover if you have a claim later"
approach to litigation.  See Martin v. D.C. Metropolitan Police Dep't,
812 F.2d 1425, 1430 (D.C. Cir. 1987).  That approach would be wholly
inconsistent with the proper scope of Bivens actions, in which federal
officials are put individually at risk, thus potentially
"undermin(ing) the effectiveness of government as contemplated by our
constitutional structure." Harlow, 457 U.S. at 819-820 n.35.  As the
Tenth Circuit recently observed, allowing Bivens actions to become
"fishing expedition(s) * * * would defeat the rationale for the
qualified immunity defense." Sawyer v. County of Creek, 890 F.2d at
668.

   2. Rule 9(b) provides that "(m)alice * * * and other condition of
mind of a person may be averred generally." Fed. R. Civ. P. 9(b).
Accordingly, where the defendant's state of mind is an element of the
constitutional cause of action, the plaintiff may plead that state of
mind in general terms in his complaint.  But once the defendant
asserts his qualified immunity and moves for summary judgment (or
dismissal) on that ground, the landscape has substantially changed.

   First, where (as here) the motion is one for summary judgment, Rule
9(b) does not govern the disposition of such a motion under Fed. R.
Civ. P. 56.  In order for the plaintiff to overcome the official's
claim of immunity and to proceed with the litigation, he must present
specific, concrete facts supporting the general averment of malice or
other improper motive in his complaint.  Indeed, Rule 56(e) provides
that a party against whom summary judgment has been sought "may not
rest upon the mere allegations or denials of the adverse party's
pleading," and "by affidavits or as otherwise provided in this rule,
must set forth specific facts showing that there is a genuine issue
for trial." Fed. R. Civ. P. 56(e);  see Lujan v. National Wildlife
Fed'n, 110 S. Ct. 3177, 3188-3189 (1990).  "Where the record taken as
a whole could not lead a rational trier of fact to find for the
nonmoving party, there is no "genuine issue for trial.'" Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
/14/

   Second, when a defendant has asserted qualified immunity and moved
either for summary judgment under substantive right of qualified
immunity requires the plaintiff to present specific, concrete facts
supporting his general averment of malice or other improper motive.
The entitlement to immunity from suit -- and the attendant shield
against the burdens of discovery and further proceedings until the
court resolves the threshold issue of immunity -- would be nullified
if conclusory allegations of improper motive enabled plaintiffs to
proceed in the face of an assertion of immunity.  In these
circumstances, Rule 9(b) does not define or limit the showing that
must be made to overcome the assertion of immunity.  Cf. Elliott v.
Perez, 751 F.2d at 1479.  Nor may the Rule be invoked as a sword to
cut down the substantive scope of the qualified immunity right.

   Under the Rules Enabling Act, the Federal Rules of Civil Procedure
"shall not abridge, enlarge or modify any substantive right," 28
U.S.C. 2072(b).  See United States v. Sherwood, 312 U.S. 584, 589-591
(1941).  If Bivens actions in these circumstances are to be allowed at
all, the qualified immunity accorded to government officials -- an
immunity not only from liability but from the burdens of litigation --
can be enforced effectively only by requiring specific, non-conclusory
allegations of improper motivation.  That enforcement, and hence the
substantive right at stake, cannot be abridged by application of an
otherwise valid procedural rule.  Thus, to the extent there is any
conflict between Rule 9(b) and the right to qualified immunity -- and
for the reasons stated we do not believe there is -- Rule 9(b) must
give way to vindication of the substantive right.  Cf. Elliott v.
Perez, 751 F.2d at 1479;  Morrison v. City of Baton Rouge, 761 F.2d
242, 244 (5th Cir. 1985).

   D. Petitioner's Conclusory Allegations Of Malice Are Not Sufficient
To Overcome Respondent's Defense Of Qualified Immunity

   In this case, petitioner based his Bivens action on the claim that
in submitting an unfavorable recommendation to his prospective
employer, respondent "maliciously and in bad faith" deprived
petitioner of liberty without due process of law, in violation of the
Fifth Amendment.  J.A. 9 (Compl. Paragraph 30).  Assuming, as did the
court of appeals, Pet. App. 16a-17a, that the conduct alleged
constituted a clearly established constitutional violation if
respondent acted maliciously and in bad faith, /15/ petitioner failed
to allege specific and concrete facts raising a genuine issue
regarding the objective reasonableness of respondent's conduct.  As
the court of appeals found (Pet. App. 17a), all of petitioner's
allegations (see Br. 26-27) are entirely consistent with a former
supervisor's good faith response to a solicited recommendation.  /16/

   Petitioner asserts that the fact that respondent called him
"inept," when in past years "he had always received exemplary
evaluations at Saint Elizabeths," is itself a sufficient ground for a
jury to conclude that respondent "had acted maliciously." Br. 26.
That assertion is makeweight.  What other supervisors in the past may
have thought of petitioner's performance says nothing about
petitioner's work under respondent's supervision, let alone about
whether respondent could, without malice, refer to petitioner's work
as inept.  Thus, petitioner's assertion is the sort of weak
circumstantial allegation that does not overcome an official's defense
of immunity.  /17/ Petitioner fares no better in trying to show malice
by asserting that respondent's letter failed to respond to the
"credential information request form." Br. 27.  The request form, by
its plain language, asks for "all information on job performance and
privileges granted while (petitioner) was a member of (St. Elizabeth's
staff)." Pet. App. 55a.  A response evaluating petitioner's
performance during the past year was clearly within the scope of
petitioner's request.

   Petitioner next asserts that his "conflicts with (respondent) as to
how the behavior modification program should be run" shows the source
of respondent's malice.  Br. 27.  Those "conflicts," as petitioner
concedes, were of his own making, since he "resisted" respondent's
"attempts to modify some aspects of the * * * program." J.A. 20.  As
petitioner admits, he balked at respondent's supervision on the basis
of a self-proclaimed superior knowledge about behavior therapy.  Ibid.
 Thus, the "conflict" petitioner alleges is entirely consistent with
an accurate, good faith report on the employee's performance and does
not cast doubt on the objective reasonableness of respondent's
conduct.

   Petitioner also relies on his allegation that respondent "resented
(his) absence for several months." Br. 27.  Petitioner based that
allegation, however, solely on his "understanding." J.A. 20.  Such a
conclusory statement about respondent's state of mind, in the absence
of concrete, objective facts, amounts to nothing more than a
fainthearted attempt to bolster one conclusory statement (that
respondent was malicious) with another (that respondent was
resentful).

   In any event, petitioner admits that his official records noted
that he was "AWOL" for a considerable period of time.  J.A. 19.
Although petitioner alleges that the Worker's Compensation Board later
compensated him for the leave time, petitioner has not alleged that
respondent knew of the Board's decision when he wrote the
recommendation letter.  To the contrary, petitioner alleged that
"(h)ad (respondent) made a simple inquiry * * *, he would have
discovered that (petitioner) had been fully compensated for the
periods during which (respondent) apparently considered him 'AWOL' and
which apparently was the cause of (respondent's) belief that
(petitioner) was 'untrustworthy,' inter alia." Pet. Mem. in Support of
Opp. to Resp. Mot. to Dis., supra, at 12.  Accordingly, the undisputed
facts and petitioner's own allegations portray a supervisor who could
have honestly believed that his former employee had been away from his
hospital post without authorization.  These allegations are consistent
with a strongly worded, adverse recommendation written in good faith,
and thus do not undermine the objective reasonableness of respondent's
conduct.  /18/

   In sum, as the court of appeals found, petitioner's allegation of
malice was "unsupported by any evidence beyond innuendo." Pet. App.
17a.  The crux of petitioner's evidentiary submission is that since
respondent considered petitioner a poor employee because of his
resistance to the orders of his supervisor and his unexplained
absences from work, respondent's unfavorable recommendation must have
been malicious.  The flaw in this reasoning lies in the fact that it
is entirely consistent with an obligation of good faith to issue a
frank, unfavorable recommendation about a former employee who does not
follow orders and does not appear for work.  Accordingly, the court of
appeals correctly held that petitioner's allegations of malice did not
sufficiently negate the defense of qualified immunity to permit him to
proceed with this Bivens action.

   II. SINCE RESPONDENT ACTED IN THE PERFORMANCE OF A DISCRETIONARY
FUNCTION, HIS CONDUCT DOES NOT FALL OUTSIDE THE SCOPE OF THE QUALIFIED
IMMUNITY DEFENSE

   Under the doctrine of qualified immunity, a federal official is
entitled to that defense when he acted "in the performance of
discretionary, but not ministerial, functions." Davis v. Scherer, 468
U.S. 183, 196 n.14 (1984);  see, e.g., Harlow, 457 U.S. at 816.  As
this Court has made clear, "the scope of the 'ministerial duty'
exception to qualified immunity" is narrow.  Davis, 468 U.S. at 196
n.14.  In particular, "(a) law that fails to specify the precise
action that the official must take in each instance creates only
discretionary authority." Id. at 197 n.14.  /19/

   Here, contrary to petitioner's submission (Br. 27-29), respondent's
conduct is precisely the sort of discretionary decisionmaking
protected by the doctrine of qualified immunity.  Providing
information about the job performance of a subordinate employee
necessarily entails judgment and discretion, and petitioner does not
allege that respondent acted contrary to any specific statutory or
regulatory directive.  Indeed, the common law provides a qualified
privilege to a person who responds to a request to evaluate a former
employee because of the importance and subjective nature of such
communications.  See note 16, supra.  And the record belies
petitioner's assertion that "responding to the (Credential Information
Request) Form involved a purely administrative function of locating,
copying and sending documents referred to by the Form." Br. 28.  The
request sought "all information on (petitioner's) job performance."
Pet. App. 55a.  Such a sweeping request for information -- in the
context of enabling the Army to assess petitioner's fitness to serve
as a psychologist at one of its hospitals -- does not at all preclude
an evaluation of petitioner's job performance by his previous
supervisor.

                              CONCLUSION

   The judgment of the court of appeals should be affirmed.

   Respectfully submitted.

   JOHN G. ROBERTS, JR.

      Acting Solicitor General /20/

   STUART M. GERSON

      Assistant Attorney General

   DAVID L. SHAPIRO

      Deputy Solicitor General

   MICHAEL R. LAZERWITZ

      Assistant to the Solicitor General

   BARBARA L. HERWIG

   ROBERT M. LOEB

      Attorneys

   DECEMBER 1990

   /1/ Petitioner's supervisor at the Bremerhaven Army hospital was
Colonel William Smith, the Deputy Commander for Clinical Services, who
also served as chairman of that hospital's Credentials Committee.
Pet. App. 34a.

   /2/ Respondent's letter was made part of the record as an exhibit
attached to the affidavit of Dr. Stammeyer.  See J.A. 15.  On
respondent's motion, the district court placed the letter under seal.
Order, Siegert v. Gilley, No. 86-3234 (D.D.C. Nov. 24, 1987);  see
Pet. App. 34a.

   /3/ According to petitioner, "(n)otwithstanding the Commander's
action, * * * (his Bremerhaven supervisor) threatened to 'get'
(petitioner) in any event, and otherwise made (his) work environment
difficult, unpleasant, and extremely stressful." J.A. 7 (Compl.
Paragraph 16).  The supervisor's "attitude * * * had been formulated
by (respondent's) statement (about petitioner's previous work
performance at St. Elizabeth's)." J.A. 7 (Compl. Paragraph 17).

   /4/ Petitioner's complaint, filed in November 1986, alleged only
that he was "waiting for a decision from (the) Credentials Committee
as to whether (his) credentials will be revoked." J.A. 8 (Compl.
Paragraph 20).  In an amended complaint filed in April 1987 petitioner
offered a more complete description of the credentials review process.
 Amended Compl. Paragraph 20.  On remand from the court of appeals,
the district court dismissed the action in May 1990, without ever
ruling on petitioner's motion for leave to file the amended complaint
under Fed. R. Civ. P. 15(a).

   /5/ Petitioner also asserted pendent common law tort theories of
defamation, intentional infliction of emotional distress, interference
with contractual relations, and interference with prospective
advantage, J.A. 4, 9-11 (Compl. Paragraphs 2, 31-38).

   Respondent sought dismissal of those pendent claims, contending,
among other arguments, that he was entitled to absolute immunity from
such common law torts.  In view of its decision ordering discovery on
petitioner's Bivens claim, see p. 8, infra, the district court did not
address respondent's asserted defense.  Pet. App. 51a-52a.  In May
1989, while respondent's appeal was pending, respondent filed in the
district court a motion for reconsideration.  In that motion,
respondent notified the court that, in view of the recently enacted
Federal Employees Liability Reform and Tort Compensation Act of 1988,
Pub. L. No. 100-694, 102 Stat. 4563-4567, the United States "is being
substituted as the exclusive defendant for (petitioner's) common law
tort claims." Rep. Mem. in Support of Mot. to Reconsider at 1-2,
Siegert v. Gilley, No. 86-3234 (D.D.C.);  see 28 U.S.C. 2679(d)(1).

   The court of appeals did not expressly address petitioner's common
law claims, but having determined that his Bivens claim failed,
reversed the district court's order and remanded with instructions to
dismiss the entire case.  Pet. App. 19a;  see United Mine Workers v.
Gibbs, 383 U.S. 715, 726 (1966).  Petitioner does not challenge the
propriety of dismissing his pendent common law claims if this Court
otherwise upholds the court of appeals' judgment.

   /6/ Respondent submitted an affidavit of Dr. Stammeyer, see J.A.
14-16, which included as a sealed exhibit a copy of respondent's
recommendation letter, see note 4, supra, and a statement of material
facts not in issue under Local Rule 108(h), see J.A. 12-13.

   Respondent also contended that petitioner's action should be
dismissed in light of the administrative remedies available to him.
See Bush v. Lucas, 462 U.S. 367 (1983).  The district court rejected
that defense, concluding that "(t)here is no requirement in the law
for (the court) to relegate (petitioner) to an administrative forum,
if one actually exists, at this early stage of this litigation." Pet.
App. 51a.  The court of appeals declined to consider the issue,
concluding that its appellate jurisdiction "is limited to the sole
question of the district court's rejection of (respondent's) claim of
qualified immunity." Id. at 10a.

   /7/ Petitioner also submitted under Local Rule 108(h) a statement
of material facts in issue.  See J.A. 17-18.  At that time, petitioner
also filed an amended complaint, together with a motion for leave to
file it.  See note 4, supra.

   /8/ Petitioner had not contended that respondent's motion for
summary judgment should be denied pending further discovery.  Nor had
petitioner filed a motion under Fed. R. Civ. P. 56(f) for additional
discovery.

   /9/ See Doe v. United States Dep't of Justice, 753 F.2d 1092 (D.C.
Cir. 1985) (discharge of government employee accused of misconduct by
supervisors);  Bartel v. FAA, 725 F.2d 1403 (D.C. Cir. 1984) (former
supervisor sent unsolicited references to prospective employer).

   /10/ The court of appeals later denied a petition for rehearing,
together with a suggestion of rehearing en banc.  Pet. App. 2a-3a.  On
remand from the court of appeals, the district court dismissed
petitioner's action in its entirety on May 7, 1990.  Pet. App. 1a.

   /11/ See, e.g., Sawyer v. County of Creek, 908 F.2d 663, 665-667
(10th Cir. 1990);  Dunbar Corp. v. Lindsey, 905 F.2d 754, 763 (4th
Cir. 1990);  Nieto v. San Perlita Indep. School Dist., 894 F.2d 174,
177-178 (5th Cir. 1990);  Nuclear Transport & Storage, Inc. v. United
States, 890 F.2d 1348, 1355 (6th Cir. 1989), cert. denied, 110 S. Ct.
1807 (1990);  Brown v. Frey, 889 F.2d 159, 170 (8th Cir. 1989), cert.
denied, 110 S. Ct. 1156 (1990);  Hobson v. Wilson, 737 F.2d 1, 29
(D.C. Cir. 1984), cert. denied, 470 U.S. 1084 (1985).

   /12/ For that reason, petitioner's assertion (Br. 20-22) that the
mere allegation of malice as an element of the constitutional claim
defeats the official's asserted immunity cannot be squared with Harlow
and this Court's treatment of the qualified immunity doctrine.

   /13/ Petitioner's amicus contends (ACLU Br. 11-14) that the court
of appeals erred in holding that a plaintiff may not show improper
motivation by circumstantial, as opposed to direct, evidence.  To be
sure, the court of appeals did say that "unconstitutional motive * * *
must be pleaded with specific discernible facts or offers of proof
that constitute direct as opposed to merely circumstantial evidence of
the intent." Pet. App. 14a.  But as this Court has recognized,
"(c)ircumstantial evidence * * * is intrinsically no different from
testimonial evidence," Holland v. United States, 348 U.S. 121, 140
(1954), and we do not think the court of appeals' opinion, which
focused primarily on the conclusory nature of petitioner's assertions,
must be read to conflict with that holding.  Nor is any distinction
between "circumstantial" and "direct" proof, as those terms are
understood in the law of evidence, necessary to the resolution of this
case.

   In our view, the heart of the court of appeals' analysis was that
once the defendant has raised the immunity issue, the plaintiff may
not rely solely on subjective allegations (e.g., the defendant
disliked or resented the plaintiff and therefore his unfavorable
recommendation was false and malicious), attenuated inferential and
circumstantial allegations (e.g., the defendant is a Democrat and
therefore fired the plaintiff because he was a Republican), or
otherwise conclusory allegations (e.g., the defendant's actions show
his malice), to support a claim of improper motive.  Rather, the
plaintiff must set forth objective facts that are "specific and
concrete" and "raise a genuine issue as to the objective
reasonableness" of the defendant's conduct.  Smith v. Nixon, 807 F.2d
at 201.  That analysis, for the reasons set forth above, is dictated
by the purposes and scope of the qualified immunity doctrine.

   /14/ A plaintiff who is unable to make the required showing can
resist summary judgment only by filing an affidavit under Fed. R. Civ.
P. 56(f) specifying why discovery is necessary.  As the Tenth Circuit
has explained,

      in response to a summary judgment motion based on qualified
      immunity, a plaintiff's 56(f) affidavit must demonstrate "how
      discovery will enable (him) to rebut a defendant's showing of
      objective reasonableness" or, stated alternatively, demonstrate
      a "connection between the information he would seek in discovery
      and the validity of the (defendant's) qualified immunity
      assertion."

Lewis v. City of Ft. collins, 903 F.2d 752, 758 (1990) (quoting Jones
v. City and County of Denver, 854 F.2d 1206, 1211 (10th Cir. 1988)).

   In this case, no such affidavit was submitted.  Moreover, this
Court's statement in Creighton, 483 U.S. at 647 n.6 -- that in certain
circumstances discovery "tailored specifically to the question of (the
defendant's) qualified immunity" "may be necessary before (the
defendant's) motion for summary judgment on qualified immunity grounds
can be resolved" -- does not support additional discovery on the
record presented.  As the court of appeals explained (Pet. App. 18a),
in Creighton the Court was referring to a case in which the plaintiff
and the defendant presented differing versions of the defendant's
conduct.  See 483 U.S. at 646-647 n.6.  Here, by contrast, there is no
dispute that respondent composed and sent the unfavorable
recommendation letter;  the only disputed question is whether he did
so with impermissible motivation and intent.  Nothing in Creighton
suggests that petitioner may pursue discovery -- certainly not in the
absence of the particular showing required by a Rule 56(f) affidavit
-- in the hope of garnering support for his otherwise unsupported
belief that respondent sent the letter in bad faith.

   /15/ In view of the procedural opportunities afforded to
petitioner, see note 16, infra, we do not believe that any such
violation could be established.

   /16/ Petitioner (Br. 17-20) and his amicus (ACLU Br. 8-11) contend
that, even without any proof or allegation of malice, respondent's
conduct violated a clearly established constitutional right, and thus
the court of appeals erred in ordering the case dismissed.  That
contention -- which was not presented as a question for review in the
certiorari petition (Pet. i;  see Br. i), was mentioned there only in
passing (Pet. 19-20 n.27), and is scarcely related to the questions on
which the Court granted certiorari -- is not properly before the
Court.  S. Ct. Rules 21.1(a) and 24.1(a);  see, e.g., Berkemer v.
McCarty, 468 U.S. 420, 443 n.38 (1984);  J.I. Case Co. v. Borak, 377
U.S. 426, 438-429 (1964).

   In any event, the contention is meritless.  First, in order for an
allegation of defamation to state a claim under the Due Process
Clause, the plaintiff must sufficiently allege that the governmental
actor's conduct deprived him of a protected liberty interest greater
than an injury to reputation, see Paul v. Davis, 424 U.S. 693, 708-709
(1976), and that the actor's conduct denied him adequate process,
i.e., "an opportunity to clear his name," Codd v. Velger, 429 U.S.
624, 624 (1977) (quoting Board of Regents v. Roth, 408 U.S. 564, 573
n.12 (1972)).  Here, on the basis of petitioner's own concessions, it
is evident that he had such an adequate opportunity, through the
administrative review process provided by the Army and HHS, to "refute
(respondent's) charges and clear (his) name." Doe v. United States
Dep't of Justice, 753 F.2d 1092, 1112 (D.C. Cir. 1985);  see J.A. 7-8,
22.  And petitioner may not avoid this straightforward application of
the law by now sounding his constitutional claim in "substantive due
process." Br. 17.  This Court has never held that the Due Process
Clause contains a substantive right -- independent of the adequacy of
procedures for redress -- to be free from a government actor's
stigmatizing defamation.

   Second, respondent's conduct did not violate clearly established
law, since as the court of appeals pointed out (Pet. App. 15a-16a),
there were no decisions holding that a recommendation in response to
an inquiry from another government agency could be actionable absent a
finding of malice.  Cf. Hannon v. Turnage, 892 F.2d 653, 660 (7th
Cir.), cert. denied, 111 S. Ct. 69 (1990).  Indeed, at common law, a
party who responds to a solicitation by warning a present or
prospective employer about the misconduct or bad character of an
employee is generally immune from suit in the absence of malice.  See,
e.g., Prosser & Keeton on the Law of Torts Section 115, at 827-828
(5th ed. 1984);  Henderson v. Teamsters Union, Local 313, 90 Wash. 2d
666, 585 P.2d 147 (1978);  Burdett v. Hines, 125 Miss. 66, 87 So. 470
(1921).

   /17/ On this record, respondent's use of the term "inept" cannot
bear the weight petitioner would have it carry.  Petitioner admitted
that he resisted his supervisor's command and that his official
records showed him to have been on unauthorized leave for prolonged
periods.  See J.A. 19-20.  Moreover, respondent was not alone in
taking a dim view of petitioner's performance.  HHS considered his
work unacceptable and therefore officially proposed firing him.  See
J.A. 15;  see also J.A. 21.

   /18/ Petitioner also contends (Br. 27) that the allegedly
defamatory statement itself -- respondent "consider(ed) (petitioner)
to be both inept and unethical, perhaps the least trustworthy
individual (he has) supervised," J.A. 6 (Compl. Paragraph 11) -- shows
malice.  That single statement from respondent's recommendation
letter, although using frank language, does not in itself raise any
doubt about the accuracy of respondent's opinion or the objective
reasonableness of respondent's conduct.  Cf. Milkovich v. Lorain
Journal Co., 110 S. Ct. 2695, 2709-2710 (1990) (Brennan, J.,
concurring).  And taken in the context of this record, respondent's
statement is entirely consistent with an obligation of good faith.

   /19/ Petitioner's reliance (Br. 28-29) on Westfall v. Erwin, 484
U.S. 292 (1988), is off the mark.  In Westfall, this Court held that a
federal employee sued for damages on a common law tort theory is not
entitled to absolute immunity from suit unless the challenged conduct
is discretionary in nature.  Id. at 297-298.  That holding has no
bearing here because the question of absolute immunity from common law
claims is not at issue.  See also note 5, supra.  In any event, this
Court has never suggested, in Westfall or any other decision, that the
discretion standard applicable to claims of absolute immunity obtains
in the qualified immunity context.

   /20/ The Solicitor General is disqualified in this case.